Judge: Salvatore Sirna, Case: 21PSCV00361, Date: 2024-06-24 Tentative Ruling

Case Number: 21PSCV00361    Hearing Date: June 24, 2024    Dept: G

Plaintiff City of El Monte’s Application for Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff City of El Monte’s Application for Default Judgment is DENIED without prejudice.

BACKGROUND

This is a nuisance abatement action. On January 9, 2020, the El Monte Police Department was executing a search warrant at a property in El Monte when they discovered large-scale and illegal indoor cultivation of marijuana.

On May 7, 2021, the City of El Monte (the City) filed a complaint against Defendants Timothy Tung, Hsue Fu Tung, and Suan Cheng Tung as well as Does 1-100 alleging the following causes of action: (1) narcotics abatement, (2) public nuisance, (3) violation of El Monte municipal code, (4) violation of Unfair Competition Law, and (5) violation of MAUCRSA. On September 28, 2021, the City filed proofs of service claiming the City’s registered process server served the Tungs via substitute service in El Monte on July 1, 2021.

On June 24, 2022, the Court entered default against the Tungs after they failed to timely file an answer. On December 12, 2022, the City filed an application for default judgment. On December 14, 2022, the Court denied the City’s application and set aside the entry of default, noting the City’s proofs of service failed to include declarations of diligence.

On January 12, 2023, the City submitted updated proofs of service. On January 13, 2023, default was entered against Suan Cheng Tung. On January 23, 2023, default was entered against Timothy Tung and Hsue Fu Tung. At the Court’s direction, the City resubmitted an application for default judgment on February 15, 2023. On March 1, 2023, the Court denied the City’s application and vacated the entry of default, noting their proofs of service demonstrated insufficient due diligence before effecting substitute service.

On March 11, 2024; March 18, 2024; March 25, 2024; and April 1, 2024, the City served the Tungs by publication. On June 6, 2024, the Court entered default against Timothy Tung and Hsue Fu Tung after they failed to file a timely answer. On the same day, the Court rejected the City’s request to enter default against Suan Cheng Tung as the proof of publication misspelled Suan Cheng Tung’s name.

On June 20, 2024, the City filed the present application for default judgment against Timothy Tung and Hsue Fu Tung. An OSC Re: Default/Default Judgment is set for June 24, 2024.

LEGAL STANDARD

Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear.  A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (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 proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties.  (Cal. Rules of Court 3.1800.)

ANALYSIS

The City seeks default judgment against Timothy Tung and Hsue Fu Tung in the total amount of $1,169,069.56, including $1,151,500.00 in damages, $13,446.03 in attorney fees, and $4,103.53 in costs. However, the City failed to dismiss Suan Cheng Tung from this action or establish grounds for a separate judgment against specified parties pursuant to Code of Civil Procedure section 579 and Rule 3.1800, subdivision (a)(7) of the California Rules of Court, as default judgment is not sought against all defendants in this action.

Accordingly, the City’s application is DENIED.

CONCLUSION

Based on the foregoing, City’s application for default judgment is DENIED without prejudice.