Judge: Thomas Falls, Case: KC069491, Date: 2022-12-07 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: KC069491    Hearing Date: December 7, 2022    Dept: R

FERNANDO HERNANDEZ VS GEORGE "FRANK" ALVAREZ (KC069491)

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Plaintiff’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff’s APPLICATION FOR DEFAULT JUDGMENT is DENIED with prejudice.

Background

Plaintiff alleges that he purchased the real property located at 4847 Slancroft Avenue in Baldwin Park (“subject property”) from George “Frank” Alvarez (“Alvarez”) in 2005 and thereafter made mortgage payments to him. Alvarez allegedly sold the subject property in 2017 to Oseguera Investments Inc. The complaint, filed 7/27/17, asserts causes of action against Defendant Alvarez for:

1.      Fraud

2.      Breach of Contract

On May 23, 2022, the matter was called for a jury trial. The court issued the following minute order:

The matter is called for Jury Trial. There is no appearance by or for the defendant. The Court notes the defendant failed to appear on February 28, 2022, the matter was set for an Order to Show Cause for the defendant's failure to appear on March 14, 2022. On March 14, 2022 the defendant appeared and indicated he would not be coming to court for the matter set for this date. Counsel for Plaintiff requests the Cross-Complaint filed by George Alvarez be dismissed pursuant to C.C.P. Section 581(b)(5) for failure to appear this date. The Court, pursuant to an oral request made by Plaintiff, orders the Cross-Complaint filed by George "Frank" Alvarez on 03/19/2018 dismissed without prejudice. Further, the Court orders the Answer filed by George "Frank" Alvarez on 7/10/2019 stricken. Plaintiff's counsel to file a Default and Default Judgment. On the Court's own motion, the Jury Trial scheduled for 05/23/2022 is vacated . Order to Show Cause Re: Default Judgment is scheduled for 06/28/2022 at 08:30 AM in Department R at Pomona Courthouse South.

On May 31, 2022, default was entered against George Frank Alvarez.

On June 23, 2022, Plaintiff filed the instant application.

On August 5, 2022, Plaintiff dismissed Juan Sanchez; Oseguera Investments, Inc.; Steven Carmona; Laikin Realty Corp.; MC-025 KC069491 All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs' Title, or Any Cloud On Plaintiffs' Title Thereto; and Does 1 through 20.

On September 19, 2022, George Alvarez filed a ‘DEFENDANT’S RESPONSE TO NEW CHANGE IN PLAINTIFFS’ COMPLAINT BECAUSE OF RECENT DISMISSALS AND; INSUFFICIENT EVIDENCE AS TO THE NEW COMPLAINT; NEW CLAIMS RAISED IN PLAINTIFFS’ “CASE SUMMARY.”

Discussion

Plaintiff seeks default judgment in the amount of $365,739.92, which is comprised of $239,496.00 of damages on the complaint and $126,243.92 in prejudgment interest.

The application fails because the complaint is uncertain as to the nature of the allegations.

First, the complaint does not identify Defendant Alvarez’s exact role in the action (i.e., seller’s agent or buyer’s agent). To the extent Plaintiff would argue that Defendant was the seller’ agent because of the allegation that “Defendant was contracted to sell the property,” the entirety of the sentence creates confusion as it reads “Defendant was contracted to sell the property or assigned by “A & T Property Management by Fred Perez.” (Complaint p. 6 of 18 of PDF.) The court is uncertain the significance of an assignment in the instant action and Defendant’s purported role in any such assignment.

Second, there are five causes of action for breach of contract, but the court is uncertain whether there are five separate contracts.

Third, the complaint appears to provide contradictory allegations. On one hand, Plaintiff alleges that “Defendant created a document, claiming to be a valid contract” wherein Defendant “acted as the bank, to receive the payments, and defraud the Plaintiff,” leading to the interpretation that Defendant never sold Plaintiff the property. However, on the other hand, Plaintiff alleges that “Defendant knowingly and maliciously sold property to family,” leading to the interpretation that Defendant sold Plaintiff the property.

All in all, the complaint is unintelligible, and it is the pleading that frames the required evidence on a default judgment application. If Plaintiff seeks default judgment against Defendant, it is to file and serve a new complaint.

Conclusion

Based on the foregoing, the application is denied with prejudice for the failure to set forth comprehensible facts.