Judge: Peter A. Hernandez, Case: 22PSCV00248, Date: 2022-07-28 Tentative Ruling

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Case Number: 22PSCV00248    Hearing Date: July 28, 2022    Dept: O

Plaintiff Cindy Lo’s Application for Default Judgment is DENIED without prejudice.

 

Background   

 

Plaintiff Cindy Lo (“Plaintiff”) alleges as follows:

 

On June 23, 2020, Plaintiff signed a “floor plan only” service agreement with Treeium Inc. (“Treeium”) with respect to Plaintiff’s residential property located at 1986 La Mesita Dr., Hacienda Heights, CA 91745 (“subject property”); Plaintiff made all payments in accordance with said agreement and Treeium provided the floor plan. On August 4, 2020, the parties entered into a second service agreement, wherein Treeium agreed to provide a full set of blueprints of the subject property, including the floor plan and full set of engineerings as needed until city approval, in exchange for Plaintiff’s payment of $40,000.00 (which subsequently increased to $54,500.00 via two change orders); the start date was August 8, 2020 and date of substantial completion was April 28, 2021. Treeium failed to disclose that it, as a B General Building contractor, was not qualified to provide the aforesaid service. After execution of the August 4, 2020 service agreement, Plaintiff repeatedly requested progress updates but was kept in the dark until 7 months had past since the agreed substantial completion date. In November 2021 Plaintiff first learned that Treeium had outsourced the work and that the exterior architect and Treeium had parted ways. Plaintiff requested cancellation of the service agreement and a refund, but Treeium refused the refund.

 

On March 16, 2022, Plaintiff filed a complaint, asserting causes of action against Treeium and Does 1-10 for:

 

  1. Fraud

  2. Breach of Contract

  3. Breach of Implied Covenant of Good Faith and Fair Dealing

  4. Negligent Hiring, Supervision and Retention

 

On May 3, 2022, Treeium’s default was entered.

 

A Case Management Conference and an Order to Show Cause Re: Failure to File Proof of Service are set for July 28, 2022.


Discussion

 

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

 

  1. Plaintiff references, but fails to attach, the parties’ August 4, 2020 service agreement. Plaintiff is requested to provide same to the court.

  2. Plaintiff’s proposed judgment reflects that Plaintiff is seeking $50,500.00 in punitive damages. Plaintiff does not reference punitive damages anywhere on its Request for Entry of Default Judicial Council form CIV-100. Further, to preserve the right to seek punitive damages as part of a default judgment, a plaintiff must serve defendants with a Code of Civil Procedure § 425.115 statement. The § 425.115 statement must be served “before a default may be taken, if the motion for default judgment includes a request for punitive damages” and “in the same manner as a summons” in the event a party has not appeared in the action. (Code Civ. Proc. § 425.115, subds. (f) and (g)(1).) Here, there is no indication that a § 425.115 statement has been served. Additionally, no information regarding defendants’ financial status has been provided. (Kelly v. Haag (2006) 145 Cal.App.4th 910, 915 [“The California Supreme Court has declined to prescribe any particular standard for assessing a defendant’s ability to pay punitive damages, but it has held that actual evidence of the defendant's financial condition is essential”].)

It appears Plaintiff seeks to recoup monies paid which predate the August 4, 2020 contract (i.e., $400.00 paid June 23, 2020 and $2,500.00 paid July 2, 2020). An explanation is needed in this regard.