Judge: Wesley L. Hsu, Case: 21PSCV00719, Date: 2023-05-10 Tentative Ruling

Case Number: 21PSCV00719    Hearing Date: May 10, 2023    Dept: L

Plaintiff Karpa Trading, Inc.’s Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff Karpa Trading., Inc. (“Plaintiff”) alleges as follows: Plaintiff is a seafood wholesaler importing and exporting seafood to restaurants. Defendant KP Gourmet, Inc. dba Kyushu Buffet (“KP Gourmet”) is on a credit basis with Plaintiff. Defendant has failed to pay Plaintiff for seafood delivered and accepted.

On December 7, 2021, Plaintiff filed an “Amendment to Complaint,” wherein Fa Chi Ni (“Ni”) was named in lieu of Doe 1.

On January 28, 2022, Plaintiff filed a Second Amended Complaint, asserting causes of action against KP Gourmet, Ni and Does 2-25 for:

1.                  Breach of Contract

2.                  Breach of the Implied Covenant of Good Faith and Fair Dealing

3.                  Common Count: Goods and Services Rendered

4.                  Unjust Enrichment

5.                  Intentional Misrepresentation

6.                  Negligent Misrepresentation

On January 9, 2023, Ni’s default was entered. On January 23, 2023, KP Gourmet’s default was entered.

An Order to Show Cause Re: Default Judgment is set for May 10, 2023.

Discussion

Plaintiff’s Application for Default Judgment is denied without prejudice. The following defects are noted:

1.                  Plaintiff seeks $47,097.01 as the “demand of complaint” set forth on Judicial Council Form CIV-100; however, the prayer of Plaintiff’s SAC refers to “[d]amages in the amount of no less than $44,097.01,” “[r]estitution in the amount of no less than $44,097.01, “[g]eneral damages according to proof” and “[s]pecial damages according to proof.” There is no reference to $47,097.01 in the body of the SAC. In actions for money damages a default judgment is limited to the amount demanded in the complaint. (See Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

2.                  Plaintiff has not provided the court with a summary of the case, as per California Rules of Court rule 3.1800, subdivision (a)(1).

3.                  Ashley Tsao itemizes ten invoices in Paragraph 5 of her declaration, but fails to attach any of the aforesaid invoices as exhibits. No documentary evidence whatsoever has been provided.

4.                  It is unclear to the court how Ni is personally liable. No evidence of alter ego has been provided.

5.                  It appears that Plaintiff seeks attorneys’ fees pursuant to Civil Code § 1717.5. The SAC, however, does not contain a cause of action for Open Book Account.