Case Number: KC066126    Hearing Date: August 19, 2014    Dept: O

Well and Fit Adult Day Health Care, Inc. v. Trisea, LLC, et al. (KC066126)

1. Plaintiff’s APPLICATION FOR DEFAULT JUDGMENT

Respondent: NO OPPOSITION

2. Plaintiff Well and Fit Adult Day Health Care, Inc.’s MOTION FOR ATTORNEYS’ FEES AND COSTS

Respondent: NO OPPOSITION

TENTATIVE RULING

1. Plaintiff’s application for default judgment is DENIED without prejudice.

Doe Defendants have not been dismissed. (CRC 3.1800(a)(7).)

Further, due process considerations limit the amount of damages awardable on default. The demand sets a ceiling on recovery. (Greenup v. Rodman (1986) 42 Cal.3d 822, 824.) If no specific damages are alleged in the complaint, a prayer “for such other and further relief as the court deems just” will not support a default judgment for any specific sum. (See Becker v. S.P.V. Const. Co., Inc. (1980) 27 Cal.3d 489, 494-495.)

Plaintiff’s Complaint does not specify the amount of damages sought, but instead seeks damages “according to proof.”

Plaintiff must personally serve an AMENDED COMPLAINT upon defendant before seeking entry of default. Simply serving a statement of damages will not cure this defect. (See Levine v. Smith (2006) 145 Cal. App. 4th 1131, 1136-1137 – Statements of damages are used only in personal injury and wrongful death. In all other cases, when recovering damages in a default judgment, a plaintiff is limited to the damages specified in the complaint.)

2. Plaintiff Well and Fit Adult Day Health Care, Inc.’s motion for attorneys’ fees and costs is DENIED. Plaintiff has yet to obtain a default judgment.