Valjalo v. Taylor

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CODY VALJALO, an individual; and No. 2:23-cv-02390 WBS AC DYLON VALJALO, an individual, 12 Plaintiffs, 13 REVISED FINDINGS AND v. RECOMMENDATIONS 14 AUSTIN TAYLOR, an individual; and 15 CLU LLC, a Florida limited liability company, 16 Defendants. 17 18 This matter is before the court on plaintiffs’ motion for default judgment. ECF No. 15. 19 The motion was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(19). This motion was 20 set for hearing on the papers on May 1, 2024. ECF No. 16. Defendants did not file any response 21 to the motion, nor have they appeared in this case in any way. On May 23, 2024, the undersigned 22 issued Findings and Recommendations that contained a clerical error. ECF No. 18. Plaintiffs 23 filed objections, identifying the clerical error in the award calculation as well as raising other 24 substantive objections. ECF No. 19. The findings and recommendations at ECF No. 18 are 25 hereby WITHDRAWN and this revised document is issued to correct the clerical error. For the 26 reasons set forth below, the recommends plaintiffs’ motion be GRANTED, and that judgment be 27 entered in favor of plaintiffs. 28 //// 1 I. Relevant Background 2 Plaintiffs filed their complaint on October 19, 2023, alleging breach of contract, breach of 3 the covenant of good faith and fair dealing, fraudulent misrepresentation, negligent 4 misrepresentation, constructive fraud, fraudulent concealment, promissory fraud, promissory 5 estoppel, unjust enrichment, and equitable estoppel. ECF No. 1 at 1. Plaintiffs allege jurisdiction 6 under 28 U.S.C. § 1332. Plaintiffs are graphic designers residing in Portola, California. Id. at 2. 7 Plaintiffs allege that at all relevant times, defendants knew that plaintiffs resided in Portola, 8 California, and solicited the loans and contracts at issue in the instant matter while plaintiffs 9 resided in California. Id. Defendant Austin Taylor (“Taylor”) is alleged to be an individual 10 residing in Eldersburg, Maryland. Taylor is a social media personality and entrepreneur in the 11 digital asset and digital artwork industries, operating under the alias “DNP3.” Defendant CLU 12 LLC (“CLU”) is an administratively dissolved Florida limited liability company with a registered 13 office at 18851 Northeast 29th Avenue, Suite #700, Aventura, Florida 33180. Corporate records 14 from Florida indicate that CLU was administratively dissolved on September 23, 2022. Id. at 3-4. 15 The complaint alleges that plaintiffs first became acquainted with defendants in June of 16 2019 when they were hired to create digital artwork for Taylor’s social media promotions, CLU’s 17 website, and other nascent non-fungible token (“NFT”) projects, including “GoobersNFT.” Id. at 18 4. In September of 2021, the parties entered an agreement that included a creator royalty paid to 19 plaintiffs; plaintiffs allege that while they were paid in connection with their digital artwork 20 services, they were never paid the agreed royalties. Id. at 5. Beginning July 2022, defendants 21 began seeking loans from plaintiffs. Id. On July 10, 2022, Taylor asked plaintiffs to borrow 22 approximately 174 ETH1 (then-valued at $203,506.61) to seed a “liquidity pool” related to a 23 digital asset created by defendants, called “BITS.” Id. Six days later, on July 16, 2022, 24 defendants repaid plaintiffs with interest, sending 184 ETH (then-valued at $227.070.18) back to 25 the digital asset wallet from which plaintiffs sent defendants the July 10, 2022 loan of 174 ETH. 26 Id. at 6. 27 1 “ETH’ is a digital cryptocurrency asset native to the Ethereum blockchain. ETH is frequently 28 used as a means of payment in the digital asset and NFT industry.” ECF No. 1 at 4. 