Pamela Day v. Dustin Boyer

• Court: District Court, C.D. California
• Decided: January 21, 2020
• Docket: 2:19-cv-01669
• Status: Unknown

Opinion

O 1 JS-6 2

3 4

7 United States District Court 8 9 Central District of California 10 PAMELA DAY, Case No. 2:19-cv-01669-ODW (RAOx) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 v. RENEWED MOTION FOR 13 DUSTIN BOYER, DEFAULT JUDGMENT [20] 14 Defendant. 15 16 17 I. INTRODUCTION 18 Plaintiff Pamela Day moves for entry of default judgment against Defendant 19 Dustin Boyer (“Motion”). (Renewed Mot. for Default J. (“Mot.”), ECF No. 20.) For 20 the reasons discussed below, the Court GRANTS Plaintiff’s Motion.1 21 II. BACKGROUND 22 Plaintiff Pamela Day initiated this action against Defendant Dustin Boyer on 23 March 7, 2019. (Compl., ECF No. 1.) Day asserts a dozen claims against Boyer for 24 violations of federal securities law and state law related to a cryptocurrency investment 25 she made with Boyer in December 2017. (See Compl. ¶¶ 3–10.) Day alleges that 26 Boyer represented to her that Day could purchase an allocation of MobileCoin’s initial 27

28 1 After carefully considering the papers filed in support of the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 cryptocurrency coin offering. (Compl. ¶¶ 5–7.) For that purpose, Day wired Boyer 2 $97,165 and, on January 5, 2018, Boyer confirmed receipt of the funds and Day’s 3 ownership of “$97,165 or 97,165 Mobilecoin tokens.” (Compl. ¶ 7.) However, Day 4 alleges that Boyer did not invest her money as promised but instead kept it for himself, 5 comingled it with his own funds, and refuses to return her money. (Compl. ¶¶ 9–10.) 6 On May 13, 2019, on Day’s request, the Clerk entered default against Boyer. 7 (Req. for Clerk to Enter Default, ECF No. 12; Default by Clerk, ECF No. 13.) 8 Following the Court’s Order to Show Cause, Day filed an Application for Default 9 Judgment against Boyer. (See Appl. for Default J., ECF No. 15.) After the Court denied 10 Day’s first Application, Day filed the instant Renewed Motion for Entry of Default 11 Judgment. (See Mot.) 12 III. LEGAL STANDARD 13 Federal Rule of Civil Procedure (“FRCP”) 55(b) authorizes a district court to 14 grant a default judgment after the Clerk enters default under Rule 55(a). Fed. R. Civ. 15 P. 55(b). Before a court can enter a default judgment against a defendant, the plaintiff 16 must satisfy the procedural requirements set forth in FRCP 54(c) and 55, as well as 17 Local Rules 55-1 and 55-2. Fed. R. Civ. P. 54(c), 55; C.D. Cal. L.R. 55-1, 55-2. Local 18 Rule 55-1 requires that the movant submit a declaration establishing: (1) when and 19 against which party default was entered; (2) identification of the pleading to which 20 default was entered; (3) whether the defaulting party is a minor, incompetent person, or 21 active service member; (4) that the Servicemembers Civil Relief Act, 50 U.S.C. § 3931, 22 does not apply; and that (5) the defaulting party was properly served with notice, if 23 required under Rule 55(b)(2). C.D. Cal. L.R. 55-1. 24 If these procedural requirements are satisfied, a district court has discretion to 25 enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). “[A] 26 defendant’s default does not automatically entitle the plaintiff to a court-ordered 27 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal 28 2002). In exercising discretion, a court must consider several factors (the “Eitel 1 Factors”): 2 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 3 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning 4 material facts; (6) whether the default was due to excusable neglect, and 5 (7) the strong policy underlying the [FRCP] favoring decisions on the merits. 6 7 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Generally, after the Clerk 8 enters default, the defendant’s liability is conclusively established, and the well-pleaded 9 factual allegations in the complaint are accepted as true, except those pertaining to 10 damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 11 curiam) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). 