Salvador v. Live At Home Care Connection, Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] WILLIAM G SALVADOR, 8 Case No. 18-cv-07159-EJD Plaintiff, 9 v. ORDER GRANTING IN PART MOTION FOR DEFAULT 10 LIVE AT HOME CARE CONNECTION, JUDGMENT; JUDGMENT INC., et al., 11 Re: Dkt. No. 70 Defendants. [12] 13 Plaintiff William G. Salvador, a citizen of Canada, initiated this suit against Defendant 14 Mylah G. Spears (“Spears”) and her home care businesses, Defendants Live At Home Care 15 Connection, Inc. (“LAHCC”) and Care Connection Transport, Inc. (“CCT”), asserting two claims 16 of wrongful conversion. Pending before the Court is Plaintiff’s motion for default judgment 17 against all Defendants. For the reasons set forth below, the Court will grant in part Plaintiff’s 18 motion for default judgment. 19 I. BACKGROUND 20 A. Allegations in the First Amended Complaint 21 Defendant LAHCC is a home care business. First Amended Complaint (“FAC”) ¶ 14. 22 Spears owns 80 shares of stock in LAHCC, which amounts to forty (40) percent of the total 23 number of shares issued and outstanding. Id. ¶ 8. Defendant CCT is a handicapped transportation 24 business. Id. ¶ 21. Spears owns 60 shares of stock in CCT, which amounts to thirty (30) percent 25 of the total number of shares issued and outstanding. Id. ¶ 9. The Defendant corporations are 26 allegedly the alter egos of Spears. Id. ¶ 10. [27] 1 In 2016, Spears induced Plaintiff to invest in LAHCC and CCT. Id. ¶¶ 14, 21. Plaintiff 2 invested $5,000 in LAHCC for a thirty (30) percent stock ownership interest. Id. Plaintiff also 3 loaned $10,000 to LAHCC. Id. Plaintiff invested $1,500 in CCT for a fifty (50) percent stock 4 ownership interest. Id. ¶ 21. Plaintiff also loaned CCT $11,000 for the purchase of a handicapped 5 accessible van, licensing, rent and insurance expenses. Id. 6 On or about April 30, 2017, Spears withdrew $14,000 from LAHCC for her personal use. 7 Id. ¶ 15. Spears also withdrew $47,000 from CCT and converted the van for her personal use. Id. 8 ¶¶ 22-23. As a result, Plaintiff has been deprived of his investment and repayment of the loans. 9 Id. ¶¶ 16, 24. Plaintiff made demands for an accounting, but has not received replies. Id. ¶¶ 17, 10 25. Based on the foregoing, Plaintiff asserts two claims for conversion against Defendants. 11 Plaintiff seeks general damages in the sum of $200,000, punitive damages, and costs of the suit. 12 B. Procedural History 13 Plaintiff initiated suit in November of 2018. Dkt. No. 1. Summons were returned 14 executed in June of 2019. Dkt. Nos. 29-31. Thereafter, Spears moved to dismiss the original 15 complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 16 No. 35. The Court granted the motion in part with leave to amend. Dkt. No. 48. Plaintiff filed the 17 FAC of March 6, 2020. Dkt. No. 49. Spears filed an unsigned answer on March 20, 2020 in 18 response to the FAC. Dkt. No. 50. It is unclear whether this answer was intended to be filed on 19 behalf of all Defendants. 20 An initial case management conference was scheduled for June 11, 2020, but Spears did 21 not appear despite the Court attempting to contact her. Dkt. No. 56. The conference was 22 continued three more times until February 8, 2021 due to Spears’s failure to respond to any 23 communications from Plaintiff or the Court. Dkt. Nos. 56, 58, 60. On December 8, 2020, 24 Plaintiff filed a motion to strike answer and for entry of default. Dkt. No. 61. The Court granted 25 the motion to strike the answer, directed the Clerk of Court to enter default as to all Defendants, 26 and set a briefing schedule and hearing date for Plaintiff’s motion for default judgment. Dkt. No. 27 65. The Court concluded that entry of default was appropriate because Defendants had repeatedly 1 failed to file a case management statement and failed to appear at a case management conference. 2 Further, the Court noted that the corporate Defendants had not appeared through counsel, as 3 required by Civil Local Rule 3-9(b). The Clerk of the Court entered default against all Defendants 4 on February 16, 2021. Dkt. No. 66. The instant motion followed. 5 II. LEGAL STANDARD 6 Following entry of default, the Court may enter a default judgment upon request. Federal 7 Rule of Civil Procedure 55(b)(2). The Court’s decision to enter default judgment is 8 “discretionary.