Judge: Rupert A. Byrdsong, Case: 23STCV23461, Date: 2024-11-14 Tentative Ruling

Case Number: 23STCV23461    Hearing Date: November 14, 2024    Dept: 28

Tentative Ruling

Judge Rupert A. Byrdsong

Department 28

Hearing Date:                                  November 14, 2024    

Case Name:                                      The Gray Casualty & Surety Company v. Auto Parts and Services LLC, et al.

Case No.:                                           23STCV23461                                               

Motion:                                              Default Judgment

Moving Party:                                 Plaintiff The Gray Casualty & Surety Company

Responding Party:                         Unopposed

Notice:                                                OK

Recommended Ruling:               Plaintiff’s request for entry of default judgment in its favor                                                                         and against Defendants Auto Parts and Services, LLC is                                                                                GRANTED in the amount of $58,937.69.

BACKGROUND

On September 27, 2023, Plaintiff The Gray Casualty & Surety Company (“Plaintiff”) filed a complaint against Auto Parts and Services LLC, Alexey Chsherbakov, and Does 1 through 10. Plaintiff alleged a cause of action for breach of contract.

Plaintiff alleges Defendants failed to make payments as agreed to pursuant to the Application for Freight Broker Bond, an application on which both defendants jointly and severally agreed to indemnify all losses and damages on the contract.

Plaintiff personally served Auto Parts and Services LLC on October 3, 2023. The Clerk entered default against Auto Parts and Services LLC on June 3, 2024. This is Plaintiff’s second request for entry of 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 submitted a proposed form of judgment, filed CIV-100 Forms for Auto Parts and Services LLC, completed item 2 and 8 on CIV-100, and dismissed Alexey Chsherbakov and all Doe defendants.

By defaulting, a defendant is deemed to admit all material allegations of the complaint that are well pleaded.  Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1156.  The complaint need only alleged facts sufficient to apprise a defendant of the nature of the plaintiff’s demand, and it is immaterial that the complaint might have been subject to a demurrer for failure to make an allegation necessary to state a cause of action.  Id. at 1157.  See also CCP § 431.20; Bristol Convalescent Hospital v. Stone (1968) 258 Cal.App.2d 848, 859 (stating that defaulting defendant admits absolute verity of all allegations of complaint giving rise to liability).

The plaintiff must prove the amount of damages before an actual entry of default judgment.  See Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1745.  In determining whether the plaintiff is entitled to an award of damages after the defendant has defaulted, the plaintiff is only required to present evidence establishing a prima facie case for damages.  Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362.  The trial court must hear the evidence offered by the plaintiff and render judgment “‘in [its] favor for such sum, not exceeding the amount stated in the complaint, or for such relief, not exceeding that demanded in the complaint, as appears from the evidence to be just.  [Citations.]’”  Id. at 362.

A.           General Damages

The demand of the Complaint is $50,450.76. Plaintiff and Auto Parts and Services LLC entered into a Freight Broker Bond Agreement, whereby Alexey Chsherbakov signed as an indemnitor. Leigh Decl., Ex. A. Auto Parts and Services LLC and Alexey Chsherbakov breached this agreement by failing to repay $50,450.76 pursuant to the terms of the agreement. Leigh Decl., ¶¶ 4-5; Ex. B. Defendants have failed to repay the amount owing on the agreement.

Thus, Plaintiff has sufficiently proven its causes of action in the amount of $50,450.76.

B.           Costs

Plaintiff requests recovery of costs in the amount of $520.00.  The memorandum of costs states that the request is based on (a) $435.00 in clerk’s filing fees and (b) $85.00 in process server’s fees. CIV-100, ln. 7.

Accordingly, Plaintiff is entitled to costs in the amount of $520.00.

C.          Interest

Plaintiff seeks to recover interest in the amount of $6,067.91. Plaintiff seeks at a rate of 10% per annum, beginning from March 8, 2023, the day of the filing of the complaint through May 20, 2024, the day Plaintiff requested entry of default judgment. Schlick Decl., ¶ 4.

Accordingly, Plaintiff is entitled to interest in the amount of $6,067.91.

D.          Attorney Fees

Plaintiff seeks to recover $1,899.02 in attorney fees pursuant to Civil Code Section 1717.5. LASC local rules 3.207 and 3.214 govern this case. These rules provide that in cases where a statute provides for attorney fees, if the Defendant is in default, and the total damages sought are between $50,000.01 and $100,000.00, the plaintiff can recover $1,890.00 plus 2% of the excess over $50,000.00 in attorney fees. The applicable statute, Civil Code Section 1717.5, entitles Plaintiff to recover attorney fees because Plaintiff brings a contract action based on a book account. Moreover, Plaintiff seeks to recover $50,450.76, and Defendant has defaulted as to this amount. Therefore, Plaintiff may recover $1,890.00 plus 2% of $450.76, which is the excess over $50,000.00. This total amount is $1,899.02 ($1,890.00 + $9.02). Schlick Decl., ¶ 3.

Accordingly, Plaintiff is entitled to attorney fees in the amount of $1,899.02.

E.           Total Judgment

The Court finds that Plaintiff proved the following judgment amount against Defendant:

CONCLUSION

Therefore, Plaintiff's request for entry of default judgment in its favor and against Defendant Auto Parts and Services LLC is GRANTED in the amount of $58,937.69.