12 IV. DISCUSSION 13 The Court will first address the threshold procedural requirements and then turn 14 to the substantive factors for default judgment. 15 A. Procedural Requirements 16 The Court finds that Day has complied with the relevant procedural requirements 17 for the entry of a default judgment. Day submits declarations attesting that: the Clerk 18 entered a default on May 13, 2019, against Boyer as to the original Complaint; Boyer 19 is not a minor or incompetent person; the Servicemembers Civil Relief Act does not 20 apply; and Day served Boyer with notice of this Motion, although not required under 21 Rule 55(b)(2). (Decl. of Jim Bauch (“Bauch Decl.”) ¶¶ 2–5, ECF No. 20-2; Decl. of 22 Pamela Day (“Day Decl.”) ¶ 3, ECF No. 20-1.) Accordingly, the procedural 23 requirements are satisfied. 24 B. Factors 25 The Court finds that the Eitel factors weigh in favor of entering a default 26 judgment as to certain of Day’s causes of action, as discussed below. The Court 27 addresses each factor in turn. 28 1 1. Possibility of Prejudice to Plaintiff 2 The first Eitel factor asks whether the plaintiff will suffer prejudice if a default 3 judgment is not entered. Eitel, 782 F.2d at 1471. Denial of default leads to prejudice 4 when it leaves a plaintiff without a remedy or recourse to recover compensation. 5 Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 920 (C.D. Cal. 2010); 6 PepsiCo, 238 F. Supp. 2d at 1177. Boyer has failed to appear or participate in this 7 action. Absent entry of default judgment, Day is without recourse to recover. 8 Accordingly, this factor weighs in favor of default judgment. 9 2. Substantive Merits & 3. Sufficiency of the Complaint 10 The second and third Eitel factors “require that a plaintiff state a claim on which 11 the [plaintiff] may recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 12 F.R.D. 494, 499 (C.D. Cal. 2003) (alteration in original) (quoting PepsiCo, 238 F. Supp. 13 2d at 1175). Although well-pleaded allegations in the complaint are admitted by 14 defendant’s failure to respond, “necessary facts not contained in the pleadings, and 15 claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. 16 Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). To weigh these two factors, the 17 Court must evaluate the merits of each cause of action. 18 i. Sale of Unregistered Securities in Violation of Federal Law 19 Day alleges a first claim against Boyer for selling unregistered securities in 20 violation of federal statute 15 U.S.C. § 77l. (Compl. ¶¶ 11–16.) Per section 771, “any 21 person who offers or sells a security in violation of section 77e of this title . . . shall be 22 liable . . . to the person purchasing such security.” 15 U.S.C. § 77l. Section 77e states 23 that “[u]nless a registration statement is in effect as to a security, it shall be unlawful 24 for any person, directly or indirectly . . . to make use of any means or instruments of 25 transportation or communication in interstate commerce or of the mails to sell such 26 security.” 15 U.S.C. § 77e. Day alleges that MobileCoin is a security and had no 27 registration statement in effect when Boyer made use of email and text message 28 communications to sell MobileCoin to Day. (Compl. ¶¶ 13–15.) Accepting as true the 1 well-pleaded factual allegations in the Complaint, Day sufficiently states a claim for 2 sale of unregistered securities in violation of federal law. 3 ii. Sale of Unregistered Securities in Violation of California Law 4 Day also alleges a second claim for sale of unregistered securities pursuant to 5 California law. (Compl. ¶¶ 17–19.) Pursuant to section 25110 of the California 6 Corporations Code, “[i]t is unlawful for any person to offer or sell in this state any 7 security in an issuer transaction . . . unless such sale has been qualified under Section 8 25111, 25112 or 25113 . . . or unless such security or transaction is exempted or not 9 subject to qualification under Chapter 1.” Cal. Corp. Code § 25110; see Sadek v. Von 10 Koenigsegg, No. 8:19-CV-00784-JLS-ADS, 2019 WL 6391532, at *2 (C.D. Cal. Aug. 11 13, 2019). This includes sale of unregistered securities. Wong v. Tomaszewski, 12 No. 2:18-CV-00039-MCE-AC, 2018 WL 4628269, at *5 (E.D. Cal. Sept. 27, 2018). 