1 Having established a level of trust with the plaintiffs by repaying this loan, defendants 2 subsequently proceeded to solicit plaintiffs to loan them all the funds in plaintiffs’ digital asset 3 wallet. Id. at 6. Less than one month later, on August 14, 2022, Taylor contacted plaintiffs again 4 on Discord and asked for an additional loan of 65 ETH (then-valued at $125,959.16). Plaintiffs 5 obliged and sent defendants 65 ETH (then-valued at $125,959.16) to a digital asset wallet address 6 provided by Taylor (“Loan 1”). Id. A few hours after Taylor received the funds from Loan 1, on 7 August 15, 2022, Taylor asked plaintiffs in writing over Discord for another 65 ETH (then-valued 8 at $125,957.56), representing that Taylor had “just realized today is pay roll day” and needed to 9 pay his employees who, upon information and belief, work for CLU. Plaintiffs completed a 10 transfer of this second tranche of 65 ETH (then-valued at $125,957.56) within fifteen minutes of 11 this request (“Loan 2”). Id. On August 28, 2022, Taylor told plaintiffs over Discord that he had 12 exhausted the 130 ETH (then-valued at $251,916.72) from Loans 1 and 2 by paying vendors and 13 CLU staff, and he needed another 40 ETH (then-valued at $59,739.17) to get through the week. 14 Id. Plaintiffs sent Taylor 40 ETH (then-valued at $59,739.17) within five minutes of Taylor’s 15 request (“Loan 3”). Id. at 7. 16 Plaintiffs allege that Taylor acknowledged that as a combination of Loans 1, 2, and 3, he 17 owed them 170 ETH (then-valued at $311,655.89) (collectively, the “Loans”). Id. at 7. On 18 September 14, 2022, instead of apologizing for failing to timely repay Loans 1, 2, and 3, Taylor 19 asked plaintiffs to loan him the last 15 ETH (then-valued at $24,600) that plaintiffs had left in 20 their publicly visible digital asset wallet. Id. Plaintiffs began to grow suspicious of Taylor’s 21 repeated requests and refused this request. Id. Unbeknownst to plaintiffs, Taylor caused CLU to 22 be administratively dissolved on September 23, 2022. Id. On January 2, 2023, nearly four 23 months after defendants had successfully convinced plaintiffs to send Loans 1, 2, and 3, Taylor 24 admitted to plaintiffs that he had lied to them about the Loans’ purposes and further confessed 25 that he lost their money gambling. Id. at 7. Plaintiffs also performed additional work for the 26 GoobersNFT project by taking on a leadership role in the project since January 2023, when 27 plaintiffs told Taylor that members of the GoobersNFT community felt that he should step aside. 28 Id. at 9-10. 1 Plaintiffs allege they have sustained significant damages as a result of the failures of 2 defendants Taylor and CLU. First, plaintiffs were deprived of at least 40% share of the royalties 3 that defendants promised to give them, which amount to no less than 29.79 ETH (presently 4 valued at $46,527, but having greater value at the time the Royalties became due to plaintiffs). 5 Id. at 11. Second, plaintiffs have been and continue to be deprived of their original 170 ETH 6 (cumulatively valued at the times of each Loan at $311,655.11). Id. at 11. Plaintiffs have been 7 penalized and will continue to be penalized as a result of defendants’ failure to repay the Loans 8 due to defendants’ self-described gambling problem. Id. Third, plaintiffs also incurred damages 9 related to the time and effort spent assuming the responsibilities of Taylor and CLU in the 10 GoobersNFT project. Plaintiffs allege they owed compensation in an amount to be proven at 11 trial, but no less than $24,000, which is a minimum hourly rate for each hour spent on their 12 efforts. Id. Taken together, plaintiff allege they have lost no less than $382,182.11 as a result of 13 defendants’ actions to date and will continue to incur damages into the future. Id. 14 II. Motion 15 Plaintiffs move for default judgment, seeking a total of $1,113,818.65 in damages. ECF 16 No. 15 at 11. This figure is broken down as either (i) $795,584.75 in special damages and 17 $362,233.90 in punitive damages; or (ii) $467,410.39 in special damages and $646,408.26 in 18 punitive damages, depending largely on whether certain losses are measured by the value of ETH 19 at the time of the transactions or at present. Id.; see also C. Valjalo Decl. (ECF No. 15-4) at ¶ 22; 20 D. Valjalo Decl. (ECF No. 15-5) at ¶ 22.2 Defendants have not appeared or responded in any way 21 to the motion. 22 //// 23 //// 24 ////

