Order granting motion for default judgment, Rojas v. Bottom Line Concepts LLC, No. 2:23-cv-02667 (C.D. Cal.), Doc. 108 (Apr. 30, 2025)

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An order filed April 30, 2025 as Document 108 in Jorge Alejandro Rojas v. Bottom Line Concepts LLC et al., Case No. 2:23-cv-02667-AH-(KSx), in the U.S. District Court for the Central District of California, in which United States District Judge Anne Hwang grants the plaintiff’s Motion for Default Judgment (Dkt. No. 99). The motion is against Unplugged Media, LLC, Alexander Bykhovsky, Chris Biz Services, LLC, Christopher Gutierrez Cuenza and Alex Gold Holdings, LLC, which Rojas asserts violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. Sections 227(b) and (c). According to the order, Rojas alleges that he received 62 calls between April 3, 2023 and September 27, 2023, and he sought $184,500.00 in statutory and treble damages. The order directs that a judgment be entered for $61,500, with interest under 28 U.S.C. § 1961(a) and costs of suit.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL

Case No. 2:23-cv-02667-AH-(KSx) Date April 30, 2025

Title Jorge Alejandro Rojas v. Bottom Line Concepts LLC et al.

Present: The Honorable Anne Hwang, United States District Judge

Yolanda Skipper Not Reported
Deputy Clerk Court Reporter
Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):
None Present None Present

Proceedings: (IN CHAMBERS) ORDER GRANTING PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT (DKT. No. 99)

Plaintiff Jorge Alejandro Rojas (“Plaintiff”) brings this Motion for Default
Judgment (“Motion”) against Defendants Unplugged Media, LLC (“Unplugged
Media’), Alexander Bykhovsky aka Alex Gold (“Bykhovsky’), Chris Biz Services,
LLC (as separate Wyoming and Texas companies) (collectively, “CBS”),
Christopher Gutierrez Cuenza aka Chris Cuenza (“Cuenza”), and Alex Gold
Holdings, LLC (“AGH”) (collectively, the “Defendants”). See generally Mot. for
Default J., Dkt. No. 99. The matter is fully briefed and the Court held a hearing on
March 12, 2025. The continued hearing scheduled for May 7, 2025 is hereby
vacated. For the reasons set forth below, the Court GRANTS Plaintiff’s Motion.

L BACKGROUND

Plaintiff filed this lawsuit on April 8, 2023. See generally Compl., Dkt.
No. 1. Plaintiff asserts that Defendants violated the Telephone Consumer
Protection Act (“TCPA”), specifically 47 U.S.C. Sections 227(b) and (c). See
generally Second Amended Complaint (“SAC”).

Plaintiff has two phone numbers, which he registered on the Federal Do Not
Call list on or around January 18, 2008 and March 22, 2023, respectfully. Id. {j 43-

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44. Plaintiff received 62 calls between April 3, 2023 and September 27, 2023 that
he alleges are in violation of the TCPA. Id. {fj 98-199. According to Plaintiff, each
Defendant placed these calls directly or at their direction. /d. Additionally, Plaintiff
believes that the messages left on his voicemail were pre-recorded, as evidenced by
a pause before a robotic voice began speaking. Jd. 4 79. Plaintiff seeks from this
Court a default judgment against Defendants in the total amount of $184,500.00 in
statutory and treble damages for violations of the TCPA. /d. at Prayer for Relief.

“When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). “If the
plaintiffs claim is for a sum certain or a sum that can be made certain by
computation, the clerk—on the plaintiff’s request, with an affidavit showing the
amount due—must enter judgment for that amount and costs against a defendant
who has been defaulted for not appearing and who is neither a minor nor an
incompetent person.” Fed. R. Civ. P. 55(b)(1). “In all other cases, the party must
apply to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2).

