Department 58

Hearing Date: December 1, 2023

Case Name: IMS Fund, LLC v. Doarian Okell Bennett

Case No.: 23STCV00202

Matter: Default Judgment prove-up

Moving Party: Plaintiff IMS Fund, LLC

Responding Party: Unopposed

Tentative Ruling: The request for default judgment is granted conditionally.

This action arises from a breach of an Agreement for the Purchase and Sale of Future Receipts. Plaintiff IMS Fund, LLC (Plaintiff) sued Defendant Doarian Okeel Anthony Bennett (Defendant), asserting a cause of action for breach of contract and common counts. Plaintiff alleges it advanced the sum of $45,000.00 to Defendant and in exchange Defendant agreed to pay Plaintiff the sum of $67,050.00 from future receivables earned by delivering to Plaintiff weekly thirty two percent (32%) of the proceeds of each future sale made by Defendant. According to the First Amended Complaint, Defendant breached this Agreement.

The Complaint was filed on January 5, 2023. An Amended Complaint was filed on March 3, 2023. Default was entered against September 20, 2023.

Plaintiff now moves for default judgment against Defendant. Does 1-20 have been dismissed. This is Plaintiff’s second attempt at entry of default judgment. The request for entry of default judgment is granted conditionally upon the filing of a declaration that complies with Code of Civil Procedure section 2015.5, subdivision (b).

Discussion

Plaintiff seeks default judgment in the amount of $45,426.62, which includes $5,524 in interest, $1,049.43 in costs, and $1,510.29 in attorney fees.

Plaintiff submits the declaration of Oleg Rud, Managing Manager of Plaintiff, to substantiate its default judgment request. The evidence supports the request for damages in the amount requested of $37,342.80. (Rud Decl., ¶ 5.) The declaration also provides an interest calculation at the rate of 10% per annum (the daily rate of $10.23) from May 24, 2022 (the date Defendant became indebted to Plaintiff) to November 16, 2023 in the amount of $5,524. (Rud Decl., ¶ 5.) Further, the declaration substantiates the request for attorney fees and costs, as well. (Rud Decl., ¶ 6.)

However, the declaration again suffers from defects. Importantly, the declaration does not comply with Code of Civil Procedure section 2015.5, subdivision (b). Specifically, the declaration is signed: “I declare under penalty of perjury under the laws of the State of New York that the foregoing is true and correct. Executed on 11/15/2023, New York, New York.” (Rud Decl.) Thus, the declaration is not properly signed under penalty of perjury under the laws of the State of California.

The request for default judgment is granted conditionally upon the filing of an identical declaration that complies with Code of Civil Procedure section 2015.5, subdivision (b).