Judge: Peter A. Hernandez, Case: 21PSCV00813, Date: 2022-07-25 Tentative Ruling

Case Number: 21PSCV00813    Hearing Date: July 25, 2022    Dept: O

Plaintiff Kramer, Fox & Associates, Inc.’s Application for Default Judgment is DENIED

without prejudice.

 

Background   

 

Plaintiff Kramer, Fox & Associates, Inc. (“Plaintiff”) alleges as follows: On or about July 13, 2021, Plaintiff entered into a written agreement with Custom Cabinets and Doors Inc. (“CCDI”) and Jorge Raygoza aka George Raygoza (“Raygoza”). CCDI and Raygoza have failed to make the payments due per the terms of the agreement.

 

On October 7, 2021, Plaintiff filed a complaint, asserting causes of action against CCDI, Raygoza and Does 1-10 for:

 

  1. Breach of Contract

  2. Common Counts

 

On January 25, 2022, CCDI’s and Raygoza’s defaults were entered.

 

An Order to Show Cause Re: Default Judgment is set for July 25, 2022.

 

Discussion

 

Plaintiff’s Application for Default Judgment is denied without prejudice. The following defects are noted:

 

  1. Plaintiff has failed to articulate any basis for attorney’s fees.

  2. The “Payout Agreement and Release” attached as Exhibit A to the Declaration of

Michael B. King (“King”) provides as follows:

 

Default. (a) The parties hereby agree that if the full Original Amount is not paid in full by April 10, 2024, then CUSTOM CABINETS AND DOORS INC & JORGE RAYGOZA INDIVIDUALLY shall be liable for: (i) the full amount of $71,255.81 (Default Amount), representing the principal amount claimed plus interest and penalties by KRAMER, FOX & ASSOCIATES, INC. prior to the execution of this Agreement, less (ii) all amounts paid by CUSTOM CABINETS AND DOORS INC & JORGE RAYGOZA INDIVIDUALLY to KRAMER, FOX & ASSOCIATES, INC. after the date of this Agreement.

 

(b) If CUSTOM CABINETS AND DOORS INC & JORGE RAYGOZA INDIVIDUALLY fails to make any installment payment by the 20th of the month, then KRAMER, FOX & ASSOCIATES, INC. shall have the option of giving notice of default to CUSTOM CABINETS AND DOORS INC & JORGE RAYGOZA INDIVIDUALLY. If all sums due prior to the date of such notice, is given, are not received by the Agents Office on or before the fifth calendar day after such notice date, then all unpaid amounts of the Default Amount shall become due and payable immediately. . . “ (Emphasis added.)

 

King does not address whether or not notice of default was given to CCDI and Raygoza, let alone attach any evidence of same.