Case Number: 18PSCV00008 Hearing Date: March 04, 2019 Dept: J

RE: Tygro, LLC v. Gutierrez (18PSCV00008)

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Plaintiff Tygro, LLC’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Tygro, LLC’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Tygro, LLC (“Plaintiff”) is in the business of marketing and selling vehicle service contracts. Plaintiff alleges that Defendant James Gutierrez (“Defendant”) holds himself out as the owner of a “full service marketing company focusing on lead generation strategies,” and purports to dba AutoTel Group. Plaintiff alleges that, in or about mid-2017, Plaintiff entered into an oral agreement with Defendant wherein Defendant agreed to provide legally obtained, viable sales leads to Plaintiff in exchange for payment by Plaintiff of $28.00 for each live transfer which resulted in a minimum call duration of 60 seconds (“Live Transfer”), or $350.00 for each sale generated (“Completed Sales”). Plaintiff alleges that from July through November 2017, Plaintiff pre-paid Defendant $16,800.00 for Live Transfers and $67,550.00 for Completed Sales. Plaintiff alleges that on or about November 27, 2017, Plaintiff learned that Defendant’s leads were obtained in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”) and laws enforcing the National Do Not Call Registry (“DNC”). Plaintiff thereafter instructed Defendant to stop sending leads to Plaintiff. Plaintiff alleges that Defendant has failed to refund any portion of monies paid by Plaintiff. Plaintiff also alleges that Defendant’s violation of the TCPA and DNC proximately resulted in two major vehicle service contract administrators terminating their relationship with Plaintiff. Plaintiff alleges that it lost $64,800.00 in incentive payments and had to pay $4,000.00 to settle a consumer’s TCPA and DNC complaint. Plaintiff alleges that on or about January 12, 2018, unrelated to any invoice, Plaintiff inadvertently wired $14,000.00 to Defendant. Plaintiff alleges that Defendant returned $13,000.00 of the $14,000.00 to Plaintiff on or about January 16, 2018, but provided no explanation as to why the remaining $1,000.00 was not returned. On October 10, 2018, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-10 for:

Breach of Contract

Intentional Misrepresentation

Negligent Misrepresentation

Book Account

Common Count—Money Had and Received

On October 26, 2018, Plaintiff filed a proof of service, which reflected that Defendant had been personally served with the summons and complaint on October 23, 2018. On December 19, 2018, Defendant’s default was entered.

ANALYSIS

Yes (12/19/18) Default Entered. (JC Form CIV-100.)

Yes Dismissal of all parties against whom judgment is not sought or an

application for separate judgment against specified parties under CCP

579, supported by a showing of grounds for each judgment. (CRC 3.1800(a)(7).)

Yes Mandatory Judicial Council Form CIV-100. (CRC 3.1800(a).)

Yes Relief sought is within amount of prayer of complaint or statement of damages. (Due Process; Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

No Summary of the case. (CRC 3.1800 (a)(1).)

Yes Declarations in support of the judgment. (CRC 3.1800 (a)(2).)

N/A Attorney fees if supported by contract, statute or law. (CRC 3.1800 (a)(9); Local R. 3.2; open book – CC 1717.5.)

No __________ Interest computations. (CRC 3.1800 (a)(3); 10% for contracts – Civ. Code 3289.)

Yes Memorandum of costs and disbursements. (CRC 3.1800 (a)(4); JC Form CIV-100 item 7.)

Yes Declaration of nonmilitary status for each defendant. (CRC 3.1800 (a)(5); JC Form CIV-100 item 8.)

Yes Proposed form of judgment. (CRC 3.1800 (a)(6).)

N/A Statement of Damages served (P.I./wrongful death). (JC Form MC-010; CCP 425.11.)

N/A Punitive Damages are supported. Info re Defendant’s financial status. (CCP 425.115)

Plaintiff’s application for default judgment is DENIED without prejudice for the following reasons:

Plaintiff has not submitted any interest computations.

Plaintiff has not submitted a brief summary of the case.

Plaintiff seeks $84,350.00 (i.e., represented as amount stated on complaint as paid to Defendant), $4,000.00 (i.e., represented as amount paid to settle consumer’s complaint), $64,800.00 (i.e., represented as lost incentive payment), $7,020.69 (i.e., represented as prejudgment interest) and $1,000.00 (i.e., represented as money inadvertently paid to Defendant). Plaintiff’s managing member Paul Tyszkiewicz (“Tyszkiewicz”) attests that on or about November 27, 2017, he was informed of a consumer’s claim and learned that Defendant’s leads were obtained in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”) and laws enforcing the National Do Not Call Registry (“DNC”). (Tyszkiewicz Decl., ¶11.) Tyszkiewicz does not explain any of the circumstances surrounding how he learned this information, how the Defendant’s leads violated the TCPA and/or DBC, whether the alleged TCPA and/or DBC violations pertained to all of Defendant’s leads or some, and the nature of the “consumer’s claim” and circumstances surrounding same. He does not provide the court with any documentary evidence substantiating his statement that Plaintiff had to pay out $4,000.00 to allegedly settle a consumer’s claim, let alone linking Defendant’s conduct to this settlement. (Id., ¶¶11 and 13.) Tyszkiewicz does not identify the “two major vehicle service contract administrators” that purportedly terminated their relationship with Plaintiff because of Defendant’s alleged violation of the TCPA and DNC, let alone provide any documentary evidence reflecting that this termination came about because of Defendant’s alleged violations. (Id., ¶14.) He does not explain how Plaintiff lost $64,800.00 in incentive payments as a result of Defendant’s purported violations or provide any documentary evidence supporting this assertion. (Ibid.)

Without further proof of items stated in 3, court would only find proof of $84,350 plus $1000 overpayment.