25 2 Plaintiffs’ motion cites to their declarations to support the damages numbers, though the court 26 notes that the damages listed in the declarations do not add up to the total damages amount requested. C. Valjalo Decl. (ECF No. 15-4) at ¶ 22; D. Valjalo Decl. (ECF No. 15-5) at ¶ 22. 27 Further, plaintiffs ask for post-judgment interest in the motion, but provide no legal support or argument related to this request. ECF No. 15 at 11. Accordingly, the undersigned does not 28 address post-judgment interest. 1 III. Analysis 2 A. Legal Standard 3 Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party 4 against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend 5 against the action. See Fed. R. Civ. P. 55(a). However, “[a] defendant’s default does not 6 automatically entitle the plaintiff to a court-ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 7 238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th 8 Cir. 1986)); see Fed. R. Civ. P. 55(b) (governing the entry of default judgments). Instead, the 9 decision to grant or deny an application for default judgment lies within the district court’s sound 10 discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this 11 determination, the court may consider the following factors:

12 (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's 13 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 material facts; (6) whether 14 the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 15 16 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily 17 disfavored. Id. at 1472. 18 As a general rule, once default is entered, well-pleaded factual allegations in the operative 19 complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. 20 v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. 21 Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); see also Fair Housing of Marin v. 22 Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although well-pleaded allegations in the complaint 23 are admitted by a defendant’s failure to respond, “necessary facts not contained in the pleadings, 24 and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. 25 of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 26 (9th Cir. 1978)); accord DIRECTV, Inc. v. Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (“[A] 27 defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law”) 28 (citation and quotation marks omitted); Abney v. Alameida, 334 F.Supp.2d 1221, 1235 (S.D. Cal. 1 2004) (“[A] default judgment may not be entered on a legally insufficient claim.”). A party’s 2 default conclusively establishes that party’s liability, although it does not establish the amount of 3 damages. Geddes, 559 F.2d at 560; cf. Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th 4 Cir. 1990) (stating in the context of a default entered pursuant to Federal Rule of Civil Procedure 5 37 that the default conclusively established the liability of the defaulting party). 6 B. The Eitel Factors 7 1. Factor One: Possibility of Prejudice to Plaintiff 8 The first Eitel factor considers whether the plaintiff would suffer prejudice if default 9 judgment is not entered, and such potential prejudice to the plaintiff weighs in favor of granting a 10 default judgment. See PepsiCo, Inc., 238 F.Supp.2d at 1177. Here, default was entered against 11 defendants (ECF Nos. 8 at 11) by the Clerk of Court, and defendants have not participated in this 12 litigation. Plaintiffs would suffer prejudice if the court did not enter a default judgment because it 13 would be without recourse for recovery. Accordingly, the first Eitel factor favors the entry of 14 default judgment. 15 2. Factors Two and Three: Merits of Claims and Sufficiency of Complaint 16 The merits of plaintiffs’ substantive claims and the sufficiency of the complaint are 17 considered here together because of the relatedness of the two inquiries. The court must consider 18 whether the allegations in the complaint are sufficient to state a claim that supports the relief 19 sought. See Danning, 572 F.2d at 1388; PepsiCo, Inc., 238 F.Supp.2d at 1175. Here, the merits 20 of the claims and sufficiency of the complaint favor entry of default judgment. 