However, “[g]ranting or denying a motion for default judgment is a matter
within the court’s discretion.” Landstar Ranger, Inc. v. Parth Enters., Inc., 725
F.Supp.2d 916, 919 (C.D. Cal. 2010) (internal quotation marks and citations
omitted). The Ninth Circuit has outlined factors for a court to consider when
deciding whether to enter default judgment: (1) the possibility of prejudice to the
plaintiff; (2) the merits of plaintiff’s 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 the material facts; (6) whether defendant’s default was the
product of excusable neglect; and (7) the strong public policy favoring decisions
on the merits. Eitel vy. McCool, 782 F.2d 1470, 14711172 (9th Cir. 1986) (the “Eite/
factors”). All the Eite/ factors do not need to weigh in the plaintiff’s favor for the
court to grant default judgment. See id. at 1472.

“TU pon default the factual allegations of the complaint, except those
relating to the amount of damages, will be taken as true.” Geddes v. United Fin.
Grp., 559 F.2d 557, 560 (9th Cir. 1977) (citation omitted). “[N]ecessary facts not
contained in the pleadings, and claims which are legally insufficient, are not
established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th
Cir. 1992). “Ifthe court determines that the allegations in the complaint are

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sufficient to establish liability, 1t must then determine the amount and character of
the relief that should be awarded.” Landstar, 725 F.Supp.2d at 920 (internal
quotation marks and citations omitted).

Ill. DISCUSSION
A. — Procedural Requirements for Default Judgment

Local Rule 55-1 requires that a movant file a declaration in compliance with
Federal Rule of Civil Procedure 55(b)(1) and that it includes the following
information: (1) when and against which party the default was entered; (2) the
identification of the pleading to which default was entered; (3) whether the
defaulting party is an infant or incompetent person, and if so, whether that person
is represented by a general guardian, committee, conservator or other
representative; (4) that the Servicemembers Civil Relief Act (50 U.S.C. App. §
521) does not apply; and (5) that notice has been served on the defaulting party, if
required by Federal Rule of Civil Procedure 55(b)(2). L.R. 55-1.

On September 23, 2024, the Clerk of the Court entered default as to
Defendant Bykhovsky. Default, Dkt. No. 77. On October 7, 2024, the Clerk of the
Court entered default as to Defendants Cuenza and both Texas and Wyoming CBS
companies. Default, Dkt. Nos. 83-85. On November 4, 2024, the Clerk of the
Court entered default as to Defendant Unplugged Media, and on November 19,
2024 as to AGH. Default, Dkt. Nos. 88, 95. Plaintiff asserts that Defendants are not
minors or incompetent persons and that the Servicemembers Civil Relief Act does
not apply. Rojas Decl., Dkt. No. 99-1, 9 3-8.

Federal Rule of Civil Procedure 55(b)(2) requires that “[i]f the party against
whom a default judgment is sought has appeared personally or by a representative,
that party or its representative must be served with written notice of the application
at least 7 days before the hearing.” Fed. R. Civ. P. 55(b)(2). Defendant Bykhovsky
has appeared in this matter. See Mot. to Dismiss, Dkt. No. 46. In a declaration filed
after the March 12, 2025 hearing, Plaintiff stated that he served Defendant
Bykhovsky with notice of this application and the supplemental declaration as
required by Federal Rule of Civil Procedure 55(b)(2). Rojas Supp. Decl., Dkt. No.
106-1.

For these reasons, the Court finds that Plaintiff has satisfied Local Rule 55-1
for purposes of obtaining a default judgment against the Defendants.

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B. __ Eiitel Factors
In this case, the Hite/ factors weigh in favor of granting default judgment.

1. Possibility of Prejudice to Plaintiff

The first Eitel factor considers whether the plaintiffs will be prejudiced if
default is not entered. Eitel, 782 F.2d at 1471.

Here, if default judgment were not entered, Plaintiffs “will likely be without
other course for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172,
1177 (C.D. Cal. 2002). Therefore, the first Zite/ factor weighs in favor of granting
default judgment.

2. Substantive Merits and Sufficiency of the Claims

“Under an Eite/ analysis, the merits of plaintiff’s substantive claims and the
sufficiency of the complaint are often analyzed together.” Tuan Anh Nguyen v.
Hamner Express Wash, 2019 WL 1877603, at *1 (C.D. Cal. Feb. 8, 2019) (internal
quotation marks and citation omitted). These factors require the plaintiff to “state a
claim on which the [plaintiff] may recover[.]” Danning v. Lavine, 572 F.2d 1386,
1388 (9th Cir. 1978).

