Judge: Thomas D. Long, Case: 19STCV31576, Date: 2022-11-22 Tentative Ruling

Case Number: 19STCV31576    Hearing Date: November 22, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On January 21, 2021, Plaintiff Stuart J. Carter filed a second amended complaint (“SAC”) against Defendants Serge Bueno, Rene Hagege, and Les Ateliers Bueno LLC (collectively, “Defendants”).  The Court entered default against Les Ateliers Bueno LLC on April 30, 2021, and against Serge Bueno and Rene Hagege on October 18, 2021.  On May 17, 2022, the Court denied Plaintiff’s request for entry of default judgment without prejudice.  Plaintiff filed this amended request for entry of default judgment on November 16, 2022

Plaintiff again did not file the mandatory Form CIV-100 requesting court judgment or a proposed judgment.  (California Rules of Court, Rule 3.1800(a).)

Plaintiff seeks a judgment of $322,808.16, consisting of $70,000.00 in damages, $ $15,808.76 in prejudgment interest, $210,000.00 in punitive damages, $25,750.00 in attorney fees, and $1,249.40 in costs.  (Statement of Case at pp. 17-18.)

Plaintiff’s complaint seeks unspecified compensatory damages “in an amount according to proof” for most causes of action.  The SAC identifies his damages from Defendants withholding his $26,000.00 as “in no instance less than $50,000.”  (SAC ¶¶ 35, 38, 51; SAC at p. 16.)  The Court cannot award more than what was demanded in the complaint.  (See Greenup v. Rodman (1986) 42 Cal.3d 822, 826 [“a default judgment greater than the amount specifically demanded is void as beyond the court’s jurisdiction”]; Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 409 [court must enter default judgment “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”]; see also Code Civ. Proc., § 585.)

Further, Plaintiff acknowledges that Defendants are no longer withholding his $26,000.00 because in April 2019, Defendants paid Plaintiff $27,000.00.  (Carter Decl. ¶ 11.)  Therefore, Plaintiff has not shown harm from wiring the $26,000.00 to Defendant because he received back $27,000.00.

According to Plaintiff, he has suffered damages of $70,000.00, representing the fair market value of the motorcycle he contracted to buy but did not receive.  This value is based on an appraisal letter from Robert Iannucci of Team Obsolete.  As Plaintiff has already received $27,000.00 from Defendants, he is entitled to $43,000.00 in damages.

Plaintiff requests punitive damages of $210,000.00.  (Statement of Case at pp. 14-16.)  The amount of punitive damages must reasonably relate to the amount of actual damages.  (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 924.)  “An award of punitive damages hinges on three factors: the reprehensibility of the defendant’s conduct; the reasonableness of the relationship between the award and the plaintiff’s harm; and, in view of the defendant’s financial condition, the amount necessary to punish him or her and discourage future wrongful conduct.”  (Kelly v. Haag (2006) 145 Cal.App.4th 910, 914.)  Plaintiff does not provide evidence of Defendants’ financial condition and admits that he does not have such evidence, so the Court cannot determine the amount necessary to punish Defendants and discourage future wrongful conduct.

Plaintiff requests $25,750.00 in attorney fees under Penal Code section 496, for the sixth cause of action alleging theft by false pretenses.  (Statement of Case at p. 17.)  Penal Code section 496 applies when a person “buys or receives any property that has been stolen or has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained.”  (Penal Code, § 496, subd. (a).)  The purpose of this statute was “‘to dry up the market for stolen goods.’  [Citation.]”  (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1136.)  “Because imposing treble damage in cases alleging fraud, misrepresentation, breach of fiduciary duty and other torts outside the context of stolen property does nothing to advance the legislative purpose to dry up the market for stolen goods,”  the statute does not apply broadly to torts involving the improper diversion of cash through fraud, misrepresentation, and breach of fiduciary duty.  (Id. at p. 1137, quotation marks omitted.)

Plaintiff alleges he accepted Defendants’ offer for sale of the motorcycle, he wired the $26,000.00 sale price, and Defendants never delivered the motorcycle.  (SAC ¶ 71.)  Plaintiff later learned that Defendants sold the motorcycle to someone else for $45,000.00.  (SAC ¶ 74.)  Plaintiff alleges Defendants “knowingly received, concealed, and withheld CARTER’S $26,000 dollars, which had been obtained and then kept by means of false or fraudulent representations or pretense.”  (SAC ¶ 78; see id. at ¶ 76.)  In April 2019, in response to a demand, Defendants paid Plaintiff $27,000.00.  (Carter Decl. ¶ 11.)  Plaintiff alleges only the improper diversion of cash (later returned), which is outside the scope of Penal Code section 496.  Therefore, Plaintiff is not entitled to attorney fees.

Plaintiff seeks $1,249.40 in costs.  Plaintiff again did not file a CIV-100 or separate verified memorandum of costs.  Counsel provides a copy of an invoice containing costs.  (Tamborelli Decl., Ex. A.)  As noted in the May 17, 2022 order, some of these costs are not recoverable.  Plaintiff requests $40 for parking when attending case management conferences.  This is not a statutorily allowable cost.  (See Code Civ. Proc., § 1033.5, subd. (a).)  Plaintiff also seeks $45 for “Court call appearance fee.”  While the Court strongly encourages remote appearances during the pandemic, Code of Civil Procedure section 1033.5, subdivision (a) does not include these types of costs as recoverable.  The remote appearance fee is similar to the cost of getting to court to make a personal appearance, such as costs for parking, gasoline, a taxi, ride-sharing, or public transportation.  The costs incurred in making an appearance, whether in person or remote, are not included in the statute.  As stated in the May 17, 2022 order, based on the costs as described in the invoice, the Court will award $1,164.40 in costs.

The request for entry of default judgment is DENIED WITHOUT PREJUDICE.

An Order to Show Cause Re: Dismissal for failure to obtain entry of Default Judgment is scheduled for 02/20/2023 at 08:30 AM in Department 48 at Stanley Mosk Courthouse (February 20, 2023).  If Plaintiff does not obtain a judgment by that date, the Court will dismiss this action.  (Code Civ. Proc., §§ 583.410, 583.420, subd. (a)(2); California Rules of Court, rule 3.1340(a).)

Court clerk to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

     Dated this 22nd day of November 2022