Case Number: BC696969 Hearing Date: June 06, 2018 Dept: 51

Plaintiff Devin Weisberg sues Marisela Nuno and Jose Esteban Nuno for damages alleging they retained plaintiff as counsel on an unrelated case and failed to pay for his legal services.

On March 6, 2018, plaintiff filed a complaint for breach of contract. On April 30, 2018, default was entered against defendants.

Plaintiff now seeks default judgment against defendants in the principal amount of $105,078.50 plus interest and costs for a total judgment of $108,023.66.

Procedural Requirements

On April 30, 2018, default was entered against defendants. No pending motion to vacate default appears in the record. The default judgment packet includes a dismissal of Does 1 through 10 on the appropriate Judicial Council form. Plaintiff’s counsel signed a declaration of nonmilitary status. The complaint prays for the same amount requested as the principal default judgment amount. Plaintiff requests to use a copy of the contract in lieu of the original.

No proposed form of judgment was included. Without the mandatory document, the default judgment packet is defective, although for completeness the Court will address remaining requirements. See CRC, Rule 3.1800(a) (“The following must be included in the documents filed with the clerk: [¶] . . . [¶] (6) A proposed form of judgment[.]”)

Plaintiff’s proofs of service of summons, filed March 23, 2018, state that defendants were substitute-served by leaving the summons and complaint with Paula Molina, a “co-resident,” at 2037 S. Harvard Blvd., Los Angeles, CA 90018. The proofs of service of summons also indicate that the process server subsequently mailed, first-class with postage prepaid, the same documents to the address.

Evidentiary Support

For a plaintiff to prove entitlement to damages after entry of default, the plaintiff must “merely establish a prima facie case,” a showing that is lower than that under the preponderance of the evidence standard. Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.

Plaintiff submitted a declaration in support of his claim. The declaration authenticates the retainer agreement, under which defendants were required to pay plaintiff at an hourly rate of $350 an hour and that invoices were payable within 15 days from the date of mailing. Weisberg Decl., Exh. 1 (Retainer Agreement), ¶¶ 5, 7. The Retainer Agreement also provides that the hourly rate was subject to increase upon 30 days’ written notice. Id. at ¶ 5. On September 25, 2014, plaintiff notified defendants that his rate would be increased to $1,000 an hour as of October 25, 2014. Weisberg Decl., Exh. 2. On January 16, 2018, plaintiff sent defendants an itemized invoice, which indicated that $105,078.50 remained outstanding. Weisberg Decl., Exh. 3. Plaintiff testifies that the bill remains unpaid. Weisberg Decl. ¶ 15.

This evidence is sufficient. Accordingly, plaintiff has met his burden of establishing a prima facie case on his single cause of action.

Plaintiff’s request for judicial notice of the fact that he was defendants’ attorney and a printout of the online docket of the case he was retained for is DENIED as superfluous.

Interest

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day.” Civ. Code § 3287(a).

“Under subdivision (a) the court has no discretion, but must award prejudgment interest upon request, from the first day there exists both a breach and a liquidated claim.” North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828.

The 10 percent statutory rate of interest for contract actions is proper. Civ. Code § 3289(b).

Plaintiff requests interest of $2,216.66 from March 6, 2018, the date the complaint was filed, to May 22, 2018, the date plaintiff signed his declaration. Case Summary 2:21-24. The amount and dates are proper.

Costs

Plaintiff requests $728.50 in costs representing $435.00 in filing fees, $250.00 in process server fees, and $43.50 in fax filing fees. The process server’s fees are excessive. Although multiple attempts to serve were required, both defendants are California residents who (according to the proofs of service of summons) live at the same residence. The process server fees will be reduced to $150.00.

Conclusion

The Court will sign a properly presented judgment form. Plaintiff is ORDERED to submit one forthwith, and the Court will set an OSC if one is not promptly submitted.