Judge: Edward B. Moreton, Jr., Case: 22SMCV00741, Date: 2023-11-15 Tentative Ruling

Case Number: 22SMCV00741    Hearing Date: April 8, 2024    Dept: 205

                                 DEFAULT JUDGMENT PROVE-UP CHECKLIST

                                                              (CRC Rule 3.1800)

Case Name:  Forwardline Financial, LLC vs Roast, Inc., et al.

Case #: 22SMCV00741

Hearing Date (if any): April 8, 2024

Defaulting Party: Defendant Whitney Werner

Total Amount: $42,913.72

BACKGROUND:  This case arises from breach of a loan agreement. Defendant Roast Inc. entered into a written loan agreement with Plaintiff Forwardline Financial LLC for $59,890. Defendant Whitney Werner executed a personal guarantee that if Roast Inc. defaulted, he would be personally and unconditionally liable to Plaintiff. Roast Inc. failed to make payments under the loan agreement. On May 23, 2022, Plaintiff filed a Complaint against Defendants. The Complaint alleges three claims for breach of written contract, breach of personal guarantee and account stated. The Complaint seeks $43,369.02 in damages plus attorneys’ fees and costs. Plaintiff filed a proof of service showing Werner was served by substitute service on June 4, 2022. Werner was obligated to respond within 30 days. Werner did not do so. Plaintiff successfully requested the entry of Werner’s default, which was entered by the Clerk’s Office on April 25, 2023. Plaintiff requested a default judgment on September 5, 2023. Plaintiff served Defendant by mail with both the Request for Entry of Default and Request for Default Judgment. Defendant has not appeared.

[¿]   DEFAULT ENTERED ON: 04/25/23

[¿]  MANDATORY JUDICIAL COUNCIL FORM CIV-100 SUBMITTED FOR ENTRY OF COURT JUDGMENT (CRC 3.1800(a))

[X]   SERVICE:

Summons and Complaint

On June 4, 2022, Defendant was served via substitute service on “Daniel Amen- Private P.O. Box Employee” at 11664 National Blvd # 410 Los Angeles, CA 90064-3802

o   November 15, 2023 Minute Order states “Plaintiff has not shown Werner was properly served with the summons and complaint. The Court has no jurisdiction to enter default where a defendant was not properly served. (Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1200.) Plaintiff claims it served Werner by substitute service, but the proof of service does not show any attempts were made at personal service. Ordinarily two or three attempts at personal service must be made before substitute service is allowed. (Id. at 1202.)”

o   Plaintiff resubmitted the same proof of service which still does not show that personal service was attempted before substitute service.

[¿]   DECLARATION OF MAILING -- Request for Entry of Default to Defendant (CCP § 587)

·       Mailed to Defendant at 11664 National Blvd # 410 Los Angeles, CA 90064-3802

[¿]   NO PENDING MOTION TO VACATE DEFAULT

[¿]   SUMMARY OF CASE PROVIDED (CRC 3.1800(a)(1)) - or other declaration OK [ ]

[¿]   EVIDENTIARY DECLARATIONS/OTHER EVIDENCE (CRC 3.1800(a)(2))

·       Declaration of Plaintiff's Attorney Regarding Nonmilitary Status

·       Declaration of George V. Aposhian In Support of Default Judgment Pursuant to Code of Civil Procedure, § 585 (D)

[¿]   RELIEF PRAYED FOR IN COMPLAINT (same as requested in default?):  [X] yes [ ] no

[¿]   Compensatory:   $  42,300.72

[¿]   Damages

            Special:           $                0

            General:          $                0

[¿]   Interest:              $                0

[¿]   Costs:                 $       613.00

[¿]   Attorney’ Fees:  $                0

Total:                          $  42,913.72

Relief prayed for in complaint is $43,369.02 and costs, however there is a credit of $1,068.30. This reduces the total amount requested to $42,913.72.

(Relief afforded in default judgment is limited to type and amount of claims in complaint, except for punitives and PI/death. CCP §§ 425.11, 580, 585(a)(b).  The amount in the complaint prayer controls (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 418).)

