Judge: Salvatore Sirna, Case: 20PSCV00777, Date: 2023-01-31 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 20PSCV00777    Hearing Date: January 31, 2023    Dept: G

Plaintiff Yamadatoshi and Co., Ltd.’s Application for Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Yamadatoshi and Co., Ltd.’s Application for Default Judgment is DENIED without prejudice.

BACKGROUND

This action arises from an agreement to purchase N95 face masks. On August 2, 2020, Plaintiff Yamadatoshi and Co., Ltd. agreed to purchase one million 3M N95 masks from K2 Investment Group (K2 Investment) and deposited $2,860,000 into escrow with JD Escrow, Inc. (JD Escrow). Although K2 Investment never provided Plaintiff with the product, JD Escrow released Plaintiff’s payment to K2 Investment. After Plaintiff demanded a refund, Defendant Ahn Tuan La (also known as “Jack La”) (La) promised K2 Investment would provide a refund on September 29, 2020. Plaintiff also received assurances on October 10, 2020, from K2 Investment’s agent, Yu Seong Kim (also known as “Andrew Kim”) (Kim), that additional documents on the masks’ shipment would be provided. Plaintiff did not receive a refund or the masks.

On November 12, 2020, Plaintiff filed a complaint against Defendants K2 Investment, JD Escrow, Julie Dao, Kim, and Does 1 to 10, alleging the following cause of action: (1) breach of written contract (against K2 Investment and JD Escrow); (2) breach of implied covenant of good faith and fair dealing (against K2 Investment and JD Escrow); (3) money had and received (against all Defendants); (4) fraudulent conveyance (against all Defendants); (5) conversion (against all Defendants); (6) conspiracy; (7) breach of fiduciary duty (against JD Escrow and Dao); (8) intentional interference with prospective economic advantage (against all Defendants); (9) concealment (against all Defendants); and (10) negligent misrepresentation (against all Defendants).

On November 17, 2022, after Defendant failed to appear for depositions and pay monetary sanctions, the court imposed terminating sanctions by striking Defendant’s general denial to Plaintiff’s complaint.

On November 29, 2022, Plaintiff submitted an application for default judgment. On December 12, the court denied Plaintiff’s application without prejudice.

On January 25, 2023, Plaintiff submitted the present application for default judgment.    

Two OSCs for default judgments and a final status conference are set for January 31, 2023, along with an OSC Re: Sanctions and OSC Re: Striking of Answer. A jury trial is scheduled for February 14.   

LEGAL STANDARD

Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear.  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 or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties.  (Cal. Rules of Court 3.1800.) 

ANALYSIS

Plaintiff seeks default judgment against Defendants and K2 Investment in the total amount of $2,610,200.90, including $2,110,000 in damages, $464,778.08 in interest, $22,990 in attorney fees, and $12,432.82 in costs.

However, while Plaintiff has dismissed Doe Defendants, JD Escrow, and Dao, Plaintiff has not dismissed VQ Trading, VQ Global, or Kim. Pursuant to California Rules of Court rule 3.1800, a party seeking a default judgment must file “[a] dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment.” (Cal. Rules of Court, rule 3.1800(a)(7).) The court notes that, with respect to a separate judgment under Code of Civil Procedure section 579, Plaintiff must show that liability is joint and several.  Liability as to several defendants is generally presumed to be joint and not several. (Civ. Code, § 1431.) Thus, Plaintiff must either dismiss the remaining defendants or file an application for separate judgment pursuant to Code of Civil Procedure section 579 demonstrating Plaintiff’s claims against Defendants and K2 Investment are severable.

Accordingly, Plaintiff’s application for default judgment is DENIED without prejudice.  

CONCLUSION

Based on the foregoing, Plaintiff’s application for default judgment is DENIED without prejudice.