Plaintiff alleges violations of the TCPA. 47 U.S.C. § 227. See generally
SAC. The elements of a TCPA claim are: “(1) the defendant called a cellular
telephone number; (2) using an automatic telephone dialing system; (3) without the
recipient’s prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707
F.3d 1036, 1043 (9th Cir. 2012) (citing 47 U.S.C. § 227(b)(1)). “The regulations
promulgated under section 227(c) prohibit the initiation of any telephone
solicitation to a telephone subscriber who has registered his or her telephone
number on the National Do Not Call Registry.” Kazemi v. Payless Shoesource Inc.,
2010 WL 963225, at *2 (N.D. Cal. Mar. 16, 2010) (citing 47 C.F.R. § 64.1200(c)).
Section 227(c) provides a “private right of action to a person who has received
more than one telephone call within any 12-month period by or on behalf of the
same entity in violation of these regulations.” /d. (citing 47 U.S.C. § 227(c)(5)).

Here, Plaintiff has plausibly alleged that he received several unsolicited
telephone calls from Defendants using an automatic dialing system, and that

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Plaintiff’s personal telephone numbers were listed in the National Do Not Call
Registry. Those allegations are sufficient to establish a TCPA violation.

Additionally, Plaintiff alleges that Defendants Cuenza and Bykhovsky are
personally liable for the TCPA violations. Individual officers of an entity violating
the TCPA can be personally liable for their direct participation if they “had direct,
personal participation in or personally authorized the conduct found to have
violated the statute.” Rinky Dink, Inc. v. Elec. Merch. Sys., Inc., 2014 WL
12103245, at *6 (W. D. Wash. Nov. 4, 2014) (citations omitted). The Complaint
sufficiently alleges the direct participation of Cuenza and Bykhovsky in the TCPA
violations. Because these factual allegations are deemed true, Plaintiff has
adequately alleged direct, personal participation on the part of Cuenza and
Bykhovsky sufficient to establish individual liability.

Thus, the second and third Eite/ factors weigh in favor granting default
judgment.

3. Amount at Stake

The fourth Eitel factor analyzes the amount of money at stake. Litel, 782
F.2d at 1471. “Default judgment is disfavored where the sum of money at stake is
too large or unreasonable in relation to defendant’s conduct.” Vogel v. Rite Aid
Corp., 992 F.Supp.2d 998, 1012 (C.D. Cal. 2014).

For violations of the TCPA, statutory damages may be awarded “to recover
for actual monetary loss from such a violation, or to receive $500 in damages for
each violation, whichever is greater... .” 47 U.S.C. § 227(b)(3)(B); see also 47
U.S.C. § 227(c)(5). Additionally, “[1]f the court finds that the defendant willfully or
knowingly violated this subsection or the regulations prescribed under this
subsection, the court may, in its discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount available under subparagraph
(B) of this paragraph.” 47 U.S.C. § 227(b)(3)(C); see also 47 U.S.C. § 227(c)(5).

Here, Plaintiff requests a total of $184,500. Plaintiff alleges that Defendants’
violations were willful and/or knowing, and that, therefore, the statutory damages
should be trebled to $1,500.00 per call. See e.g. SAC Jf 202, 233-34, 265, 273.
Plaintiff argues that certain Defendants’ use of fake names while making calls
demonstrates that they willfully violated the TCPA. Mot. at 25. Additionally,
Plaintiff argues that settlements and lawsuits related to TCPA violations in separate

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cases with different parties illustrates willfulness. /d. at 25. The Court finds
unpersuasive the lawsuit against Cuenza and CBS in which no judgment was
entered. /d.; SAC 4 62. The remaining cases Plaintiff cites concern Bottom Line
Concepts LLC, which is not a Defendant being considered for this default
judgment, and Bykhovsky.' Furthermore, any legal conclusions in the Amended
Complaint are insufficient to support a finding of willfulness. See Friedman v.
Everquote, Inc., 2016 WL 9185402, at *4 (C.D. Cal. Oct. 31, 2016).

