Judge: Teresa A. Beaudet, Case: 23STCV28057, Date: 2024-05-17 Tentative Ruling

Case Number: 23STCV28057    Hearing Date: May 17, 2024    Dept: 50

County of Los Angeles

Department 50

Plaintiff Irth Communications, LLC (“Plaintiff”) requests entry of default judgment against Defendant Biotricity, Inc. Plaintiff seeks judgment in the total amount of $104,146.95, comprising $97,431.23 in damages, $4,030.72 in interest, $2,100.00 in attorney’s fees, and $585.00 in costs.

The Court notes a few defects with the submitted default judgment package. 

First, the Declaration of Andrew William Haag in support of the request references Exhibits “A” through “D”. (Haag Decl., ¶¶ 6-8, 12.) However, no exhibits are attached to the declaration. 

Second, Mr. Haag’s declaration states that “[t]he interest rate calculation is based on the legal rate of 10%.” (Haag Decl., ¶ 34.) However, the Complaint in this action alleges, inter alia, that “IRTH also requests from Biotricity interest at the rate of 1.5% per month for all sums of money due from Biotricity to IRTH from the date of the material breach as set forth in the parties Agreement, according to proof at trial.” (Compl., ¶ 25, emphasis added.)[1] The Court notes that “[a] complaint…shall contain…the following:…(2) A demand for judgment for the relief to which the pleader claims to be entitled.¿If the recovery of money or damages is demanded, the amount demanded shall be stated.” ((Code Civ. Proc., § 425.10, subd. (a).) Code of Civil Procedure section 580, subdivision (a) “limits a trial court’s jurisdiction to grant relief on a default judgment to the amount stated in the complaint.” ((Dhawan v. Biring (2015) 241 Cal.App.4th 963, 968.) “[I]n all default judgments the demand sets a ceiling on recovery.” ((Finney v. Gomez (2003) 111 Cal.App.4th 527, 534.)¿ 

Third, the Complaint names Biotricity, Inc. and Does 1 through 20 as Defendants. However, on April 22, 2024, Plaintiff filed a request for dismissal as to Does 1 through 10 only. The Court notes that 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, subd. (a)(7).)¿

Fourth, in his supporting declaration, Mr. Haag asserts that “IRTH has incurred attorney’s fees in connection with this matter, which fees IRTH is entitled to recover from Biotricity pursuant to the Civil Code, Section 1717.5.” (Haag Decl., ¶ 27.) Mr. Haag also states that “[t]he contract between IRTH and Biotricity states that IRTH is entitled to attorney’s fees and collection costs in regards to trying to collect payment under the Agreement.” (Haag Decl., ¶ 35.) Thus, it is unclear if Plaintiff asserts that it is entitled to attorney’s fees pursuant to Civil Code section 1717.5, or a specific provision of the parties’ agreement.

Moreover, the Court notes that Civil Code section 1717.5, subdivision (a) provides in part that “[i]f there is a written agreement between the parties signed by the person to be charged, the fees provided by this section may not be imposed unless that agreement contains a statement that the prevailing party in any action between the parties is entitled to the fees provided by this section.”¿In the Complaint in this action, Plaintiff alleges, inter alia, that “IRTH has regularly invoiced Biotricity for the unpaid fixed monthly fees of $7,500, which now equals $97,431.23, pursuant to IRTH and Biotricity’s written agreement dated February 2, 2018, and all amendments thereto.” (Compl., ¶ 13, emphasis added.) In addition, Mr. Haag’s declaration references “IRTH and Biotricity’s written agreement dated February 2, 2018…” (Haag Decl., ¶ 11.) Mr. Haag’s declaration states that “[a] true and correct copy of the Agreement between IRTH and Biotricity is attached hereto as Exhibit ‘A.’” (Haag Decl., ¶ 6.) However, as set forth above, no exhibits are attached to the declaration. Thus, the Court is unable to determine whether the subject written agreement “contains a statement that the prevailing party in any action between the parties is entitled to the fees provided by this section.” (Civ. Code § 1717.5, subd. (a).) Accordingly, it is unclear whether the requested attorney’s fees are warranted here under Civil Code section 1717.5 (to the extent Plaintiff seeks fees pursuant to this provision).  

Based on the foregoing, the Court denies Plaintiff’s request for default judgment without prejudice. The Court will discuss with Plaintiff a schedule for resubmission of the default judgment package.

DATED:  May 17, 2024                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court