Judge: Peter A. Hernandez, Case: 22PSCV02679, Date: 2023-08-04 Tentative Ruling

Case Number: 22PSCV02679    Hearing Date: October 3, 2023    Dept: K

Plaintiff AGN Logistics LLC’s Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff AGN Logistics LLC (“Plaintiff”) alleges as follows:

On or about April 2021, Plaintiff entered into several oral and written agreements (“Agreements”) with Defendants V12 Health LLC (“V12 Health”), V12 Forza LLC (“V12 Forza”), V12 Mask LLC (“V12 Mask”), Tarek Kirschen (“Kirschen”), Monique Hewitt (“Hewitt”), and Barbara Beoto (“Beoto”) (collectively, “Defendants”), whereby Plaintiff agreed to provide storage, logistics and consulting services to Defendants. Defendants have failed to make payment to Plaintiff under the Agreements.

On December 9, 2022, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-100 for:

1.                  Breach of Contract

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

On April 6, 2023, V12 Health’s, V12 Forza’s, V12 Mask’s and Kirschen’s defaults were entered.

On June 13, 2023, Plaintiff dismissed Hewitt, Beoto and Does 1-100; that day, Plaintiff filed a “Notice of Errata Re: Unsigned Complaint.”

An Order to Show Cause Re: Default Judgment is set for October 3, 2023.

Discussion

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

1.                  Plaintiff’s complaint alleged, without more, that “[o]n or about April 2021, Plaintiff and Defendants entered into several oral and written agreements. . .” (Complaint, ¶ 15). There are three limited liability company defendants and one individual defendant remaining. Plaintiff is a limited liability company. Plaintiff’s manager Jason Becker (“Becker”) now attests that there was only “one on-going oral agreement.” (Becker Decl., ¶ 2). Becker further attests that “[Plaintiff] believes it entered into the Agreement with Defendant HEALTH but is unsure due to KISCHEN’s actions and use of various alter egos including FORZA and MASK.” (Id., ¶ 4). Becker does not identify the individual who entered into the above agreement on behalf of Plaintiff. Further, Becker’s alter ego statements are conclusory, unsupported and based on information and belief. (Id., ¶ 3 [“AGN is informed and believes that Defendants HEALTH, FORZA and MARK are all exclusively used and controlled by Defendant KIRSCHEN”].) “An affidavit based on ‘information and belief’ is hearsay and must be disregarded.” (Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204.)

2.                  Plaintiff seeks $40,824.00 in “ongoing storage fees,” calculated at the rate of

$36.00/pallet/month for 162 pallets, (Becker Decl., ¶ 11). Plaintiff’s complaint, however, does not request reimbursement for ongoing storage fees, nor is this $40,824.00 referenced anywhere in the complaint. The prayer in Plaintiff’s complaint seeks “approximate damages against Defendants of $61,348.00,” plus interest, attorney’s fees, costs, and “such other and further relief as the court may deem proper.” (Complaint, 4:16-22). 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).