Judge Upinder S. Kalra, Case 21STCV21117 2023-02-10 Tentative Ruling

Judge: Upinder S. Kalra, Case: 21STCV21117, Date: 2023-02-10 Tentative Ruling

Case Number: 21STCV21117 Hearing Date: February 10, 2023 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: February 10, 2023

CASE NAME: Loree Wilson v. Lamont Smith

CASE NO.: 21STCV21117

OSC RE: DEFAULT AND DEFAULT JUDGMENT

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 7, 2021, Plaintiff Loree Wilson (“Plaintiff”) filed a complaint against Defendant Lamont Smith and Does 1 through 10 (“Defendant”). The complaint alleged four causes of action: (1) Partition of Real Property, (2) Partition of Personal Property, 93) Breach of Oral and Written Contract, and (4) An Accounting. The complaint alleges that the Plaintiff and the Defendant are joint tenants, each with an undivided 50% interest in the Subject Property. Plaintiff asserts that the joint tenants cannot agree as to how the property should be leased, sold, utilized, improved, demolished, or otherwise dealt with.

On January 10, 2021, Plaintiff filed a Request for Entry of Default on the initial complaint that did not indicate the damages, which was GRANTED.

On March 17, 2022, the Court continued the matter to allow the Plaintiff to file a first amended complaint, within thirty days, as well as either secure an appearance by the Defendant or his entry of default.

On April 12, 2022, Plaintiff filed a First Amended Complaint requesting damages in amount no less than $500,000.

On September 26, 2022, the Clerk entered default on the FAC.

LEGAL STANDARD

CCP § 585 permits entry of a judgment after a Defendant fails to timely answer following proper service of process. A party seeking judgment on the default by the Court must file a Request for Court Judgment, and provide: (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. (CRC Rule 3.1800.)

Discussion

Proof of Service of Process: Proof of Personal Service for the Summons was filed on 6/28/2022.

Request for Entry of Default: CIV-100 as to Lamont Smith was filed on 9/26/2022, which was GRANTED.

Prove Up: Plaintiff seeks entry of judgment against Defendant Smith the amounts shown below:

(1) Demand of Complaint: $ 74,743.00

(2) Interest: $ 12,286.52

(3) Costs: $ 612.03

(4) Attorneys’ Fees: $ 8,193.83

Total: $ 95,835.38

In support of Plaintiff’s request, the following documents have been submitted:

A brief summary of the case: The Memorandum Application in Support of Default Judgment was submitted on 2/2/2023. In it, Plaintiff provides a brief summary of the case and arguments as to why default is appropriate.

Declarations or other admissible evidence in support of the judgment requested: Declaration of Plaintiff Loree Wilson is provided, and contains Exhibits.

Interest computations as necessary: In the Memorandum Application in Support of Default Judgment submitted on 2/2/2023, the interest in calculated on a 10$ per annum. The principal sum is $74,743, from June 7, 2021 until January 27, 2023, equals $12,286.52.

Memorandum of costs and disbursements: Paragraph 7 of CIV-100 states that the requested $612.03 is based on Clerk’s filing fees.

Proposed form of judgment: Form JUD-100 was filed on 2/2/2023.

Dismissal of all parties against whom judgment is not sought: Form CIV-110 was filed on 2/2/2023.

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: N/A

Exhibits as necessary: The Declaration of Loree Wilson contains Exhibits A through J, which contains various contracts, reports, spreadsheets, and demand letters.

Request for attorneys’ fees if allowed by statute or by the agreement of the parties. (CRC Rule 3.1800.): Plaintiff requests fees totaling $8,193.83. The fees are pursuant to CCP §§ 874.110 and 1032.[1] The total is calculated at $6,682.50 in fees and $1,511.33 in internal costs. (Dec. Moss ¶ 8.) However, per local Rule 3.214 attorney fees are limited to $1890 plus 2 % of the excess over $50,000. The proposed judgment totals $87,641.55. The amount over $50,000 equals $37,641.55 and 2% of this totals $752.831. Total attorney fees equals $2,642.83.

Conclusion

For the foregoing reasons, the Court decides the pending motion as follows:

Order to Show Cause Re: Entry of Default and Default Judgment is granted.

Moving party to give notice.

IT IS SO ORDERED.

Dated: February 10, 2023 ___________________________________

Upinder S. Kalra

Judge of the Superior Court

[1] CCP § 874.010 states “The costs of partition include: (a) Reasonable attorney's fees incurred or paid by a party for the common benefit.(b) The fee and expenses of the referee. CCP § 874.110 states: (a) The costs of partition as apportioned by the court may be ordered paid in whole or in part prior to judgment; (b) Any costs that remain unpaid shall be included and specified in the judgment. CCP § 1032 states: (a)(4) (4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. Subsection (b) states: Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.