Major Market Radio v. Shah CA4/2 ( 2022 )

Filed 8/26/22 Major Market Radio v. Shah CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MAJOR MARKET RADIO, LLC,
Plaintiff and Appellant, E076519
v. (Super. Ct. No. PSC1706817)
SURESH C. SHAH, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. David M. Chapman,
Judge. Affirmed.
United Law Center and John S. Sargetis, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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I.
INTRODUCTION
Major Market Radio, LLC appeals from the trial court’s order denying its request
for a default judgment, an award of damages, and attorney’s fees, and the court’s order
dismissing its case for failure to prosecute. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2017, Major filed and served a complaint against Suresh C. Shah
alleging claims for breach of contract, fraud, and tortious interference with prospective
economic advantage. Major alleged that Shah fraudulently induced Major into renting an
office building from him, repeatedly breached their rental lease agreement, and
intentionally interfered with Major’s negotiations with a prospective tenant for another
property. Major sought “at least $100,000” in damages, attorney’s fees, and costs for
each cause of action, as well as punitive damages for its second and third causes of
action.
Because Shah did not timely respond to the complaint, Major requested a default
judgment against him in February 2018. Two days later, the trial court issued an order to
show cause (OSC) directing Major to explain “why sanctions should not be impose[d] for
failure to file default judgment.”
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About six months later, the trial court sanctioned Major $250 and issued another
OSC directing Major to show cause why its complaint should not be dismissed “unless
Judgment or Dismissal is entered prior to 11/08/08.” Major responded by filing a request
for judgment along with supporting declarations and a proposed judgment.
Major re-filed its request for judgment again about two months later. In that
request, Major explained that it was proceeding only on its breach of contract claim and
thus it requested entry of judgment on that claim only. Major stated that, “[a]ssuming
judgment is entered on” its breach of contract claim, it would not proceed on its
remaining claims.
The trial court continued the OSC hearing to February 2019, and continued it
again to May 2019. In April 2019, however, the trial court issued a minute order denying
Major’s request for entry of default judgment against Shah. The order explained that the
“[r]ejections dated 10/13/18 and 12/13/18 still stand. No Statement of Damages and/or
proof of service filed. (CCP 425.11 (Personal Injury/Wrongful Death or CCP 425115
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(Punitive Damages)).”
The trial court again continued the OSC hearing three times, and eventually set it
for January 22, 2020. A day before the hearing, however, the trial court entered an order
dismissing Major’s complaint because “[t]he default judgment application has been
rejected over six times.”
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The October 13 and December 13, 2018 “rejections” are not in the record or the
register of actions.
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Major moved to vacate the dismissal, which the trial court granted. In its order
granting the motion to vacate, the trial court noted: “Counsel informs the Court the
[Code of Civil Procedure section] 585 default packet is regularly being rejected by the
Clerk’s Office. The Court advises counsel to contact a supervisor in the Clerk’s office.”
The trial court also ordered Major to show cause why the case should not be dismissed
“unless Judgment/Dismissal is entered prior to OSC set [for] 4/30/2020.”
After the court continued the OSC hearing on its own motion several times, it was
eventually set for December 10, 2020. In the meantime, Major resubmitted its request for
entry of judgment with supporting documentation. Major requested a default judgment
on its breach of contract claim only, and sought $100,000 in damages, $7,144.50 in
attorney’s fees, and $1,519.30 in costs, for a total of $108,663.80.
In November 2020, the trial court issued a minute order denying Major’s request
for a default judgment. The order stated in full: “It is unclear how [Major] justifies an
even $100000.00 for damages. The request [sic] attorney fees do not comply with Local
Rule 3190 and therefor [sic] excessive. Court costs are excessive and not [sic] evidence
submitted to support them.”
The trial court then set an OSC hearing for a month later concerning whether
Major’s complaint should be dismissed. After holding the hearing, the trial court
dismissed Major’s complaint for Major’s “[f]ailure to comply with Fast Track rules” and
its “persistent failure to prosecute this action in a diligent manner required by the Code of
Civil Procedure and the California Rules of Court.” Major timely appealed.
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III.
DISCUSSION
Major argues the trial court erroneously denied its request for a default judgment
and, as a result, erroneously dismissed its case. We disagree.
When a defendant has defaulted on a complaint which states a viable cause of
action, the trial court “‘must hear the evidence offered by the plaintiff and must render
judgment in his favor for such sum, not exceeding the amount stated in the complaint, or
for such relief, not exceeding that demanded in the complaint, as appears from the
evidence to be just.’” (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 362 (Johnson),
italics added.) To recover damages on a default judgment, the plaintiff need only make a
prima facie showing of entitlement to damages. (Ibid.)
“When entering judgment against a defaulting defendant, a trial court acts as a
‘gatekeeper,’ not a rubber stamp. [Citations.] This is a ‘serious’ and sober responsibility
[citation], requiring the court to assure itself that the plaintiff has made a ‘prima facie
case’ showing entitlement to each type of damages under (1) the relevant statute,
contract, or legal doctrine, and (2) the well-pled allegations in its operative complaint.”
(Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1132.) Prima
facie evidence is “that which will support a ruling in favor of its proponent if no
controverting evidence is presented.” (Evans v. Paye (1995) 32 Cal.App.4th 265, 280, fn.
13.) “It may be slight evidence which creates a reasonable inference of fact sought to be
established but need not eliminate all contrary inferences.” (Ibid.) Nonetheless, “[p]rima
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facie evidence is still evidence and subject to some standards.” (Harbour Vista, LLC v.
HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1503, fn. 6.)
However, our review of the trial court’s award of damages (or refusal to award
damages) is “severely circumscribed.” (Uva v. Evans (1978) 83 Cal.App.3d 356, 363.)
We may reverse a trial court’s ruling denying an award of damages on a default judgment
only if it is “totally unconscionable and without justification.” (Johnson, supra, 72
Cal.App.4th 357 at p. 361.)
The only evidence Major submitted to support its request for damages was Stolz’s
declaration. Stolz explained that he and his real estate agent concluded that Shah
overcharged Major about $1.50 per foot in rent, for a total of $109,000 in overcharged
rent. Stoltz’s declaration, however, had no supporting documentation. (See Johnson,
supra, 72 Cal.App.4th at p. 362 [plaintiff entitled to default damages in part because he
supported oral and written testimony with “a number of exhibits” showing financial
losses caused by defendant].) The trial court did not have to accept Stolz’s declaration,
but instead had the discretion to find Stolz’s declaration not credible or otherwise
insufficient to support Major’s request for damages. (See Oldenburg v. Sears, Roebuck
& Co. (1957) 152 Cal.App.2d 733, 742 [trial judge has sole discretion to determine the
credibility of the evidence and thus may reject evidence as unreliable or not credible];
Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court may reject witness’s
uncontradicted testimony].). As a result, we cannot say that the trial court’s decision not
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to award Major any damages was “totally unconscionable and without justification.”
(Johnson, supra, 72 Cal.App.4th 357 at p. 361; Ajaxo, supra, 48 Cal.App.5th at p. 164.)
Major argues otherwise, relying heavily on Johnson. But that case is
distinguishable. The plaintiff in Johnson agreed to have the defendant, Stanhiser,
manage his finances, but Stanhiser ended up converting millions of the plaintiff’s assets
for himself. (Johnson, supra, 72 Cal.App.4th at p. 359.) The plaintiff testified at a
prove-up hearing and submitted a supplemental statement “which laid out in detail each
transaction that occurred between himself and Stanihiser.” (Id. at p. 359.) The statement
included “a number of exhibits, such as documents concerning the amount of shares and
warrants [in a company] he had owned, treasury orders, investment transaction reports,
canceled checks, and correspondence.” (Id. at p. 362.) The trial court declined to award
the plaintiff any damages because he failed to prove he suffered actual damages by a
preponderance of the evidence. (Id. at p. 360.) This court reversed, holding that the
plaintiff only had to establish, and did establish, “a prima facie showing that he was
damaged by Stanhiser’s actions.” (Id. at p. 365.)
Unlike the trial court in Johnson, there is no indication the trial court here
incorrectly applied a preponderance of the evidence standard. (See Almanor Lakeside
Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 [appellate court
presumes trial court’s judgment is correct with “all intendments and presumptions in
favor of its correctness”].) Instead, the trial court permissibly found that Stolz’s
declaration insufficiently showed that Major suffered about $109,000 in damages because
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of Shah’s actions. We presume the trial court applied the correct standard in reaching
this decision, not the incorrect higher burden of proof that the Johnson trial court
explicitly applied.
Major argues that because the trial court erred by denying its request for damages,
the court necessarily erred by later dismissing its complaint. Major provides no other
argument on the court’s dismissal. Because we conclude the trial court had the discretion
not to award Major damages on this record, Major has failed to show that the trial court
erroneously dismissed its complaint for failure to prosecute. (Bianco v. California
Highway Patrol (1994) 24 Cal.App.4th 1113, 1125 [appellant must show the trial court
prejudicially erred].)
Finally, we note that it is unclear whether Major challenges the trial court’s order
denying its request for attorney’s fees. Although Major notes that the trial court denied
the request because it was “excessive,” Major provides no argument on the issue in its
opening brief. Major thus forfeited any challenge to the trial court’s refusal to award
attorney’s fees. (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296,
fn. 7 [“Issues not raised in the appellant’s opening brief are deemed waived or
abandoned”]; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785
[appellant forfeits argument made without analysis or authority].) We therefore affirm
the trial court’s order denying Major’s request for attorney’s fees. (Bianco v. California
Highway Patrol, supra, 24 Cal.App.4th at p. 1125 [appellant must show the trial court
prejudicially erred].)
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IV.
DISPOSITION
The trial court’s orders denying Major’s request for a default judgment, damages,
and attorney’s fees and dismissing the complaint are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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