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In assessing a request for 9 default judgment, the Court has an “affirmative duty” to examine its jurisdiction over “both the 10 subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). 11 Upon confirming that jurisdictional requirements have been met, the court must weigh the 12 following factors to determine whether default judgment is appropriate: 13 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 14 the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the underlying default was due 15 to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. [16] 17 Eitel v. McCool, 782 F.2d 1470 , 1471–72 (9th Cir. 1986). When default has been entered, the 18 “factual allegations of the complaint, except those relating to the amount of damages, will be taken 19 as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 , 917–18 (9th Cir. 1987). 20 III. DISCUSSION 21 A. Jurisdiction 22 Subject matter jurisdiction is proper under 28 U.S.C. § 1332 (a)(4) because the amount in 23 controversy exceeds $75,000 and there is complete diversity of citizenship. Plaintiff is a citizen of 24 Canada and a resident of the city of Calgary, province of Alberta. FAC ¶ 1. The corporate 25 Defendants, LAHCC and CCT, were incorporated in the state of California, with their principal 26 place of business in San Jose, California. Therefore, they are citizens of California. See Boren 27 Found. v. HHH Inv. Tr., 295 F. App’x 151, 152 (9th Cir. 2008) (a corporation is deemed a citizen 1 of any state of incorporation and of the state where it has its principal place of business). Spears is 2 a citizen of California. See generally Answer to FAC, Dkt. No. 50. In addition, Spears is subject 3 to personal jurisdiction because she is a citizen of California and was served in California. ACS 4 Recovery Servs., Inc. v. Kaplan, No. C 09-01304 JSW, 2010 WL 144816 , at 4 (N.D. Cal. Jan. 11, 5 2010) (citing Milliken v. Meyer, 311 U.S. 457 at 462–63 (1940)). 6 B. Eitel Factors 7 1. Possibility of Prejudice to Plaintiff 8 The first Eitel factor considers whether Plaintiff would be prejudiced if default is not 9 granted. See PepsiCo, Inc. v. Cal. Security Cans, 283 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). A 10 plaintiff is prejudiced if the plaintiff would be “without other recourse for recovery” because the 11 defendant failed to appear or defend against the suit. Bd. of Trustees, I.B.E.W. Loc. 332 Pension 12 Plan Part A v. Delucchi Elec., Inc., No. 19-CV-06456 EJD, 2020 WL 2838801 , at *2 (N.D. Cal. 13 June 1, 2020). 14 Here, although Spears filed an unsigned answer in response to the FAC, Defendants have 15 otherwise failed to appear in this matter. Dkt. 65 at 1-2. Unless default judgment is granted, 16 Plaintiff will be left without recourse. See Johnson v. Monterey & Rancho Plaza, No. 18-CV17 05718 BLF, 2020 WL 4368194 , at *2 (N.D. Cal. July 30, 2020), judgment entered, No. 18-CV18 05718 BLF, 2020 WL 5893319 (N.D. Cal. Oct. 5, 2020); see also Willamette Green Innovation 19 Ctr., LLC v. Quartis Capital Partners, No. 13-CV-00848 JCS, 2014 WL 5281039 , at *6 (N.D. 20 Cal. Jan. 21, 2014) (citations omitted) (“Denying a plaintiff a means of recourse is by itself 21 sufficient to meet the burden posed by this factor”). Accordingly, the first Eitel factor weighs in 22 favor of the entry of default judgment. [23] 2. Merits of Plaintiff’s Substantive Claim and Sufficiency of the 24 Complaint 25 Courts often consider the second and third Eitel factors together. Bd. of Trustees, I.B.E.W. 26 Loc. 332 Pension Plan Part A, 2020 WL 2838801 , at *2. These factors assess the substantive 27 merit of the movant’s claims and the sufficiency of the pleadings. 1 Plaintiff seeks relief for Spears’s improper conversion from (1) LAHCC and (2) CCT. For 2 the claims to be meritorious, the movant must “state a claim on which [it] may recover. Id. The 3 elements of a conversion claim under California law are as follows: (1) the plaintiff’s ownership or 4 right to possession of the property at the time of the conversion; (2) the defendant’s conversion by 5 a wrongful act or disposition of property rights; and (3) damages. Mindys Cosmetics, Inc. v. 6 Dakar, 611 F.3d 590, 601 (9th Cir. 2010). 