Judge Stephen Morgan, Case 22AVCV00477 2022-10-11 Tentative Ruling

Judge: Stephen Morgan, Case: 22AVCV00477, Date: 2022-10-11 Tentative Ruling

Case Number: 22AVCV00477 Hearing Date: October 11, 2022 Dept: A14

Background

This is a contract action. Plaintiff Will M. Pryor (“Plaintiff”) presents that he had five accounts with Defendant Bank of America, N.A. (“Defendant”), consisting of:

A checking and savings account under Reo Assets and Investment Servicing Co., LLC; and

A checking and savings account under Will Pryor; and

One account (unspecified type) under happiibook, LLC.

Plaintiff alleges that all accounts were maintained without interruption until around May 07, 2021 when they were closed without any warning, notification, cause, or reason. Plaintiff further alleges that the funds for the Reo Assets and Investment Servicing Co., LLC accounts ($3,000.00) were returned in the form of a check without a reason, but that the money from the other three accounts (approximately $153,000.00 were not returned). Plaintiff contends that he made numerous attempts to have his money returned, but was told in May 2021 that Defendant had a legal right to hold the funds for 90 days and to investigate, that they would give a reason, and resolve the situation. Plaintiff alleges that, to date, he has not received the money from his accounts.

On July 21, 2022, Plaintiff filed his Complaint alleging five (5) causes of action for: (1) Negligence, (2) Negligent Performance of Contract, (3) Negligent Failure to Warn, (4) Breach of Contract, and (5) Conversion.

On July 27, 2022, Plaintiff filed his First Amended Complaint (“FAC”) alleging four (4) causes of action for: (1) Negligence, (2) Negligent Performance of Contract, (3) Negligent Failure to Warn, and (4) Conversion.

On August 10, 2022, Plaintiff filed a Motion for Leave to Amend the Complaint, subsequently denied at the September 06, 2022 hearing. Defendant had filed a statement of Non-Opposition on August 23, 2022.

Plaintiff attempted to place Defendant in default despite its appearance and filings on September 07, 2022. This default request was rejected as the filing date of the action listed in 1(a) was incorrect.

On September 09, 2022, Defendant filed a Motion to Dismiss.

Plaintiff again attempted to place Defendant in default on September 15, 2022. This default request was rejected due to Defendant’s pending motion.

On September 27, 2022, Plaintiff came in with an Ex Parte Application of Motion to Support Request of Entry of Default Judgment Pursuant to Cal. Code Civ. Proc. § 585 (“Motion for Default”). The Court set out the following timeline:

Defendant’s Opposition brief shall be filed and served no later than October 3, 2022; and
Plaintiff’s Reply brief shall be filed and served no later than October 7, 2022.

No Opposition has been filed to Defendant’s Motion to Dismiss. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. § 1005(b).) The hearing is set for October 11, 2022. As such, an Opposition was due September 28, 2022. Should an Opposition be filed, it is now untimely.

On September 30, 2022, Defendant filed a Brief in Support of Its Motion to Dismiss and Opposition to Plaintiff’s Request for Entry of Default.

On October 03, 2022, Plaintiff filed an Opposition to Defendant’s Motion to Dismiss Plaintiff’s Complaint and an Affidavit. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) The Court, in its discretion, considers the late filed Opposition. It appears that the Opposition also discussed Motion for Default.

Because the Opposition discussed the Motion for Default, it shifted the events set out by the Court’s timeline on September 27, 2022. Defendant filed a Reply to Plaintiff’s Opposition on October 04, 2022.

Despite the shift in the Court’s timeline and Defendant’s Reply, Plaintiff filed a document titled “Brief Plaintiff’s Reply to Defendant’s Brief and Support of Request for Entry of Default” (“Plaintiff’s Reply Brief”) on October 05, 2022. The Court notes that the Proof of Service is filled out on form POS-040. It states that Defendant was served via “messenger service;” however, the contents show that Defendant was served via email at defense counsel’s email of record.

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Legal Standard

Legal Standard for Filing of Affidavit of Jurisdiction by Plaintiff – Cal. Civ. Code section 1812.10 provides:

An action on a contract or installment account under this chapter [retail installment sales] shall be tried in the superior court in the county where the contract was in fact signed by the buyer, where the buyer resided at the time the contract was entered into, where the buyer resides at the commencement of the action, or where the goods purchased pursuant to the contract have been so affixed to real property as to become a part of that real property.

(Cal. Civ. Code, § 1812.10(a).)

Cal. Civ. Code section 1812.10 further provides:

In any action subject to this section, concurrently with the filing of the complaint, the plaintiff shall file an affidavit stating facts showing that the action has been commenced in a superior court and court location described in this section as a proper place for the trial of the action. Those facts may be stated in a verified complaint and shall not be stated on information or belief. When the affidavit is filed with the complaint, a copy thereof shall be served with the summons. If a plaintiff fails to file the affidavit or state facts in a verified complaint required by this section, no further proceedings may occur, but the court shall, upon its own motion or upon motion of any party, dismiss the action without prejudice. The court may, on terms that are just, permit the affidavit to be filed subsequent to the filing of the complaint and a copy of the affidavit shall be served on the defendant. The time to answer or otherwise plead shall date from that service.

(Id., § 1812.10(c).)

Cal. Civ. Code section 2984.4(a)-(b) similarly provides:

(a) An action on a contract or purchase order under this chapter [automobile sales] shall be tried in the superior court in the county where the contract or purchase order was in fact signed by the buyer, where the buyer resided at the time the contract or purchase order was entered into, where the buyer resides at the commencement of the action, or where the motor vehicle purchased pursuant to the contract or purchase order is permanently garaged.

