Judge: Michael Shultz, Case: 21CMCV00052, Date: 2023-02-07 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 21CMCV00052 Hearing Date: February 7, 2023 Dept: A
21CMCV00052
On Deck Capital, Inc. v. Driscoll Electric, Inc., et al
[TENTATIVE] ORDER
This action arises from
Defendants’ alleged default on a personal loan from Plaintiff’s predecessor.
The claim alleges a cause of action for breach of contract against Driscoll
Electric (Driscoll) and its principal, Dereik Driscoll (the Guarantor), filed
an answer on April 15, 2021. The Clerk entered default against Driscoll April
20, 2021.
Plaintiff filed
this motion for judgment on the pleading against Driscoll, who failed to answer
the complaint. Therefore, Plaintiff requests a judgment of $28,427.40.
A motion for
judgment on the pleading can only be made on limited grounds. Where the moving
party is a plaintiff, “the motion is based on grounds that the complaint states
facts sufficient to constitute a cause or causes of action against the
defendant and the answer does not state facts sufficient to constitute a
defense to the complaint." Code Civ. Proc., § 438.
Here, Driscoll did not file an
answer and is in default as a consequence. The procedure for obtaining a judgment
against a defaulting party is governed by Code of Civil Procedure, section 585 subd. (a). Plaintiff must submit all the documents set forth in
California Rules of Court, Cal Rules of Court 3.1800. Notably, Plaintiff must submit 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. Id.,
Code
Civ. Proc., § 579 ["In an
action against several defendants, the Court may, in its discretion, render
judgment against one or more of them, leaving the action to proceed against the
others, whenever a several judgment is proper."].
Plaintiff sues Defendants on a
joint contractual obligation for a business loan. Complaint, ¶ 8. Therefore, if the individual Guarantor,
presents a sustainable defense, such as that the debt has been paid, “a grave
injustice would result” if the Court proceeded to enter judgment as
contemplated. Mirabile v. Smith (1953) 119 Cal.App.2d 685, 689. Rather, "[t]he trial judge should be prevented from
entering such a judgment until the determination of the action on its merits
against the Guarantor. Id.
Accordingly, unless Plaintiff can
establish at the time Plaintiff submits its default judgment package that a
several judgment is proper, the Court is not inclined to enter a separate
judgment until the case against the Guarantor is determined on its merits.
Based on the foregoing, the court
denies Plaintiff’s motion for judgment on the pleading as it is procedurally
defective.