Judge: Michael E. Whitaker, Case: 24SMCP00357, Date: 2025-05-06 Tentative Ruling
Case Number: 24SMCP00357 Hearing Date: May 6, 2025 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
May
6, 2025 |
|
CASE NUMBER |
24SMCP00357 |
|
MOTION |
Motion
for Summary Judgment |
|
Plaintiff Creditors Adjustment Bureau, Inc. |
|
|
OPPOSING PARTY |
none
|
MOVING PAPERS:
BACKGROUND
On July 1, 2024, Plaintiff Creditors Adjustment Bureau, Inc.
(“Plaintiff”) brought suit against Defendants Knock Out Creative, Inc. (“Knock
Out”) and Kristi Kilday (“Kilday”) (together, “Defendants”) for Action on
Judgment.
Kilday answered the Complaint on October 3, 2024 and default was
entered against Knock Out on October 25, 2024.
Plaintiff now moves for summary judgment against Knock Out. The motion is unopposed.
REQUEST FOR JUDICIAL NOTICE
Plaintiff requests judicial notice of the following:
1. The Judgment entered in favor of Plaintiff’s
assignor, Hudson 9300 Wilshire, LLC, and against Defendant in the amount of
$557,109.38 in the County of Los Angeles, State of California in Case Number
SC117858 attached hereto as Exhibit 1.
2. The court’s records in Case Number SC117858 in
the County of Los Angeles, State of California (the “Prior Action”).
3. The Assignment of Judgment filed on December
29, 2020, in the Prior Action attached hereto as Exhibit 2.
4. The Court’s records in this matter, Case
Number 24SMCP00357, County of Los Angeles, State of California.
Judicial notice may be taken
of records of any court in this state.
(Evid. Code, § 452, subd. (d)(1).)
Because the above documents are all court records in this state, the
Court may take judicial notice of them.
(Ibid.) However, “while courts are free to take
judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files. Courts may not take judicial notice of
allegations in affidavits, declarations and probation reports in court records
because such matters are reasonably subject to dispute and therefore require
formal proof.” (Lockley v. Law Office
of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875,
882 [cleaned up].)
Accordingly, the Court takes
judicial notice of the existence and filing of the above documents as court
records, and the legal consequences thereof, but not the truth of the
allegations contained therein.
LEGAL STANDARD – MOTION FOR SUMMARY
JUDGMENT
“[T]he party moving for
summary judgment bears the burden of persuasion that there is no triable issue
of material fact and that he is entitled to judgment as a matter of law[.]
There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“[T]he party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact; if he carries his burden of production, he causes a
shift, and the opposing party is then subjected to a burden
of production of his own to make a prima facie showing of the existence of a
triable issue of material fact.” (Ibid.)
“On a summary judgment
motion, the court must therefore consider what inferences favoring the opposing
party a factfinder could reasonably draw from the evidence. While viewing the
evidence in this manner, the court must bear in mind that its primary function
is to identify issues rather than to determine issues. Only when the inferences are indisputable may
the court decide the issues as a matter of law. If the evidence is in conflict,
the factual issues must be resolved by trial.”
(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839
[cleaned up].) Further, “the trial court
may not weigh the evidence in the manner of a factfinder to determine whose
version is more likely true. Nor may the
trial court grant summary judgment based on the court's evaluation of
credibility.” (Id. at p. 840
[cleaned up]; see also Weiss v. People ex rel. Department of Transportation
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
DISCUSSION
As a threshold matter, because
Default has been entered against Knock Out, the proper procedural vehicle to
obtain a judgment against it is to request a default judgment. (See Code Civ. Proc., § 585.) Summary judgment is not a “default
judgment.” (English v. IKON Business
Solutions, Inc. (2001) 94 Cal.App.4th 130, 137-138.) Importantly, Code of Civil Procedure, section
473, subdivision (b), which outlines the procedure for a party to request
relief from a default judgment, does not apply to summary judgments. (Ibid.) Thus, granting Plaintiff’s motion for summary
judgment as to defendant Knock Out would deprive it of its potential rights and
remedies as a defaulted defendant.
CONCLUSION AND ORDER
Therefore, finding summary judgment procedurally improper as to a
defaulted defendant, the Court denies Plaintiff’s motion for summary judgment
against Defendant Knock Out.
Plaintiff shall provide notice of the Court’s order and file the
notice with a proof of service forthwith.
DATED: May 6, 2025 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court