Related Content
in San Bernardino County
Case
Discover Bank -v- Price Print
Jun 28, 2024 |
Jessica Morgan |
Rule 3.740 Collections $10,000 or Less Limited |
Rule 3.740 Collections $10,000 or Less Limited |
CIVSB2421139
Ruling
Creditors Adjustment Bureau, Inc., vs. Castro
Jul 11, 2024 |
23CVG-00362
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.
Ruling
Creditors Adjustment Bureau, Inc., vs. Castro
Jul 10, 2024 |
23CVG-00362
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.
Ruling
201700491367CUOR Sherwood Valley HOA vs New Mission
Jul 09, 2024 |
Jeffrey G. Bennett
|
Motion to Quash Specially Appearing Non-Party Amy Levan's Notice of Motion and Motion to Quash Service of Motion to Amend Judgment to Add Judgment Debtor |
201700491367CUOR
SUPERIOR COURT OF CALIFORNIA
COUNTY OF VENTURA
Tentative Ruling
201700491367CUOR: Sherwood Valley HOA vs New Mission
07/09/2024 in Department 21
Motion to Quash Specially Appearing Non-Party Amy Levan's Notice of Motion and
Motion to Quash Service of Motion to Amend Judgment to Add Judgment Debtor
The morning calendar in courtroom 21 will normally begin between 8:30 and 8:45 a.m. Please
arrive at the courtroom no later than 8:30 a.m. The door will be opened before the calendar is
called.
The Court allows appearances by CourtCall but is not equipped for Zoom. If appearing by
CourtCall, call in no later than 8:15 a.m. If you intend to appear by CourtCall, you must make
arrangements with CourtCall by 4:00 p.m. the day before your scheduled hearing. Requests for
approval of a CourtCall appearance made on the morning of the hearing will not be granted. No
exceptions will be made.
With respect to the tentative ruling below, no notice of intent to appear is required. If you wish to
submit on the tentative ruling you can fax notice to Judge Riley's secretary, Ms. Sedillos at
805-289-8705, stating that you submit on the tentative. You may also email the Court at:
Courtroom21@ventura.courts.ca.gov with all counsel copied on the email. Do not call in lieu of
sending a fax or email. If you submit on the tentative without appearing and the opposing party
appears, the hearing will be conducted in your absence. If you are the moving party and do not
communicate to the Court that you submit on the tentative or you do not appear at the hearing,
the Court may deny your motion irrespective of the tentative.
Unless stated otherwise at the hearing, if a formal order is not signed at the hearing, the
prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a),
(b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with
the court. A "notice of ruling" in lieu of this procedure is not authorized.
Tentative Ruling
GRANTS nonparty Amy LeVan’s motion to quash Plaintiff Sherwood Valley Homeowners
Association’s service of its motion to amend judgment to add judgment debtors.
Although the law regarding what type of service is required for Plaintiff’s motion to amend the
judgment is not entirely clear (compare Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 947,
fn. 10, with Reliant Life Shares, LLC v. Cooper (2023) 90 Cal.App.5th 14, 58), the Court
concludes that for the purposes of Plaintiff’s motion to amend the more “suitable process…most
conformable to the spirit of [the Code of Civil Procedure]” (see Code of Civil Procedure §187) is
that Plaintiff be required to serve LeVan with its moving papers in the same manner as required
for service of summons. As a result, the Court finds Plaintiff’s service of its motion to amend
the judgment by mail on LeVan insufficient and quashes such service.
201700491367CUOR: Sherwood Valley HOA vs New Mission
Based on the above, the Court continues the hearing on Plaintiff’s motion to amend the
judgment, presently set for July 11, 2024, to August 15, 2024, to give Plaintiff sufficient time to
effect service of its moving papers on LeVan in the manner required for service of process at
least 16 court days prior to the August 15, 2024 hearing, and to file and serve proof of such
service with the Court.
The motion to amend the judgment is already fully briefed, and no additional briefing is
authorized at this time.
Analysis
The Association’s motion to amend the judgment to add additional judgment debtors is brought
pursuant to Code of Civil Procedure §187. Section 187 provides that:
“When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred
on a Court or judicial officer, all the means necessary to carry it into effect are also given;
and in the exercise of this jurisdiction, if the course of proceeding be not specifically
pointed out by this Code or the statute, any suitable process or mode of proceeding may
be adopted which may appear most conformable to the spirit of this Code.”
