Capital One Bank (Usa), N.A. V. Kim H Cowan

PORTFOLIO RECOVERY ASSOCIATES, LLC VS. COMBEST Case Number: 23CVG-01320 Tentative Ruling on Motion for Judgment on the Pleadings: The present motion is unopposed. This collection case was filed on December 18, 2023. Plaintiff is a debt buyer and sole assignee of an agreement entered into by Defendant on a credit card account with Plaintiff’s predecessor Synchrony Bank. The Complaint alleged causes of action for Account Stated and Open Book Account, with a prayer for $2,523.69 against Defendant Jennifer Combest. Defendant filed her Answer on January 26, 2024. On April 11, 2024, Plaintiff filed a motion to deem matters admitted. Defendant did not oppose the motion to deem matters admitted, and the Court granted the motion on May 13, 2024. Meet and Confer: “The moving party shall file and serve with the motion for judgment on the pleadings a declaration stating” the attempts made to meet and confer. CCP § 439(a)(3). The Declaration of Gregory Parks provides sufficient evidence of Plaintiff’s meet and confer efforts. Request for Judicial Notice: The Court GRANTS Plaintiff’s request for judicial notice of the Court’s May 13, 2024 Order that Matters in Request for Admission be Admitted, pursuant to Evid. Code § 452(d) and 453. Merits of Motion: CCP § 438(c)(1)(A) provides a plaintiff may move for judgment on the pleadings if the complaint states sufficient facts to constitute a cause of action and the answer does not state facts sufficient to constitute a defense to the complaint. The grounds for the motion shall appear on the face of the challenged pleading or from any other matter of which the court may take judicial notice. CCP § 438(d). The Court may take judicial notice of responses to discovery records pursuant to Evidence Code §§ 452(d) and 453. Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485. The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due. Leighton v. Forster (2017) 8 Cal. App. 5th 467, 491. “A ‘book account’ is ‘a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith ....’ ” [Citations.] The creditor must keep these records in the regular course of its business and “in a reasonably permanent form,” such as a book or card file. (Code Civ. Proc., § 337a.) “A book account is ‘open’ where a balance remains due on the account.” [Citation.] Pro. Collection Consultants v. Lujan (2018) 23 Cal. App. 5th 685, 690–91. This Court’s Order, entered May 13, 2024, deemed admitted Plaintiff’s requested admissions 1-9. The admissions establish that: 1) Defendant had a credit account ending in 8363, 2) the credit account was issued by Synchrony Bank, 3) Defendant received periodic statements regarding the account, 4) as of December 18, 2023, the balance owed on the account was $2,523.69, 5) Defendant has not made any payments on the account since December 18, 2023, 6) Defendant submitted a payment toward the outstanding debt on the account within 4 years immediately prior to December 18, 2023, 7) Plaintiff was assigned the debt, 8) Plaintiff is the current owner of the debt, and 9) Defendant received through the US mail a pre-legal notification from Plaintiff regarding the account. Defendant’s admissions establish the required elements of each cause of action. Plaintiff’s Motion for Judgment on the pleadings is GRANTED. The admissions establish that a principal sum of $2,523.69 is due and owing. That sum is awarded. Plaintiffs have also submitted a memorandum of costs for $369.50, comprising the filing and service of this motion. The amount appears reasonable and is awarded. A proposed order and judgment have been lodged with the Court and will be executed.

CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO Case Number: 23CVG-00362 Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the amount of $1,572.75 for each motion. Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by counting backwards from the hearing date but excluding the hearing date. CCP § 12c. Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is denied. Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted. Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or issue sanctions. Without additional evidence, terminating sanctions would be premature. The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the denial. Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is necessary on today’s calendar to discuss available trial dates.

CV-18-002624 – BANK OF AMERICA vs DAVIS, MATHEW WILLIAM – Plaintiff’s Motion for Entry of Judgment Pursuant to Stipulation of the Parties – GRANTED, and unopposed. After review of the moving papers and evidence and in view of the lack of opposition, and in view of the Court’s previous order on 3-3-23 setting aside the dismissal and approving entry of judgment herein, the Court finds that judgment shall be entered in Plaintiff’s favor and against Defendant for the net amount of $6,467.26, calculated as follows:  Principal amount $10,761.11; Previously incurred court costs as reflected in the parties’ stipulation $442; Filing fee for the instant motion $60; E-filing fee $4.15; Order fee $20, less credit for payments made in the amount of $4,820. The Court will sign the proposed order and judgment submitted by Plaintiff. THE COURT’S PHONE SYSTEM IS DOWN. If you desire a hearing, you must email your request to the court before 4:00 p.m. today. In addition, your email must list the email addresses of all counsel who will appear at the hearing. Upon receipt, the court will schedule a Zoom hearing.

Real Property/Housing Court Law and Motion Calendar for July 22, 2024 line 1. DEFENDANT VI DAN TRAN MOTION TO EXPUNGE LIS PENDENS OR ALT, TO REQUIRE CLAIMANT TO PROVIDE UNDERTAKING is transferred to department 302 to be heard on August 8, 2924 at 9:30 a.m. per the order of the presiding judge. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO Case Number: 23CVG-00362 Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the amount of $1,572.75 for each motion. Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by counting backwards from the hearing date but excluding the hearing date. CCP § 12c. Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is denied. Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted. Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or issue sanctions. Without additional evidence, terminating sanctions would be premature. The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the denial. Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is necessary on today’s calendar to discuss available trial dates.

BANK OF AMERICA N.A. VS MOTION FOR ORDER TO DEEM RFA’S CVSW2401671 BERNAL ADMITTED BY BANK OF AMERICA N.A. Tentative Ruling: Motion is unopposed. Motion is GRANTED. Requests for Admission propounded on April 12, 2024 are deemed admitted. Court to sign proposed order.

SIERRA CENTRAL CREDIT UNION VS. GOODWIN Case Number: 23CVG-00253 This matter is on calendar for review regarding status of bankruptcy. Plaintiff filed a Case Management Statement informing the Court that the stay is still in effect. The matter is continued to Tuesday, January 23, 2025 at 9:00 a.m. in Department 63 for status of bankruptcy. No appearance is necessary on today’s calendar.

CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO Case Number: 23CVG-00362 Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the amount of $1,572.75 for each motion. Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by counting backwards from the hearing date but excluding the hearing date. CCP § 12c. Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is denied. Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted. Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or issue sanctions. Without additional evidence, terminating sanctions would be premature. The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the denial. Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is necessary on today’s calendar to discuss available trial dates.