21 Plaintiffs’ complaint sets forth 10 claims for relief: (i) breach of contract; (ii) breach of the 22 covenant of good faith and fair dealing; (iii) fraudulent misrepresentation; (iv) negligent 23 misrepresentation; (v) constructive fraud; (vi) fraudulent concealment; (vii) promissory fraud; 24 (viii) promissory estoppel; (ix) unjust enrichment; and (x) equitable estoppel. The motion for 25 default judgment seeks judgment in plaintiffs’ favor and an award of damages only on the 26 “exemplary claims” of breach of contract, fraudulent misrepresentation, and unjust enrichment. 27 ECF No. 15 at 8. 28 //// 1 a. Breach of Contract 2 The elements of breach of contract are: “(1) the contract, (2) plaintiff’s performance or 3 excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” 4 Reichert v. Gen’l Ins. Co. of Am., 68 Cal. 2d 822, 830 (Cal. 1968). The complaint alleges that 5 contracts existed between plaintiffs and defendants as to the loans that plaintiffs provided to 6 defendants and for the 5 ETH fee per loan, that plaintiffs fulfilled their obligations under the 7 agreement by providing the funds, and defendants failed to repay the loans as agreed, damaging 8 plaintiffs. ECF No. 1, ¶¶ 19‒38, 55, 56, 58‒65. Plaintiffs also pled that they entered a 9 contractual agreement with defendants in September 2021 whereby plaintiffs would receive 40% 10 of defendants’ royalties from the sales related to their digital artwork, that they performed these 11 services, and that defendants received royalties as a percentage of trading volume but failed to 12 pay plaintiffs their promised share, damaging plaintiffs. Id. at ¶¶ 14, 18, 54, 56, 57, 59‒65. 13 Plaintiffs have adequately stated a breach of contract claim.3 14 b. Fraudulent Misrepresentation 15 The elements of fraud are (1) a misrepresentation (false representation, concealment, or 16 nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce 17 reliance; (4) justifiable reliance; and (5) resulting damage. See Lazar v. Superior Court, 12 18 Cal.4th 631, 638 (Cal. 1996). Plaintiffs have specifically alleged that defendants misrepresented 19 both the reasons the loans were requested and defendants’ ability to repay them. Loan 1 was 20 requested on the false basis that defendant’s cryptocurrency exchange account “got locked for 30 21 days,” which Taylor later admitted was a fabrication. Loan 2 was requested on the false grounds 22

23 3 The court notes that plaintiffs did not provide any written evidence of these contracts; there are no emails or communications between the parties showing agreement, only the sworn 24 declarations of the plaintiffs that the agreements were made. ECF Nos. 4 and 5. The court notes that it did consider whether California’s statute of frauds would bar the contracts but concluded 25 that because the statute of frauds is a waivable affirmative defense it does not apply here, where 26 defendants have not appeared or raised the defense. “The statute of frauds is treated as a rule of evidence; if not raised by the party to be charged, it is waived.” Griffin v. Green Tree Servicing, 27 LLC, 166 F. Supp. 3d 1030, 1045 (C.D. Cal. 2015). In any event, the unjust enrichment theory addressed infra provides an alternative basis for recovery of the funds at issue on the loans and 28 royalties issues. 1 that additional funds were needed to make payroll. Loan 3 was requested on the false basis that 2 the proceeds of Loans 1 and 2 had gone to pay vendors and employees, and that further operating 3 funds were needed for the business. In reality, Taylor sought the funds to pay his own gambling 4 debts and enable further gambling. Taylor also falsely represented that anticipated sales and 5 pending projects would enable prompt repayment of the loans. Plaintiffs relied on these 6 representations in making the loans. ECF No. 1, ¶¶ 23-29, 33-34. In sum, 7 Plaintiffs trusted Defendants and relied upon Taylor’s repeated representations about the ways in which he expected to earn enough 8 ETH from his business ventures to repay them within the timeframe he proposed when he asked for the Loans. When soliciting the funds 9 from Plaintiffs, Taylor intentionally did not disclose that the loaned ETH would be used for gambling or speculation. To the contrary, 10 Taylor fabricated a series of lies to induce Plaintiffs into bailing him out of a self-inflicted treacherous financial position. In so doing, 11 Taylor effectively stole $311,655.11 worth of ETH from Plaintiffs. 