Because a motion to amend a judgment to add alter egos is not a “proceeding …specifically
pointed out by this Code or the statute,” the Court may employ “any suitable process or mode of
proceeding may be adopted which may appear most conformable to the spirit of this Code.”
Stated differently, the procedural rules governing the Association’s motion to amend the
judgment are not specified by statute, and therefore the Court must determine what procedural
rules are appropriate (“most conformable to the spirit of this Code”) for such a proceeding.
The Court notes that a motion to amend the judgment to add an alter ego as a judgment debtor is
viewed by the courts as an equitable procedure pursuant to which the Court is not adding a new
defendant, but merely inserting the correct name of the real defendant. (See Leek v. Cooper
(2011) 194 Cal.App.4th 399, 419.) However, LeVan persuasively argues that unless and until
the Court adjudicates that LeVan is an alter ego of the judgment debtor, New Mission, LLC
(“New Mission”), LeVan is legally a separate person from New Mission and therefore the Court
needs to acquire jurisdiction over LeVan in an appropriate manner to rule on the merits of the
alter ego allegations.
There is appellate authority standing for the procedure that a motion to amend the judgment
pursuant to §187 must be a noticed motion. (See, e.g., Wells Fargo Bank, N.A. v. Weinberg
(2014) 227 Cal.App.4th 1, 9 [Stating that: “Code of Civil Procedure section 187 contemplates a
noticed motion.”].) However, there appears to be a dearth of authority directly addressing the
issue of how a nonparty alleged alter ego should be served with notice of such a motion and the
moving papers.
There is authority suggesting – without explicitly holding –that the Association’s moving papers
in support of the motion should have been personally served on LeVan, because such service is
in the spirit of the provisions in the Code of Civil Procedure regarding initiating a lawsuit against
201700491367CUOR: Sherwood Valley HOA vs New Mission
a party. For example, the 2nd District Court of Appeal stated the following with respect to
service of a motion to amend a judgment on the person allegedly the alter ego of the judgment
debtor:
“As discussed, the Estate personally served the motion to amend on Pasquarella, at the
time no longer a party in the Get Flipped litigation, and not her counsel of record in the
Moofly Productions litigation—a procedure that was entirely proper, although perhaps
not a model of professional courtesy. (Cf. §§ 415.10 [requiring personal service of papers
initiating a lawsuit], 684.020, subd. (a) [requiring postjudgment papers be served on
postjudgment debtor, not debtor's counsel, absent a request on file with the court].)
(Pasquarella was also served as the registered agent for judgment debtor Moofly
Productions.)”
(Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 947, fn. 10.)
There is 2nd District Court of Appeal authority suggesting that service of a motion to amend
judgment is affected by the presence or lack thereof of evidence regarding alter ego status.
“As Ms. Cainong necessarily concedes, the service at issue here is not the service of a
summons and complaint, and she offers no authority for her contention that the motion to
amend the judgment was ‘akin’ to service of a summons and complaint. In the absence of
any such authority, we see no reason to treat Cooper's motion to amend the judgment as
subject to different procedural requirements than any other motion. Particularly is this
so given the court's findings in phase one of the trial that the evidence established
Michaels used the three trusts as extensions of himself.” (emphasis added)
(Reliant Life Shares, LLC v. Cooper (2023) 90 Cal.App.5th 14, 58 [“Reliant”].)
Here, unlike in Reliant, the Association fails to submit any evidence that this Court made any
findings at or prior to trial that any of the third parties the Association seeks to add to the
judgment “used [New Mission] as extensions of [themselves].”
The very limited case law on the issue does not provide a clear answer as to what kind of service
of the present motion to amend the judgment is required with respect to LeVan. The Court
adopts the more conservative approach approved of in Favila v. Pasquarella, and requires the
Association to serve LeVan personally with the moving papers, as this is more likely to avoid
potential jurisdictional issues with any amended judgment against LeVan. The Court will require
the Association to serve LeVan with its moving papers in the same manner as required for
service of process.
In her Reply Brief, LeVan argues that Court lacks the discretion to continue the hearing because
it does not presently have jurisdiction over the controversy between the parties. The Court
rejects LeVan’s argument because, inter alia, in her May 16, 2024 ex parte application LeVan
previously requested an order continuing the hearing on the Association’s motion to amend the
judgment, which request was granted in part, and therefore she will not be heard to argue that the
Court lacks either the jurisdiction or power to continue the hearing.
