Pletcher v. Pavlovsky CA2/4 ( 2020 )

Filed 12/29/20 Pletcher v. Pavlovsky CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
MITCHELL PLETCHER, B300591
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.BC604669)
v.
JON PAVLOVSKY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert Broadbent, Judge. Affirmed.
Mitchell Pletcher, in pro per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
INTRODUCTION
Appellant Mitchell Pletcher sued several defendants
alleging malicious prosecution for litigation involving a failed
stage musical production. Pletcher alleged that the underlying
litigation damaged his reputation in the entertainment industry
and caused his investment company to lose money. The
defendants defaulted, and Pletcher sought a default judgment of
more than $15 million.
The trial court entered a judgment of $25,000 for damage to
Pletcher’s reputation, plus $615 in costs. The court found that
most of Pletcher’s claimed damages related to alleged defamation
occurring before the underlying litigation was filed. The court
also found that Pletcher did not have standing to claim damages
on behalf of business entities that were not included as plaintiffs.
On appeal, Pletcher asserts that the court erred by rejecting the
bulk of Pletcher’s claimed damages. We find the court’s judgment
to be supported by the evidence presented, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pletcher’s complaint
On December 24, 2015, Pletcher, acting in propria persona,
filed a verified complaint alleging nine causes of action for
malicious prosecution. Pletcher was the only plaintiff; he
asserted that he “does business . . . as an investor in
entertainment, and as president and CEO of an entertainment
company.” The named defendants were Jon Pavlovsky; Celeste
Canino; Alex Herrera; and Herrera’s law firm, Herrera &
Associates, P.C.
Pletcher alleged that in the underlying litigation, filed in
September 2013, Pavlovsky and Canino, represented by attorney
Herrera and his law firm, sued Pletcher for fraud, breach of
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contract, unfair business practices, and other causes of action.
Pletcher later clarified that the underlying litigation was brought
by Celeste Gallery, a “Photography and Media company,” as well
as its employees and owners, Pavlovsky and Canino. Defendants
in the underlying litigation were Pletcher; two companies
Pletcher owned, Mitchell Anthony Productions, LLC (MAP) and
Concord Investment Counsel, Inc. (CIC); an employee of MAP;
and Pletcher’s wife and daughter, who were also employees of
MAP. MAP hired Celeste Gallery “to conduct a photo-shoot and
create images and artwork for a musical MAP was attempting to
produce in Los Angeles (‘Beautiful’).”
Pletcher alleged that as he attempted to produce Beautiful,
“a few bad seeds” caused the production to fail. “Disgruntled”
cast members “attempted to extort money from [Pletcher] with
defaming and false claims of sexual harassment, fraud, and
breach of contract.” Defendants “decided to follow the path of
these dishonest cast members,” and set up a meeting “where
Herrera, Pavlovsky and Canino together conspired to fabricate a
lawsuit with inflaming false allegations that would intimidate
Pletcher and cause him to make a ransom payment to them.”
The underlying litigation was filed a few weeks later, for the
purpose of “intimidation and to force a ransom payment.”
In March 2014, a demurrer to the underlying complaint
was sustained with leave to amend; in November 2014 a
demurrer to the first amended complaint was also sustained with
leave to amend. Defendants did not further amend the
complaint. In February 2015, Pletcher successfully moved to
dismiss the underlying action with prejudice.
Pletcher alleged that each cause of action in the underlying
litigation gave rise to a cause of action for malicious prosecution.
3
He alleged that defendants asserted their claims without
probable cause, and the underlying claims were terminated in his
favor. In each cause of action, Pletcher contended that his
reputation had been damaged “in a sum in excess of $1 million,”
his ”investment management business has been damaged in a
sum in excess of $1.8 million,” and his “entertainment business in
Hollywood and Las Vegas has been damaged in the sum [in]
excess of $1 million, and Pletcher has other damages according to
proof at trial.” Pletcher also requested costs and attorney fees of
approximately $49,000 incurred in the underlying litigation, and
punitive damages. In his prayer for relief, Pletcher requested
“damages in a sum according to proof, but at least $2,800,000.00,”
punitive damages, attorney fees, and costs.
