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Amco Insurance Co. v. Rockin' Crepes, Inc.

United States District Court, C.D. California

July 6, 2017

AMCO INSURANCE COMPANY, Plaintiff,
v.
ROCKIN' CREPES, INC., MARTHA BENNETT, FRANK PESTARINO, and DOES 1-10, Defendants.

          JUDGMENT

          CORMAC J. CARNE Y UNITED STATES DISTRICT JUDGE

         On February 16, 2017, Plaintiff AMCO INSURANCE COMPANY (“AMCO”) filed its Application for Default Judgment against Defendants ROCKIN' CREPES, INC. (“RCI”), MARTHA BENNETT (“Bennett”), and FRANK PESTARINO (“Pestarino”) (collectively referred to as “Defendants”) (Dkt. No. 19). The hearing on AMCO's Application was set for March 20, 2017.

         Pursuant to Federal Rules of Civil Procedure, Rule 55, and the Court's Local Rule 55-1, AMCO has established that (1) the Court clerk entered default against Defendants on January 19, 2017; (2) the default was entered as to AMCO's Complaint; (3) Defendants are not infants or incompetent persons; (4) the Soldiers' and Sailors' Relief Act of 1940 does not apply; and(5) AMCO's Application for Default Judgment has been served upon Defendants. Hence, the procedural requirements for default judgment have been satisfied.

         However, Defendants have not opposed AMCO's Application for Default Judgment or otherwise appeared in this action.

         On March 6, 2017, the Court, having read and considered the papers presented, found this matter appropriate for disposition without hearing, vacated the hearing and issued an Order Granting in Part Default Judgment (Dkt. No. 25).

         The Court granted AMCO's Application For Default Judgment against Defendants, in part, in favor of Plaintiff AMCO for the factual and legal reasons set forth in its Order Granting in Part Default Judgment, a true and correct copy of which is attached hereto as Exhibit A and incorporated by this reference as though set forth herein in full.

         IT IS HEREBY ORDERED AND ADJUDGED that:

         1. Judgment is hereby entered in favor of Plaintiff AMCO INSURANCE COMPANY against Defendants ROCKIN' CREPES, INC. (“RCI”), MARTHA BENNETT (“Bennett”), and FRANK PESTARINO (“Pestarino”), in part, in accordance with the Court's Order Granting in part Plaintiffs Motion for Default Judgment (see Exhibit A).

         2. Plaintiff AMCO is awarded $124, 681.71 in damages and pre-judgment interest from October 22, 2013, to March 13, 2017, pursuant to 28 U.S.C. section 1961, in the amount of $1, 560.41, for a total judgment of $126, 242.12.

         3. Plaintiff AMCO is awarded post-judgment interest, pursuant to 28 U.S.C. section 1961, calculated from the date of this Judgment to the date that Defendants satisfy this Judgment.

         EXHIBIT A

         ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

         INTRODUCTION

         Plaintiff AMCO Insurance Company filed this lawsuit against Defendants Rockin' Crepes, Inc. (“RCI”), Martha Bennett, and Frank Pestarino, for fraud, conversion, and declaratory relief in connection with alleged material representations Defendants made in the course of obtaining insurance benefits from AMCO. (See generally Dkt. 1 [Complaint, hereinafter “Compl.”].) Before the Court is AMCO's motion for default judgment against Defendants. (Dkt. 21 [Motion, hereinafter “Mot.”].) For the following reasons, the motion is GRANTED IN PART.[1]

         II. BACKGROUND

         RCI owns a crepe restaurant located at 8943 Atlanta Avenue, Huntington Beach, California. (Compl. ¶ 9.) Bennet is the sole shareholder of RCI and Pestarino is its manager. (Id. ¶¶ 3-4.) AMCO issued RCI a “Premier Businessowners” insurance policy (the “Policy”), effective from August 1, 2013, to August 1, 2014, which provided coverage for “business personal property” and “loss of business” in connection with RCI's restaurant. (Id. ¶ 9; see also Id. Ex. A.) The Policy contains a clause that voids coverage “in any case of fraud, at any time, by you or your representative as it relates to this policy, ” or where a covered party or its representative ...


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