201700491367CUOR: Sherwood Valley HOA vs New Mission
The hearing on the Association’s motion to amend the judgment is presently set for July 11,
2024. The Court will continue the hearing on the motion for approximately five weeks to
August 15, 2024, to give the Association sufficient time to effect service of its moving papers on
LeVan in the manner required for service of process at least 16 court days prior to the August 15,
2024 hearing, and to file and serve proof of such service.
The Court does not authorize any additional briefing on the motion for leave to amend, as the
matter has already been fully briefed.
Ruling
TD Bank USA, NA vs Touch, KC
Jul 10, 2024 |
24CV00043
24CV00043 TD Bank USA, NA v. Touch, KC
EVENT: Plaintiff’s Motion to Deem Matters Admitted
Plaintiff’s Motion to Deem Matters Admitted is GRANTED. The Court will sign the proposed
order.
3-||4. 24CV00299 Armatis, Katrina v. Goldstein, Rachel Lynn
EVENT: (1) Defendant AirBNB Inc.’s Motion to Compel Arbitration and For Stay of
Proceedings Pending Disposition of this Motion and Arbitration
(2) Case Management Conference
Defendant Airbnb Inc.’s Motion to Compel Arbitration and Stay Proceedings is
GRANTED. This case is stayed in its entirety pending arbitration. A Case Management
Conference is hereby scheduled for December 11, 2024 at 10:30am.
1
||5. 24CV00970 In re: MacNeil, Kaci
EVENT: Change of Name (minor) (Continued from 5/22/24)
There is no proof of publication on file. Upon the filing of the proof of publication, the Court
will sign the decree provided.
6-||7. 22CV02404 Guinn, Lisa v. Graham Solar Systems, Inc. et al.
EVENT: (1) Motion to Be Relieved as Counsel (Defendant Nicholas Graham)
(2) Motion to Be Relieved as Counsel (Defendant Graham Solar Systems Inc.)
(Continued from 6/12/24)
Both motions to be relieved as counsel are granted. The court will sign the proposed orders.
The orders will become effective upon the filing of the proof of service indicating Defendants
were served with the order.
2|Page
8-||10. 19CV01226 Randolph, Teresa v. Trustees of the California State University et al.
EVENT: (1) Defendant Board of Trustees of the California State University’s Motion to
Compel Further Responses to Requests for Admissions and for Sanctions;
(2) Defendant Board of Trustees of the California State University’s Motion to Compel
Responses to Requests for Production of Documents and for Sanctions;
(3) Defendant Board of Trustees of the California State University’s Motion to Compel
Responses to Interrogatories and for Sanctions
Continued from 6/26/24
These discovery motions are unopposed.
Defendants’ Motions are granted in their entirety to the extent Plaintiff’s verifications do not
comply with the Code of Civil Procedure as they are not under penalty of perjury. Plaintiff is
ordered to provide further code complaint verifications within 10 days of notice of this order.
As to other issues, the Court rules as follows.
Production of Documents
Request No. 103 – As it appears Plaintiff has failed to follow through with her promise to
produce documents, Plaintiff is ordered to produce responsive documents within 10 days of
notice of this order.
Request No. 105 – The objections are untimely and must be removed. As to the adequacy of
the response, the response seems to indicate Plaintiff cannot comply, but the response
includes the qualifier “nearly all” documents were destroyed. Thus, it is unclear whether
Plaintiff has any responsive documents. Further response is required.
Request No. 107 - The objections are untimely and must be removed. As to the adequacy of
the response, the response seems to indicate Plaintiff cannot comply, but the response
includes the qualifier “nearly all” documents were destroyed. Thus, it is unclear whether
Plaintiff has any responsive documents. Further response is required.
Special Interrogatories, Set Two
Interrogatory No. 26 – Although Plaintiff’s alleged inconsistent statements might potentially be
considered in other contexts, the Court finds the response to this question is sufficient for
purposes of the discovery statutes.
Interrogatory No. 27 – Unlike Interrogatory No. 26, this response is evasive considering it asks
whether Plaintiff attempted to contact Ms McRae. A response of “unknown” to that request is
3|Page
evasive. It is within her personal knowledge, and she either attempted to contact her, or she
didn’t. Further response is required.
Form Interrogatories
Interrogatory No. 217.1 – To the extent Plaintiff seeks to respond by employing CCP section
2030.230 by referring to other documents, the Court finds the subject requests are not the
type of requests necessitating a summary. Even if they were, simply making a general referral
to deposition transcript is not a sufficiently specific response for purposes of section 2030.230.