B. Default judgment prove-up
The court entered default for Canino on July 22, 2016, and
for Pavlovsky, Herrera, and Herrera & Associates on August 18,
2016. In March 2019, Pletcher submitted a request for default
judgment along with prove-up documents. (See Code Civ. Proc.,
§ 585, subd. (b).1) On the form requesting a court judgment,
Pletcher stated that the demand in the complaint was
$12,441,306.00, with interest of $3,234,739.56 and costs of
$615.00, for a total request for damages of $15,676,660.56.
According to the documents attached to Pletcher’s request,
including a 26-page declaration, the bases for his damages are as
follows.
Pletcher stated that he was “the President, Chief
Investment Officer, Chief Compliance Officer, and Senior
Financial advisor for Concord Investment Counsel Inc. (CIC),”
1All
further statutory references are to the Code of Civil
Procedure.
4
which was a “registered investment advisor in good standing with
the SEC” that Pletcher formed in 1991. In 2011, Pletcher “began
extensive work to produce live stage events for myself
individually, or for entities I planned to form and own
individually.” Pletcher said he “spent vast amounts of time and
money in 2011-2012 . . . establishing economic relationships” to
develop future productions.
Pletcher attached an email from May 21, 2012, from a
choreographer, which Pletcher stated supported his claim of “how
quickly word spreads in Hollywood and the entertainment
industry in general.” The email, from Spencer Liff to “Mitch,”
stated that “the show”—the email does not state the name of the
show—constituted a decent idea but was not ready for
production. Liff also said he was “concerned by what I was
hearing back from the dance community. The LA dance world is
extremely small, and word travels like wildfire. . . . There was
talk of payment not being handled properly and some of the
dancers feeling uncomfortable with the situation.” Liff
continued, “I got uncomfortable putting my name on something
that had negative energy surrounding it.” He also wrote, “I do
believe you can make this show happen with a little more prep.”
Pletcher stated in his declaration that “[t]he workshopping
and construction of Beautiful began in November of 2012.” He
stated that from 2012 to 2014, he set up “several entities in
California and Nevada to provide some insulation from liabilities
I might incur in the entertainment industry.” Pletcher’s
companies included MAP, Beautiful the Musical LLC (BTM),
Mitchell Anthony Theatre LLC (MAT), and Live On Stage
Productions LLC. Pletcher stated that he was the president and
sole member of each of these entities.
5
Pletcher stated that in February 2013, he “signed a
contract with the Saban Theatre in Beverly Hills” to host
Beautiful. He attached a memorandum of understanding (MOU)
between MAP and the Saban Theatre, which stated that the
memorandum was “a precedent of terms for a long form Rental
Agreement to follow.” The MOU listed show run dates from May
to August; it did not include a year, but the MOU was signed on
February 26, 2013. Pletcher stated in his declaration, “Confident
that the construction of the show would be successful I began
advertising and marketing the show and I put up billboards
across Los Angeles and Beverly Hills.” He attached pictures of
two billboards, which he stated were “utilized by MAP in the
marketing of the show Beautiful.”
Pletcher stated, “During rehearsals it became clear that
some of the performers lacked the talent and skills needed for the
part that they had been cast to fulfill. . . . Brittany O’Connor was
one of the actresses whose talent was far short of what was
required for the role.” He asserted that O’Connor, defendants
Pavlovsky and Canino, and others “were problematic.” Pletcher
calls this group “the disparagers.”
In April 2013, the Saban Theatre canceled its contract;
Pletcher stated that he did not know why at the time. Pletcher
“desperately sought other options [for venues] in Los Angeles all
of which eventually opted not to work with Pletcher because of
misrepresentations and defamation heard from Pavlovsky and
Canino and other individuals working in concert with Pavlovsky
and Canino to defame Pletcher.”
