Judge Bruce G. Iwasaki

Department 58

Hearing Date: October 23, 2024

Case Name: Circa 1200, LLC v. Marcus

Case No.: 24STCV01381

Motion: OSC Re: Default Judgment

Moving Party: Plaintiff Circa 1200, LLC

Responding Party: N/A

Tentative Ruling: The Court VACATES the Entry of Default and DENIES the Request for Default Judgment.

Background

On January 18, 2024, Plaintiff 1200, LLC (“Plaintiff”) filed this action against Michael Marcus (“Defendant”) and Does 1-50. Plaintiff leased a residence to Defendant. Defendant failed to make payments as required by the lease and was eventually evicted. Plaintiff filed this action to recover unpaid rent, fees, and repairs for damages from Defendant. The Complaint alleges the following causes of action: (1) Breach of Contract and (2) Common Counts.

On April 29, 2024, Plaintiff filed a proof of service of summons and a declaration of non-service.

Defendant failed to file responsive pleadings. On June 20, 2024, default was entered against Defendant.

On September 3, 2024, Plaintiff filed this default prove-up packet and mailed a copy of the CIV-100 Form to Defendant.

Legal Standard

California Rules of Court, Rule 3.1800 sets forth the requirements for default judgments. In pertinent part, the rule dictates that a party must use form CIV-100 and file the following documents with the clerk: (1) except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a declaration of nonmilitary status for each defendant against whom judgment is sought; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, Rule 3.1800(a)(1)-(9).)

Discussion

Plaintiff has filed a CIV-100 form with the appropriate sections filled out, including a memorandum of costs and a declaration of nonmilitary status for the Defendant. Plaintiff submitted an entered request for dismissal of Does 1 to 50. Plaintiff submitted a proposed judgment (Form JUD-100). Plaintiff has also filed a CCP § 585(d) declaration in support of the judgment requested. The declaration contains a brief summary of the case identifying the parties and the nature of the Plaintiff’s claim. The declaration also contains a calculation of interest (Rias-Thompson Decl., ¶¶ 4, 5.) The declaration is unclear as to how attorneys’ fees were calculated pursuant to Local Rules section 3.214. (Rias-Thompson Decl., ¶¶ 4, 6.)

Demand of Complaint	$74,191.82
Interest	$21,769.71
Costs	$505.00
Attorney Fees	$695.00
Total:	$97,161.53

While the Default Judgment packet has generally met the requirements of California Rules of Court, Rule 3.1800, the Court finds Defendant was not properly served.

Plaintiffs filed a proof of service and a declaration of non-service on April 29, 2024. The declaration of non-service indicates three attempts to serve Defendant were made at 9008 Artisan Way, Sarasota, FL 34240 (“the Sarasota address”) on March 13, 18, and 22. There seems to be confusion as to whether Defendant is Michael Marcus Junior or Senior. At the first attempt of service, Salwa, Michael Marcus Sr.’s wife, indicated that her husband was out of the county for a few weeks and that her son lived in Indianapolis. At the third attempt of service, Michael Marcus Jr.’s brother and Michael Marcus Sr.’s son indicated that neither Michael Marcus lived at the Sarasota address. He indicated that Michael Marcus Sr.’s primary residence is in Egypt, and when he visits, he stays at a rental property near Sarasota.

The proof of service states that Defendant was served by substituted service to a resident of Defendant’s household, Salwa (or Salva) Marcus, at the Sarasota address, on April 5. Copies of the documents were also mailed to the Sarasota address on April 17. Yet there is no evidence that the Sarasota address is Defendant’s “dwelling house, usual place of abode, usual place of business, or usual mailing address” under Code of Civil Procedure section 415.20, subdivision (b). Thus, Defendant was not properly served. Because Defendant was not properly served, entry of judgment is vacated and the request for default judgment is denied.

Conclusion

The Court VACATES the Entry of Default and DENIES the Request for Default Judgment.