Judge: Peter A. Hernandez, Case: 21PSCV00337, Date: 2022-08-16 Tentative Ruling
Case Number: 21PSCV00337 Hearing Date: August 16, 2022 Dept: O
Plaintiff Xue Ji’s Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff Xue Ji (“Plaintiff”) alleges as follows:
Plaintiff was an international student. Plaintiff’s parents decided to gift her money to purchase a house. Plaintiff and Zhili Song (“Song”) were social acquaintances. In June 2017, Plaintiff mentioned to Song that it was her intention to purchase a house in the United States. Song advised Plaintiff that he owned and operated a state-licensed international money transfer business and offered to assist Plaintiff in transferring large sums of money without triggering the $50,000.00 foreign money-transfer limitation placed by the Chinese government. On or about July 6, 2017, Plaintiff and Song entered into an oral agreement, wherein Plaintiff’s relatives in China would wire a total of 2,271,520 RMB to a Chinese bank account designated by Song, and Song would thereafter wire $335,642.22 to Plaintiff at an exchange rate of about 0.148 from RMB to USD. Song would be compensated for his services based on the aforesaid exchange rate. Between July 25, 2017-August 4, 2017, Plaintiff’s relatives transferred monies to Song’s bank accounts. On May 22, 2017, Plaintiff opened a Cathay Bank account with an initial deposit of $555.00 and, between July 25, 2017-September 25, 2017, received five wire transfers from five different individuals totaling $214,000.00; Song told Plaintiff these individuals were his money-transferring company’s employees. Plaintiff also personally made two cash deposits of $120,000.00 to her account during this time. On August 2, 2017, Plaintiff opened an HSBC Bank account in her own name; that same day, $120,000.00 was transferred from an HSBC Bank account held in the name of Dianwei Wang (“Wang”) to Plaintiff’s HSBC account. Song told Plaintiff that Wang was also working for him. On November 29, 2017, FBI special agents seized $120,002.30 from Plaintiff’s HSBC Bank account. On April 11, 2018, the U.S. Marshal Services seized $335,640.22 from Plaintiff’s Cathay Bank account. On August 22, 2019, the United States filed a civil forfeiture action against the funds seized from Plaintiff’s account (i.e., Case No. No.2:19-cv-07288). The U.S. attorney alleged therein that the seized funds were proceeds traceable to Song's various banking and fraud schemes and thus subject to civil asset forfeiture. Case No. No.2:19-cv-07288 is currently stayed pending the FBI's ongoing criminal investigation against Song's criminal activities. Case No. No.2:19-cv-07288 asserts that Song and his companies engaged in various romance scams, BEC scams, and unlicensed and illegal money transmitting and money services businesses. The five individuals who wired $214,000.00 to Plaintiff’s Cathay Bank account are believed to be victims of Song’s romance scam; Wang also might be such a victim.
On April 29, 2021, Plaintiff filed a complaint, asserting causes of action against Song and Does 1-50 for:
Fraud
Breach of Contract
Unjust Enrichment
On February 10, 2022, Song’s default was entered.
On March 21, 2022, a writ of attachment was issued.
An Order to Show Cause Re: Default Judgment is set for August 16, 2022.
Discussion
Plaintiff’s Application for Default Judgment is denied without prejudice. The following defects are noted:
1. Paragraph 2.a. of Plaintiff’s Request for Entry of Default Judicial Council Form CIV-100 lists the “[d]emand of complaint” as “$455,652.55.” Further, Paragraph 2.c. of the same document seeks $646,405.85 in interest. “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115. . .” (Code Civ. Proc., § 580, subd. (a).) “If a default judgment awarded against a defendant exceeds the relief demanded in the complaint, or is a different form of relief than demanded in the complaint, the defendant is ‘effectively denied a fair hearing [citations]. (Stein v. York (2010) 181 Cal.App.4th 320, 326, quoting Matera v. McLeod (2006) 145 Cal.App.4th 44, 61 [internal citations omitted].) In actions for money damages a default judgment is limited to the amount demanded in the complaint. (See Greenup v. Rodman (1986) 42 Cal.3d 822, 824.) The amount demanded in the complaint is determined both from the prayer and from the damage allegations in the complaint. (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417-418).
Plaintiff’s complaint identifies that on November 29, 2017, FBI special agents seized $120,002.30 from Plaintiff’s HSBC bank account and that on April 11, 2018, U.S. Marshal Services seized an additional $335,640.22 from Plaintiff’s Cathay bank account. (Complaint, ¶¶ 21 and 22.) These two amounts total $455,642.52. There are no other specific damages amounts set forth in the complaint. Further, Plaintiff does not seek interest in her complaint.
2. Paragraph 2.d. of Plaintiff’s Request for Entry of Default Judicial Council Form CIV-100 lists “[i]nterest” as “$0.” Paragraph 7 of the aforesaid form, however, identifies costs as “$759.8,” as does Paragraph 6.a.(4) of the Proposed Judgment Judicial Council Form JUD-100. This discrepancy must be reconciled.
3. It appears to the court that portions of Plaintiff’s lawsuit may be time-barred, as per the allegations set forth in ¶¶ 21 and 22.). The statute of limitations for fraud and unjust enrichment is three years. (Code Civ. Proc., § 338, subd. (d).) The statute of limitations for breach of an oral contract is two years. (Code. Civ. Proc., § 339.) Plaintiff filed her complaint on April 29, 2021. Plaintiff is requested to brief this issue for the court.
4. Plaintiff has failed to attach any documentary evidence to her declaration in support of Paragraphs 4-8.
5. Plaintiff has not submitted a declaration from her uncle, Zhiyong Tan, regarding his purported write of 685,000 RMB to Song’s bank account on or about July 25, 2017.