Judge: Ronald F. Frank, Case: 23TRCV01656, Date: 2024-08-29 Tentative Ruling

Case Number: 23TRCV01656    Hearing Date: August 29, 2024    Dept: 8

Tentative Ruling¿ 

¿¿ 

HEARING DATE:                    August 29, 2024

¿¿ 

CASE NUMBER:                      23TRCV01656

¿¿ 

CASE NAME:                           Sherif Makar v. Zachary Keller, et al. 

¿¿ 

MOVING PARTY:                   Plaintiff, Sherif Makar

¿¿ 

RESPONDING PARTY:        Defendants, Zachary Keller and Bruce S. Keller (No Opposition)

¿¿ 

TRIAL DATE:                           Not set.

¿¿ 

MOTION:¿                                  (1) Default Prove-Up

¿ 

Tentative Rulings:                     (1)  Denied.  There is no Statement of Damages, no Statement of the Case, and the Does have not been dismissed.  The Court will consider continuing the hearing to allow counsel to correct these deficiencies.

I.                BACKGROUND

A.    Factual

On May 24, 2023, Plaintiff, Sherif Makar (“Plaintiff”) filed a Complaint against Defendant, Zachary Keller (“Defendant”), and DOES 1 through 50, for: (1) Motor Vehicle Negligence; and (2) General Negligence. The complaint is based on the allegation that Plaintiff and Defendant, Zachary Keller were exiting the parking structure at LAX and when Defendant Keller illegally crossed multiple lanes causing Plaintiff to collide with Defendant’s vehicle. As a result, Plaintiff contends that he suffered, and continues to suffer, damages, including, but not limited to, wage loss, loss of use of property, hospital and medical expenses, general damage, property damage, and loss of earning capacity.

On December 29, 2023, Plaintiff filed an amendment to the complaint DOEing in Bruce S. Keller as DOE 1.

On April 4, 2024, Plaintiff filed an Order for Publication which was granted the same day by this Court. On April 23, 2024, Plaintiff filed a Proof of Publication as to Bruce S. Keller and Zachary Keller. Further, on June 7, 2024, Plaintiff filed another Proof of Publication as to Zachary Keller.

Plaintiff now files a Motion for Default Prove-Up against Defendants, Zachary Keller and Bruce S. Keller (collectively, “Defendant”).

B.    Procedural    

On August 16, 2024, Plaintiff filed a Default Prove-Up. On August 19, 2024, Plaintiff filed an amended declaration of Sherif Makar in support of Plaintiff’s request for Court Judgment. To date, no opposition has been filed.

II.             LEGAL STANDARD

Code of Civil Procedure Section 585 permits entry of a judgment after a Defendant fails to timely answer following proper service of process. A party seeking judgment on the default by the Court must file a Request for Court Judgment, and provide: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (C.R.C., Rule 3.1800.) Typically the Plaintiff will also file a statement of damages summarizing the categories of claimed harm and the amounts claimed as to each, as required by Code of Civil Procedure section 425.11, using the mandatory judicial council form CIV-050. 

There was no statement of damages filed here, such as to given notice to the defendants of the amounts being sought for the different categories of alleged harm. A complaint’s allegation of general damages alone is insufficient. (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 929-930.) The amount of the default judgment “cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115.” (Code of Civil Procedure § 580, subd. (a).) The statement required by section 425.11 is a statement of damages served separately on a defendant in “an action to recover damages for personal injury or wrongful death.” (§ 425.11, subd. (b).)  (Dhawan v. Biring (2015) 241 Cal.App.4th 963, 968–969.)  As this is a personal injury case, the absence of the Statement of Damages precludes the Court from entering a default judgment in any dollar amount. The purpose of the statement of damages (under § 425.11 or § 425.115) is to notify a defendant of the amount of damages sought where the law prevents the plaintiff from including a specific amount in the complaint. (Id.)  Under Code of Civil Procedure section 425.10, subdivision (b), a complaint in an action for personal injury or wrongful death may not state the amount of damages. If the Defendant has not appeared in the action, the Statement of Damages must be served “in the same manner as a summons” (CCP §§ 425.11(d)(1); 425.115(g)(1).)  This includes service by publication.

III.           DISCUSSION

Proof of Service of Process: Proof of Service by Posting was filed as to both Defendants on both April 23, 2024, and as to Zachary Keller again on June 7, 2024 for the summons and complaint. The Request for Court Judgment filed on August 16, 2024 notes that the CIV-100 was served by mail on August 16, 2024.

Request for Entry of Default: CIV-100 was filed on the same date as the other moving papers. It has not been granted.

Prove Up:  Plaintiff seeks entry of judgment against Defendants.   While the 3rd page of the complaint notes that he has suffered wage loss, loss of use of property, hospital and medical expenses, general damage, loss of earning capacity, there is no dollar amount claimed in the Complaint and no Statement of Damages was filed.  Nor is there the required Statement of Damages.  Further, the Doe defendant have not been dismissed, which is required before a court can entere a money judgment. 

The Court has reviewed the Declaration of Sharif Makar filed on August 16, 2024 and Amended Declaration of Sharif Makar filed on August 19, 2024. Attached to those declarations are detailed exhibits evidencing medical specials from each of Plaintiff’s treating facilities. But the Plaintiff’s declaration under Section 585 cannot cure the failure to serve the Statement of Damages.  Because this is a Due Process requirement, the Court cannot enter a default judgment on the record before this Court.  The Proof of Service by publication attests that a statement of damages was served along with the Summons and Complaint, but there is no such statement in the court file.

IV.           CONCLUSION

Here, Plaintiff’s Default Prove-Up is DENIED as Plaintiff has failed to file and serve a Statement of Damages nor has he dismissed DOES 1 through 50.