Special Interrogatories, Set Three
Interrogatory No. 36 - Similar to interrogatory 217.1, general reference to deposition
transcripts and documents produced is simply not specific enough.
Plaintiff is ordered to provide further substantive responses as discussed within 10 days of
notice of this order. Defendant is awarded sanctions in the amount of $ 2,950.00.
Ruling
American Express National Bank vs. Conway, Scott
Jul 15, 2024 |
S-CV-0052368
S-CV-0052368 American Express National Bank vs. Conway, Scott
No appearance required. CMC is continued to 10/07/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Conway, Scott
Additionally, no proof of service has been filed as to Defendant(s): Conway, Scott
Ruling
Discover Bank vs William Arteaga
Jul 10, 2024 |
23CV-03426
23CV-03426 Discover Bank v. William Arteaga
Court Trial
Appearance required. Parties who wish to appear remotely must contact the clerk of the
court at (209) 725-4111 to seek permission and arrange for a remote appearance.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Ex Parte Matters
Hon. Brian L. McCabe
Courtroom 8
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:15 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no Ex Parte Matters Scheduled
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Ex Parte Matters
Judge Pro Tem Peter MacLaren
Courtroom 9
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:15 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no Ex Parte matters scheduled.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Ex Parte Matters
Hon. Jennifer O. Trimble
Courtroom 12
1159 G Street, Los Banos
Wednesday, July 10, 2024
1:15 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no Ex Parte matters scheduled.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Limited Civil Long Cause Court Trials
Judge Pro Tem Peter MacLaren
Courtroom 9
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:30 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no cases set for hearing.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Mandatory Settlement Conference
Hon. Brian L. McCabe
Courtroom 8
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:30 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
Ruling
Capital One, N.A. vs. Sebastian T Evans, III
Jul 10, 2024 |
CU23-05874
CU23-05874
Motion for Judgment on the Pleadings
Page 1 of 2
TENTATIVE RULING
Plaintiff’s unopposed motion for judgment on the pleadings is granted.
Defendant’s answer admits the existence and amount of the indebtedness. (Answer, ¶
10.) Defendant’s inability to pay is not a defense to the indebtedness. A borrower is
legally obligated to repay the debt. (Ab Group v. Wertin (1997) 59 Cal.App.4th 1022,
1028.) And, a creditor has no duty to exercise reasonable forbearance in enforcing its
legal remedies against a debtor. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465,
479.)
Page 2 of 2
Ruling
BANK OF AMERICA N.A. VS SOO S CHO
Jul 10, 2024 |
23STCV25173
Case Number:
23STCV25173
Hearing Date:
July 10, 2024
Dept:
72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE RULING
BANK OF AMERICA N.A.,
Plaintiff,
v.
SOO S CHO,
Defendants.
Case No:
23STCV25173
Hearing Date:
July 10, 2024
Calendar Number:
10
Plaintiff Bank of America N.A. (Plaintiff) seeks default judgment against Defendant Soo S Cho (Defendant).
Plaintiff requests:
(1) money judgment in the amount of $86,498.84, consisting of:
(a) damages in the amount of $85,995.34;
(b) costs in the amount of $503.50.
The Court GRANTS Plaintiffs request for default judgment.
Background
Plaintiff is a subsidiary of Bank of America Corporation.
Defendant opened a credit account with Plaintiff and obtained credit from Plaintiff. Plaintiff is currently indebted to Defendant in the amount of $85,995.34. Plaintiff failed to make periodic payments as required by the agreement covering use of the credit account. The last payment occurred on February 24, 2023.
Plaintiff filed this action October 16, 2023, raising one claim for common counts.
On December 22, 2023, the Court entered default against Defendant.
Legal Standard
CCP § 585 permits entry of a judgment after a Defendant has failed to timely answer after being properly served.
A party seeking judgment on the default by the Court must file a Form CIV-100 Request for Court Judgment, and:
(1) Proof of service of the complaint and summons;
(2) A dismissal of all parties against whom judgment is not sought (including Doe defendants) or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment (CRC 3.1800(a)(7));
(3) A declaration of non-military status as to the defendant (typically included in Form CIV-100) (CRC 3.1800(a)(5));
(4) A brief summary of the case (CRC 3.1800(a)(1));
(5) Admissible evidence supporting a prima facie case for the damages or other relief requested (
Johnson v. Stanhiser
(1999) 72 Cal.App.4th 357, 361-362);
(6) Interest computations as necessary (CRC 3.1800(a)(3));
(7) A memorandum of costs and disbursements (typically included in Form CIV-100 (CRC 3.1800(a)(4));
(8) A request for attorneys fees if allowed by statute or by the agreement of the parties (CRC 3.1800(a)(9)), accompanied by a declaration stating that the fees were calculated in accordance with the fee schedule as per Local Rule 3.214.