12 Id., ¶ 37. 13 These facts amply demonstrate misrepresentation, knowledge of falsity, intent to defraud, 14 justifiable reliance; and resulting damage. Plaintiffs have adequately stated their fraud claim. 15 c. Unjust Enrichment 16 The elements of unjust enrichment are a “receipt of a benefit and unjust retention of the 17 benefit at the expense of another.” Elder v. Pac. Bell Tel. Co., 205 Cal.App.4th 841, 857 (2012). 18 Unjust enrichment is not an independent cause of action, but provides for restitution under a 19 quasi-contractual recovery theory where there is not a true contract but plaintiff alleges that a 20 defendant nonetheless has a legal or equitable obligation to return benefits received. See 21 Melchoir v. New Line Productions, Inc.,106 Cal.App.4th 779, 793 (2003). Plaintiffs’ unjust 22 enrichment claim rests on the loans plaintiffs provided to defendants, the royalties defendants 23 promised but did not pay to plaintiffs, and the services plaintiffs were forced to take on after 24 defendants’ publicly admitted fraud. 25 To the extent that plaintiffs base their unjust enrichment claim on the failure to repay 26 loans, this theory provides an alternative basis for recovery if the existence of a true contract is 27 not adequately established. The loans provided by plaintiffs plainly constitute a benefit to 28 defendants, and the failure to repay them constitutes unjust retention of benefits to which 1 defendants are not entitled. Accordingly, defendants were unjustly enriched and restitution is 2 appropriate. 3 The allegations regarding royalties are similarly sufficient to demonstrate unjust 4 enrichment: defendants received the benefit of an automatically-generated 7.5% “creator royalty” 5 on a total GoobersNFT trading volume of 993 ETH, had promised a 40% share of those royalties 6 to plaintiff, and retained plaintiff’s share. See ECF No. 1, ¶ 15, 18. Here too, unjust enrichment 7 provides a basis for recovery even in the absence of an enforceable contract. 8 The undersigned reaches a different conclusion as to the services plaintiff provided in 9 managing the NFT beginning in January 2023. Plaintiffs pled that they had “no choice” but to 10 take control of the GoobersNFT from defendant Taylor after he publicly admitted fraud, and that 11 he accepted their services but did not compensate them for the same. ECF No.1, ¶¶ 39‒52, 122‒ 12 132. However, plaintiffs made the decision to assume control of the NFT in full view of the facts 13 of the situation, after defendants’ insolvency had been revealed, and they provided their services 14 knowingly and voluntarily. The complaint does not adequately explain how Taylor and CLU 15 received benefits from plaintiff’s voluntary provision of services after Taylor’s “ouster” and 16 CLU’s administrative dissolution. Accordingly, the allegations of the complaint do not establish 17 that defendants were unjustly enriched. 18 The undersigned concludes that plaintiffs have adequately stated a basis for recovery on 19 an unjust enrichment theory as to the loans and royalties, but not as to their provision of services 20 in taking control of GoobersNFT. 21 3. Factor Four: The Sum of Money at Stake in the Action 22 Under the fourth Eitel factor, the court considers the amount of money at stake in relation 23 to the seriousness of defendant’s conduct. The sum of money at stake here is significant, though 24 insofar as it is connected directly to the contract and breaches, it is not unreasonable. This factor 25 weighs in favor of default judgment. 26 4. Factor Five: Possibility of Dispute Concerning Material Facts 27 The facts of this case are relatively straightforward, and plaintiff has provided the court 28 with well-pleaded allegations supporting its claims and affidavits in support of its allegations. 