13 Pursuant to section 25503 of the California Corporations Code, Day may recover 14 “consideration [she] paid for such security with interest.” Cal. Corp. Code § 25503. As 15 discussed above, Boyer sold unregistered securities and, accordingly, Day sufficiently 16 states a claim for sale of unregistered securities under California law. 17 iii. Acting as an Unlicensed Broker-Dealer in Violation of Federal Law 18 Day brings her third claim against Boyer for acting as an unlicensed broker-dealer 19 in contravention to federal law. (Compl. ¶¶ 20–24.) “The Exchange Act requires, 20 among other things, that broker-dealers register with the Commission before engaging 21 in securities transactions.” Milliner v. Mut. Sec., Inc., 207 F. Supp. 3d 1060, 1064 (N.D. 22 Cal. 2016); 15 U.S.C. § 78o. Thus, it is illegal “for a ‘broker’ to effect any transaction 23 in, or to induce or attempt to induce the purchase or sale of any security unless such 24 broker is registered with the [Securities Exchange] Commission or, in the case of a 25 natural person, is associated with a registered broker-dealer.” Hines v. Cal. Pub. 26 Utilities Comm’n, No. C-10-2813 EMC, 2011 WL 2066614, at *3 (N.D. Cal. May 25, 27 2011). 28 1 Day alleges that her contract should be void because Boyer was an unlicensed 2 broker-dealer. (Compl. ¶ 24.) However, her pleadings are internally inconsistent as she 3 also alleges the parties had a valid contract, which Boyer breached. (Compl. ¶ 72.) As 4 the Court finds infra that Day adequately pleaded her breach of contract claim, it 5 declines to find that Day is entitled to restitution and recession on this claim. Hedging 6 Concepts, Inc. v. First All. Mortg. Co., 41 Cal. App. 4th 1410, 1420 (1996) (“When 7 parties have an actual contract covering a subject, a court cannot—even under the guise 8 of equity jurisprudence—substitute its own concepts of fairness regarding that subject 9 in place of the parties’ own contract.”) 10 iv. Acting as an Unlicensed Broker Dealer Against California Law 11 Day raises the same claim under California law as her fourth cause of action. 12 (Compl. ¶¶ 25–30.) Pursuant to California Corporations Code section 25501.5, “[a] 13 person who purchases a security from or sells a security to a broker-dealer that is 14 required to be licensed and has not . . . may bring an action for rescission of the sale or 15 purchase or . . . for damages.” Cal. Corp. Code § 25501.5. As discussed above, the 16 Court does not find Day may recover on this basis. 17 v. False or Misleading Statement in Violation of Federal Law 18 Day asserts a fifth cause of action against Boyer for making false or misleading 19 statements in connection with the sale of securities in violation of 15 U.S.C. § 78j and 20 17 C.F.R. § 240.10B-5. (Compl. ¶¶ 31–40.) Determining a cause of action for 21 securities fraud under § 78j and Rule 10b-5 requires a showing of “(1) a material 22 misrepresentation or omission by the defendant; (2) scienter; (3) a connection between 23 the misrepresentation or omission and the purchase or sale of a security; (4) reliance 24 upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” 25 Lloyd v. CVB Fin. Corp., 811 F.3d 1200, 1206 (9th Cir. 2016) (citing Erica P. John 26 Fund, Inc. v. Halliburton Co., 563 U.S. 804, 810 (2011)). 