Judge: Salvatore Sirna, Case: 22PSCV00160, Date: 2023-02-09 Tentative Ruling

Case Number: 22PSCV00160    Hearing Date: February 9, 2023    Dept: G

Plaintiff On Deck Capital, Inc.’s Application for Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff On Deck Capital, Inc.’s Application for Default Judgment is DENIED without prejudice.

Furthermore, the entry of default as to Defendant Jennifer Chan on January 23, 2023, is VACATED.  The court will set a new hearing date for an OSC Re: Failure to File Proof of Service as to Defendant Chan at the hearing on February 9, 2023.

BACKGROUND

This is a collections action. On March 27, 2020, Celtic Bank entered into a written agreement with Defendant SGV Food Corporation (SGV Food) in which Celtic Bank agreed to provide a business loan to SGV Food that was personally guaranteed by Defendant Jennifer Chan (Chan). Subsequently, SGV Food and Chan (collectively, Defendants) defaulted on the loan within the last four years and the debt was assigned to Plaintiff On Deck Capital, Inc.

On February 17, 2022, Plaintiff filed a complaint against Defendants and Does 1-10, alleging breach of contract.

On January 21, 2023, default was entered against Defendants and Plaintiff submitted the present application for default judgment.  

A case management conference/OSC re: Default Judgment and status conference re: settlement are set for February 9, 2023.    

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

Plaintiff seeks default judgment against Defendants. However, “[a] default judgment entered against a defendant who was not served in the manner prescribed by statute is void.” (First American Title Insurance Company v. Banerjee (2022) 87 Cal.App.5th 37, 292.) “An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to defendants. [Citations.] Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) (Italics added.)

On March 23, 2022, Plaintiff filed proofs of service stating Plaintiff’s process server served Defendants on March 19 at a Rowland Heights address through substitute service. However, Plaintiff’s proof of service for Chan did not include a declaration of diligence. On December 20, Plaintiff filed an amended proof of service for Chan that included a declaration of diligence, although it did not describe any prior attempts to serve Chan at the Rowland Heights address. Although Plaintiff has previously submitted proofs of “no service” for addresses in the City of Industry, Rosemead, and El Monte, this is not sufficient to establish due diligence which requires multiple attempts at the “proper place.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 372-373.)

Because Plaintiff’s proof of substitute service for Chan is deficient, the court finds that service of Chan has not been established and the resulting entry of default was improper. The default entered as to Defendant Chan on January 21, 2023, is hereby VACATED.

Accordingly, the court DENIES without prejudice Plaintiff’s default judgment application.

CONCLUSION

Based on the foregoing, Plaintiff’s application for default judgment is DENIED without prejudice. Furthermore, the entry of default as to Defendant Jennifer Chan on January 23, 2023, is VACATED. The court will set a new hearing date for an OSC Re: Failure to File Proof of Service as to Defendant Chan at the hearing on February 9, 2023.