1 Here, the court may assume the truth of well-pleaded facts in the complaint (except as to 2 damages) following the clerk’s entry of default and, thus, there is no likelihood that any genuine 3 issue of material fact exists. See, e.g., Elektra Entm’t Group Inc. v. Crawford, 226 F.R.D. 388, 4 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded complaint are taken as true after 5 the court clerk enters default judgment, there is no likelihood that any genuine issue of material 6 fact exists.”); accord Philip Morris USA, Inc., 219 F.R.D. at 500; PepsiCo, Inc., 238 F.Supp.2d at 7 1177. 8 5. Factor Six: Whether Default Was Due to Excusable Neglect 9 Upon review of the record before the court, there is no indication that the default was the 10 result of excusable neglect. See PepsiCo, Inc., 238 F.Supp.2d at 1177. Plaintiffs served the 11 defendants with the summons and complaint. ECF No. 6. Plaintiffs served defendant by mail 12 with notice of its application for default judgment. ECF No. 15 at 10. Despite ample notice of 13 this lawsuit and plaintiffs’ intention to seek a default judgment, defendants failed to defend 14 themselves in this action. Thus, the record supports a conclusion that the defendants have chosen 15 not to defend this action, and not that the default resulted from any excusable neglect. 16 Accordingly, this Eitel factor favors the entry of a default judgment. 17 6. Factor Seven: Policy Favoring Decisions on the Merits 18 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 19 F.2d at 1472. However, district courts have concluded with regularity that this policy, standing 20 alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. 21 PepsiCo, Inc., 238 F.Supp.2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 694 22 F.Supp.2d 1039, 1061 (N.D. Cal. Mar. 5, 2010). Accordingly, although the court is cognizant of 23 the policy favoring decisions on the merits – and consistent with existing policy would prefer that 24 this case be resolved on the merits – that policy does not, by itself, preclude the entry of default 25 judgment. 26 7. Conclusion: Propriety of Default Judgment 27 Upon consideration of all the Eitel factors, the court concludes that plaintiffs are entitled 28 to the entry of default judgment against defendant. What remains is the determination of the 1 amount of damages to which plaintiff is entitled. 2 C. Terms of Judgment 3 Plaintiffs seek damages related to (i) the amounts they loaned to defendants and were not 4 repaid; (ii) the agreed fees for those loans; (iii) royalties defendants agreed to pay plaintiffs that 5 were not paid; (iv) fees for plaintiffs’ services provided; (v) an accounting of the foregoing based 6 on the present value of the digital assets due to plaintiff; and (vi) prejudgment interest at the legal 7 rate. 8 1. Loan Amounts, Fees, and Prejudgment Interest 9 Plaintiff Dylon Valjalo submitted a sworn declaration reciting the initial values of the 10 loans and the present values of the loans. ECF No. 15-5 at 3. Plaintiff Cody Valjado submitted a 11 substantively similar declaration. ECF No. 15-4. As discussed further below, the court finds that 12 the actual value loaned, plus prejudgment interest on that value, is the appropriate measure of 13 damages. The loan values, at the time of contracting, are as follows: Loan 1, $125,959.16; Loan 14 2, $125,957.56; Loan 3, $59,739.17. Id. The declaration states that loan fees totaled a value of 15 $27,645.00. Id. The court finds reimbursement of these loan amounts appropriate, in the total 16 amount of $339,300.89. As discussed further below, the court declines to award the asserted 17 “present values” of the loans because there is no indication that the loan agreement contemplated 18 repayment at any increased value beyond a typical interest rate, and it is clear that the loans were 19 intended to be repaid in the very short term. 20 “In diversity actions, state law determines the rate of prejudgment interest, and post 21 judgment interest is governed by federal law.” Am. Tel. & Tel. Co. v. United Computer Sys., 22 Inc., 98 F.3d 1206, 1209 (9th Cir. 1996). California regulates prejudgment interest awards by 23 statute. See Cal. Civ. Code §§ 3287; 3289. Prejudgment interest is meant to compensate the 24 plaintiff for the “accrual of wealth” that could have been produced during the period of loss. 25 Great W. Drywall, Inc. v. Roel Const. Co., 166 Cal. App. 4th 761, 767-768 (2008). California law 26 provides for interest at a rate of 10 percent per annum in contract cases with liquidated damages. 