27 Securities fraud claims must satisfy the heightened pleadings standards of 28 Federal Rule of Civil Procedure 9(b). Id. at 1205. Under Rule 9(b), “an allegation of 1 fraud or mistake must state with particularity the circumstances constituting fraud.” 2 Petersen v. Allstate Indem. Co., 281 F.R.D. 413, 415–16 (C.D. Cal. 2012) (citing Fed. 3 R. Civ. P. 9(b)). This heightened pleading standard requires “that, when averments of 4 fraud are made, the circumstances constituting the alleged fraud be specific enough to 5 give defendants notice of the particular misconduct.” Vess v. Ciba-Geigy Corp. USA, 6 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks omitted). Specifically, 7 the plaintiff must allege the “who, what, when, where, and how” of the fraudulent 8 activity. Id. Yet, “intent, knowledge, and other conditions of a person’s mind may be 9 alleged generally.” Fed. R. Civ. P. 9(b). 10 Day alleges that Boyer made the following three material misrepresentations: 11 “(1) that Defendant had the legal right to purchase a $1 million allocation of MobileCoin 12 on or about December 31, 2017; (2) that Defendant did, in fact, purchase such an 13 allocation on or about that date; (3) that Defendant advanced funds to MobileCoin on 14 behalf of Plaintiff to secure her portion of the allocation.” (Compl. ¶ 34.) Day alleges 15 that Boyer made the misrepresentations to Day with the intent of deceiving her, and 16 Day relied on the misrepresentations in transferring the purchase price to Boyer. 17 (Compl. ¶¶ 35–38.) Accepting as true the well-pleaded factual allegations in the 18 Complaint, Day has adequately pleaded her claim for false or misleading statements in 19 connection with the sale of securities, in violation of federal law. 20 vi. False or Misleading Statement in Violation of California Law 21 Day brings a similar claim under California law as her sixth cause of action. 22 (Compl. ¶¶ 41–50.) Pursuant to California Corporations Code section 25400, it is illegal 23 to “make, for the purpose of inducing the purchase or sale of such security by others, 24 any statement which was, at the time and in the light of the circumstances under which 25 it was made, false or misleading with respect to any material fact.” Cal. Corp. Code 26 § 25400(d). Remedy under this code section is “limited to suits by buyers or sellers of 27 securities.” Irving Firemen’s Relief & Ret. Fund v. Uber Techs., No. 17-CV-05558- 28 HSG, 2018 WL 4181954, at *3 (N.D. Cal. Aug. 31, 2018). As supra, the Court finds 1 Day states a claim for false or misleading statements in connection with the sale of 2 securities, in violation of California law. 3 vii. Fraud 4 Day brings a seventh cause of action for fraud. (Compl. ¶¶ 51–58.) The elements 5 of fraud are “(a) misrepresentation (false representation, concealment, or 6 nondisclosure)”; (b) scienter or knowledge of falsity; (c) intent to induce reliance; 7 (d) justifiable reliance; and (e) resulting damage. Lazar v. Superior Court, 12 Cal. 4th 8 631, 638 (1996). Day adequately pleads the facts and circumstances giving rise to the 9 fraud claim, establishing each element of the claim. Day realleges the three 10 misrepresentations discussed above (Compl. ¶ 52); that Boyer knew the statements were 11 false and intended to induce Day’s reliance on them (Compl. ¶¶ 53–54); and that Day 12 reasonably relied on Boyer’s misrepresentations and has suffered resulting damages 13 (Compl. ¶¶ 55–56). Accepting as true the well-pleaded factual allegations in the 14 Complaint, Day has stated a claim for fraud. 15 viii. Breach of Fiduciary Duty 16 Day asserts an eighth cause of action for breach of fiduciary duty. (Compl. 17 ¶¶ 59–64.) “A claim for breach of fiduciary duty requires the following elements be 18 shown: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and 19 (3) damages.” Slaieh v. Simons, 584 B.R. 28, 41 (C.D. Cal. 2018). Day alleges that 20 Boyer owed Day a fiduciary duty in connection with the sale of MobileCoin, because 21 he represented that the would act on Day’s behalf. (Compl. ¶ 60.) Boyer breached this 22 duty by holding Day’s funds and comingling them with his own, and retaining control 23 of them to date despite Day’s demands that he return them to her. (Compl. ¶¶ 10, 61.) 