Judge: Michael P. Linfield, Case: 21STCV35896, Date: 2023-06-23 Tentative Ruling

Case Number: 21STCV35896    Hearing Date: October 12, 2023    Dept: 34

PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

 

 

I.          BACKGROUND

 

On September 29, 2021, Plaintiff Timothy Burke filed his Complaint against Defendants The Wizard of Construction, Inc., A Perfect View Builders, Inc., and Oz Mizrahi.

 

On December 22, 2022, by request of Plaintiff, the Clerk’s Office entered default on Defendants A Perfect View Builders, Inc. and The Wizard of Construction, Inc.

 

On April 24, 2023, the Court dismissed with prejudice Defendant Oz Mizrahi from the Complaint.

 

On October 4, 2023, Plaintiff filed:

 

(1)       Judicial Council Form CIV-100, Request for Court Judgment against Defendant A Perfect View Builders, Inc.;

(2)       Judicial Council Form CIV-100, Request for Court Judgment against Defendant The Wizard of Construction, Inc.;

(3)       Judicial Council Form MC-010, Memorandum of Costs (Summary);

(4)       Declarations and Exhibits;

(5)       Declaration of Felipa R. Richland; and

(6)       Proposed Judgment.

 

 

II.       ANALYSIS

 

Plaintiff has not provided the Court sufficient evidence to prove the elements of his causes of action. Almost the entirety Plaintiff Counsel’s declaration is inadmissible hearsay. To take just a few examples, Attorney Richland states:

 

·       “2. On or about April 19, 2017 Mr. Norman Burke was induced to sign loan documents on an electronic tablet containing an econtract.

·       “3. As of April 19, 2017 Mr. Norman Burke was 86 years old suffering from dementia and vision impairment.

·       “4. Norman Burke was and unable to understand any contract terms at the time of his signature. He did not have a personal representative or attorney present at the time of signing.

·       “5. What he unknowingly signed was threefold, and [sic] home improvement contract, a loan contract requiring repayment in the amount of $76,205.00 ; [sic] and a property tax lien securing loan repayments through the Los Angeles County Tax Assessor as part of his property tax assessment each year.”  (Richland Declaration, pp. 4-5.)

 

If Attorney Richland has personal knowledge of these facts, she has not laid the foundation for the statements in her declaration.

 

        (Although it does not affect the Court’s analysis, much of counsel’s declaration is ungrammatical gobbledygook.  For instance, Plaintiff’s counsel states:

 

·       “The below state facts support cancellation of the contract on the grounds lack Norman Burke lacked capacity and mutual consent.” (Richland Declaration, p. 4:4-5.)

·       “During the investigative process to locate a persons/or persons authorized to accept service in the state action proved to be a shell game.”  (Richland Declaration, p. 6:10-11.)

 

An attorney who is “duly licensed and permitted to practice law before all courts in California, the Central District, 9th Circuit and U.S. Supreme Court” [Richland Declaration, p. 3:2-4] and who has been admitted to practice law for the past 30 years [see https://apps.calbar.ca.gov/attorney/Licensee/Detail/112458] should be able to write grammatical sentences.)

 

The only admissible evidence is contained in the Declaration of Timothy Burke.  Burke states:  “From 2016 until he died, I was responsible for his financial and legal affairs oversight. At no time did my father ever mention a home improvement contract or financing.  The home improvement contract and related loan was unknown to me and I did not learn of it until after the property tax bill arrived. I conducted a search of my father’s mail and papers and found no contract for either the construction or the finance.” (Burke Declaration, ¶¶ 9–11.)

 

This is not sufficient to find that the elder Burke was coerced into signing the contract. 

 

Further, it is not clear that the declaration of Erika Vasko-Mate Declaration is admissible.  The Vasko-Mate declaration was submitted in another case, not in this case.  The original declaration has not been filed with this Court.  Further, the Vasko-Mate declaration attaches doctor’s notes that are themselves hearsay.  Lastly, even if the Court were to accept the doctor’s notes, they contradict statements in the Burke and Richland declarations.  For instance, Timothy Burke states that his father “suffered significant visual impairment” and Richland states (without foundation) that Burke was “suffering from . . . vision impairment.”  (Burke Declaration, ¶ 3; Richland Declaration, p. 4:24-25.)  Yet the doctor’s notes state that the deceased had no visual impairment.  (See notes, attached to Vasko-Mate Declaration, p. 19.)

 

The evidence presented to the Court is not sufficient for the Court to find in favor of plaintiff on any of his causes of action for cancellation of contract, fraud, unfair business practices, intentional misrepresentation or elder abuse. Further, the property tax bills mentioned in the Richland Declaration have not been provided, and no evidence of the contract has been submitted. No bank statements or other documents have been submitted that would show any damages based on this allegedly fraudulently-induced contract. Without evidence that would prove there was in fact a contract or damages, the Court cannot grant Plaintiff’s Request for Default Judgment.

 

On June 23, 2023, the Court denied Plaintiff’s request for Entry of Default Judgement.  The Court’s posted tentative decision stated that “There have been at least 10 Case Management Conferences and/or OSC’s re Entry of Default.  Plaintiff has done little or nothing on this case since it was filed in September 2021. [¶] The Court will continue the OSC re Entry of Default Judgement until Sept. 11, 2023. If default judgment is not entered by that date, the Court WILL dismiss the case.”  The Court orally reiterated that admonishment to Plaintiff’s counsel at the hearing.

 

        At the June 23rd hearing, Plaintiff’s counsel stated that she had “10 witnesses to do a prove-up.”  However, other than counsel’s declaration, which as stated above is mostly hearsay and lacks foundation, counsel has provided only one admissible declaration.

 

        Plaintiff has the burden of proving his case.  He has failed to do so.

 

The Court DENIES Plaintiff’s request for Entry of Default Judgement.  The Court DISMISSES the Complaint.