27 Cal. Civ. Code § 3289. The loans at issue were entered into in August 2022 (ECF No. 1 at 6); 28 1 using the date of this order, 21 months of annual interest totals $64,597.02. The total liquidated 2 damages for breach of contract is thus $403,897.91. 3 2. Royalties 4 Plaintiffs assert they entered into an agreement to receive 40% of the royalties generated 5 from the secondary market sales of all Goobers NFTs. ECF No. 15-5 at 2. Plaintiffs submitted a 6 sworn declaration that defendants’ royalty agreement, from which their percentage was intended 7 to be drawn, was 7.5% of total sales revenue from secondary market sales. Id. The royalty 8 payments owed to plaintiffs using the ETH value at the time of the transaction amounts to 9 $46,527. Id. at 5. The court should award that amount. See id. 10 3. Fees for Service 11 Plaintiffs seek compensation in the amount of $24,000 for time spent taking over the 12 GoobersNFT project. As explained above in discussion of the unjust enrichment issue, plaintiffs 13 have not demonstrated their entitlement to these fees. Plaintiffs assert that they “felt an informal 14 ownership over the project” and therefore took over GoobersNFT when Taylor admitted to using 15 investor funds on gambling. Plaintiffs’ decision to take over the project is not the direct result 16 defendants’ misrepresentations; it was a decision made by plaintiffs after the fraudulent conduct 17 had been revealed. Plaintiffs do not indicate that they entered any compensation arrangement 18 with defendants for taking over the NFT. ECF No. 15-5 at 3-4. Plaintiffs are not entitled to 19 payment for this work as a part of this lawsuit. 20 4. Accounting of Present Value of Digital Assets 21 Plaintiffs ask the court to value damages based on the present value of the digital assets 22 due to plaintiffs. ECF No. 15 at 10. Plaintiffs argue that the loans were issued in ETH, the value 23 of which has changed substantially over the past two years (for example, plaintiffs allege the 24 value of the first 65 ETH loan in September of 2021 was $125,959.16, and the value of 65 ETH 25 as of April 2024 was $233,187.50). ECF No. 15-5 at 3. Plaintiffs provide no caselaw or legal 26 //// 27 //// 28 //// 1 argument supporting their assertion that the court should award damages based on the current 2 value of the cryptocurrency.4 3 Regardless, California law “limits contract damages to those reasonably within the 4 contemplation of the parties as a probable result of a breach at the time the contract was formed.” 5 Brandon & Tibbs v. George Kevorkian Accountancy Corp., 226 Cal. App. 3d 442, 457 (1990). 6 The California Civil Code states that “[n]o damages can be recovered for a breach of contract 7 which are not clearly ascertainable in both their nature and origin.” Cal. Civ. Code § 3301. Here, 8 plaintiffs made the initial loan on August 14, 2022. ECF No. 1 at 6. The breach was allegedly 9 fully realized and admitted to by the defendants no later than January 2, 2023, though plaintiffs 10 acknowledge they had “grown suspicious” and had cause to recognize the breach by September 11 14, 2022, when Taylor asked for and was denied a fourth loan. Id. at 7-8. Though the time of 12 intended repayment was not specifically stated, it is clear from the complaint that the parties 13 intended the loans to be repaid within a matter of weeks, because plaintiffs indicate that they 14 considered the August 28, 2022 loan not “timely repaid” as of September 14, 2022. ECF No. 7 at 15 6-7. It was not foreseeable at the time of contracting that defendants would be repaying plaintiffs 16 at the 2024 valuation of the cryptocurrency. Accordingly, the court should decline to inflate the 17 damages as plaintiffs suggest. 