Judge: Michelle Williams Court, Case: 22STCV02703, Date: 2022-08-12 Tentative Ruling

Case Number: 22STCV02703    Hearing Date: August 12, 2022    Dept: 74

22STCV02703         SUCHA NICOLOSI, et al. vs DANIELLE M FARINA

OSC re Entry of Default Judgment

Background

On January 24, 2022, Plaintiffs Sucha Nicolosi and Claudio Nicolosi filed this action against Defendant Danielle Farina. The Judicial Council form complaint asserts a single cause of action for breach of contract based upon Defendant’s alleged failure to repay a promissory note.

On June 23, 2022, the Court issued an order notifying Plaintiffs’ that the Court required a certified copy of the promissory note at issue.

On July 5, 2022, Plaintiffs filed the “Declaration of Sucha Nicolosi and Claudio Nicolosi on Affidavit of Filing Promissory Note.”

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.)

Discussion

Proof of Service of Process: Proof of Personal Service filed January 27, 2022.

Entry of Default: Entered on May 9, 2022.

Prove Up: Plaintiffs seek entry of judgment against Defendant in the amount of $875,000.00.

“[T]he plaintiff must affirmatively establish his entitlement to the specific judgment requested.” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287. See also Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 302 (“Plaintiffs in a default judgment proceeding must prove they are entitled to the damages claimed.”).) “It is, of course, the case that there is no opposing party in a default judgment situation. Thus, cases properly recognize that in such situation it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through.”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 691.)

In the breach of contract cause of action, Plaintiffs’ complaint alleges “Written Contract was entered into on Jan. 17, 2018 in the amount of $995,000.00. Defendant was to pay $2500.00 on the first of each month. Defendant continued to make payments in good faith from Jun. 17, 2018 until May 2021. Since May of 2021 Defendant has not made a single payment. Per the contract we are suing to enforce the balance due in full; $875,000.00.” (Compl. ¶ BC-1.)

The declaration of Sucha Nicolosi filed on July 5, 2022 attaches “a true and correct copy of the promissory note that the parties entered into on May 1, 2020.” (S. Nicolosi Decl. ¶ 3.)

The attached promissory note is inconsistent with the allegations in the complaint. The complaint alleges the parties entered into a written agreement on January 17, 2018, yet Plaintiffs provided a promissory note dated May 1, 2020. The complaint alleges the note amount was $995,000.00, yet the May 1, 2020 promissory note is for $875,000.00. The complaint alleges monthly installment payments of $2,500.00, yet the May 1, 2020 promissory note requires monthly installments of $5,000.00. (S. Nicolosi Decl. ¶ 3 Ex. 1 § I.A. Payments (“The unpaid principal shall be payable in monthly installments of $5,000.00, beginning on June 1, 2020, and ending January 1, 2035, (the ‘Due Date’) at which time the remaining unpaid balance of the Note shall be due in full.”).)

More importantly, the terms of the May 1, 2020 promissory note provided by Plaintiffs as evidencing their claim does not establish any right to damages in their favor. Specifically, the May 1, 2020 promissory note identifies Plaintiffs, not Defendant, as the Borrower and requires Plaintiffs, not Defendant, to make monthly payments:

For value received, the undersigned Sucha and Claudio Nicolosi of 708 Prescott Lane, Foster City, California 94404 (the “Borrower”), promises to pay to the order of Daniela Farina of 555 N. Spring St., Los Angeles, California 90012 (the “Lender”), the sum of $875,000.00 with no interest.

(S. Nicolosi Decl. ¶ 3 Ex. 1.) The terms of the promissory note define a default as “the failure of the Borrower (defined as Plaintiffs Sucha and Claudio Nicolosi) to pay the principal and any accrued interest when due.” (S. Nicolosi Decl. ¶ 3 Ex. 1 § IV subd. (1).) The Lender, defined as Defendant Farina, is granted the ability to accelerate the debt, not Plaintiffs. (Id. § I.B. (“If any payment obligation under this Note is not paid when due, the remaining unpaid principal balance and any accrued interest shall become due immediately at the option of the Lender.”).)

Accordingly, Plaintiffs are not entitled to any payments under the May 1, 2020 promissory note provided any have not demonstrated their entitlement to the damages claimed.

The request for entry of default judgment is DENIED and the case is DISMISSED.