Judge: Malcolm Mackey, Case: 22STCV08929, Date: 2023-08-28 Tentative Ruling

Case Number: 22STCV08929    Hearing Date: August 28, 2023    Dept: 55

ITRIA VENTURES LLC v. THE COMPLIANCE FIRM LLC DBA COMPLAINT CARE STAFFING,                                                              22STCV08929

Hearing:  8/28/23,  Dept. 55.

#1:   MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION.

Notice:  Not Okay

No Opposition

MP:  Plaintiff

RP:  

Summary

On 3/14/22, Plaintiff filed a Complaint alleging that defendants THE COMPLIANCE FIRM LLC DBA COMPLAINT CARE STAFFING and BRITTANY ANN STILLWELL breached a written agreement with Plaintiff, after Plaintiff paid defendants $40,000 to purchase $49,600 in the Merchant Defendant’s future accounts receivable, to fund the working capital needs of the Merchant Defendant’s business operations, defendants failed to repay, and Stillwell personally guaranteed the obligations.

The causes of action are:

1.      BREACH OF WRITTEN CONTRACT

2.      BREACH OF WRITTEN GUARANTY.

MP Positions

Moving party requests an order granting summary judgment or summary adjudication as to the first cause of action for breach of written agreement and the second cause of action for breach of written guaranty, against defendants THE COMPLIANCE FIRM LLC DBA COMPLAINT CARE STAFFING and BRITTANY ANN STILLWELL, for a judgment amount of $55,442.23, on grounds including the following:

·         The Amount Sold and all other sums then due and payable became due and owing by Merchant Defendants and the Guarantor, to Itria no later than May 6, 2021, when Merchant Defendant stopped making the required Weekly Remittances. (SS Nos. 6, 8, 15-17.)

·         To date, the amount of Merchant Defendant’s accounts receivable remaining uncollected under the RSA is $27,405, excluding the $2,500 collections fee, attorneys’ fees, and costs recoverable by Itria under Section 8 of the agreement, which totals $29,905. (SS Nos. 7-8; 17-18.)

·         Itria has also incurred attorneys’ fees and costs in the amount of $18,622.61 in the prosecution of this case. (SS Nos. 9, 19.)

Tentative Ruling

The motion is ordered off calendar, due to lack of notice and an unauthorized default procedure.

First, the proofs of service fail to service to the last address of record for the individual Defendant, at least 75 days before the hearing.  See  Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509-510 (where notice was not mailed to the “‘address as last given by that person on any document filed in the cause,’” per CCP Section 1013(a), notice was ineffective, and order entered was void). Accord  Silver v. McNamee (1999) 69 Cal. App. 4th 269, 279.   A trial court cannot continue a hearing in order to provide the full 80 days’ notice statutorily required for a motion for summary judgment, and instead notice must be given anew.  Robinson v. Woods (2008) 168 Cal.App.4th 1258,  1268.

Here, the proof of service filed 6/12/23, and last page of the corrected motion version filed 7/5/23, state service upon the individual defendant at this address:  “1201 South Hope Street, Apt. 2814.”  However, on 8/24/22, the individual Defendant filed a notice of change of address stating this new address:  “811 Wilshire Blvd., 17th Fl.”  Defendant filed nothing subsequently about a change in address.

Second, summary judgment procedure is not authorized as to defaulted defendants  See CCP   § 437c(a)(1)  (“The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed….”).  [Emphasis added.]   Instead, default procedure is authorized.  See generally  CCP § 585. For example, a completed Judicial Council Form is required, with the box checked to request default judgment.  CRC Rule 3.1800(a).

Here, on 5/2/23, default was entered against Defendant THE COMPLIANCE FIRM LLC DBA COMPLAINT CARE STAFFING.  On 4/28/22, only Defendant BRITTANY ANN STILLWELL filed an Answer.