Judge: Thomas Falls, Case: 22PSCV00469, Date: 2022-09-28 Tentative Ruling

Case Number: 22PSCV00469    Hearing Date: September 28, 2022    Dept: R

Tentative Ruling

Plaintiff’s Application for Default Judgment is denied with prejudice.

Background

This case pertains to an open book account. Plaintiff Loren Deshon (“Plaintiff”) alleges the following against Defendants Dayyon Drinkard aka Dayyon Alexander (“Defendant”): On March 20, 2021, the parties entered into a written agreement for goods, wares, and merchandise wherein by March 15, 2022, payment of the entire amount, remaining balances of principal and interest would be due. On March 15, 2022, Defendant breached the agreement. Within the past four (4) years, Defendant became indebted to Plaintiff in the sum of $36,478.55.

On May 17, 2022, Plaintiff filed the instant action against Defendant for:

1.      Open Book Account

2.      Account Stated

3.      Reasonable Value of Goods/Services Received/Funds Provided

4.      Agreement

5.      Promissory Note

6.      Quantum Meruit

On May 29, 2022, Defendant was served via personal service.

On June 29, 2022, default was entered against Defendant.

On August 17, 2022, the instant Application for Default Judgment (“Application”) was filed.

Legal Standard

Code of Civil Procedure section 585 permits entry of a judgment after a Defendant has failed to timely answer after being properly served.  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 § 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.  (Cal. Rules of Court, Rule 3.1800.) 

Discussion

Plaintiff seeks entry of default judgment against Defendant in the total amount of $39,131.26. The break-down is as follows:

Demand of Complaint:           $36,478.55

Interest:                                   $1,349.21

Cost:                                        $503.50

Attorney Fees:                         $800.00

The application suffers from the following two defects.

1.      Unclear Complaint

First the allegations in the complaint are unclear. Plaintiff alleges that Defendant has been in breach of the agreement for the past four (4) years, but at the same time alleges that the parties entered into their agreement in 2021. Effectively, it is impossible for Defendant to have been in breach of the agreement for four years because four years from 2021 is 2025, which is in the future. Therefore, if Plaintiff seeks default judgment against Defendant, it need amend its complaint to put Defendant on notice of the exact allegations against him. For that reason, the Application is denied with prejudice.

2.      Evidence in Support of Damages

Second, in support of the damages of complaint, Plaintiff provides Exhibits A and B, a copy of the agreement and a statement of account, respectively.

However, the attached exhibits are incorrect. Exhibit A is a copy of Plaintiff and his counsel’s retainer agreement. Exhibit B is the Parties’ March 20, 2021 agreement. Therefore, none of the Exhibits are what they purport to be.

Furthermore, there are three promissory notes attached, but none are signed by either party. Importantly, the signature of the party to be charged, here Defendant, is found nowhere on the promissory notes. To the extent that Plaintiff would argue Civil Code section 1624 (Statute of Frauds) is inapplicable, upon re-filing of the application for default judgment, the court requests Plaintiff submit a separate “Summary of the Case” explaining the admissibility of the promissory notes.

Conclusion

Based on the foregoing, the application is denied with prejudice. Plaintiff must amend the complaint to state clearly the cause of action and the basis for the claims against Defendant.