DISCUSSION

I. Second Judge’s Authority To Act

Trial judges generally have the power to change their minds when hearing a case. (In re Marriage of Nicolas (2010) 186 Cal.App.4th 1566, 1577 (Nicolas).) This power is less expansive when one judge revisits the earlier ruling of a different judge because, in that situation, there is a greater danger that litigants might “forum shop” for judges or that the second judge would “becom[e] a one-judge appellate court.” (Sorensen v. Superior Court (2013) 219 Cal.App.4th 409, 421, citation and internal quotation marks omitted; Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 982-983 (Alvarez).) These dangers are not implicated in this case, and the rule circumscribing the second judge’s authority to revisit an earlier ruling is inapplicable. Here, the transfer to a different judge was unilaterally effected by the court--not prompted by a litigant; forum shopping is therefore of little concern. More to the point, the rule giving precedential effect to a different judge’s earlier ruling does not apply when that ruling is interlocutory (rather than final), particularly when the second judge has “considered further evidence and law.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 644; see also Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, 706 [second judge may revisit first judge’s findings of fact and conclusions of law made after first phase of trial]; Alvarez, supra, 183 Cal.App.4th at p. 983 [second judge may reject plea agreement first judge

3 approved].) A ruling is interlocutory if “further judicial action is required for a final determination of the rights of the parties. . . .” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293; cf. In re Alberto (2002) 102 Cal.App.4th 421, 429 [what matters is finality of ruling, not entry of judgment].) The flexibility of interlocutory rulings is essential to avoid having every interim ruling become a de facto final ruling. (Nicolas, supra, 186 Cal.App.4th at p. 1578 [“A court could not operate successfully under the requirement of infallibility of its interim rulings.”]; see also People v. Sons (2008) 164 Cal.App.4th 90, 100 [finality of interim rulings would improperly apply law of the case doctrine to trial court rulings].) Under this authority, the second judge’s default judgment was appropriate. The first judge’s order was interlocutory because that judge was awaiting submission of an acceptable default judgment. Further, the second judge’s ruling reflects the solicitation and consideration of additional facts and argument--not merely a difference of opinion with the first judge.

II. Substantial Evidence

Where, as here, a default is entered, plaintiffs may “prove up” damages “as appear[] by the evidence to be just,” as long as those damages do not exceed the amount prayed for in the complaint and any properly filed statement of damages. (Code Civ. Proc. § 585, subd. (b).) “[W]ell-pleaded allegations” in the complaint may be deemed admitted, (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281), but plaintiffs must still “produce evidence” to make out a “prima facie case” of entitlement to damages (Harbour Vista, LLC v. HSBC Mortgage Services, Inc. (2011) 201 Cal.App.4th 1496, 1503 n.6.) We review a trial court’s damages findings following default for substantial evidence. (Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1150.) (We may also review for proportionality, (id.), but that is not at issue in this appeal.) The second judge’s ruling is supported by substantial evidence. Plaintiffs correctly note that they may recover consequential damages for the negligent performance of a contract “[w]here a special relationship exists between the parties.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 782.) The

4 “critical factor” in this inquiry is the foreseeability of the harm (id.), but courts will also consider “the closeness of the connection between the defendant’s conduct and the injury suffered” (Id.; S. C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 536 [Plaintiffs must show a “reasonable probability that profits would have been earned except for the defendant’s conduct”], italics added.) Plaintiffs’ complaint alleges no specific facts regarding consequential damages, so Plaintiffs were required to prove up the causal link between their loss of profits and Defendants’ breach of contract. Plaintiffs submitted the declaration of Kevin Mullen expressing his opinion that Defendants were solely responsible for the loss of profits on both jobs. However, the termination letters from Winters gave two reasons for the terminations: (1) Plaintiffs’ failure to pay its vendors; and (2) Plaintiffs’ willful diversion of Winters’ funds meant for vendors. The trial court was accordingly confronted with multiple reasons as to why Winters fired Plaintiffs, including a reason (the second one) not linked to Defendants’ misfeasance. Because evidence can be “substantial” even if it is contradicted by other evidence, (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571), we must affirm.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

____________________, J.

HOFFSTADT

We concur:

__________________________, P. J.

BOREN

___________________________, J.

ASHMANN-GERST

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