Case Number: BC704243 Hearing Date: November 27, 2018 Dept: 34

Request for Entry of Default Judgement

Plaintiff’s request for default judgment is DENIED.

The case is DISMISSED.

BACKGROUND:

Plaintiff Pass Boldly, LLC, sues Defendants Linda Pineda and Alma Pineda for breach of contract. The suit arises from Defendant Linda Pineda’s failure to pay rent, and Defendant Alma Pineda’s breach of guaranty agreement to guaranty Linda Pineda’s failure to pay rent.

ANALYSIS:

Plaintiff’s request for damages does not match the amount sought in the complaint. The complaint alleges Defendants “fail[ed] to pay rent. Plaintiff is seeking recovery of rent from April 2016 through March 2017.” (Compl. ¶ BC-2.) Consistent with the $950/month amount of rent, Plaintiff seeks damages in the amount of $11,400. (Compl. ¶ BC-4.)

Notwithstanding the foregoing, Plaintiff now seeks damages in the amount of $29,450. This represents the last two and a half years of rent, from April 1, 2016, to October 1, 2018. (See Kwak Decl. ¶ 7.) In other words, the amount currently sought is more than double the amount of the complaint.

(Although it is not critical to the Court’s analysis, the Court notes that Kwak declares he is seeking damages from April 1, 2016, to “the present, October 1, 2016, which totals 31 months.” From April to October 2016 is 6 months, not 31 months. Therefore, the Court assumes this is a typographical error, and Kwak meant to declare that he was seeking rent from April 1, 2016 to October 1, 2018.)

Plaintiff also states that the foregoing amount (in its entirety) is only sought against Defendant Alma Pineda, based on her breach of the guaranty. Plaintiff asserts Defendant Linda Pineda, by contrast, is jointly and severally liable for $16,150 of the foregoing. (Kwak Decl. ¶ 8.) This is because, as against Linda Pineda, Defendant is currently proceeding in an unlawful detainer action (18STUD10555), and back rent in an unlawful detainer action is generally limited to rent for the one year prior to the notice to quit or pay. (CCP § 1161(2).)

However, this request raises additional problems. First, even a judgment of $16,150 is more than the amount requested in the complaint.

Further, although Defendant is correct that unpaid rent in an unlawful detainer is typically limited to one year, it is also limited to the amount sought by the notice to quit or pay. (CCP § 1161(2).) Defendant has not provided a copy of the notice to quit or pay, however, and this Court therefore cannot verify either the date the notice to quit or pay was posted, or whether the amount of back rent sought was properly included in the notice to quit or pay. The Court is additionally concerned as to Plaintiff’s right to proceed against Alma Pineda as if she were a third-party guarantor, given that Plaintiff also asserts that Alma Pineda is not a party to the unlawful detainer action (see Statement of Case 2:8-9), but that Plaintiff believes she is living in the apartment as a tenant (see Statement of Case 1:26-27).

For the above reasons, entry of default judgment is DENIED.

CONCLUSION:

At the Case Management Conference on August 28, 2018, the Court questioned why an $11,400 case was filed in a general jurisdiction I/C court. The Court also questioned why a notice of related case was not filed since plaintiff’s counsel stated that a related UD case had been filed. As of the writing of this tentative decision, counsel has still failed to file a notice of related case. The Court hopes that plaintiff’s counsel’s failure to comply with the California Rules of Court, Rule 3.300, was not intentional. This is particularly important in this case, because Defendant may well be represented by counsel in the unlawful detainer action, and it is therefore surprising no one has sought to set aside default in this action.

At the August 28th CMC, Plaintiff’s counsel told that Court that defaults had been entered against both defendants. The Court, with plaintiff’s counsel’s concurrence, stated that it would set an OSC re Entry of Default Judgement for October 10, 2018. The Court further stated that “if Plaintiff fails to enter default judgment by the above-mentioned hearing date, the Court will dismiss the case.” (8/28/2018 Minute Order.)

The October 28, 2018 OSC re Entry of Default Judgement was continued to November 6, 2018. At that hearing, plaintiff’s counsel stated that he had filed the papers for Entry of Default Judgement on October 27, 2018 – i.e., one day before the originally-scheduled hearing and two months after the Court had set the OSC re Entry of Default Judgement. At the time of the hearing, the Court had not yet received any papers from the default unit. Given counsel’s inexcusable delay, the Court was inclined to dismiss the case, but at counsel’s urging, agreed to give counsel one more chance to obtain a default judgment.

As indicated above, the Court cannot grant Entry of Default Judgement based on the papers submitted by counsel.

Given that:

1. the Court had previously stated that if there was no Entry of Default Judgement by October 28, 2018 it would dismiss the case;

2. the Court then gave counsel an additional opportunity to have default judgment entered; and

3. the papers that have now been submitted are insufficient as indicated above,

the case is DISMISSED.