Civil Code § 1719(a)(2) states:

Notwithstanding any penal sanctions that may apply, any person who passes a check on insufficient funds shall be liable to the payee for damages equal to treble the amount of the check if a written demand for payment is mailed by certified mail to the person who had passed a check on insufficient funds and the written demand informs this person of (A) the provisions of this section, (B) the amount of the check, and (C) the amount of the service charge payable to the payee. The person who had passed a check on insufficient funds shall have 30 days from the date the written demand was mailed to pay the amount of the check, the amount of the service charge payable to the payee, and the costs to mail the written demand for payment. If this person fails to pay in full the amount of the check, the service charge payable to the payee, and the costs to mail the written demand within this period, this person shall then be liable instead for the amount of the check, minus any partial payments made toward the amount of the check or the service charge within 30 days of the written demand, and damages equal to treble that amount, which shall not be less than one hundred dollars ($100) nor more than one thousand five hundred dollars ($1,500). When a person becomes liable for treble damages for a check that is the subject of a written demand, that person shall no longer be liable for any service charge for that check and any costs to mail the written demand.

[N/A]   INTEREST COMPUTATIONS (CRC 3.1800(a)(3))

[N/A]   ATTORNEY FEE DECLARATION -- Request according to Local Rule 3.214 or reason provided why greater fees should be allowed (CRC 3.1800(b))

[ ]   Request for atty fees allowed by statute or agreement of parties (CRC               3.1800(a)(9)):

[ ]   $960/$1,200 for book account claim (Civil Code § 1717.5)

Civil Code § 1717.5 states:

(a) Except as otherwise provided by law or where waived by the parties to an agreement, in any action on a contract based on a book account, as defined in Section 337a of the Code of Civil Procedure , entered into on or after January 1, 1987, which does not provide for attorney's fees and costs, as provided in Section 1717 , the party who is determined to be the party prevailing on the contract shall be entitled to reasonable attorney's fees, as provided below, in addition to other costs. The prevailing party on the contract shall be the party who recovered a greater relief in the action on the contract. The court may determine that there is no party prevailing on the contract for purposes of this section.

Reasonable attorney's fees awarded pursuant to this section for the prevailing party bringing the action on the book account shall be fixed by the court in an amount that shall not exceed the lesser of: ¿(1) nine hundred sixty dollars ($960) for book accounts based upon an obligation owing by a natural person for goods, moneys, or services which were primarily for personal, family, or household purposes; and one thousand two hundred dollars ($1,200) for all other book accounts to which this section applies; or (2) 25 percent of the principal obligation owing under the contract.

[¿]   MEMORANDUM OF COSTS (CRC 3.1800(a)(4))

[N/A]   STATEMENT OF DAMAGES (CCP § 425.11):

[ ] PI/Death Case        [ ] Punitives demanded         [ ] Accounting

[ ] Evidence of net worth of defendant?   [ ]   Yes     [ ]   No

(If no, punitives may not be assessed. Adams v. Murakami (1991) 54 Cal.3d 105.)

[¿]   DECLARATION OF NON-MILITARY STATUS executed within 6 months?

Date:01/23/2024                                 (CRC 3.1800(a)(5); Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1447.)

[¿]   REQUEST FOR DISMISSAL OF DOES (CRC 3.1800(a)(7)) Filed 03/08/2023

[ ]   If not, authority/basis for several judgment (CCP § 579)

[N/A]   WAS DEFAULTING DEFENDANT A DOE?  (CCP § 474) - must do one of the following:

[ ]   Summons notifies defendant that s/he was served under a fictitious name

[ ]   Proof of service states that the Doe amendment form was served with the complaint

[ ]   Complaint amended to reflect the true defendant’s name & allegations support claim

[¿]   ORIGINALS Promissory note or other written obligation to pay money must be provided for cancellation by the Clerk per CRC 3.1806

[ ]   If no originals, declaration explaining loss/destruction/unavailability of originals

[ ]   Proposed order for Court to accept authenticated copy in lieu of original

[¿]   PROPOSED FORM OF JUDGMENT INCLUDED (CRC 3.1800(a)(6))

NOTES:

1.                Judgment to be entered against only one defendant?  Yes, Whitney Werner

 CCP §§ 579, 585(a) indicate that judgment may be taken against one defendant in cases having more than one defendant unless liability is joint only (e.g., possession of property).

2.                In actions affecting title to or possession of land, Court policy is that oral testimony is required. (CCP § 585(c).) 

RECOMMENDATION:    The Court should deny the default judgment because the proof of service deficiencies noted in the November 15, 2023 Minute Order have not been corrected.   

TENTATIVE RULING

Plaintiff Forwardline Financial LLC’s Request for Default Judgment against Defendant Whitney Werner is DENIED.