In any event, “the court has wide discretion in determining the amount of
damages to be awarded within statutory limits.” See Andrews v. All Green Carpet
& Floor Cleaning Serv., 2015 WL 3649585, at *6 (C.D Cal. June 11, 2015)
(internal quotations and citation omitted). The Court determines that damages of
$500 per call—amounting to over $60,000—is sufficient to both compensate
Plaintiff for the calls he received from Defendants and to discourage Defendants
from engaging in such behavior in the future.

Accordingly, the Court awards Plaintiff statutory damages in the amount of
$500.00 for each violation, but declines to award treble damages. “A single call
can violate both §§ 227(b) and (c) and support damages claims for both.” Doyle v.
JTT Funding, Inc., 2019 WL 13037025, at *11 (C.D. Cal. Dec. 2, 2019). Plaintiff
alleges 62 violations of Section 227(b) and 61 violations of 227(c). Accordingly,
Plaintiff is entitled to $61,500 in statutory damages.

The amount is prescribed in the statute, and the Court does not find the
amount sought as too large or unreasonable in relation to Defendants’ conduct as to
weigh against default judgment. The fourth Eite/ factor also weighs in favor of
granting default judgment.

4. Possibility of Dispute Concerning Material Facts

The fifth Eite/ factor looks at the possibility of whether material facts may
be in dispute. Fite/, 782 F.2d at 14711172. “The general rule of law is that upon
default the factual allegations of the complaint, except those relating to the amount
of damages, will be taken as true.” Geddes, 559 F.2d at 560 (citations omitted).
“Where a plaintiff’s complaint is well-pleaded and the defendant makes no effort

' Although Plaintiff cites to cases concerning Bykhovsky, the Court finds statutory
damages alone sufficient and declines to award treble damages on the basis of
willfulness.

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to properly respond, the likelihood of disputed facts is very low.” U.S. v. Yermian,
2016 WL 1399519, at *3 (C.D. Cal. Mar. 18, 2016).

Plaintiff adequately alleges violations of the TCPA. See generally SAC. The
Defendants’ failure to answer the Complaint indicates that they would be unable to

dispute the material facts in this matter.

Accordingly, the fifth Lite/ factor weighs in favor of granting default
judgment.

5. Excusable Neglect

The sixth Eite/ factor considers whether a defendant’s default is the result of
excusable neglect. Fite/, 782 F.2d at 1472. “This factor favors default judgment
when the defendant has been properly served or the plaintiff demonstrates that the
defendant is aware of the lawsuit.” ProOne, Inc. v. Russell, 2019 WL 4390577, at
*5 (C.D. Cal. Aug. 8, 2019) (citation omitted).

Here, Plaintiff properly served Defendants the Complaint. As a result,
Defendants were on notice and failed to respond. Defendants have not made any

good faith showing of an attempt to participate in the litigation.

As a result, the sixth Eite/ factor weighs in favor of granting default
judgment.

6. Strong Policy Favoring Decision on the Merits

The seventh Eite/ factor states that “[c]ases should be decided upon their
merits whenever reasonably possible.” Eite/, 782 F.2d at 1472 (citation omitted).
However, “Defendant’s failure to answer Plaintiffs’ Complaint makes a decision on
the merits impractical, if not impossible.” PepsiCo., 238 F.Supp.2d at 1177.

The Defendants have not responded to Plaintiffs, making a decision on the
merits “impractical, if not impossible.” Jd.

Thus, for these reasons, the balance of the Fite/ factors supports granting the
Motion for Default Judgment against the Defendants.

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IV. DISPOSITION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Default
Judgment against Defendants Unplugged Media, CBS, Cuenza, AGH, and
Bykhovsky. ? A judgment shall be entered for $61,500. Additionally, Plaintiff is
entitled to interest on the amount of the Judgment at the statutory rate pursuant to
28 U.S.C. § 1961(a) and shall have his costs of suit.

IT ISSO ORDERED.

2 “(T]he TCPA permits joint and several liability amongst co-tortfeasors.” Weisbein
v. Allergan, Inc., WL 1034979, at *5 (C.D. Cal. Mar. 16, 2021).

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