Pletcher stated that he then attempted to produce
Beautiful in Las Vegas in May 2013. Pletcher stated that the
Boulevard Theater in Las Vegas “decided to partner with me to
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produce Beautiful at the Boulevard Theater and contracts were
signed and a lease was executed and I deposited $20,000 with the
Boulevard Theatre [sic].” The attached exhibit was an MOU
between the Boulevard Theater and BTM for a six-month term
beginning in July 2013. Pletcher stated in his declaration, “At
the time of the execution of this contract I was doing business
individually with a fictitious business name of beautiful the
musical. I had planned to start an LLC called beautiful the
musical but had not yet done this as of the date of the execution
of this document.” The document was signed on April 30, 2013 by
a representative of the Boulevard Theater and Pletcher as the
President of BTM.
Pletcher asserted that “a few weeks later without
explanation” the Boulevard Theater cancelled the contract, and it
“originally did not tell me that it was a result of conversations
they had with the disparagers.” He also stated that an audition
for Beautiful held in Las Vegas in May 2013 was “sparsely
attended.” Pletcher said he learned the president of the
Boulevard Theater and several performers had received an email
from an address including “veronicaveronica1,” which accused
Pletcher of being “an alleged producer with a fledgling production
company that has been abusing and sexually harassing actors,
singers, and dancers this town [sic] for over a year now, under
the guise of a musical production that he is constantly writing
and rewriting.”
Pletcher stated that he then “created a terrific opportunity
to partner with” FX Luxury Las Vegas I to lease a theater.
Pletcher attached to his declaration a “non-binding letter of
intent” with FX Luxury Las Vegas I, LLC as the landlord, and
“The Mitchell Anthony Theatre LLC” as the lessee, dated June 6,
7
2013. The lease term was 10 years for a space of 18,822 square
feet, beginning July 1, 2013. The memorandum stated that it
was “a general outline of lease provisions subject to further
negotiations and inclusion in a lease executed by the parties.
Neither the landlord nor the prospective Tenant shall have any
obligation resulting from the proposal made hereby.” Pletcher
stated in his declaration, “At the time of the execution of this
letter of intent I was doing business individually with a fictitious
business name of Mitchell Anthony Theater. I had planned to
start an LLC in the name of Mitchell Anthony theater but had
not done this as of the date of this letter of intent.” However,
Pletcher stated that “[w]eeks later FX refused to move forward
and give me the keys.”
The underlying action against Pletcher was filed in
September 2013. Pletcher stated that by October 2013, “I
realized that the problems with securing a venue and cast so I
could produce Beautiful were unexplainably irrational and
extreme and I concluded that the disparagers had been highly
effective in destroying my character.” He also stated that “[b]y
December 2013 I concluded my character and reputation as an
emerging entertainment professional was severely damaged and
I decided at that point to discontinue my efforts to produce
Beautiful in Las Vegas or anywhere in US or the globe.”
Pletcher explained his request for damages as follows. He
stated that MAP was created to produce Beautiful, and was
funded with $680,000 of capital contributed by Pletcher. Pletcher
stated, “Neither myself nor any of the MAP investors ever
realized any income or return on investment from their
investments including my individual $680,000 of investment in
MAP. I seek as damages the $680,000 that I seeded into MAP.”
8
He also stated, “The salary for a producer in Hollywood or on
Broadway is at the very minimum is [sic] six figures or $100,000
per year. I seek the present value of $100,000 per year for 10
years which is $831,661.” Pletcher stated that he also sought the
capital he invested in BTM, $136,000, and the capital he invested
in MAT, $15,000. Pletcher attached to his declaration what he
characterized as “the Financials for BTM” and “MAP’s financial
statements reflecting the seed capital contributed by myself.”
