Judge: Bruce G. Iwasaki, Case: 24STCV05296, Date: 2024-10-11 Tentative Ruling

Case Number: 24STCV05296    Hearing Date: October 11, 2024    Dept: 58

Judge Bruce Iwasaki

Department 58

Hearing Date:             October 11, 2024

Case Name:                 LVNV Funding LLC v. Murad Chilalyan

Case No.:                    24STCV05296

Motion:                       Order to Show Cause re: Entry of Default Judgment

Moving Party:             Plaintiff LVNV Funding LLC

BACKGROUND

This is an action for repayment of money owed by Defendant Murad Chilalyan (“Defendant”) to Plaintiff LVNV Funding LLC (“Plaintiff”) on an underlying credit account.

On March 4, 2024, Plaintiff filed a complaint against Defendants Murad Chilalyan and Does 1 through 5, inclusive, alleging causes of action for (1) common counts-account stated and (2) common counts-open book. In the complaint, Plaintiff alleges damages of $91,458.35, for repayment of the total principal amount owed on Defendant’s credit account.

On March 5, 2024, the Court filed notice of hearing for an Order to Show to Show Cause re: Failure to File Proof of Service, scheduled for August 14, 2024.

On March 26, 2024, Plaintiff filed proof of service on Defendant by substituted service. Plaintiff provided a declaration of due diligence, establishing that Plaintiff attempted to effect service on Defendant by personal delivery six times prior to effecting service by substituted service.

At the hearing on August 14, 2024, the Court heard Plaintiff’s representation that it intended to seek entry of default against Defendant. The Court set a hearing for Order to Show Cause Re: Entry of Default Judgment, scheduled for October 11, 2024, and required Plaintiff’s counsel to submit default prove-up papers no later than October 1, 2024.

SUMMARY OF DEFAULT JUDGMENT REQUEST

• Compensatory Damages:                             $91,458.35 

• Costs:                                                              $506.00

• Total:                                                              $91,964.35 

SUBMITTED DOCUMENTS (Cal. Rules of Court, rule 3.1800)

1. Use of JC Form CIV-100                                                                                           YES 

2. Dismissal or judgment of non-parties to the judgment                                              NO 

3. Declaration of non-military status for each defendant                                               YES 

4. Summary of the case                                                                                                  YES 

5. 585(d) declarations/admissible evidence in support                                                  NO 

6. Exhibits (as necessary)                                                                                               YE 

7. Interest computation (as necessary)                                                                           N/A 

8. Cost memorandum                                                                                                     YES 

9. Request for attorney fees (Local Rule 3.214)                                                             N/A  

10. Proposed judgment                                                                                                     YES 

DISCUSSION

            The Court notes the following two deficiencies with Plaintiff’s Default Prove-Up submissions.

First, Plaintiff did not file any request for dismissal of Doe defendants, pursuant to Court Rule 3.1800(A). The Complaint and Civil Case Cover Sheet both list that the action was filed against defendants Murad Chilalyan and DOES 1 to 5, inclusive. Although subsequent Court documents, i.e., Notice of Case Management Conference) only list “Defendant Murad Chilalyan,” Plaintiff did not request for entry of dismissal as to Does 1 to 5 in any prior filing.

Second, Plaintiff’s evidence submitted in support of judgment requested in the filing named “Declaration in Support of Entry of Judgment CCP § 585(d)” is not properly signed under penalty of perjury. This is the only filing that incorporates the exhibit containing Defendant’s agreement with Plaintiff. The declaration states only that it incorporates by attachment a separate declaration in support of judgment. Such separate declaration was “signed and subscribed” before a “Notary Public-State of South Carolina.” However, it states only “I affirm under penalty of perjury that the above facts are true and correct.” Because this declaration was apparently signed outside of California, this verification is not in compliance with the requirement that the declaration be expressly made “under penalty of perjury under the laws of the state of California.” (Code Civ. Proc., § 2015.5; Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal. 4th 601, 618.)

CONCLUSION

            The Court issues the following ruling, in the alternative.

            If the Court will consider any corrected papers Plaintiff files before the October 11, 2024, hearing to address the identified non-conformities.

            If no corrected papers are submitted, the Court hereby CONTINUES Plaintiff’s Motion for Entry of Default Judgment to such later date as the Court will set.