Judge: Armen Tamzarian, Case: 24STCV02192, Date: 2024-09-04 Tentative Ruling

Case Number: 24STCV02192    Hearing Date: September 4, 2024    Dept: 52

Order to Show Cause Re: Default Judgment

Plaintiff JDBR Investments, LLC requests court judgment by default against defendants Andre Wegner and Drinkwater Investment Group, LLC. 

The court cannot enter default judgment against defendant Andre Wegner.  “ ‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  [Citation.]  Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ ”  (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) 

Plaintiff has not shown it effected service of summons on Wegner.  Plaintiff filed proof of service by substituted service stating Wegner’s physical address was unknown.  An individual can only be served by substituted service “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.”  (CCP § 415.20(b).)  “Ordinarily, two or three attempts at personal service at a proper place and with correct pleadings should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.”  (Kremerman v. White (2021) 71 Cal.App.5th 358, 373.)

Plaintiff has not shown it could not personally serve Wegner with reasonable diligence.  The only declaration of diligence attests to two attempts to serve Wegner at 1352 Palms Blvd, Venice, CA 90251.  The process server stated that, on the first attempt, “There was no answer at the address.”  For the second attempt, the process server stated, “I spoke with an individual who identified themselves as the resident and they stated subject unknown.  I spoke with a neighbor who says not resident.  This is a house.”  The process server thus learned Wegner did not live at that address.  Attempts to serve him there were not “at a proper place.” 

Moreover, plaintiff’s complaint alleges, “Wegner could be currently residing in the County of Collin, State of Texas.”  (Comp., ¶ 3.)  The declaration in support of this application for default judgment includes a LexisNexis “SmartLinx Person Report”, which states Wegner’s current address is 1502 W. Virginia St., McKinney, TX 75069-4661. (Rocco Decl., Ex. 7, p. 55 of 64.)  The report also lists several other possible addresses for him.  Plaintiff has not submitted evidence of attempts to personally serve Wegner at the address in McKinney, Texas or any other possible address except the one in Venice, California—where he did not live.  Nor has plaintiff shown attempts to serve Wegner by any other method.  The court will therefore vacate Wegner’s default. 

Plaintiff’s request for default judgment also has two other problems.  First, plaintiff seeks excessive attorney fees.  Plaintiff requests $13,081 in attorney fees.  Attorney fees for a default judgment are generally limited to a specified schedule based on the amount of the judgment.  (Local Rules 3.207(a), 3.214(a).)  A plaintiff may recover “a fee greater than listed in the [default] schedule because of extraordinary services.”  (Id., rule 3.214(d).)  Plaintiff does not show extraordinary services justifying a fee greater than the schedule.  Under the fee schedule, plaintiff’s reasonable attorney fees are: $2,890 + 1% x ($434,684 - $100,000) = $6,236.84.

Second, plaintiff did not submit the original promissory note for cancellation or provide a declaration explaining why the original note is unavailable.  Doing so is required for default judgment in an action on a promissory note.  (Cal. Rules of Court, rules 3.1800(a)(8), 3.1806; Local Rule 3.204.)

Plaintiff’s request for default judgment is denied.  The court hereby vacates the default of defendant Andre Wegner.