Judge: Peter A. Hernandez, Case: 23PSCV00268, Date: 2023-10-06 Tentative Ruling

Case Number: 23PSCV00268    Hearing Date: October 6, 2023    Dept: K

Plaintiff Anthony Tafesh’s Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff Anthony Tafesh (“Plaintiff”) alleges as follows:

On May 7, 2020, Fred Barrera (“Defendant”) executed a “Notice Secured by Deed of Trust” (“Note”) on behalf of REDC Acquisitions LLC, memorializing therein that Plaintiff had loaned REDC $30,000.00 and that REDC promised to pay Plaintiff a balloon payment of $38,500.00. The Note was secured by a “Short Form Deed of Trust and Assignment of Rents” on the property located at 5115 Cavana Rd., El Sereno, CA 90032 (“Property”). The Property securing the Note has been foreclosed upon.

On January 30, 2023, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-50 for:

1.                  Breach of Contract

2.                  Money Had and Received

3.                  Fraud

On March 13, 2023, Defendant’s default was entered. On April 6, 2023, Plaintiff dismissed the second and third causes of action, without prejudice.

An Order to Show Cause Re: Default Judgment is set for October 6, 2023.

Discussion

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

1.                  Plaintiff seeks $516.35 in costs. Plaintiff, however, did not request costs in his complaint. 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.

2.                  Plaintiff appears to sue Defendant on an alter ego theory of liability, inasmuch as

Defendant is not a party to the contract (“Barrera entered into the note on behalf of Redc Acquisitions” [Plaintiff Decl., ¶ 3, Exh. A]) and did not sign a guaranty re: same; however, Plaintiff has failed to provide the court with any evidence of alter ego.

3.                  Plaintiff has provided the court with an unexecuted copy of the Note.

4.                  Plaintiff has not provided the court with the original Note or explained why the court should accept a copy of same in lieu thereof. Per California Rules of Court Rule 3.1806, “[i]n all cases in which judgment is rendered upon a written obligation to pay money, the clerk must, at the time of entry of judgment, unless otherwise ordered, note over the clerk’s official signature and across the face of the writing the fact of rendition of judgment with the date of the judgment and the title of the court and the case.”