Pletcher also stated that his investment business, CIC,
suffered “extensive damage.” Although CIC’s finances were not
directly affected, Pletcher stated, “I had to explain to my clients
why these plans [regarding MAP] were terminated. I had to
explain the false statements of sexual harassment made by the
disparagers and how it terminated my ability to make the
investment in the entertainment industry a success. I was
humiliated when explaining these problems to clients and my
investment firm was scarred deeply by the disparagers and the
scars will be there forever and will hold back the growth and
success of the firm for the foreseeable future. My loss here is in
the millions of dollars.” After discussing his asset management,
Pletcher stated, “The annual management fees that I has [sic]
been deprived of equate to at least $1 million per year for 11
years. The present value of these lost future cash flows,
(discounted at a rate of 3.5%) is $9,001,551. This lost income
would have been paid to myself as the sole-owner of CIC.”
Pletcher also asserted that he lost income in 2014 because
of an inability to work full time. Pletcher included what he
characterized as an excerpt from the deposition of his
psychologist in October 2015 in which the psychologist “discusses
Pletcher’s symptoms.” The included deposition excerpt from a
9
different litigation includes a single page without a cover page or
reporter certification. The page does not include Pletcher’s name,
but it appears that the deponent psychologist is discussing
Pletcher’s treatment by a psychiatrist. The witness states that in
April 2014, “he”—presumably, Pletcher—“saw a psychiatrist,”
who prescribed various medications. The witness stated, “I’m
assuming he’s still taking an anti-anxiety medication, but I’m not
real clear on that right now.” Pletcher also included with his
declaration eleven documents he described as “valuations and
calculations supporting damages resulting from Pletcher’s
inability to work full time.” He stated in his declaration, “The
present value of this lost revenue is calculated to be
$1,577,094.21.”
In all, Pletcher listed his total damages as $12,441,306.2
As noted above, Pletcher also requested interest of $3,234,739.56
and costs of $615.00, for a total request of $15,676,660.56.
In a June 3, 2019 written order, the court granted
Pletcher’s request for a default judgment, but found “a number of
problems with Pletcher’s request that the court enter a default
judgment in his favor against Defendants in the amount of
$15,676.660.56.” The court noted that the damages Pletcher
sought exceeded the $2,800,000 in damages requested in his
complaint. (See § 580, subd. (a) [“The relief granted to the
plaintiff, if there is no answer, cannot exceed that demanded in
the complaint”].) The court also stated, “[T]o the extent that
2This number is $200,000 higher than the damages
requested by category above. In summarizing each category of
damages, Pletcher added $200,000 to his claim for lost CIC
management fees. The declaration includes no explanation for
the discrepancy.
10
Pletcher seeks recovery for damages sustained by his various
companies, those companies are separate entities that are not
parties to this action.” The court continued, “Pletcher does not
have standing to recover damages allegedly sustained by” MAP,
MAT, BTM, or CIC.
The court further found that Pletcher’s “lost past and
future income caused by his inability to work full time” was “not
supported by competent evidence.” The court noted that the
underlying lawsuit was filed in September 2013, and in his
complaint Pletcher claimed damages relating to malicious
prosecution of that action. But Pletcher “discusses how his
production of ‘Beautiful’ fell apart, including a cancellation in
April 2013 of Pletcher’s contract with Saban Theatre.” The court
stated, “[T]he Underlying Lawsuit was filed in September 2013,
so it is unclear how the filing of that lawsuit could have been a
substantial factor in the demise of the production. The bulk of
Pletcher’s declaration appears to be about harm stemming from
allegedly defamatory comments made about him by various
individuals during the production, and not the filing of the
Underlying Lawsuit.” However, the court stated that because
Pletcher stated that by December 2013 he concluded that his
reputation was “severely damaged” and he delayed production of
any shows until damage to his reputation could be “salvaged or
vindicated,” “the court finds that Defendants’ wrongful conduct
alleged in the complaint was a substantial factor in causing harm
to Pletcher’s reputation in the amount of $25,000. The court
therefore awards that amount of actual damages to Pletcher on
his complaint.” The court denied Pletcher’s request for
prejudgment interest, and granted his request for $615 in costs.
11
The court therefore entered judgment in favor of Pletcher for
$25,615.00.
