Judge: Peter A. Hernandez, Case: 22PSCV02682, Date: 2023-09-29 Tentative Ruling

Case Number: 22PSCV02682    Hearing Date: June 4, 2024    Dept: K

Plaintiff ODK Capital, LLC’s Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff ODK Capital, LLC (“Plaintiff”) alleges as follows:

On October 11, 2021, Charles Cooper (“Defendant”) and Celtic Bank (“Celtic”) entered into a Business Loan and Security Agreement with accompanying supplement (“BLSA”) wherein Celtic agreed to loan monies to Defendant in exchange for repayment. Defendant contemporaneously executed a personal guaranty. Celtic subsequently assigned its rights, title and interest under the BLSA to Plaintiff. Defendant has failed to make payments due.

On December 9, 2022, Plaintiff filed a complaint, asserting a cause of action against Defendant and Does 1-10 for:

1.                  Breach of Contract

On July 28, 2023, Defendant’s default was entered.

An Order to Show Cause Re: Default Judgment is set for June 4, 2024.

Discussion

Plaintiff’s Application for Default Judgment is denied without prejudice. The following defects are noted:

On December 4, 2023, the court denied Plaintiff’s Application for Default Judgment without prejudice on the following basis:

“On September 29, 2023, the court denied Plaintiff’s default prove-up application submitted on July 31, 2023 without prejudice, on the following basis:

‘Plaintiff’s Custodian of Records Cathleen Pugh (“Pugh”) attests that “Plaintiff’s assignor CELTIC BANK assigned the claim to Plaintiff who is now the lawful owner of the claim.” Pugh, however, has failed to provide the court with a copy of the assignment.’

On October 5, 2023, attorney Jennifer Thomas (“Thomas”) submitted a “Supplemental Declaration in Support of Default Judgment,” purporting therein to attach a copy of the assignment for the court’s review. It does not appear to the court that Thomas would be able to authenticate the foregoing document. Further, Paragraph 4 of the purported assignment reads as follows: ‘The attached Exhibit A is, represents and evidences a true and correct listing of Loans for which all rights, title, and interest were sold and assigned in full by Celtic to ODK Capital, LLC.’ There is no Exhibit A attached to the purported assignment.”

On March 21, 2024, Plaintiff submitted a “Request for Entry of Default” Judicial Council Form CIV-100, a proposed judgment and a “Declaration by Plaintiff in Support of Default Judgment” (“Declaration”). The declaration was made by attorney Angie H. Hoar (“Hoar”). It does not appear to the court that Hoar would be able to authenticate the attached “Confirmation of Assignment of Loan.” Hoar makes reference to Evidence Code § 1271 in her declaration and claims that the court rejected Plaintiff’s earlier submission on this basis. The above rulings, however, do not reference Evidence Code § 1271.