Where a request for attorney fees is based on a contractual provision the specific provision must be cited; (Local Rule 3.207); and
(9) A proposed form of judgment (CRC 3.1800(a)(6));
(10) Where an application for default judgment is based upon a written obligation to pay money, the original written agreement should be submitted for cancellation (CRC 3.1806). A trial court may exercise its discretion to accept a copy where the original document was lost or destroyed by ordering the clerk to cancel the copy instead (
Kahn v. Lasorda's Dugout, Inc.
(2003) 109 Cal.App.4th 1118, 1124);
(11) Where the plaintiff seeks damages for personal injury or wrongful death, they must serve a statement of damages on the defendant in the same manner as a summons (Code Civ. Proc. § 425.11, subd. (c), (d)).
(California Rules of Court rule 3.1800.)
Pursuant to Code Civ. Proc., § 1033.5(a)(1), items are allowable as costs under Section 1032 if they are filing, motion, and jury fees.
A party who defaults only admits facts that are well-pleaded in the complaint or cross-complaint. (
Molen v. Friedman
(1998) 64 Cal.App.4th 1149, 1153-1154.) Thus, the complaint must state a claim for the requested relief.
Discussion
Service of the Complaint and Summons
According to the proof of service filed on October 31, 2023, Defendant was served on October 26, 2023 at 1718 N Las Palmas Avenue, Apartment 617, Los Angeles, California 90028, via personal service.
Non-Military Status
Alexander Baizer Carr avers to Defendants non-military status.
Summary of the Case
Plaintiff provides a brief summary of the case in the declaration of Roberta Galbreath. Plaintiff adequately pleads its cause of action in the Complaint.
Evidence of Damages
Code of Civil Procedure section 580 prohibits the entry of a default judgment in an amount in excess of that demanded in the complaint.
(
Kim v. Westmoore Partners, Inc.
(2011) 201 Cal.App.4th 267, 286.) Moreover, a statement of damages cannot be relied upon to establish a plaintiff's monetary damages, except in cases of personal injury or wrongful death. (
Ibid
.) In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint. (
Ibid
.) Moreover, a plaintiff must submit admissible evidence supporting a prima facie case for the damages or other relief requested (
Johnson v. Stanhiser
(1999) 72 Cal.App.4th 357, 361-362.)
Roberta Galbreath is a custodian of records for Plaintiff. Galbreath avers that the submitted records showing the amount due on Defendants account with Plaintiff are contemporaneously recorded by a person with actual knowledge of the information in question and are true and accurate copies of Plaintiffs business records.
Interest
Plaintiff does not seek interest.
Memorandum of Costs and Disbursements
Plaintiff includes a memorandum of costs in the submitted Form CIV-100. Alexander Baizer Carr avers that Plaintiff expended $503.50 in costs.
Attorneys Fees
Plaintiff does not seek attorneys fees.
Proposed Form of Judgment
Plaintiff has submitted a proposed form of judgment consistent with the foregoing.
Submission of the Written Agreement
California Rule of Court 3.1806 states that unless otherwise ordered judgment upon a written obligation to pay money requires a clerks note across the face of the writing that there has been a judgment. Here, Plaintiff has not submitted the original documents. The Court does not discern any practical need for such a clerks note on the written obligation in the current case and therefore orders that it need not be included. If this causes any issues for any party or non-party, they are authorized to bring the matter to the Courts attention.
Statement of Damages
Plaintiff does not need to submit a statement of damages because this is not a personal injury or wrongful death case.
Ruling
Citibank, N.A. vs April Gonzalez
Jul 10, 2024 |
23CV-03377
23CV-03377 Citibank, N.A. v. April Gonzalez
Court Trial
Appearance required. Parties who wish to appear remotely must contact the clerk of the
court at (209) 725-4111 to seek permission and arrange for a remote appearance.