C. Motion to vacate
Pletcher moved to vacate the judgment and requested that
the court enter a new judgment for $1,000,000.00. Pletcher noted
the court’s conclusion that Pletcher could not recover damages
incurred by his business entities, and argued, “This is misguided
and inconsistent with the facts and evidence.” Pletcher asserted
that even though his business entities entered into contracts, the
economic relationships and the “damages to economic relations
were clearly directly incurred by Pletcher himself.” He also
contended that the entities were all “single-member LLC’s with
Pletcher as their sole member,” and as such, “any damages flow
through directly to Pletcher.” He also suggested that he could
amend the judgment to add the business entities.
Pletcher also disagreed with the court’s conclusion that he
failed to submit evidence that his reputation in the
entertainment industry and financial industry was harmed by
defendants’ actions. He asserted that he “present[ed] a wealth of
evidence and argument as to the damages he and his investment
management firm, CIC, suffered as a result of the actions of
cross-defendants [sic].” Pletcher included “his paystubs from the
relevant period” as supplemental evidence, but said it was
“essentially duplicative” of the evidence previously submitted.
Pletcher further asserted that “it is without question that
the money spent building Beautiful the musical . . . was rendered
useless as a direct result of the actions of defendants.” He argued
that the cancellation of the show in April 2013 “is only one small
piece to the overall picture in which Pletcher was ultimately
prevented from doing anything further in entertainment.” He
12
argued that he should “at least be entitled to recover the
verifiable hard dollars that he personally loaned” to support
Beautiful, since he “was prevented from not only putting up his
show in Los Angeles, but anywhere else.” Pletcher stated that
this amount was $816,294.00.
Finally, Pletcher asserted that the court erred by finding
that he failed to show that defendants’ wrongful conduct was a
substantial factor in causing harm to his reputation. Pletcher
argued that he “clearly enumerate[d] further monetary damages
associated with reputational harm,” specifically harm to his asset
management business.
Following a hearing, the trial court denied Pletcher’s
motion. The court stated in a written ruling that Pletcher’s
suggestion that the judgment be amended to add his companies
as plaintiffs was not viable under the statutes Pletcher cited.
The court also found that Pletcher failed to demonstrate any legal
or factual error with respect to Pletcher’s standing to assert
claims on behalf of his companies. The court further stated that
Pletcher failed to present “any evidence of monetary damages
suffered directly by Pletcher as a result of harm to his reputation
above and beyond the $25,000 found by the court to represent
harm to his reputation.” The court therefore concluded that a
different judgment was not required, and denied the motion.
Pletcher timely appealed.
DISCUSSION
Pletcher asserts on appeal that in light of the evidence he
presented in his default prove-up, the trial court’s award of
damages was insufficient. “[W]hen a plaintiff appeals from his or
her award of damages after defendant defaulted,” the “power of
an appellate court to review the trier of fact’s determination of
13
damages is severely circumscribed. An appellate court may
interfere with that determination only where the sum awarded is
so disproportionate to the evidence as to suggest that the verdict
was the result of passion, prejudice or corruption [citations] or
where the award is so out of proportion to the evidence that it
shocks the conscience of the appellate court.” (Johnson v.
Stanhiser (1999) 72 Cal.App.4th 357, 361.) In general, a default
judgment may not exceed the amount of damages a plaintiff has
requested in the complaint. (§ 580, subd. (a) [“The relief granted
to the plaintiff, if there is no answer, cannot exceed that
demanded in the complaint”].)
The context of Pletcher’s causes of action is critical to the
analysis of his contentions on appeal. Pletcher, as the sole
plaintiff, alleged nine causes of action for malicious prosecution.
“[T]he measure of compensatory damages for the malicious
prosecution of a civil action includes attorney fees and court costs
for defending the prior action and compensation for emotional
distress, mental suffering and impairment to reputation
proximately caused by the initiation and prosecution of the
action.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43,
59 (emphasis added).) “When a plaintiff seeks a default
judgment from the trial court, the plaintiff ‘must affirmatively
establish . . . entitlement to the specific judgment requested.’”
(Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287
(Kim).) Thus, Pletcher was required to establish that he was
entitled to damages caused by the initiation and prosecution of
the underlying action.
Pletcher asserts that his evidence regarding impairment to
his reputation was sufficient to support a larger award, because
he was “seriously damaged with respect to the entertainment
14
industry, where he was . . . unable to further pursue any work
whatsoever as a result of [defendants’] actions.” As the trial
court correctly observed, however, “The bulk of Pletcher’s
declaration appears to be about harm stemming from allegedly
defamatory comments made about him by various individuals
during the production [of Beautiful] and not the filing of the
Underlying Lawsuit.” For example, Pletcher asserts that he
demonstrated his losses by presenting evidence of the
cancellation of his contracts with the Saban Theatre, the
Boulevard Theater, and FX Luxury Las Vegas. However, even
assuming these could be considered contracts,3 they were
cancelled in April, May, and June 2013—before the underlying
litigation was filed in September of that year. Pletcher also cites
the email from Spencer Liff stating that news in the dance
industry “travels by wildfire.” But that email, sent in May 2012,
suggests issues surrounding the production long before the
underlying litigation was filed. In addition, the
“veronicaveronica1” email, which Pletcher alleged contributed to
the cancellation of the Las Vegas contracts, predated the
underlying litigation by four months. None of this evidence
supports a finding that Pletcher’s damages were caused by
defendants’ initiation and prosecution of the underlying
3As noted above, the MOU with the Saban Theatre stated
that it was “a precedent of terms for a long form Rental
Agreement to follow”; no rental agreement is included in the
record on appeal. The MOU with Boulevard Theater was
between the theater and BTM—an entity Pletcher stated in his
declaration did not actually exist at the time the MOU was
signed. The document involving FX Luxury Las Vegas states that
it is a “non-binding letter of intent.” It is not clear that any of
these could be considered binding contracts.
15
litigation. To the contrary, it suggests that problems with the
production of Beautiful existed long before the underlying
litigation was filed.
Pletcher further contends that he presented evidence to
demonstrate that he lost income from his investment company,
CIC. However, in his declaration Pletcher attributed these losses
to defamation by the disparagers, not prosecution of the
underlying litigation: “The disparagers made statements publicly
to actors and actresses in the entertainment industry,
choreographers, venue operators, set builders, producers, and
others that were false and defaming about myself. While these
statements were not made to the clients of CIC these statements
flowed back to many of the clients of CIC. . . .” Pletcher stated
that he had to explain his losses relating to MAP to his clients,
and “I was humiliated when explaining these problems to clients
and my investment firm was scarred deeply by the disparagers
and the scars will be there forever and will hold back the growth
and success of the firm for the foreseeable future. My loss here is
in the millions of dollars. Further it is easy to infer that a
substantial amount of the accounts lost in 2013 through today
came as a result of the scar that is on myself from the
disparagers[’] defamation and character attacks.” Pletcher did
not state a cause of action for defamation in his complaint, and he
does not connect any lost income with defendants’ prosecution of
the underlying litigation.
Pletcher also asserts that his “prove-up specifically
provided sworn deposition testimony” from a psychologist
“wherein he discusses Pletcher’s symptoms (detailed herein) as
‘affecting his work’ and caused by ‘PTSD.’” In fact, the single
page of deposition testimony is from a different litigation, lacks a
16
required cover page (Cal. Rules of Court, rule 3.1116(a)), never
mentions Pletcher’s name, and the witness simply recites what
others had told him. The witness says nothing of Pletcher’s
ability to work and does not connect the underlying litigation
with any symptoms. Indeed, Pletcher himself never states in his
declaration that he was unable to work due to defendants’
malicious prosecution of the underlying litigation; instead, he
states that CIC’s poor performance in 2013 and 2014 was “due to
the illness of myself who was suffering from emotional distress
due to the defamation.”
