Judge: Salvatore Sirna, Case: 23PSCV03244, Date: 2024-06-25 Tentative Ruling

Case Number: 23PSCV03244    Hearing Date: June 25, 2024    Dept: G

Plaintiff Harvey Vechery’s Application for Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Harvey Vechery’s Application for Default Judgment is DENIED without prejudice and the entry of default against Defendant Greg J. Halpern is VACATED.

BACKGROUND

On October 19, 2023, Plaintiff Harvey Vechery filed a complaint against Defendant Greg J. Halpern, alleging a cause of action for breach of contract based upon Halpern’s alleged failure to repay a loan. On January 25, 2024, Vechery’s process server served Halpern with substitute service in Spring Grove, Illinois.

On March 26, 2024, the Court entered default against Halpern after Halpern failed to file a timely answer. On May 8, 2024, Vechery submitted the present application for default judgment.

A case management conference/OSC Re: Default is set for June 25, 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

Vechery seeks default judgment against Halpern in the total amount of $1,672,196.27, including $1,365,104.86 in damages, $287,233.00 in interest, $18,308.66 in attorney fees, and $1,549.75 in costs.¿For the following reasons, the Court DENIES Vechery’s application without prejudice.

“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.)

Here, Vechery filed an affidavit of service that states Vechery’s process server served Halpern on January 25, 2024, at an address in Spring Grove, Illinois through substitute service. But the affidavit does not include a declaration of diligence that describes any previous attempts to serve Halpern at that address. Furthermore, the affidavit does not include the language required by Code of Civil Procedure section 2015.5. Thus, the Court finds Vechery has not established proper service of Halpern and vacates the underlying default.

CONCLUSION

Based on the foregoing, Vechery’s application for default judgment is DENIED without prejudice and the entry of default as to Halpern is VACATED.