Judge: Mark E. Windham, Case: 23STLC02699, Date: 2024-02-01 Tentative Ruling

Case Number: 23STLC02699    Hearing Date: February 1, 2024    Dept: 26

The Bankruptcy Law Firm, PC v. Vitamins Online, Inc., et al.

MOTION TO ENTER DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 585, et seq.)

TENTATIVE RULING:

Plaintiff The Bankruptcy Law Firm, PC’s Motion to Enter Default and Default Judgment is GRANTED UPON SUBMISSION OF A PROPOSED JUDGMENT.

ANALYSIS:

Plaintiff The Bankruptcy Law Firm, PC (“Plaintiff”) filed the instant action for breach of contract and breach of guaranty against Defendants Vitamins Online, Inc. (“Defendant Vitamins”) and Osman Khan (“Defendant Khan”) on April 21, 2023. Plaintiffs filed proof of personal service on June 20, 2023 and sought entry of default on July 20, 2023. The clerk’s office rejected the request for entry of default on the following grounds:

Vitamins Online, Inc., a Delaware corporation, et al

#1b Plaintiff's name incomplete

Vitamins Online, Inc-Defendant not served as sued. Name of defendant must correspond to the name on complaint.

No indication of service on “Authorize Agent”

#6 Notice to the Person Served incomplete

Osman Khan-#6 Notice to the Person Served in error.

Declaration of reasonable due diligence required for substitute service.

Submit a new proof of service as to each defendant

Due to the nature of this case, this a Court Judgment request. Must submit a complete 585 packet

(Notice of Rejection, 07/21/23.) Plaintiff filed another proof of personal service on September 13, 2023. On November 15, 2023, Plaintiff filed the instant Motion to Enter Default and Default Judgment. No opposition has been filed to date.

Discussion

A request for default and default judgment must conform to the requirements of Code of Civil Procedure section 585 and Cal. Rules of Court 3.1800. Rule 3.1800 states in relevant part:

A party seeking a default judgment on declarations must use mandatory Request for Entry of Default (Application to Enter Default) (form CIV-100) . . . . The following must be included in the documents filed with the clerk:

(1) Except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim;

(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 declaration of nonmilitary status for each defendant against whom judgment is sought;

(6) A proposed form of judgment;

(7) A dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties 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 attorney fees if allowed by statute or by the agreement of the parties.

(Cal. Rules of Court, rule 3.1800(a).)

The proof of personal service filed on September 13, 2023 demonstrates that both Defendants were personally served with the Summons and Complaint. (Proof of Personal Service, filed 09/13/23, Exhs. A-B.) The Motion identifies the claim in this action between Plaintiff and Defendant Vitamins as breach of contract for legal services on a bankruptcy appeal; the claim between Plaintiff and Defendant Khan is for breach of guarantee of the aforementioned contract. (Motion, p. 5:20-26.)

In support of the Motion, Plaintiff submits the declaration of Kathleen P. March (“March”), its principal. March’s declaration attaches copies of the contracts between the parties and true and correct copies of bills itemizing work completed pursuant to the contract, but not paid. (Motion, March Decl., Exhs. B-C.) The work amounted to $13,261.34 in fees that were acknowledged, but unpaid, by Defendants. (Id. at Exhs. C-D.)

Plaintiff also seeks ten percent interest per annum from the date the payments were due, August 10, 2021, in the amount of $2,461.43. (Motion, p. 6:1-2.) The memorandum of costs and disbursements is part of the attached request for default judgment, at paragraph 7, in the amount of $795.00. (Motion, Exh. A, ¶7.) The declaration of non-military status is also included in the request for default judgment. (Id. at ¶8.)

However, the Motion is not accompanied by a proposed judgment, as required by rule 3.1800(a)(6).) Plaintiff must provide the proposed judgment by the time of the hearing. (See Judicial Council Form for Optional Use, JUD-100.)

Conclusion

Plaintiff The Bankruptcy Law Firm, PC’s Motion to Enter Default and Default Judgment is GRANTED UPON SUBMISSION OF A PROPOSED JUDGMENT.

Court clerk to give notice.