Case Number: BC508033??? Hearing Date: September 21, 2016??? Dept: 58
Hearing Date: Wednesday, September 21, 2016
Calendar No: 11
Case Name: Crattic, et al. v. Paul, et al.
Case No.: BC508033
Motion: Motion to Vacate Default Judgment
Moving Party: Defendants Ruth T. Paul and Byron K. Paul
Responding Party: Plaintiffs Juanita Crattic and Frank Crattic
Tentative Ruling: Motion to vacate is denied.
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On 5/6/13, Plaintiffs Juanita Crattic and Frank Crattic filed this action against Defendants Ruth T. Paul and Byron K. Paul for partition of real property located at 3931-35 W. Slauson Ave., Los Angeles, CA 90043 (owned one-half each by Plaintiffs and Defendants), and for an accounting of the dissolution of a partnership between Mrs. Crattic and Mrs. Paul concerning a beauty salon operating on the property. On 7/5/13, default was entered against Mrs. Paul. On 7/10/13, Mrs. Paul filed an answer which the Court struck as void as having been filed after entry of default on 8/7/13. On 12/17/13, default was entered against Mr. Paul. At the default prove-up hearing on 3/10/14, the Court dismissed this action pursuant to CCP ? 581(e)(3) for Plaintiffs? failure to appear. On 3/19/14, the Court granted Plaintiffs? ex parte application to set aside the dismissal based on Plaintiffs? counsel?s mistake as to the hearing date. On 5/6/14, the Court entered an interlocutory judgment ordering the property be sold with the proceeds to be divided equally with Plaintiffs to recover attorney fees and costs. On 8/19/15, the Court granted Plaintiffs? motion for judgment which confirmed the sale of the property, approved broker fees of $26,250, approved attorney fees and costs of $79,370.75, and approved an offset for undistributed share of rental income of $122,892.78. On 8/19/15, judgment was entered awarding Plaintiffs $308,832.04 and Defendants $63,046.48.
Motion to Vacate Default Judgment ?
On 8/4/16, Defendants filed this motion seeking to vacate the default judgment on the ground that it exceeds the amount set forth in the Complaint and improperly seeks excessive and improper attorney fees.
A default judgment is void if the judgment exceeds the amount set forth in the complaint or demanded in a statement of damages when the action is to recover damages for personal injury. Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 752-55. Defendants challenge the accounting portion of the judgment, which offset the partition of the property by Plaintiffs? claim for unpaid rental income. There is a split of authority as to whether a plaintiff seeking an accounting must provide a pre-default notice of the amount due. See Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 398-400. However, after review, the Court believes that Plaintiffs? accounting claim is more similar to that considered in Cassel v. Sullivan, Roche & Johnson (1999) 76 Cal.App.4th 1157, 1164, in a situation as here in which Plaintiffs alleged and provided evidence that Mrs. Paul had control over the partnership accounts (Complaint ? 23; Juanita Decl. filed 8/13/15 ? 3). Additionally, even if Cassel did not apply (see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1527 (disagreeing with Cassel)), the Court notes that the record establishes that Defendants were given notice of the amount sought (see Los Defensores, Inc., 223 Cal.App.4th at 401-2). Here, the defaults entered against Defendants indicated a demand of $750,000. Additionally, prior to the entry of the accounting portion of the judgment, Defendants were served with the proposed order which set forth the final judgment amounts requested. Under these circumstances, the Court concludes that Defendants had notice of the accounting amounts sought by Plaintiffs.
Defendants argue that the award of attorney fees was not included in the request for default, citing to Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479. However, this fails to acknowledge that this action included both a partition claim and an accounting claim. Additionally, the Court?s interlocutory judgment ordered Plaintiffs to seek attorney fees and costs by motion. Finally, Defendants? argument that the attorney fees are excessive only disputes the amount of attorney fees that the Court has already determined to be reasonable. This does not render the attorney fees award void.
Therefore, the motion to vacate default judgment is denied.