7 Upon review of the FAC, the Court concludes that Plaintiff has pled sufficient facts to state a 8 claim for conversion. Plaintiff alleges that he invested $5,000 in LAHCC and $1,5000 in CCT. 9 FAC ¶¶ 14, 21. Plaintiff and Spears established a joint back account in the name of LAHCC for 10 business purposes. Id. ¶ 14. Plaintiff alleges that Spears withdrew $14,000.00 on or around April 11 30, 2017 and another $47,000 on an unspecified date from the LAHCC bank account for her 12 personal use. 1 Id. ¶¶ 15, 22-23. Plaintiff also alleges that Spears converted a van—partially paid 13 for by Plaintiff and meant for official use by LAHCC and CCT—for her own exclusive use. Id. ¶¶ 14 23-24. Finally, Plaintiff alleges that Spears dissolved LAHCC and CCT without consulting him 15 despite the terms of the Partnership Agreement requiring a unanimous vote by all shareholders. 16 Decl. of William Salvador, Dkt. 67-1 ¶ 6. When Plaintiff made a demand for accounting in 2018, 17 Spears did not respond. FAC ¶ 25. “[W]here a person entitled to possession” of property 18 “demands it, the wrongful, unjustified withholding is actionable as conversion.” CRS Recovery, 19 Inc. v. Laxton, No. C-06-7093 CW, 2013 WL 140084 , at *9 (N.D. Cal. Jan. 10, 2013). Because 20 Spears took Plaintiff’s money for her personal use and did not return it when asked, Spears and 21 Defendants are liable for conversion. The second and third Eitel factors weigh in favor of 22 granting default judgment. 23 3. The Sum of Money at Stake in the Action 24 The fourth Eitel factor requires the Court to consider whether the amount of money at stake [26] 1To be clear, Plaintiff is not asking for these sums as damages. Plaintiff suggests that after Spears 27 made these withdrawals, the balance of the joint account was less than what Plaintiff was owed. He is asking to collect the money he had lent to the businesses before they were dissolved. 1 is appropriate in comparison to the seriousness of the defendant’s conduct. Pepsico, Inc., 238 F. 2 Supp. 2d at 1176. However, “where the sum of money at stake is tailored to the specific 3 misconduct of the defendant, default judgment may be appropriate.” Core Concrete Constr., Inc., 4 No. C-11-02532 LB, 2012 WL 380304 , at *4 (N.D. Cal. Jan. 17, 2012); Bd. of Trs. of the Sheet 5 Metal Workers Health Care Plan of N. Cal. v. Superhall Mech., Inc., No. C-10-2212 EMC, 2011 6 WL 2600898 , at *2 (N.D. Cal. June 20, 2011) (finding that the sum of money for unpaid 7 contributions, liquidated damages, and attorneys’ fees was appropriate because it was supported 8 by adequate evidence provided by the plaintiffs). Here, Plaintiff seeks compensatory damages in 9 the amount of $183,186. Dkt. 67 at 7. Given the substantial amount of money at stake, the fourth 10 Eitel factor could weigh against the entry of default judgment unless it is tailored to the specific 11 misconduct of the Defendants. Id. For the reasons discussed below in subsection “C” of this 12 Order, the Court declines to enter judgment in the amount requested because the requested amount 13 has not been satisfactorily tailored to the specific misconduct of Defendants. Therefore, this 14 factor does not weigh against granting default judgment. 15 4. Possibility of Dispute Concerning Material Facts 16 The fifth Eitel factor considers the possibility of dispute as to any material facts in the case. 17 Eitel, 782 F.2d at 1471–72. Although an answer was filed, it was ultimately stricken due to 18 Defendants’ failure to participate in this action. Dkt. 65. Thus, all well-plead allegations in 19 Plaintiff’s Complaint are accepted as true, and therefore there is little possibility of dispute 20 concerning material facts. Marquez v. NLP Janitorial, Inc., No. 16-CV-06089 BLF, 2019 WL 21 652866, at *4 (N.D. Cal. Feb. 15, 2019) (holding that there was little possibility of dispute because 22 even though defendant had filed an answer, defendant had ceased communication about settlement 23 with the plaintiff and failed to appear at pre-trial hearings). Thus, this factor also favors granting 24 default judgment. 