Judge: Michelle Williams Court, Case: 21STCV46668, Date: 2022-08-09 Tentative Ruling
Case Number: 21STCV46668 Hearing Date: August 9, 2022 Dept: 74
21STCV46668 JEFF
FAN vs MARIO FLORES
OSC re Entry of Default Judgment
TENTATIVE RULING:
The OSC is continued to August 24, 2022 at 8:30 a.m. Plaintiff has demonstrated a right to damages
in the amount of $10,722.67 consisting of the funds paid by the tenants to
Defendants, but not remitted to Plaintiff and the return of funds paid for
management services which were not rendered. Specifically, Plaintiff has
demonstrated a right to damages based upon the $3,999.00 security deposit,
$3,999.00 for August 2021 rent, $2,025.67 for the portion of September 2021
rent, $299.00 for the portion of October 2021, and $400.00 for services not
provided. Plaintiff must provide a new
judgment consistent with damages of $10,722.67 as well as new calculations for
prejudgment interest and attorneys’ fees consistent with this damage amount.
Background
On December 22, 2021, Plaintiff Jeff Fan filed a
complaint against Mario Flores dba The Home Management Group, and Allstate
Investment Group, Inc., dba Home Management Company. The complaint asserted
causes of action for: (1) constructive fraud, (2) fraudulent concealment, (3)
fraudulent inducement/misrepresentation, (4) breach of contract, (5) breach of
contract, (6) breach of the implied covenant of good faith and fair dealing,
and (7) negligence, (8) violation of Business & Professions Code §§ 17200,
et seq., and (9) declaratory relief. The complaint alleges that Plaintiff
entered into a Property Management Agreement with Defendant HMC for the
management of the Subject Property. In 2021, Defendant Flores began a
management company and the HMC’s file for management was transferred to Flores’
company, THMG. Later, Flores represented those two tenants wanted to rent the
Subject Property. However, Plaintiff alleges that the rental agreement was not
signed by Tenants, but rather Flores so as to have Flores pocket extra rental
income.
On
May 24, 2022, the Court issued an order on Plaintiff’s initial default judgment
package directing Plaintiff “to file declarations regarding damages calculation
and interest calculation [and] . . . to re-calculate attorneys fees in
compliance with LASC Local Rule 3.214.”
Plaintiff
filed supplemental documents on June 28, 2022.
Legal Standard
Code
of Civil Procedure section 585 permits entry of a judgment after a Defendant
fails to timely answer following proper service of process. A party seeking
judgment on the default by the Court must file a Request for Court Judgment,
and provide: (1) a brief summary of the case; (2) declarations or other
admissible evidence in support of the judgment requested; (3) interest computations
as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form
of judgment; (6) a dismissal of all parties against whom judgment is not
sought; (7) a dismissal of all parties against whom judgment is not sought or
an application for separate judgment under Code of Civil Procedure section 579,
supported by a showing of grounds for each judgment; (8) exhibits as necessary;
and (9) a request for attorneys’ fees if allowed by statute or by the agreement
of the parties. (Cal. R. Ct., rule 3.1800(a).)
Discussion
Proof of Service: Filed on
January 19, 2022 indicating personal service upon Defendant Flores and
substitute service upon Allstate Investment Group, Inc.
Entry of Default: February
28, 2022 as to both Defendants.
Requested Judgment: Plaintiff seeks entry of judgment
against Mario Flores and Allstate Investment Group, Inc. in the amount of
$33,070.74 consisting of the following:
-
Damages: $30,099.25
-
Interest:
$967.06
-
Costs:
$711.43
-
Attorneys’
Fees: $1,293.00
Plaintiff’s Supplemental Documents are
Insufficient to Support the Judgment Sought
In
his initial default judgment package, Plaintiff sought $21,065.00 in damages
and $11,610.00 in attorneys’ fees.
On
June 28, 2022, Plaintiff filed supplemental documents in response to the issues
raised in the Court’s May 24, 2022 order. Plaintiff reduced the claimed
attorneys’ fees consistent with Local Rule 3.214 and provided a calculation of
the damages and interest claimed.
Plaintiff
improperly claims $9,378.85 in damages for 65 hours of his personal “time spent
working to resolve the legal issues resulting from the fraudulent conduct of
Defendants” based upon Plaintiff’s claimed “hourly compensation in his role as
Director of Finance” for a “nationally recognized company.” (Tatone Decl. ¶ 17(e);
Fan Decl. ¶ 24(e).).) Plaintiff also seeks $8,657.40 for five hours per month
of his time going forward. (Id. ¶ 17(f).) Plaintiff is not entitled to
compensation for his personal time. Plaintiff is a salaried employee and
therefore is not losing compensation based upon his time spent managing his own
property. (Tatone Decl. ¶ 17(e); Fan Decl. ¶ 24(e).) Additionally, Plaintiff’s
claimed level of compensation as a Director of Finance is not a proper measure
of damages. These damages must be removed.
Plaintiff
seeks $1,341.00 in damages based upon his unilateral decision to charge tenants
$149.00 less in rent “as a concession for what TENANTS were subjected to as a
result of DEFENDANTS’ fraudulent dealings and fraudulent conduct.” (Fan Decl. ¶
24(d).) These are not consequential damages caused by Defendants’ fraud and
must be removed.
Plaintiff
has demonstrated a right to damages in the amount of $10,722.67 consisting of
the funds paid by the tenants to Defendants, but not remitted to Plaintiff and
the return of funds paid for management services which were not rendered.
Specifically, Plaintiff has demonstrated a right to damages based upon the $3,999.00
security deposit, $3,999.00 for August 2021 rent, $2,025.67 for the portion of
September 2021 rent, $299.00 for the portion of October 2021, and $400.00 for
services not provided.
Plaintiff
must provide a new judgment consistent with damages of $10,722.67 as well as
new calculations for prejudgment interest and attorneys’ fees consistent with
this damage amount.