24 Finally, Day suffered the loss of her purchase price. (Compl. ¶ 62.) Accepting as true 25 the well-pleaded factual allegations in the Complaint, Day has stated a claim for breach 26 of fiduciary duty. 27 28 1 ix. Conversion 2 Day asserts a ninth cause of action for conversion. (Compl. ¶¶ 65–70.) The 3 elements of conversion are: “[1] ownership or right to possession of property; 4 [2] wrongful disposition of that property right; and [3] monetary damages.” Shanghai 5 Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1003 (N.D. Cal. 2001) 6 (alterations in original). Day alleges she entrusted Boyer with her currency to purchase 7 MobileCoin; however, Boyer “seized and retained the funds [and] commingled it with 8 his own.” (Compl. ¶¶ 66–67.) Day seeks damages in the amount of the lost currency. 9 (Compl. ¶ 69, p.14.) Accepting as true the well-pleaded factual allegations in the 10 Complaint, Day has sufficiently stated a claim for conversion. 11 x. Breach of Contract 12 Day brings a tenth claim for breach of contract. (Compl. ¶¶ 71–76.) Under 13 California law, the elements of breach of contract are: “(1) the existence of the contract, 14 (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach and 15 (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman, 51 Cal. 16 4th 811, 821 (2011). Day alleges that a contract was formed between herself and Boyer 17 through a series of emails and text messages, “pursuant to which [Boyer] agreed to 18 purchase on [Day’s] behalf up to $100,000 in MobileCoin at a 20% markup, and [Day] 19 agreed to transmit the purchase funds to [Boyer].” (Compl. ¶ 72.) Day alleges she 20 satisfied all of her obligations under their agreement, but Boyer breached by failing to 21 purchase any MobileCoin allocation. (Compl. ¶¶ 73–74.) Day suffered damages in the 22 amount of the purchase price, $97,165. (Compl. ¶ 76.) Accepting as true the well- 23 pleaded factual allegations in the Complaint, Day has stated a claim for breach of 24 contract. 25 xi. Unjust Enrichment 26 Day alternatively brings an eleventh claim for unjust enrichment. (Compl. ¶¶ 77– 27 80.) Generally, unjust enrichment applies only in the absence of an adequate remedy at 28 law. See Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1 1996). If two parties possess a valid and enforceable written contract, the plaintiff may 2 not typically proceed on a quasi-contract claim. See Cal. Med. Ass’n, Inc. v. Aetna U.S. 3 Healthcare of Cal., Inc., 94 Cal. App. 4th 151, 172 (2001); see also Pinel v. Aurora 4 Loan Servs., LLC, 814 F. Supp. 2d 930, 944 (N.D. Cal. 2011). As Day may recover 5 under her previously discussed breach of contract claim, she may not recover under her 6 unjust enrichment claim. 7 xii. Money Had and Received 8 Finally, Day alleges a twelfth claim for money had and received. (Compl. ¶¶ 81– 9 84.) The elements for a claim for money had and received are “(1) defendant received 10 money; (2) the money defendant received was for plaintiff’s use; and (3) defendant is 11 indebted to plaintiff.” Lincoln Nat’l Life Ins. Co. v. McClendon, 230 F. Supp. 3d 1180, 12 1190 (C.D. Cal. 2017). The claim can be brought for “money paid by mistake, money 13 paid pursuant to a void contract, or—as relevant here—a performance by one party of 14 an express contract.” Hendrickson v. Octagon Inc., 225 F. Supp. 3d 1013, 1032 (N.D. 15 Cal. 2016) (internal quotation marks omitted). Day alleges that Boyer received money 16 to purchase MobileCoin on her behalf but failed to do so and refuses to return her funds. 17 (Compl. ¶¶ 82–83.) Accepting as true the well-pleaded factual allegations in the 18 Complaint, Day has stated a claim for money had and received. 