25 5. Possibility That Underlying Default Was Due to Excusable Neglect 26 The sixth Eitel factor examines whether Defendants’ failure to respond to Plaintiff’s [27] 1 allegations was the result of excusable neglect. Eitel, 782 F.2d at 1471–72. There is nothing in 2 the record to suggest Defendants’ failure to appear and litigate this matter is based on excusable 3 neglect. Therefore, the sixth Eitel factor also weighs in favor of granting default judgment. 4 6. Policy Favoring a Decision on the Merits 5 The final Eitel factor considers the preference for deciding cases on the merits. Id. at 14716 72. “However, this factor, standing alone, cannot suffice to prevent entry of default judgment for 7 otherwise default judgment could never be entered.” Warner Bros. Ent. Inc. v. Caridi, 346 F. 8 Supp. 2d 1068, 1073 (C.D. Cal. 2004). While public policy favors deciding each case on the 9 merits, a defendant’s “refusal to participate meaningfully in [the] litigation renders that 10 impossible.” Garvin v. Tran, No. C-07-01571 HRL, 2011 WL 5573995 , at *2 (N.D. Cal. Nov. 16, 11 2011). Here, Spears has seemingly abandoned the action, having failed to plead, oppose, or 12 otherwise defend in over a year. The seventh Eitel factor weighs in favor of the Court granting 13 default judgment. Taking all seven Eitel factors into consideration, the Court finds it appropriate 14 to grant default judgment against Defendants. 15 C. Damages 16 After liability is established, the plaintiff seeking default judgment must establish that the 17 requested relief is appropriate. Bay Area Painters v. Alta Specialty, No. C-06-06996 MJJ, 2008 18 WL 114931 , at *3 (N.D. Cal. Jan. 10, 2008) (citing Geddes v. United Financial Group, 559 F.2d 19 557, 560 (9th Cir. 1977)). Where the amount of damages “is liquid or capable of ascertainment 20 from definite figures contained in documentary evidence or detailed affidavits, the Court may 21 enter default judgment without a hearing on damages.” United States v. Sundberg, No. C-09-4085 22 EMC, 2011 WL 3667458 , at *6 (N.D. Cal. Aug. 22, 2011). 23 As a threshold matter, the scope of relief is limited by Federal Rule of Civil Procedure 24 54(c), which states that a “default judgment must not differ in kind from, or exceed in amount, 25 what is demanded in the pleadings.” Fed. R. Civ. P. 54(c). The purpose of this rule is to ensure 26 that a defendant is put on notice of the damages being sought against her so that she may make a 27 calculated decision as to whether or not it is in her best interest to answer. In re Ferrell, 539 F.3d 1 1186, 1192–93 (9th Cir. 2008) (rejecting requests for damages and fees because the prayer for 2 relief lacked the “requisite specificity to put defendants on notice that the [plaintiff] sought 3 attorneys’ fees and costs on the default judgment”). In his FAC, Plaintiff seeks the following 4 relief: (1) general damages in the sum of $200,000, (2) punitive damages, (3) costs of suit herein 5 incurred; and (4) other and further relief as the court may deem proper. FAC ¶ 28. 6 1. General Damages 7 Under California Civil Code § 3336 (West 1970), the measure of damages for conversion 8 is “either (1) the value of the property at the time of conversion, or (2) an amount sufficient to 9 indemnify the party injured for the loss which is the natural, reasonable and proximate result of the 10 wrongful act complained of.” Myers v. Stephens, 233 Cal. App. 2d 104, 116 , 43 Cal. Rptr. 420 , 11 430 (1965) (citations omitted). Although § 3336 provides for alternative measures of recovery for 12 conversion, the value of the property at the time of conversion, with interest, is generally 13 considered to be the appropriate measure of damages. Id. “The determination of damages under 14 the alternative provision is resorted to only where the determination on the basis of value at the 15 time of conversion would be manifestly unjust.” Id. “A plaintiff seeking recovery under the 16 alternative provision of the statute must . . . plead and prove the existence of special circumstances 17 which require a different measure of damages to be applied.” Ox Labs, Inc. v. Bitpay, Inc., No. 18 18-CV-5934 MWF (KSX), 2020 WL 1039012 , at *9 (C.D. Cal. Jan. 24, 2020), aff’d, 848 F. 19 App’x 795 (9th Cir. 2021), (citing Krueger, 145 Cal. App. 3d 204, 215 , 193 Cal. Rptr. 322 , 322 20 (Ct. App. 1983) (internal quotation marks and citation omitted)). Here, Plaintiff has not pled or 21 proven the existence of special circumstances. Accordingly, the