Judge: Rupert A. Byrdsong, Case: 21STCV14466, Date: 2024-10-29 Tentative Ruling

Case Number: 21STCV14466    Hearing Date: October 29, 2024    Dept: 28

Tentative Ruling

Judge Rupert A. Byrdsong

Department 28

Hearing Date:                                  October 29, 2024         

Case Name:                                      Maxine Gilliam, Trustee of the Lou Easter Ross Irrevocable
Trust v. Lee

Case No.:                                           21STCV14466

Motion:                                              Default Judgment

Moving Party:                                 Plaintiff Maxine Gilliam, Trustee of the Lou Easter Ross Irrevocable Trust

Responding Party:                         Unopposed

Notice:                                                OK

Recommended Ruling:               Plaintiff Maxine Gilliam, Trustee of the Lou Easter Ross                                                                               Irrevocable Trusts’ request for entry of default                                                                                                    judgment in its favor and against Defendant Tera D.                                                                                        Lee is DENIED.

BACKGROUND

On April 15, 2021, Plaintiff Maxine Gilliam, Trustee of the Lous Easter Ross Irrevocable Trust (“Plaintiff”) filed a complaint against Tera D. Lee (“Defendant”). Plaintiff alleged causes of action for (1) legal malpractice, (2) breach of contract, (3) breach of contract of good faith and fair dealing, (4) intentional misrepresentation, (5) reckless representation, (6) violation of California Unfair Trade Act, (7) breach of fiduciary duty, (8) fraudulent transfer of property, and (9) attorney misconduct. Plaintiff filed a First Amended Complaint on May 12, 2021, alleging the same causes of action against Defendant.

Plaintiff alleges she retained Defendant as counsel to defend the Trust from litigation brought by a spendthrift, La Randa Ross, seeking to break the Trust. Allegedly, in the course of previous litigation, Defendant secretly removed the lis pendens on the Trust Property. Plaintiff claims that by removing the lis pendens, Defendant allowed the Trust property to be sold, defying the terms of the spendthrift provision of the Trust. Plaintiff now brings this malpractice action against Defendant to recover damages.

On May 17, 2021, Plaintiff substitute served Defendant. The Clerk entered default against Defendant on July 29, 2021. Since 2021, the Clerk has rejected Plaintiff’s request for entry of default judgment at least 5 times. The Court has issued show cause orders as to why this case should not be dismissed for counsel’s repeated failure to properly obtain default judgment. Plaintiff substituted counsel on March 4, 2024, and now moves for default judgment.

ANALYSIS

Code of Civil Procedure (“CCP”) Section 585 permits entry of a judgment after a defendant’s default has been entered.  A party seeking judgment on the default by the Court must file a Request for Court Judgment, and: (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 Section 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.  CRC 3.1800.

JC Form CIV-100 must be used to request court judgment.  Item number 2 must be completed.  Item number 8 must be completed if the Defendant is an individual.  Plaintiff must submit a proposed form of judgment. 

Here, Plaintiff has not filed a new CIV-100 form requesting court judgment, despite claims to the contrary. In Plaintiff’s response to OSC re dismissal on June 20, 2024, Plaintiff stated that she filed a proper CIV-100 form on June 20, 2024. However, the only other filing on that date is a JUD-100 form, not a CIV-100 form. The CIV-100 form Plaintiff includes her renewed motion for entry of default judgment is to request entry of default, and this CIV-100 states the wrong amount of total damages to be entered under Item 2. The improper CIV-100 form shows a total for $1,220,000.00, comprised of $1,000,000.00 in damages, $100,000.00 in interest, $60,000.00 in costs, and $60,000.00 in attorney fees. Comparatively, Plaintiff’s JUD-100 form seeks $968,512.21 in damages, $254,991.77 in prejudgment interest, $1,435.00 in costs, and $0.00 in attorney fees, for a total of $1,224,938.98.

As mentioned in the Court’s order denying default judgment on April 16, 2024, Plaintiff’s claim for prejudgment interest is inaccurate. In Footnote 21 in Plaintiff’s Application for Default Judgment filed on August 23, 2024, Plaintiff lays out her method of how she calculated interest, but this method is inconsistent with standard interest calculators. For example, on the pre-judgment interest on the loss from the fire sale of trust property, Plaintiff claims $104,767.12 in interest. However, the interest calculator shows that the proper amount of interest is $86,531.51. Plaintiff also states that the time accrued between 10/12/2021 and 06/25/2024 is 3 years and 79 days, but the time accrued is 2 years and 257 days. Another issue exists with the interest for the attorney fees paid to Donald W Reid. Plaintiff seeks $18,110.09 in interest on this amount of damages, but the interest calculator shows that the actual interest is $17,156.68. Ultimately, Plaintiff’s pre-judgment interest claims are still inaccurate.

Plaintiff also does not detail or explain the total costs incurred. Finally, Plaintiff’s exhibit list does not attach all exhibits listed in the table of contents, including exhibits 5, 6, and 13. Accordingly, some of the key pieces of evidence Plaintiff relies on in seeking default judgment is not before the Court. Plus, some of the critical exhibits Plaintiff attaches are hardly legible.

CONCLUSION

For the foregoing reasons, Plaintiff Maxine Gilliam, Trustee of the Lou Easter Ross Irrevocable Trusts’ request for entry of default judgment in its favor and against Defendant Tera D. Lee is DENIED.