19 Plaintiff has stated several claims on which she may recover. As such, the second 20 and third Eitel factors favor default judgment. 21 4. Amount at Stake 22 The fourth Eitel factor balances the amount of money at stake with the 23 “seriousness of Defendant’s conduct.” PepsiCo, 238 F. Supp. 2d at 1176; Eitel, 782 24 F.2d at 1471. The amount at stake must be proportionate to the harm alleged. Landstar, 25 725 F. Supp. 2d at 921. “Default judgment is disfavored where the sum of money at 26 stake is too large or unreasonable in light of defendant’s action.” Truong Giang Corp. 27 v. Twinstar Tea Corp., No. C 06-03594 JSW, 2007 WL 1545173, at *12 (N.D. Cal. 28 May 29, 2007). 1 Day seeks compensatory damages in the amount of $97,165, the exact amount 2 Boyer stole per the allegations in the complaint, and punitive damages in the amount of 3 $291,495, three times the amount of compensatory damages. (Mot. 18.) The Court 4 finds the amount at stake to be proportionate to Boyer’s conduct. See Guadarrama v. 5 Chadorbaff, No. SA CV 17-0645-DOC-JDEx, 2018 WL 5816191, at *11 (C.D. Cal. 6 Apr. 30, 2018) (finding appropriate a one to three ratio of compensatory to punitive 7 damages and citing cases that concur). Consequently, this factor favors of entry of 8 default judgment. 9 5. Possibility of Dispute 10 The fifth Eitel factor considers the possibility that material facts are in dispute. 11 PepsiCo, 238 F. Supp. 2d at 1177. Because the allegations in Day’s Complaint are 12 presumed true, Boyer’s failure to appear in this action results in a finding that “no factual 13 disputes exist that would preclude entry of default judgment.” Vogel v. Rite Aid Corp., 14 992 F. Supp. 2d 998, 1013 (C.D. Cal. 2014). Accordingly, this factor favors entry of 15 default judgment. 16 6. Possibility of Excusable Neglect 17 The sixth Eitel factor considers the possibility that a defendant’s default is the 18 result of excusable neglect. PepsiCo, 238 F. Supp. 2d at 1177. Day served Boyer with 19 the Complaint on April 18, 2019. (Proof of Service, ECF No. 10.) Boyer also received 20 notice of the instant motion. (Bauch Decl. ¶ 5.) Boyer thus was on notice and failed to 21 respond. No facts before the Court indicate that Boyer’s default is due to excusable 22 neglect. As such, this factor favors entry of default judgment. 23 7. Policy Favoring Decisions on the Merits 24 “[D]efault judgments are ordinarily disfavored. Cases should be decided upon 25 their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472 (citing Pena v. 26 Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). However, where the 27 defendant fails to answer the plaintiff’s complaint, “a decision on the merits [is] 28 impractical, if not impossible.” PepsiCo, 238 F. Supp. 2d at 1177. Because Boyer 1 failed to appear or otherwise respond, a determination on the merits is impossible. 2 Accordingly, this factor does not preclude entry of default judgment. 3 On balance, the Eitel factors support entry of default judgment. As such, the 4 Court GRANTS Day’s Renewed Motion for Default Judgment as to the causes of action 5 indicated above as sufficiently stated. 6 C. Damages 7 “The general rule of law is that upon default the factual allegations of the 8 complaint, except those relating to the amount of damages, will be taken as true.” 9 Geddes, 559 F.2d at 560; see also Wecosign, Inc. v. IFG Holdings, Inc., 845 F. Supp. 10 2d 1072, 1079 (C.D. Cal. 2012) (“[A]llegations of the amount of damages suffered are 11 not necessarily taken as true.”). However, conclusory declarations alone are insufficient 12 to support the amount of damages in a default judgment. See Rubicon Glob. Ventures, 13 Inc. v. Chongquing Zongshen Grp. Imp./Exp. Corp., 630 F. App’x 655, 658 (9th Cir. 14 2015) (vacating the default judgment in part where plaintiffs’ own conclusory 15 declarations were the basis of the damages calculation and a hearing was not held). 