Preview
CIV 110 ATTORNEY OR PARTY WITHOUT ATTORNEY Name State Bar number and addressJ FORCOURTUSEONLY Hunt Henriques Attorneysat Law Michael S Hunt 99804 Janalie Henriques 111589 Emily Collins311804 151 Bernal Road Suite 8San Jose CA 95119 1306 1f TELEPHONE NO 4OH 362 2270 FAx No optionaq 408 362 2299 SUP ROd E MAIL ADDRESSOptional hUllth2111 IIlfO p IqU2SCOf11 n C R OUNTY OF SAN B ATTORNEY FOR Name PI811ltlff NARDING SAN BERNARD IIWG pISTRICT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN BERNARDINO g q 9 l0 srREET ao REss 247 West Third Street MAILING ADDRESS cirrnN zia coE San Bernardino CA 92415 0210 eRnNCH NaMe San Bernardino District Civil Division nc rn r 1Ct E PLAINTIFF PETITIONER PORTFOLIO RECOVERYASSOCIATES LLC DEFENDANT RESPONDENT KRISTEL MADAU cnsE NUMeER CIVDS1911056 REQUEST FOR DISMISSAL A conformed copy will not be returned by the clerk unless a method of return is provided with the document This form may not be used for dismissal of a derivative action or a class action or of any party or cause of action in a class action Cal Rules of Court rules3 760 and 3 770 1 TO THE CLERK Please dismiss this actionas follows a 1 With prejudice 2 Without prejudice b 1 Complaint 2 Petition Cross 3 0 complaint filed by name on date 4 Cross complaint filed by name on date 5 0 Entire action of all parties and allcauses of action 6 0 Other specify 2 Complete in all cases except family law cases The court 0 did OX did not waive court fees and costsfor a party in this case This information may be obtained from the clyrk If court fees and costs werewaived the declaration on the bc of this form must be completed Date Jul 24 2019 Emily Collins 311804 TYPE OR PRINT NAME OFX ATTORNEY PARTY WITHOUT ATTORNEY SIGNATURE If dismissal requestedis parties of specified onlyof spec ed causes of action Attorney or party without attorney for onlyor of specified cross complaints onlyso idencity cne state and parties causes of action complaints to or cross be dismissed 0 Plaintiff Petitioner DefendanURes P ondent 0 Cross Complainant 3 TO THE CLERK Consent to the above dismissal is hereby given Date TYPE OR PRINT NAME OF ATTORNEY PARTY WITHOUT ATTORNEY SIGNATURE Ifa or Response cross complaint Family Lawseekingaffirmative Attorney or party without attorney for relief is on file the attorney for cross complaint respondent must sign if required by Code of Civil Procedure section 581 this consent i Plaintiff Petitioner 0 DefendanURespondent or Q Cross Complainant To be completed by clerk n 4 Dismissal entered as requested on date o 5 Dismissal entered on date as to only name 6 Dismissal not entered as requested for the following reasons specify N a z 7 a Attorney or party without attorney notified ondate b Attorney or party without attorney not notifiedFiling party failed to provide 0 a copy to be conformed 0 means to return conformed copy Date u Clerk by ri Deputy Q 1 Page 1of 2 Form Adopted for Mandatory use Code of Civil Procedure 581 et seq Judicial Council Califomia REQUEST FOR DISMISSAL of Gov Code 68637 c CaL Rules of Court rule 3 1390 CIV 110 Rev Jan t2013 IIIII III I I I II II I IIIIII II www couris ca gov DD0002CT 1313998 001 CIV 110 PLAINTIFF PETITIONER PORTFOLIO RECOVERYASSOC ATES LLC CASE NUMBER DEFENDANT RESPONDENT KRISTEL MADAU CIVDS1911056 COURT S RECOVERY OF WAIVED COURT FEES AND COSTS If a party whose court fees andcosts were initially waived has recovered or will recover 10 000 or more in value by way of settlement compromise arbitration award mediation settlement or other means the court has a statutory lien on that recovery The court may refuse to dismiss the case until the lien is satisfied Gov Code 68637 Declaration Concerning Waived Court Fees 1 The court waived court fees and costs in this action for name 2 The person named in item 1 is check one below a 0 not recovering anything of value by this action b recovering less than 10 000 in valueby this action c recovering 10 000 or more in value by this actionIf item 2c is checked item 3 must be completed 3 Allcourt fees andcourt coststhat were waived in this action have been paidto the courtcheck one Yes No Ideclare under penalty of perjury under the laws of the State of California that the information above is true and correct Date TYPE OR PRINT NAME OF ATTORNEY PARN MAKING DECLARATION SIGNATURE c v o Re a a zos Page 2 of 2 Y REQUEST FOR DISMISSAL DD0002CT 1313998 001