Court will assess damages based 22 on the value of the property converted at the time and place of conversion with interest from that 23 time. 24 For purpose of clarity, the Court has created the following table to compare the type and 25 amount of damages Plaintiff requested in the FAC and in his application for default judgment and 26 to indicate the Court’s rulings: [27] SUMMARY OF DAMAGES [1] Description of Damages Amount Requested Amount Requested in 2 in FAC Application for Default Court’s Judgment Ruling 3 Stock ownership interest in $5,000 (same as FAC) $5,000 LAHCC 4 Stock ownership in CCT $1,500 (same as FAC) $1,500 Money lent to LAHCC for $10,000 $9,483.652 $9,483.65 5 licensing, rent, and insurance expenses 6 Money lent to CCT for the $11,000 $45,224.963 $9,949.96 purchase of a handicapped 7 accessible van, licensing, rent, and insurance expenses [8] Goodwill of LAHCC $100,000 Not included disallowed Goodwill of CCT $75,000 Not included disallowed [9] Postage and supplies Not included in FAC $32.47 disallowed Utilities paid in cash Not included in FAC $750 disallowed [10] Plane ticket – 11/2015 Not included in FAC $393.88 disallowed 11 Plane ticket – 2/2016 Not included in FAC $271.51 disallowed Plane ticket – 9/2016 Not included in FAC $475.70 disallowed 12 Plane ticket – 1/2017 Not included in FAC $292.78 disallowed Car rental Not included in FAC $134.85 disallowed 13 Accommodation Not included in FAC $93.13 disallowed Time Spent Working and Not included in FAC $119,532.804 disallowed 14 Lost Income [15] FAC ¶¶ 14, 18, 21, 26; Dkt. 67, Ex. 6 at 1-2. [16] First, in the FAC, Plaintiff alleged he lent $11,000 to CCT, (FAC ¶ 22), whereas in the [17] default judgment Plaintiff claims he lent $45,224.96 to CCT. Pursuant to Rule 54(c), “a default [18] judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” [19] Therefore, Plaintiff is only entitled to a maximum of $11,000 for money lent to CCT for the down [21] 2 Plaintiff transferred funds to LACHH on: April 4, 2016 ($1,833.65); July 6, 2016 ($1,000); 22 August 5, 2016 ($3,500); August 9, 2016 ($450); October 11, 2016 ($200); October 18, 2016 ($450); October 26, 2016 ($100); November 7, 2016 ($450); and November 21, 2016 ($1,500). [23] 3 Plaintiff contends he lent the following sums to CCT, expecting repayment: deposit to open bank 24 account ($100), down payment for new van ($8,000), loaned amount of the van purchase price ($34,175), cash deposit for overdraft fees ($1,00), business insurance ($779.96), business license 25 application fee ($570), February 2017 rent ($600). 26 4 Plaintiff contends he is entitled to compensation for the time he spent working in November of 2015 ($972.80); February of 2016 ($6,323.20); and September of 2016 ($1,459.20). Plaintiff also 27 contends he lost income in 2016-2017 ($104,089.60); in June of 2018 ($1,216); in August of 2018 ($5,472). 1 payment of a handicapped accessible van, licensing, rent, and insurance expenses. Fed. R. Civ. P. 2 Rule 54(c); FAC ¶ 22. Based on the evidence Plaintiff provided to substantiate the allegations 3 related to CCT, he is entitled to $9,949.96. 4 Second, the FAC makes no mention of miscellaneous business expenses, and therefore 5 Plaintiff may not recover $2,444.32 for postage, utilities, and travel expenses. Id.; In re Ferrell, 6 539 F.3d at 1192–93. Third, the FAC also does indicate that Plaintiff intends to seek damages for 7 time spent working and lost income. Accordingly, Plaintiff is not entitled to the $119,532.80 for 8 time spent working and lost income. Id. 9 Plaintiff requested damages for lost good will in the FAC, but it would be improper to 10 award good will damages in this case. The “good will” of a business is the expectation of 11 continued public patronage. Carrey v. Boyes Hot Springs Resort, Inc., 245 Cal. App. 2d 618, 623 , [12] 54 Cal. Rptr. 199, 202 (Ct. App. 1966) (holding that damages for a loss of good will was 13 appropriate because respondents’ business had been in business for many years, developed over 14 200 customers, and appellants’ wrongful conduct destroyed the good will). Here, there is no 15 evidence to suggest LAHCC or CCT had any customers before their dissolution, or that customers 16 would continue to utilize LAHCC or CCT if not for Defendant’s wrongful