Request for Default Judgment
· Plaintiff has not been diagnosed with any psychological condition as a result of the subject incident (Ex. C to Van Decl.) Therefore, Plaintiff has demonstrated a reasonable possibility of prevailing on the elements of causation and damages.
c. Reasonableness of Undertaking Amount Defendant seeks an undertaking in the amount of $32,409.43. In support, Defendant advances the attorney declaration of Myrna Van, which contains a chart outlining the fees already incurred and estimates of fees expected to be incurred through trial, totaling the requested $32,409.43. (Van Decl. P. 13.) Therefore, Defendant has demonstrated that the amount requested is the amount reasonably likely to be incurred to litigate this matter through trial, and Plaintiff has not opposed the motion to demonstrate otherwise.
CONCLUSION AND ORDER Finding Defendant has demonstrated that Plaintiff resides out of the state in Plano, Texas and Defendant has demonstrated a reasonable possibility of prevailing on the elements of causation and damages, by virtue of the Requests for Admission the Court deemed admitted on September 24, 2025, the Court grants Defendant's unopposed motion requiring Plaintiff to post an undertaking in the amount of $32,409.43 pursuant to Code of Civil procedure section 1030.
Further, the Court orders Plaintiff to post an undertaking in the amount of $32,409.43 within thirty (30) days after service of the Court's order, pursuant to Code of Civil Procedure, section 1030, subdivision (d).
Further, the Court will enter the proposed Order lodged on July 14, 2026 in conformity with the ruling. Defendant shall provide notice of the Court's ruling/Order, and file the notice with a proof of service forthwith.
DATED: August 14, 2026 _______/s/____________________ Michael E. Whitaker Judge of the Superior Court
RULING DEPARTMENT | 207 | HEARING DATE | August 14, 2026 | CASE NUMBER | | MATTER | Request for Default Judgment |
This case arises from an outstanding debt owed. On March 23, 2026, Plaintiff Kroll, LLC ("Plaintiff") brought suit against Defendant Terramar Capital, LLC dba Terramar Capital ("Defendant") and Does 1-20, alleging two causes of action for (1) breach of contract and (2) common counts.
Defendant was personally served with a copy of the summons and complaint on April 8, 2026. Default was entered against Defendant on June 15, 2026, and the Doe defendants were dismissed on July 20, 2026.
Plaintiff now requests default judgment in the amount of $277,979.11, which is comprised of $183,350 in special damages as demanded in the Complaint, prejudgment interest in the amount of $37,122.11, costs in the amount of $570, and attorneys' fees in the amount of $6,937.
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A. Damages Plaintiff's Complaint seeks special damages in the amount of $65,465.06 in connection with the first cause of action for breach of contract and $183,350 in connection with the second cause of action for open book account. (See Compl.) Therefore, Plaintiff does not seek damages that are in excess of what is pled in the Complaint. (See Code Civ. Proc., Sec. 580, subd. (a) ["The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint"]; Levine v. Smith (2006) 145 Cal.App.4th 1131, 1136-1137 ["when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint"].)
In support of the request, Plaintiff advances the Declaration of Anthony S. Berkus, which provides as follows: 2. [...] Within four years preceding the commencement of this action, at the special instance and request of DEFENDANT, PLAINTIFF provided financial consulting related services to said DEFENDANT. Attached hereto and incorporated by reference herein as Exhibit "A", is a true and correct copy of the Agreement between PLAINTIFF and DEFENDANT. [...]
4. DEFENDANT accepted said, and in consideration thereof, agreed orally and in writing to pay therefore.
5. Within four years preceding the commencement of this action, at the special instance and request of DEFENDANT, PLAINTIFF provided financial consulting related services to said DEFENDANT. Attached hereto and incorporated by reference herein as Exhibit "B" is the true and correct copy of the Invoice/Statement of Account reflecting an outstanding balance totaling $183350.00 that DEFENDANT owes the PLAINTIFF. To date, no payments have been received by PLAINTIFF for this outstanding balance. [...]
7. Said DEFENDANT, has failed and refused to pay to PLAINTIFF herein the money earned by PLAINTIFF for the goods, wares and merchandise, and/or services provided by PLAINTIFF for the benefit of DEFENDANT, and at DEFENDANT's sole request, although demand for payment has been made, and there is now due, owing and unpaid from DEFENDANT, to PLAINTIFF the sum of $183350.00.
8. In light of the facts and based upon my knowledge and experience as a custodian of records, the amount of $183350.00 is due, owing, and unpaid from DEFENDANT. (Berkus Decl. P.P. 2, 4-5, 7-8.) Therefore, the Court finds that Plaintiff is entitled to the requested $183,350 in damages.
B. Prejudgment Interest Plaintiff seeks prejudgment interest on the principal balance of $183,350 at an annual rate of 10% from the default date of July 4, 2024. (See Hettena Decl. P. 4.) Interest accrues at an annual rate of 10% for actions on a contract. (Civ. Code, Sec. 3289.) Therefore, Plaintiff's request for prejudgment interest is granted in the requested amount of $37,122.11.
C. Attorneys' Fees and Costs Code of Civil Procedure section 1033.5, which outlines recoverable costs to a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys' fees when authorized by contract, statute, or law. (Code Civ. Proc., Sec. 1033.5, subd. (a)(10).) Code of Civil Procedure section 1021 provides "[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [....]"
Similarly, Civil Code section 1717 provides "[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code, Sec. 1717, subd. (a).)
Further, Civil Code section 1717.5 provides the prevailing party on an open book account is entitled to reasonable attorneys' fees, not to exceed the lesser of $1,600 (for book accounts involving an entity like Defendant) or 25% of the principal obligation owed. Here, $1,600 is less than 25% of the principal obligation owed.
Here, the contract at issue does not provide for the recovery of attorneys' fees. As such, the Court finds Plaintiff is limited to attorneys' fees in the amount of $1,600, as provided for by Civil Code section 1717.5.
Plaintiff also requests $570 in costs composed of $370 in filing fees and $135 in process server fees. (CIV-100.) Plaintiff's request for costs is granted as Plaintiff is the prevailing party in this action. (Code Civ. Proc., Sec. 1032, subd. (a)(4).)
CONCLUSION Plaintiff has only shown entitlement to judgment in the amount of $222,642.11, composed of special damages in the amount of $183,350; prejudgment interest in the amount of $37,122.11; costs in the amount of $570; and attorneys' fees in the amount of $1,600. If Plaintiff submits to the Court's Tentative Ruling, the Court will enter the proposed judgment in conformity with the ruling.
DATED: August 14, 2026 _/s/_______________________________ Michael E. Whitaker Judge of the Superior Court | Home -->)" -->