Case Number: TC028084 Hearing Date: March 05, 2018 Dept: A

# 1. Sandra Rodriguez Rodriguez vs. Diana Culkin

Case No.: TC028084

Matter on calendar for: Default prove up hearing on Cross-Complainant Robert Russo’s First Amended Cross-Complaint (“FACC”) against Cross-Defendants Michael Culkin, Diana Culkin, and M. L. Culkin Construction Co.

Tentative ruling:

At the December 15, 2017 Hearing, the Court found that:

· Russo has established a (contractual) basis for recovering $69,607.03 from the Church property transaction, and $73,254.17 from the Compton property transaction; and

· Russo is entitled to recover $802 in costs, but not the $300 spent opposing a demurrer in the underlying case, or $500 spent on a failed motion for summary judgment.

The Court also found that Russo’s default package contained the following defects:

· Russo had not proven fraud or punitive damages pursuant to Civil Code section 3294 against Culkin.

· Russo had not established a legal, statutory, or contractual basis for recovering attorney fees in this matter. Russo cited to CCP section 1780 and Welfare and Institutions Code section 15657.5(a) (the Elder Abuse Act), but failed to explain how these statutes permit recovery in this matter. Russo failed to establish that this is an Elder Abuse case.

· Russo had failed to establish Diana Culkin’s liability. Only Michael Culkin and M.L. Culkin Construction Company appeared to be liable per contract. Russo merely stated that “his wife Diana Culkin should be responsible for the $46,626.28 also as her name was on that lien too that was taken out of the proceeds from escrow.”

· Russo had failed to submit mandatory Judicial Council forms CIV-100 for entry of court judgment demonstrating the specific amounts he seeks to recover from each Cross-Defendant. (CRC 3.1800(a).)

· Russo had failed to submit the original contract, or a declaration explaining loss/unavailability of the original, and a proposed order to accept an authenticated copy in lieu of the original. (CRC, Rule 3.1806.)

Russo was permitted to file a new default package consistent with the Court’s findings and curing the above defects.

Russo’s new default package cures the latter two defects. The first three defects remain. The February 20, 2018 Supplemental Declaration does not cure them. Russo has failed to establish the elements of fraud. The Supplemental Declaration on page 3 states, without citing to any authorities:

There was obvious fraud by Mike Culkin when he promised to place the title of the Compton property in my name and then deliberately kept the property in his name as to recover ½ owner [sic] as a tenant in common, then sold off the entire property to Rodriguez which got me sued in this case for quiet title and many other causes of action causing me great damages, time out of my life and extreme distress to the point where I could not sleep some nights worrying about the large damages that I lost here. I put all of my own money into this project and Michael Culkin put in absolutely no money into the job. He was suppose [sic] to put his efforts and labor into the project to earn his one half of the project; then he turned around and started billing me for his labor indicating to me that he needed money to survive and told me that he would have to walk off the job in Compton if I didn’t pay him for his labor on a weekly basis. Mike Culkin took $50,000 off Rodriguez and gave them A grant deed for 100% of the property, if that’s not fraud I don’t know what is?

This narrative is insufficient to prove fraud. Russo has failed to show that Culkin made a misrepresentation to Russo with knowledge of its falsity, and with the intent to induce Russo’s reliance on that misrepresentation. Instead, Russo paints a picture of a deal gone wrong over a period of time, and Culkin’s eventual breach of contract. Russo cites to Robinson Helicopter Company, Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 992, but this case is inapposite; it involves the economic loss rule as applied after adequate proof of misrepresentation. There is no such adequate proof here.

Russo has still failed to establish a basis for recovering attorney fees. Robinson is irrelevant here.

Russo has still failed to establish Diana Culkin’s liability. Russo states, without citing to any authorities:

Diana Culkin operated a restaurant with her husband Michael Culkin; they were sued for back rent and that judgment against both of them was recorded and was taken out of my escrow for my Church property. I have previously attached the proof to my prior declaration in support of my default prove up. Diana Culkin benefitted from my escrow as the debt against her was extinguished when it was deducted from my Church sale. The judgment was against both of them in the amount of after interest and costs $46,364.10 plus Rodriguez gave Diana Culkin $50,000 in a loan secured by the Compton property which I owned. I had to pay $40,000 to settle with Rodriguez in this case in order to be able to sell the property off. Therefore I am claiming a total of $86,364.10 from Diana Culkin.

(Supplemental Declaration at 4.)

This excerpt is insufficient to establish Diana Culkin’s liability for her husband’s wrongful conduct.

Russo specifically asks the Court to enter judgment on his viable money damages claims (he seeks the collect on the judgment as soon as possible). Accordingly, the Court grants Russo’s request for default judgment in the amount of $69,607.03 for the Church property transaction, plus $73,254.17 for the Compton property transaction, plus $802 in costs. This totals $143,663.20.

The Court grants Russo’s request for default judgment in the amount of $143,663.20. Russo must submit a proposed order incorporating such parts of this tentative ruling as become the order of the Court.