18 //// 19 //// 20 4 The court’s own research revealed one non-binding but informative opinion from the Superior 21 Court of Delaware, which addressed the relatively novel question, “[w]hen the consideration to be paid on a contract is in cryptocurrency and the contract is breached, how does the Court calculate 22 the judgment to be entered?” Diamond Fortress Techs., Inc. v. EverID, Inc., 2022 WL 1114528, 23 at *5 (Del. Super. Ct. Apr. 14, 2022). The Diamond Fortress court concluded that cryptocurrency is a security and applied the “New York Rule” . . .which is “a judicially-created breach-of- 24 contract remedy for reckoning ‘damages where stock or ‘properties of like character’ were converted, not delivered according to contractual or other legal obligation, or otherwise 25 improperly manipulated’ and calculates damages by ‘the highest intermediate value reached by 26 the [security] between the time of the wrongful act complained of and a reasonable time thereafter, to be allowed to the party injured to place himself in the position he would have been 27 in had not his rights been violated.” Id. Because plaintiffs recognized their injury within a month following the breach, and because the agreements were clearly intended to be short term in 28 nature, using this calculation would not alter the result in this case. 1 5. Punitive Damages/Attorneys’ Fees 2 Defendants ask in their declarations5 for punitive damages in the amount of $362,717.82 3 (accounting for attorney’s fees only) or $646,408.25 (accounting for the present value of ETH 4 and attorney’s fees). ECF No. 15-5 at 5. In order to obtain punitive damages under California 5 law, a plaintiff must show by clear and convincing evidence that a defendant acted with malice, 6 fraud, or oppression. See Cal. Civ. Code § 3294; Roby v. McKesson Corp., 47 Cal.4th 686, 712 7 (2009). In order to determine whether punitive damages should be awarded, and the amount to be 8 awarded the Court considers: (1) the nature of defendant’s acts; (2) the amount of compensatory 9 damages awarded; and (3) the wealth of the defendant. Prof’l Seminar Consultants, Inc. v. Sino 10 Am. Tech. Exch. Council, Inc., 727 F.2d 1470, 1473 (9th Cir. 1984). 11 “[P]unitive damages are never awarded as a matter of right, are disfavored by the law, and 12 should be granted with the greatest of caution and only in the clearest of cases.” Directi Internet 13 Sols. Pvt. Ltd. v. Dhillon, 2013 WL 460319, at *6, n.7, 2013 U.S. Dist. LEXIS 15706 (E.D. Cal. 14 Feb. 5, 2013) (citing Henderson v. Security Pacific National Bank, 72 Cal.App.3d 764, 771 15 (1977)). The undersigned declines to recommend an award of punitive damages in this case. 16 Plaintiffs are “unaware of Taylor’s financial situation” but acknowledge that he will likely be 17 unable to pay a judgment. The compensatory damages to be awarded—the value of the loans 18 plus statutory interest and the agreed royalty payment—compensate plaintiffs for their losses. 19 There is no indication that punitive damages are necessary to deter defendants from engaging in 20 similar conduct in the future. For these reasons, the undersigned declines to recommend punitive 21 damages in this case. 22 IV. Conclusion 23 For all the reasons set forth above, it is HEREBY RECOMMENDED that plaintiffs’ 24 motion for default judgment (ECF No. 15) be GRANTED, that plaintiffs be awarded $450,242.91 25 ($403,897.91 in contract damages plus $46,527.00 in royalties), and that the case be closed. 26

27 5 These numbers, when considered as part of plaintiffs’ breakdown of their total damages request, do not add up to the asserted total $1,113,818.65. Because the court finds punitive 28 damages in any amount to be inappropriate, it is unnecessary to resolve arithmetic discrepancies. ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 3 || after being served with these findings and recommendations, any party may file written 4 | objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 5 || document should be captioned “Objections to Magistrate Judge’s Findings and 6 || Recommendations.” Any response to the objections shall be filed with the court and served on all 7 || parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 8 | objections within the specified time may waive the right to appeal the District Court’s order. 9 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 10 | (9th Cir. 1991). 11 | DATED: June 14, 2024 ~ 12 Atlunn—Clone ALLISON CLAIRE 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15