conduct. Therefore, 17 there can be no award based on a presumption of continued public patronage. Because Plaintiff 18 did not substantiate his claim of good will in his application for default judgment, he is not entitled 19 to the requested damages from the FAC ($100,000 good will of LAHCC and $75,000 good will of 20 CCT). FAC ¶¶ 18, 26. Plaintiff also has not provided any evidence that LAHCC or CCT were 21 profitable before the companies were dissolved, so an award of lost income is not appropriate 22 either. Carrey, 245 Cal. App. 2d at 619 , 54 Cal. Rptr. at 200 . Therefore, Plaintiff is not entitled to 23 the $119,532.80 requested in the application for default or the $175,000 in good will damages 24 requested in the FAC. 25 At default, Plaintiff is entitled to damages that can be proven through testimony or written 26 affidavit. Bd. of Trs. of the Laborers Health & Welfare Trust Fund for N. Cal. v. A & B Bldg. 27 Maint. Co. Inc., No. C-13-00731 WHA, 2013 WL 5693728 , at *4 (N.D. Cal. Oct. 17, 2013). 1 Plaintiff has been able to prove up the following amounts of damages through affidavits included 2 in his application for default: (1) $5,000 stock ownership interest in LAHCC, (2) $1,500 stock 3 ownership interest in CCT, (3) $9,483.65 lent to LAHCC for licensing, rent, and insurance 4 expenses, and (4) $9,949.96 lent to CCT for the purchase of a handicapped accessible van, 5 licensing, rent, and insurance expenses. Dkt. 67, Ex. 6. Thus, Plaintiff is awarded $25,933.61 in 6 general damages. 7 2. Punitive Damages 8 Pursuant to California Civil Code § 3294, “punitive damages may be awarded where it is 9 proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or 10 malice.” Cal. Civ. Code § 3294 (West, through Ch. 83 of 2021 Reg. Sess.). Section 3294 defines 11 “oppression, fraud, or malice” as follows: 12 (1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on 13 by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that 14 subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional 15 misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby 16 depriving a person of property or legal rights or otherwise causing injury. [18] Id. Cal. Civ. Code § 3294 (c). Within this framework, district courts have discretion in 19 determining an appropriate punitive damages award on default judgment. Ferriss v. All. Publ’g, 20 Inc., No. 15-CV-05675 EMC, 2016 WL 7116110 , at *12 (N.D. Cal. Dec. 6, 2016); see also, Fed. 21 R. Civ. P. 55(b)(1). 22 Here, Plaintiff alleges in his FAC that Spears’s conduct was “willful, wanton, malicious, 23 and oppressive, were taken with the intent to defraud, and justify the awarding of exemplary and 24 punitive damages.” FAC ¶ 27. These allegations are nothing more than a recitation of language 25 from California Civil Code § 3294 and lack any factual support. Therefore, the Court does not 26 accept them as true. See J & J Sports Prods., Inc. v. Munoz, No. C-12-05780 WHA, 2013 WL 27 1209944, at *3 (N.D. Cal. Mar. 25, 2013) (allegations that “parrot the language” of a particular 1 claim’s elements are not well-pleaded facts that a court must take as true when reviewing a default 2 || judgment.). Because Plaintiff has not satisfied his burden of proof, the Court declines to award 3 punitive damages. 4 3. Costs of the Suit 5 Under Civil Local Rule 54—3, an award of costs may include the clerk’s filing fee and fees 6 || for service of process “to the extent reasonably required and actually incurred.” Because Plaintiff 7 requested the costs of the suit in his pleadings, and actually incurred these costs, Plaintiff’s costs 8 are allowable. See Gucci Am. v. Wang Huoging, No. C-09-05969 CRB, 2011 WL 30972 , at *2 9 (N.D. Cal. Jan. 5, 2011) ($750 in filing and service of process fees deemed reasonable and 10 || awarded in full). Therefore, Plaintiff’s costs of $400 in filing fees and $450 for service, totaling 11 |} $850, are awarded in full. 12 || IV. JUDGMENT 13 Based on the foregoing, Plaintiff’s application for default judgment is GRANTED IN 14 || PART. Plaintiff is awarded $25,933.61 in general damages plus $850.00 in costs for a total of 3 15 $26,783.61. Judgment is entered accordingly. a 16 IT IS SO ORDERED. 17 Dated: August 3, 2021 EDWARD J. DAVILA 20 United States District Judge [27] 28 Case No.: 18-cv-07159-EJD