Judge: Lynette Gridiron Winston, Case: 24PSCV04431, Date: 2025-04-07 Tentative Ruling
Case Number: 24PSCV04431 Hearing Date: April 7, 2025 Dept: 6
Plaintiff
ROIC Diamond Hills Plaza, LLC’s Request for Entry of Default Judgment
Defendant: Buns & Dums Gourmet Restaurant, LLC dba Buns & Dums
TENTATIVE RULING
Plaintiff’s request for entry of default judgment is DENIED without prejudice. The Court directs Plaintiff to submit corrected proofs of service of the summons and complaint.
BACKGROUND
This is a commercial unlawful detainer action. On December 20, 2024, plaintiff ROIC Diamond Hills Plaza, LLC (Plaintiff) filed this action against defendant Buns & Dums Gourmet Restaurant, LLC dba Buns & Dums (Defendant) and Does 1 to 10, alleging the sole cause of action for unlawful detainer.
On January 13, 2025, default was entered against Defendant. On January 23, 2025, default was entered as to all unnamed occupants. On January 24, 2025, the clerk entered judgment for possession in favor of Plaintiff and against Defendant.
On March 19, 2025, Plaintiff requested entry of default judgment against Defendant.
LEGAL STANDARD
Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed 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) declaration of nonmilitary status; (6) a proposed form of judgment; (7) 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; (8) exhibits as necessary; and (9) 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 Defendants in the total amount of $198,284.80, including $$156,440.31 in past due rent, $37,302.12 in holdover damages, $3,827.42 in attorney fees, and $714.95 in costs. The Court finds some problems with Plaintiff’s default judgment package. First, the Court finds the clerk improperly entered default and judgment for possession against Defendant and the unknown occupants. The process server did not sign the proofs of service of the summons and complaint on Defendant or the unknown occupants. (Proofs of Service (1/13/25).) The proof of service is therefore defective, and the clerk should not have entered default against Defendant and the unknown occupants. It also then follows that the clerk should not have entered judgment for possession against Defendant. (See Judgment (1/24/25).) Nevertheless, the proof of service otherwise appears to evidence service on Defendant and the unknown occupants, so the Court will order Plaintiff to submit corrected proofs of service of the summons and complaint. (See Proofs of Service (1/13/25); N. Side Prop. Owners' Ass'n v. Los Angeles Cnty. (1945) 70 Cal.App.2d 598, 605 [defective unsigned proof of service did not divest trial court of jurisdiction if service was actually made]; Morrissey v. Gray (1912) 162 Cal. 638, 641 [defective proof of service may be amended to show service was made on the defendant in the capacity in which judgment was actually entered against him].)
Second, the Court notes some issues with the declaration submitted in support of the default judgment package, namely that Plaintiff did not provide all of the information requested, such as with paragraph 6, subdivision (b). (Busalacchi Decl., ¶¶ 1, subd. (a), 6, subd. (b).) Plaintiff also ticked paragraph 6, subdivision (d), which indicates that a copy of the three-day notice is attached to the declaration, but the notice is not attached. (See Busalacchi Decl., ¶ 6, subd. (d).) It is also not clear to the Court that Plaintiff is not seeking past due rent beyond one year.
CONCLUSION