Case Number: BC652370 Hearing Date: March 06, 2019 Dept: 24

Plaintiff’s default judgment application is DENIED.

This is a breach of contract/breach of fiduciary suit filed by Plaintiff Sonya Wilson against Defendant Terrylene Sacchetti (“Sacchetti”) and Clerc’s Children Inc. (“Clerc’s”) (collectively, “Defendants”). Sacchetti is the controlling manager of Clerc’s, a non-profit organization. Clerc’s was organized in 2008 for the purpose of assisting deaf and hearing disabled children. Plaintiff is a former officer and shareholder.

According to the Complaint, Sacchetti solicited and received money from Plaintiff and others as an investment into Clerc’s. In return, Plaintiff was to be named an officer, director and shareholder of Clerc’s. However, Sacchetti operated Clerc’s as if she is the sole owner of the company. She misappropriated company funds for her own use and failed to pay monies owed to various suppliers and failed to account to investors and shareholders. Plaintiff learned that Sacchetti intended all along to defraud Plaintiff into giving up control and possession of Clerc’s with the promise of prompt payments, personally secured by Sacchetti, without ever following through as promised. Sacchetti also used Plaintiff’s name and likeness, without Plaintiff’s knowledge or permission, to solicit money from others.

The First Amended Complaint alleges causes of action for: Breach of Contract, Breach of Fiduciary Duty, Fraudulent Inducement, Conversion, Unjust Enrichment, Violations of California Business and Professions Code §§ 17200, et seq., Breach of the Doctrine of Good Faith and Fair Dealing, Accounting and Misappropriation of Likeness.

Default was entered against defendants on August 17, 2018. Plaintiff now moves for default judgment against Defendants.

Procedurally, Plaintiff did not provide the mandatory CIV-100 form. Plaintiff only provided an application in support of punitive damages, which attaches a description of the case and plaintiff’s declaration, and a partially filled JUD-100 form. As such, there is also no declaration of mailing provided or a declaration of nonmilitary status as to the individual defendant. (CRC Rule 3.1800(a).) This alone requires denial.

A more pressing concern is the lack of damages alleged in the operative complaint. None of the requested amounts are alleged, except for the $35,000.00 conversion claim. For example, Plaintiff requests $60,000.00 (contract claim); $ 300,000.00 (fraud claim); $ 300,000.00 (§ 17200 claim); $ 500,000.00 (Covenant of good faith claim); and $ 500,000.00 (Misappropriation claim). A statement of damages is not sufficient to support a default judgment in non-personal injury cases. Except in specific cases, such as personal injury, punitive damages, or a claim for accounting, the amount of damages must be stated in the complaint or the default judgment is void. (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 753-755.) In any event, according to the filed statement of damages, Plaintiff did not request any damages on the accounting claim. (Ely v. Gray (1990) 224 Cal.App.3d 1257, 1263-1264 [where the complaint seeks only an accounting (e.g., on dissolution of a partnership) no default judgment for a specific amount may be entered unless the defaulting defendant is first provided a separate prejudgment notice as to its potential liability].) Unless Plaintiff provides authority on why she does not need to allege the amounts requested in the complaint, then this error will require re-service of a new complaint.

As to the substance of the motion, no evidence is submitted justifying any of the damages sought. Plaintiff gives a scattered account of some of the underlying facts, but provides no evidence of damages. Plaintiff testifies to other investors being scammed (including improper hearsay evidence), and vague references to herself being scammed, but does not identify the amounts of damages she suffered as a result of Defendants’ misappropriation or theft. The only identifiable amount is an initial investment for $35,000.00, apparently from Plaintiff’s grandfather, that was converted by Defendants. The summary explains that this cause was assigned to her. However, Plaintiff does not establish through any evidence, her declaration or an independent exhibit, that this was assigned to her. (The declaration references Exhibit 1, but none is attached.)

Plaintiff also seeks “damages” under Bus. & Prof Code section 17200, which is improper. This cause only allows injunctive relief or restitution, not damages. (Bus. & Prof. Code §§ 17203, 17535.)

Accordingly, Plaintiff’s motion is DENIED.