Judge: Joseph Lipner, Case: 23STCV25173, Date: 2024-07-10 Tentative Ruling
Case Number: 23STCV25173 Hearing Date: July 10, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
BANK OF AMERICA N.A., Plaintiff, v. SOO S CHO, Defendants. |
Case No:
23STCV25173 Hearing Date: July 10, 2024 Calendar Number: 10 |
Plaintiff Bank of America N.A. (“Plaintiff”) seeks default
judgment against Defendant Soo S Cho (“Defendant”).
Plaintiff requests:
(1) money judgment in the amount of $86,498.84, consisting
of:
(a) damages in the amount of $85,995.34;
(b) costs in the amount of $503.50.
The Court GRANTS Plaintiff’s request for default judgment.
Plaintiff is a subsidiary of Bank of America Corporation.
Defendant opened a credit account with Plaintiff and
obtained credit from Plaintiff. Plaintiff is currently indebted to Defendant in
the amount of $85,995.34. Plaintiff failed to make periodic payments as
required by the agreement covering use of the credit account. The last payment
occurred on February 24, 2023.
Plaintiff
filed this action October 16, 2023, raising one claim for common counts.
On December 22, 2023, the Court entered default against Defendant.
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 that are 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.
According
to the proof of service filed on October 31, 2023, Defendant was served on October
26, 2023 at 1718 N Las Palmas Avenue, Apartment 617, Los Angeles, California
90028, via personal service.
Alexander Baizer Carr avers to Defendant’s non-military
status.
Plaintiff provides a brief summary of the case in the declaration
of Roberta Galbreath. Plaintiff adequately pleads its cause of action in the
Complaint.
“Code of Civil Procedure section 580 prohibits the entry of
a default judgment in an amount in excess of that demanded in the complaint.” (Kim v. Westmoore Partners, Inc. (2011)
201 Cal.App.4th 267, 286.) Moreover, “a statement of damages cannot be relied
upon to establish a plaintiff's monetary damages, except in cases of personal
injury or wrongful death.” (Ibid.) “In all other cases, when recovering
damages in a default judgment, the plaintiff is limited to the damages
specified in the complaint.” (Ibid.) Moreover, a plaintiff must submit 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.)
Roberta Galbreath is a custodian of records for Plaintiff.
Galbreath avers that the submitted records showing the amount due on
Defendant’s account with Plaintiff are contemporaneously recorded by a person
with actual knowledge of the information in question and are true and accurate
copies of Plaintiff’s business records.
Plaintiff does not seek interest.
Plaintiff includes a memorandum of costs in the submitted
Form CIV-100. Alexander Baizer Carr avers that Plaintiff expended $503.50 in
costs.
Plaintiff
does not seek attorney’s fees.
Plaintiff
has submitted 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 to pay money 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.