Pletcher further asserts that the trial court erred in
“finding that the bulk of the damages were not borne by Pletcher,
[but] rather his entities,” and Pletcher is entitled to damages
relating to losses borne by MAP, BTM, MAT, and CIC. This
contention rests on an erroneous factual presumption, however:
The court did not determine that any damages were borne by
Pletcher’s entities. Instead, the court simply held that the
entities were not parties to the action, and Pletcher did not have
standing to seek damages on their behalf.
As the trial court noted, “Every action must be prosecuted
in the name of the real party in interest, except as otherwise
provided by statute.” (§ 367.) “In general, California law does
not give a party personal standing to assert rights or interests
belonging solely to others.” (Yvanova v. New Century Mortgage
Corp. (2016) 62 Cal.4th 919, 936.) Generally, when the damages
consist of a “diminution in the value of [the] membership interest
in the LLC occasioned by the loss of the company’s assets,” the
injury is to the LLC, not the individual members. (PacLink
Communications Intern., Inc. v. Superior Court (2001) 90
Cal.App.4th 958, 964; see also Jones v. H. F. Ahmanson & Co.
17
(1969) 1 Cal.3d 93, 106 [an action is “derivative, i.e., in the
corporate right, if the gravamen of the complaint is injury to the
corporation, or to the whole body of its stock [or] property without
any severance or distribution among individual holders”];
PacLink, supra, 90 Cal.App.4th at p. 963 [“the principles of
derivative lawsuits applicable to corporations likewise apply to a
limited liability company”].) Pletcher asserts that his entities
were “single-member LLC’s with Pletcher as their sole member,”
so “any damages flow through directly to Pletcher.” But when an
LLC or corporation is damaged, “[t]he remedy lies with the
corporation, not the shareholder, even if the injured shareholder
is the sole shareholder.” (Vinci v. Waste Management, Inc. (1995)
36 Cal.App.4th 1811, 1815.)
Pletcher suggests that the judgment could be amended to
add the entities as plaintiffs. The trial court correctly rejected
this argument. A default judgment is limited to the well-pleaded
allegations of the complaint. (Kim, supra, 201 Cal.App.4th at p.
282.) “Substantively, ‘[t]he judgment by default is said to
“confess” the material facts alleged by the plaintiff, i.e., the
defendant’s failure to answer has the same effect as an express
admission of the matters well pleaded in the complaint.’” (Steven
M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th
813, 823.) Here, the defendants’ default constitutes an admission
that Pletcher was subjected to malicious prosecution; it cannot
constitute an admission as to any non-plaintiff entities. Thus,
damages to non-plaintiffs cannot be awarded because “[a] default
judgment that awards relief beyond the type and amount sought
in the operative pleadings is void.” (Sass v. Cohen (2019) 32
Cal.App.5th 1032, 1041; see also § 585, subd. (b).) Moreover,
some of Pletcher’s entities would not be entitled to recover
18
damages for malicious prosecution even if they had been included
in the complaint: Neither BTM nor MAT was a party to the
underlying litigation. Thus, the trial court did not abuse its
discretion in rejecting Pletcher’s contention that he was entitled
to recover damages for losses to the business entities.
Pletcher further asserts the trial court erred in finding that
he failed to present evidence that he incurred $49,000 in attorney
fees in defending the underlying litigation. In his default prove-
up documents, Pletcher neither requested such damages nor
presented evidence to support them. Pletcher argues on appeal
that the court should have awarded such damages nevertheless,
because Pletcher alleged them in his verified complaint.
However, a court may not award damages based on nothing more
than a plaintiff’s declaration. In the context of a default
judgment, “it is incumbent upon the plaintiff to prove up his
damages, with actual evidence. It is wholly insufficient to simply
declare” that the plaintiff is entitled to certain damages. (Kim,
supra, 201 Cal.App.4th at p. 272 (emphasis in original).) Pletcher
did not submit evidence to support a finding of attorney fees
incurred in defending the underlying litigation.
In short, the trial court’s findings are consistent with the
evidence, and Pletcher has not demonstrated on appeal that the
trial court erred.
19
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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