Judge: Joseph Lipner, Case: 23STCV17935, Date: 2023-12-14 Tentative Ruling
Case Number: 23STCV17935 Hearing Date: December 15, 2023 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
TVT 2.0 LLC, Plaintiff, v. LA BOTTLEWORKS, INC., Defendant. |
Case No:
23STCV17935 Hearing Date: December 15, 2023 Calendar Number: 10 |
Plaintiff TVT 2.0 LLC (“Plaintiff”) seeks default judgment
against Defendant Los Angeles Bottleworks, Inc. (“Defendant”) for violation of
a loan security agreement (the “LSA”).
Plaintiff requests:
(1) the
return of the collateral described in the LSA; and
(2) costs
of suit in the amount of $628.33.
Plaintiff’s request for default judgment is CONTINUED so
that Plaintiff can submit a short summary of the case as required by CRC
3.1800(a)(1).
On
July 1, 2022, Defendant and several other parties (collectively, the “Utah
Parties”) entered into the Loan Security Agreement with Plaintiff. Plaintiff
loaned the other parties the sum of $3,080,000.00. Other than Defendant, the
Utah Parties are not parties to this lawsuit. The Utah Parties agreed to repay a
total repayment amount of $5,359,200.00 over 34 months in accordance with the
LSA’s repayment schedule. The LSA agreement included a clause whereby the Utah
parties agreed to pay any collection costs, including attorney’s fees, incurred
by Plaintiff in order to obtain payment.
The
LSA set out certain collateral (the “Collateral”) securing the loan:
11.
SECURITY INTEREST. Borrower hereby grants to Lender, the secured party
hereunder, a continuing security interest in and to any and all
"Collateral" as described below to secure payment and performance of
all debts, liabilities and obligations of Borrower to Lender hereunder and also
any and all other debts, liabilities and obligations of Borrower to Lender of
every kind and description, direct or indirect, absolute or contingent, primary
or secondary, due or to become due, now existing or hereafter arising, related
to the Loan described in this Agreement, whether or not contemplated by the
parties at the time of the granting of this security interest, regardless of
how they arise or by what agreement or instrument they may be evidenced or
whether evidenced by any agreement or instrument, and includes obligations to
perform acts and refrain from taking action as well as obligations to pay money
including, without limitation, all interest, other fees and expenses (all
hereinafter called "Obligations"). The Collateral includes the
following property that Borrower (or Guarantor, if applicable, pursuant to
Section 12) now owns or shall acquire or create immediately upon the
acquisition or creation thereof: (i) any and all amounts owing to Borrower now
or in the future from any merchant processor(s) processing charges made by
customers of Borrower via credit card or debit card transactions; and (ii) all
other tangible and intangible personal property, including, but not limited to
(a) cash and cash equivalents, (b) inventory, accounts, security entitlements,
commodity contracts and commodity accounts, (e) instruments, including
promissory notes (f) chattel paper, including tangible chattel paper and
electronic chattel paper, (g) documents, (h) letter of credit rights, (i)
accounts, including health-care insurance receivables, (j) deposit accounts,
(k) commercial tort claims, (l) general intangibles, including payment
intangibles and software and (m) as-extracted collateral as such terms may from
time to time be defined in the Uniform Commercial Code. The security interest
Borrower (or Guarantor, if applicable, pursuant to Section 12) grants includes
all accessions, attachments, accessories, parts, supplies and replacements for
the Collateral, all products, proceeds and collections thereof and all records
and data relating thereto. Lender disclaims any security interest in household
goods in which Lender is forbidden by law from taking a security interest.
(Complaint,
Exh. A at p. 10.)
On March 1, 2023, the Utah Parties,
including Defendant, defaulted under the LSA by failing to make payments that
were due. The Complaint alleges that the Utah parties have only repaid a total
of $1,048,458.43 to date, leaving a balance of $4,310,741.57.
