Tentative Ruling


Re: ????? ??????????? ??????????? ??????????? ?Herrick v. Eddie Davis, Misty Davis, James Compos,????????????????????????????????????????????????? and Carla Compos

Superior Court Case No. 16 CECG 02385


Hearing Date: ????????? ??????????? January 31, 2017 (Dept. 402)


Application:????????????????????????? Default Prove Up


Tentative Ruling:

??????????? To deny the application without prejudice.



On November 30, 2015, a default judgment in the amount of $380,488.34 was entered jointly and severally against CJ?s Restaurant, LLC dba Humphrey?s Station, Michael Ortiz and Angel Macumba in Case No. 13 CECG 02894.? The complaint in that action alleged causes of action for negligence (the hiring of persons adjudged to be sexually violent offenders), failure to maintain workers compensation insurance, sexual assault, intentional infliction of emotional distress, conspiracy to commit sexual assault and unfair competition.? Only the first, second, and sixth causes of action were alleged against the Restaurant.

On July 26, 2016, Plaintiff filed a complaint against individuals alleged to be the alter ego of judgment debtor, CJ?s Restaurant.? It alleges three ?causes of action?:

  1. Fraudulent conveyance;
  2. Civil Conspiracy; and
  3. Violation of Bus. & Prof. Code ? 17200 et seq.

On September 21, 2016 Defendants Eddie Davis and Misty Davis were personally served with the summons, complaint, etc.? See proofs of service filed on October 4, 2016.? Defendants James Compos and Carla Compos were served via substituted service on October 3, 2016.? See proofs of service filed on October 12, 2016.? Default was entered on November 1, 2016 against Eddie Davis and Misty Davis.? On November 15, 2016, default was entered against James Compos and Carla Compos.


On January 17, 2017, Plaintiff filed an ?application? for default judgment by court.?? However, the mandatory Judicial Council form (CIV-100) was not used.? See CRC Rule 3.1800(a).? On this ground alone, the application can be denied.? However, there are other more serious defects.

A defendant who defaults admits only facts well pleaded in the complaint. Thus, if the complaint fails to state a cause of action, a default judgment is erroneous and will be set aside on appeal. [Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 538-539; Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282]? In the Complaint at bench, it is noted that there is no cause of action for ?civil conspiracy.? [Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 206– The essence of the claim is that it is merely a mechanism for imposing vicarious liability; it is not itself a substantive basis for liability.]? It is further noted that there are no facts stated in the cause of action for ?fraudulent conveyance.?? Instead, only conclusions are pleaded.? See Complaint at ?? 26-35.

As for the third cause of action, a complaint under the Unfair Practices Act (B. & P.C. 17000 et seq.) must state facts supporting the statutory elements of the alleged violation. See G.H.I.I. v. MTS (1983) 147 Cal.App.3d 256, 271 and Khoury v. Maly’s of Calif. (1993) 14 Cal.App.4th 612, 619.? Here, the cause of action pleads no facts only statements of law purportedly applicable to the failure to maintain workers compensation insurance. See ?? 43-52 of the Complaint.? More importantly, neither actual nor compensatory damages may be awarded. [Bank of the West v. Sup.Ct. (Industrial Indem. Co.) (1992) 2 Cal.4th 1254, 1266??damages are not available under section 17203?; Chern v. Bank of America (1976) 15 Cal.3d 866, 875??? 17500 and 17535 ?do not authorize recovery of damages?]? Likewise, punitive damages are not available under the UCL or the FAL. [People v. Sup.Ct. (Jayhill Corp.) (1973) 9 Cal.3d 283, 287]?

Finally, and most importantly, Plaintiff has offered no proof that the Plaintiffs are the alter ego of CJ?s Restaurant, LLC.? See Declaration of Mendoza.? Although the Defendants have defaulted, there must be evidence introduced to establish a prima facie case.? See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 271-272.? Ultimately, the complaint is not well pleaded and the application itself has not been well presented.? Therefore, the application at bench will be denied without prejudice.

Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: ????????????????JYH????? ??????on 01/30/17

(Judge?s initials) ?????? (Date)