Judge: Yolanda Orozco, Case: 21STCV36927, Date: 2023-01-31 Tentative Ruling
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Case Number: 21STCV36927 Hearing Date: January 31, 2023 Dept: 31
REQUEST FOR ENTRY OF DEFAULT JUDGMENT
TENTATIVE RULING
Plaintiff has only presented evidence to support a judgment of $314,355.16. consisting of:
· $1,052.36 in costs.
Plaintiff may either accept Default Judgment in the amount of $314,355.16 or continue the hearing to allow Plaintiff to submit a copy of the signed Merchant Processing Agreement showing Plaintiff is entitled to attorney’s fees.
BACKGROUND
On October 06, 2021, Plaintiff Elavon, Inc. filed a Complaint against Defendants Iwitness Tech Inc.; Yossi Engel; and Does 1 to 100.
The Complaint alleges Breach of Contract and Breach of Guaranty and seeks $269,515.68 in damages, along with interest at the legal rate, and attorney’s fees according to proof.
Proof of Service by Publication on Defendants was served on November 01, 2022.
Default was entered against Defendants on December 21, 2022.
On January 17, 2023, Plaintiff moved for Default Judgment.
Does 1 to 100 were dismissed on January 17, 2023.
LEGAL STANDARD
CCP § 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 and Defendant entered into a written contract, entitled New Company Application, on or about March 25, 2019. (Pfontenhauer Decl. ¶ 4, Ex. 1.) Per the terms of the contract, Plaintiff provided Defendants with merchant access for VISA and MasterCard transactions with U.S. Bank N.A. (Id. ¶ 5.) The contract also provided that Defendants were obligated to pay “charge-backs” occasioned by transactions, which were breached on or about May 27, 2021. (Id. ¶ 6.) Due to the Defendants’ breach of the contract, Defendants owe $268.515,68 in “charge-back fees,” as evidenced by the Merchant Detail Spread Sheet. (Id. Ex. 2.) To date no payment has been made. (Id. ¶ 8.)
Plaintiff’s stated damages in the amount of $268.515,68 is also reflected in Plaintiff’s Complaint. Accordingly, the Court finds that Plaintiff has properly proven damages in the amount of $268.515,68.
Plaintiff seeks interest on the $268.515,68 at the legal rate of 10% per annum, totaling $43,787.12 ($269,515.68 x 10% ÷ 365 days = $73.84 per diem x 593 days (5/27/21 to I/10/23) = $43,787.12). (Mulally Decl. ¶ 3.)
Therefore, $43,787.12 in prejudgment interest is appropriate.
Plaintiff’s counsel asserts that Plaintiff is entitled to attorney’s fees pursuant to paragraph 18.9 of the Merchant Processing Agreement. (Mulally Decl. ¶ 4.) Plaintiff asserts that attorney’s fees total $4,585.15 in attorney’s fees per Local Rule 3.214(a) for default judgment cases: $2,890.00+1% of excess amount greater than $ 100,000.00 ($2,890.00 + $ 1,695.15 = $4,585.15).
Although Plaintiff attached a copy of the New Company Application, Plaintiff did not attach a copy of the party’s signed Merchant Processing Agreement, showing that Defendants agreed to an attorney fee provision or that the Merchant Processing Agreement does in fact contain an attorney’s fee provision.
Therefore, Plaintiff has failed to show he is entitled to attorney’s fees per a contract provision. (See Civ. Code, § 685.010.)
Nevertheless, as the prevailing party, Plaintiff is also entitled to costs in the amount of $1,052.36, as evidenced by the memorandum of costs and the Declaration of Mark Pfotenhauer. (See Code Civ. Proc., § 1032.)
The Court finds that Plaintiff has provided proof that Plaintiff is entitled to Default Judgment in the amount of $314,355.16.
Conclusion
Accordingly, Plaintiff has only presented evidence to support a judgment of $314,355.16. consisting of:
Plaintiff may either accept Default Judgment in the amount of $314,355.16 or continue the hearing to allow Plaintiff to submit a copy of the signed Merchant Processing Agreement showing Plaintiff is entitled to attorney’s fees.
At the hearing, Plaintiff advised the Court that it would accept judgment in the amount indicated without an award of attorney fees. Therefore, Plaintiff is ordered to present a new form of judgment with the correct amount for the total judgment.