Judge: Lynette Gridiron Winston, Case: 23PSCV01181, Date: 2023-09-07 Tentative Ruling
Case Number: 23PSCV01181 Hearing Date: November 6, 2023 Dept: 6
Plaintiff
Red Target, LLC’s Application for Default Judgment
Defendant: Brett Martin Tobin dba Above All Cleaning Corp. adba BT Construction Co.
TENTATIVE RULING
DENIED without prejudice.
BACKGROUND
Plaintiff Red Target, LLC (“Plaintiff”) is the creditor/assignee of an assignment from assignor Global Financial & Leasing Services, Corp. (“Lessor”) in connection with an equipment lease agreement between Lessor on the one hand and Above All Cleaning Corp. (“Lessee”) on the other (the “Lease Agreement”). Defendant Brett Martin Tobin dba Above All Cleaning Corp. adba BT Construction Co (“Defendant”) executed a guaranty for the payment of all sums Lessee owed under the Lease Agreement (the “Guaranty”). On approximately January 22, 2020, Lessee defaulted under the Lease Agreement. Lessor subsequently assigned the Lease and Guaranty to Plaintiff. Defendant has failed to honor the Guaranty.
On April 20, 2023, Plaintiff filed this action against Defendant, alleging one cause of action for breach of guaranty. On August 16, 2023, default was entered against Defendant. On September 20, 2023, Plaintiff submitted a default judgment package.
REQUEST FOR JUDICIAL NOTICE
The Court GRANTS Plaintiff’s request for judicial notice. (Evid. Code § 452, subd. (a).) However, the Court takes judicial notice only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)
LEGAL
STANDARD
Code of Civil Procedure section 585
permits entry of a default judgment after a party has filed to timely respond
or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by
the court must file a Request for Court Judgment, and: (1) a brief summary of
the case; (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 proposed form of judgment; (6) a dismissal of
all parties against whom judgment is not sought or an application for separate
judgment under Code of Civil Procedure section 579, supported by a showing of
grounds for each judgment; (7) exhibits as necessary; and (8) a request for
attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal.
Rules of Court, rule 3.1800.)
ANALYSIS
Plaintiff seeks default judgment against
Defendant in the total amount of $78,166.72, including $69,234.00 in damages, $6,143.04
in interest, $2,274.68 in attorney’s fees, and $515.00 in costs. The Court
finds Plaintiff’s explanations regarding the interest calculations and
implications of Arizona law here sufficient. However, the Court notes a couple
problems.
First, Plaintiff has only requested entry of default, as evidenced by the boxes checked on Form CIV-100 indicating request for entry of default only. (See Form CIV-100, ¶ 1, subd. (c).) Plaintiff needs to check the correct boxes indicating request for entry of default judgment by the Court.
Second, Plaintiff is a debt buyer. (Compl., ¶ 14, Ex. 4.) As such, Plaintiff should have submitted the request for entry of default judgment on Form CIV-105, not CIV-100. (Cal. Rules of Court, rule 3.1800; Civ. Code § 1788.50 et seq.)
Third, Rule 3.1806 of the California Rules of Court requires the plaintiff to submit the original loan agreement or a declaration in lieu of the original with the default judgment package. (Cal. Rules of Court, rule 3.1806; Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1123.) Plaintiff has not submitted the original or declaration in lieu of the original.
CONCLUSION