16 Day seeks $97,165 in compensatory damages. (Mot. 18.) She substantiates her 17 claim of damages with a declaration stating that she paid Boyer $97,165 for MobileCoin 18 and attached emails and documents, including a wire confirmation, confirming that she 19 did so. (See Day Decl. ¶ 6, Exs. A–B.) Thus, the Court finds the attached evidence 20 satisfactory and awards $97,165 in compensatory damages. 21 Day also seeks punitive damages in the amount of $291,495—three times the 22 amount of compensatory damages. (Mot. 18.) Claims for fraud and conversion can 23 support an award for punitive damages. Guadarrama, 2018 WL 5816191, at *8–*9; 24 Brantley v. Boyd, No. C 07-6139 MMC, 2013 WL 3766911, at *9 (N.D. Cal. July 16, 25 2013). However, “[w]hen punitive damages are sought by default judgment, the court 26 must have independent evidence to support the award because punitive-damages- 27 worthy conduct alleged in a complaint is not regarded as admitted by default.” 28 Guadarrama, 2018 WL 5816191, at *8. To determine whether punitive damages 1 should be awarded for claims of fraud, courts in the Ninth Circuit consider: “(1) the 2 reprehensibility of defendant’s acts; (2) the amount of compensatory damages awarded; 3 and (3) the wealth of the defendant.” Id. at *9 (citing Prof’l Seminar Consultants, Inc. 4 v. Sino Am. Tech Exch. Council, Inc., 727 F. 3d 1470 (9th Cir. 1984)); see also Brantley, 5 2013 WL 3766911, at *9. 6 Here, Day fails to satisfy her evidentiary burden. She attached as an exhibit an 7 email chain between herself and Boyer in which she confirmed her wire transfer to 8 Boyer and Boyer responded “[g]reat, . . . I’ve got you reserved for 100k.” (Day Decl. 9 Ex. A.) In an email five days later, Boyer confirms that he received her Ether currency, 10 indicates that he will forward her updates, instructs her to create a “stellar wallet to 11 collect the tokens,” and recommends they “sit down for wine and figure it out in a 12 couple of weeks.” (Day Decl. Ex. B.) From the evidence presented, Day fails to 13 demonstrate any malice in Boyer’s actions. As the record is insufficient to ascertain the 14 reprehensibility of Boyer’s conduct or Boyer’s wealth, the Court declines to award 15 punitive damages. Rath v. Defy Media, LLC, No. 2:18-CV-09624-ODW-RAOx, 2019 16 WL 3067198, at *8 (C.D. Cal. July 12, 2019) (declining to award punitive damages 17 where “the record is insufficient to support a punitive damage award”). 18 D. Attorneys’ Fees and Costs 19 Day requests $11,373.20 in attorney’s fees and $381.73 in costs. (Mot. 19.) 20 Local Rule 55-3 sets out a schedule to calculate attorney’s fees. C.D. Cal. L.R. 55-3; 21 see e.g. Constr. Laborers Tr. Funds for S. California Admin. Co. v. Anzalone Masonry, 22 Inc., 316 F. Supp. 3d 1192, 1203 (C.D. Cal. 2018) (awarding attorneys’ fees pursuant 23 to Local Rule 55-3). As the Court awards $97,165 in compensatory damages, the 24 schedule in Local Rule 55-3 grants Day $3600 plus 4% of the amount over $50,000. 25 C.D. Cal. L.R. 55-3. Accordingly, the Court calculates the appropriate fee to be: $3600 26 + (4% x $47,165) = $5486.60. Accordingly, the Court grants in $5486.60 attorneys’ 27 fees. The Court additionally awards the $381.73 in costs, as supported by the 28 Declaration of Jim Bauch. (Bauch Decl. ¶ 6.) 1 V. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Plaintiff’s Renewed 3 | Motion for Entry of Default Judgment as to Day’s first, second, fifth, sixth, seventh, eighth, ninth, tenth, and twelfth claims. (ECF No. 20.) The Court DENIES Day’s 5 || Motion as to her third, fourth, and eleventh claims. The Court awards: 6 1. $97,165 in compensatory damages; 7 2. $5486.60 attorneys’ fees; and 8 3. $381.73 in litigation costs. 9 The Court will issue Judgment. 10 11 IT IS SO ORDERED. 12 13 January 21, 2020 ss 14 . fa

16 OTIS D. WRIGHT, II 4 UNITED STATES DISTRICT JUDGE

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