Plaintiff filed this action on July
31, 2023, seeking foreclosure of the Collateral, appointment of a receiver, and
injunctive relief preventing transfer of the Collateral.
CCP § 585 permits entry of a judgment after a Defendant has
failed to timely answer after being properly served. A party seeking judgment on the default by
the Court must file a Form CIV-100 Request for Court Judgment, and:
(1) Proof of service of the complaint and summons;
(2) A dismissal of
all parties against whom judgment is not sought (including Doe defendants) or
an application for separate judgment under CCP § 579, supported by a showing of
grounds for each judgment (CRC 3.1800(a)(7);
(3) A declaration
of non-military status as to the defendant (typically included in Form CIV-100)
(CRC 3.1800(a)(5));
(4) A brief summary of the case (CRC 3.1800(a)(1));
(5) Admissible
evidence supporting a prima facie case for the damages or other relief
requested (Johnson v. Stanhiser (1999)
72 Cal.App.4th 357, 361-362);
(6) Interest computations as necessary (CRC 3.1800(a)(3));
(7) A memorandum of
costs and disbursements (typically included in Form CIV-100 (CRC 3.1800(a)(4));
(8) A request for
attorney’s fees if allowed by statute or by the agreement of the parties (CRC
3.1800(a)(9)), accompanied by a declaration stating that the fees were
calculated in accordance with the fee schedule as per Local Rule 3.214. Where a request for attorney fees is based on
a contractual provision the specific provision must be cited; (Local Rule
3.207); and
(9) A proposed form
of judgment (CRC 3.1800(a)(6));
(10) Where an
application for default judgment is based upon a written obligation to pay
money, the original written agreement should be submitted for cancellation (CRC
3.1806). A trial court may exercise its discretion to accept a copy where the
original document was lost or destroyed by ordering the clerk to cancel the
copy instead (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th
1118, 1124);
(11) Where the
plaintiff seeks damages for personal injury or wrongful death, they must serve
a statement of damages on the defendant in the same manner as a summons (Code
Civ. Proc. § 425.11, subd. (c), (d)).
(California Rules
of Court rule 3.1800.)
Pursuant to Code Civ. Proc., § 1033.5(a)(1), items are
allowable as costs under Section 1032 if they are “filing, motion, and jury
fees.”
A party who defaults only admits facts well pleaded in the
complaint or cross-complaint. (Molen
v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.) Thus, the complaint must state a claim for
the requested relief. “[W]hen recovering damages in a default judgment, the
plaintiff is limited to the damages specified in the complaint.” (Kim v.
Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 286.)
The proof of service filed by Plaintiff on August 7, 2023
shows that Karen Busta Flores served the complaint and summons on Defendant’s
authorized agent for service of process, Incorp Services, Inc., on August 2,
2023. Incorp Services, Inc. was served via Jordan Cedillo, an intake specialist
authorized to accept service of process.
The Doe defendants were dismissed on November 29, 2023
pursuant to Plaintiff’s request.
Marshall F. Goldberg avers that Defendant is not in military
service.
Plaintiff does not provide a summary of the case.
Plaintiff does not seek damages in this action.
Plaintiff does not seek interest in this action.
Plaintiff provides a memorandum of costs wherein Marshall F.
Goldberg avers that Plaintiff spent $628.33 in costs on this action.
Plaintiff
does not seek attorney’s fees in this action.
Plaintiff
provides a proposed form of judgment consistent with the foregoing.
California
Rule of Court 3.1806 states that “unless otherwise ordered” judgment upon a
written obligation requires a clerk’s note across the face of the writing that
there has been a judgment. Here, Plaintiff has not submitted the original
documents. The Court does not discern any practical need for such a clerk’s
note on the written obligation in the current case and therefore orders that it
need not be included. If this causes any issues for any party or non-party they
are authorized to bring the matter to the Court’s attention.
Plaintiff does not need to submit a statement of damages
because this is not a personal injury or wrongful death case.