Judge: Peter A. Hernandez, Case: 21PSCV00829, Date: 2024-07-08 Tentative Ruling

Case Number: 21PSCV00829    Hearing Date: July 8, 2024    Dept: K

Plaintiff Chang Shun Zhao’s Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff Chang Shun Zhao (“Zhao”) alleges as follows:

Zhao is the owner of the property located at 11310 Frankmont Street in El Monte, California, 91732 (the “Residence”). On or about March 16, 2020, Zhao entered into one or more agreements with George Chen aka Chun Hsu Chen (“Chen”) and Great Chens Inc. (“GCI”) wherein Chen and GCI agreed to provide construction, renovation, and landscaping work on the Residence. Chen and GCI instead performed substandard and incomplete work, stole money that was prepaid to them, failed to pay subcontractors and abandoned personal property at the Residence.

On December 16, 2021, Zhao filed a First Amended Complaint (“FAC”), asserting causes of action against Chen, GCI, Hudson Insurance Company (“Hudson”) and Does 1-50 for:

1.                  Breach of Contract

2.                  Breach of the Covenant of Good Faith and Fair Dealing

3.                  Negligence

4.                  Trespass

5.                  Money had and Received

6.                  Unjust Enrichment

7.                  Contractor’s License Bond

On January 5, 2022, Hudson filed a cross-complaint, asserting a cause of action against Chen, GCI and Roes 1-100 for:

1.                  Declaratory Relief

On August 11, 2022, the court granted Zhao’s motion to strike Chen’s answer, with 20 days’ leave to amend.

On September 26, 2022, Chen’s default was entered.

On February 27, 2023, Zhao dismissed GCI, without prejudice. On March 29, 2023, Hudson dismissed GCI, without prejudice.

On September 21, 2023, Hudson dismissed its cross-complaint, without prejudice. On September 25, 2023, Zhao dismissed Hudson, with prejudice.

An Order to Show Cause Re: Default Judgment as to Chen is set for July 8, 2024.

Discussion

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

1.         Zhao has failed to dismiss Does 1-50, nor has he filed an application for separate judgment as against any of them, as per CRC rule 3.1800, subdivision (a)(7).

2.                  Zhao identifies the [d]emand of complaint” in Paragraph 2 of the Request for Court Judgment (Judicial Council Form CIV-100) as $329,800.00, which amount is comprised of $310,000.00 (represented to be all money Zhao paid Chen) plus $19,800.00 for the loss of use of his residence (i.e.., calculated at $1,650.00/month (x) 12 months). 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).

In his FAC, Zhao represents that he “prepaid” Chen and GSI $310,000.00 “as of the date of Defendants’ having walked off the job” (FAC, ¶ 19); however, he subsequently alleges that he obtained an estimate of $125,942.00 “to repair, remedy and complete the project that Defendants abandoned” (Id., ¶ 24), that Defendants were “holding approximately $63,000-$70,000 of unearned, pre-paid cash for work that was not performed” as of July 20, 2021 (Id., ¶ 26) and that he “has been damaged to the tune of at least $248,542, the amount he overpaid the Defendants plus, the cost of repair, remedy, and completion of the project” (Id., ¶ 35). Zhao reiterates the figure of $248,542.00 in Paragraphs 40, 44 and 52 of the FAC. Zhao does not make any allegations of loss of use damages in his FAC.
It appears to the court, then, that “the demand of the complaint” is $248,542.00 and not $329,800.00.

It appears, from the instant default prove-up application, that Zhao seeks a return of the entire $310,000.00 based on Zhao’s position that Chen should be treated as an unlicensed contractor (See Summary of the Case, pp. 5-6). Zhao concedes that Chen “apparently has a license under the name of ‘George C.I. Chen’” (Id., footnote 1), but claims this treatment is warranted because Chen only provided and tried to use the name of GCI for the subject work even though he had no authority to do so and because he only provided and tried to use the name of GCI for the subject work (Id., p. 6). Zhao has failed to provide the court with any authority in support of its position. The fact remains that work was, in fact, performed by Chen, who was a licensed contractor.

Zhao alternatively seeks a reduced principal amount of $91,800.00, calculated as follows: $19,800.00 for loss of use of property, plus $9,000.00 for work he performed, plus $63,000.00 for work that was paid for but not done by Chen. Again, Zhao did not seek loss of use damages in his FAC. Zhao does not provide the court with any evidentiary support for his statement that he expended $11,000.00 of his own time performing repairs. (See Chao Decl., ¶¶ 15 and 16). Zhao does not provide the court with any information as to what work remained when Chen purportedly walked off the job.

3.         Zhao contends that he paid Chen approximately $223,196.00 in cash (See Zhao Decl., ¶¶ 8-10). Zhao has not provided the court with any evidence of same (i.e., via bank statements).

4.         Zhao references certain exhibits to the FAC, which is not verified. Zhao must attach any such exhibits to his declaration and authenticate same.