In any action involving multiple claims, or causes of action, venue shall lie in those courts if there is at least one claim or cause of action arising from a contract subject to this chapter.

(b) In the superior court designated as the proper court in subdivision (a), the proper court location for trial of an action under this chapter is the location where the court tries that type of action that is nearest or most accessible to where the contract, conditional sale contract, or purchase order was in fact signed by the buyer, where the buyer resided at the time the contract, conditional sale contract, or purchase order was entered into, where the buyer resides at the commencement of the action, or where the motor vehicle purchased pursuant to the contract is permanently garaged. Otherwise, any location of the superior court designated as the proper superior court in subdivision (a) is the proper court location for the trial of the action. The court may specify by local rule the nearest or most accessible court location where the court tries that type of case.

Cal. Code Civ. Proc. section 396a provides, in relevant part, that in actions subject to section 1812.10 or section 2984.4:

The plaintiff shall state facts in the complaint, verified by the plaintiff’s oath, or the oath of the plaintiff’s attorney, or in an affidavit of the plaintiff or of the plaintiff’s attorney filed with the complaint, showing that the action has been commenced in the proper superior court and the proper court location for the trial of the action or proceeding, and showing that the action is subject to the provisions of Sections 1812.10 . . . of the Civil Code . . . . When the affidavit is filed with the complaint, a copy thereof shall be served with the summons. Except as provided in this section, if the complaint or affidavit is not filed pursuant to this subdivision, no further proceedings may occur in the action or proceeding, except to dismiss the action or proceeding without prejudice. However, the court may, on terms that are just, permit the affidavit to be filed after the filing of the complaint, and a copy of the affidavit shall be served on the defendant and the time to answer or otherwise plead shall date from that service.

(Cal. Code Civ. Proc. § 396a(a).)

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Legal Standard for Taking Default – Cal. Code¿Civ.¿Proc.¿§ 585 permits entry of a judgment after a Defendant fails to timely answer following proper service of process.¿¿(Cal. Code Civ. Proc. § 585.)¿¿A party seeking judgment on the default by the Court must file a Request for Court Judgment, and provide: (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 declaration of nonmilitary status for each defendant against whom judgment is sought; (6)¿a proposed form of judgment; (7)¿a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Cal. Code Civ. Proc. § 579, supported by a showing of grounds for each judgment; (8)¿exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, Rule 3.1800.)¿

A default may be entered only against a defendant who has not filed one of the documents listed in Cal. Code Civ. Proc. § 585(a): answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10. (See Cal. Code Civ. Proc. § 585(a).) If the defendant has filed a responsive paper, the clerk may not review it to determine its legal sufficiency. (Stevens v Torregano (1961) 192 Cal.App.2d 105, 112.)

A default may not be entered if the defendant files a responsive pleading after the time to do so expires, but before the plaintiff obtains entry of the defendant's default. The plaintiff's failure to request the entry of default is considered the equivalent of granting the defendant an extension of time to respond. (Reher v. Reed (1913) 166 Cal. 525; Goddard v. Pollock (1974) 37 Cal.App.3d 137.) The plaintiff may object to the defendant's responsive paper as untimely in a motion to strike; if the motion is granted, the defendant's default can then be entered. (Buck v, Morrossis (1952) 114 Cal.App.2d 461, 464-65.)

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Discussion

Application –

Motion to Dismiss

Defendant presents that Plaintiff’s Amended Complaint purports to bring the action under Cal. Civ. Code §§ 1812.10 and 2984.4; however, there is no verification or affidavit. As such, Defendant requests that the action be dismissed under Cal. Code Civ. Proc. § 369a(a). Defendant also requests that (1) Plaintiff should not be granted leave to correct the documents as no just cause exists and (2) that the action should be dismissed with prejudice.

Defendant has reiterated its argument that the Motion to Dismiss must be sustained as Cal. Code Civ. Proc. § 369(a) requires a verification by the Plaintiff and the Court must dismiss absent a showing of just cause to allow an amendment. Defendant emphasizes that Plaintiff has had three opportunities to perfect his pleadings and has failed each time.

Plaintiff’s Opposition presents that Defendant was required to file an Answer or Demurrer within 30 days of the Complaint or 14 days from the Amended Complaint, whichever was more, and Defendant did not. Plaintiff argues that Defendant cannot file a response now that he has requested an entry of default. Plaintiff further argues that Defendant’s statement that the FAC is not verified is in error as no FAC was required to be filed and Defendant has neither filed an Answer or Demurrer. Plaintiff reiterates that Defendant is no longer permitted to participate in this case as he filed a Request for Entry of Default on September 07, 2022. Plaintiff also presents that, had Defendant filed its motion on September 06, 2022, a Motion to Dismiss is not a response and a Demurrer was required.

Defendant’s Reply states only that it incorporates by reference the arguments made in its previous filing, the Brief in Support of its Motion to Dismiss and Opposition to Plaintiff’s Request for Entry of Default, and that it looks forward to resolving this matter at the October 11, 2022 hearing.

Plaintiff’s Reply Brief focuses on the original Opposition brief filed by Defendant on September 30, 2022. Plaintiff argues that Defendant presumes a defense based on Defendant having filed a demurrer. That is, Plaintiff believes that Defendant is arguing that the FAC was necessary due to a demurrer. Plaintiff reiterates his argument that no Answer or Demurrer was filed, therefore Defendant’s Motion to Dismiss was barred by Cal. Code Civ. Proc. § 585. Plaintiff also argues that he perfected his FAC. Plaintiff highlights that Defendant did not request an extension to respond to the FAC and, at this time, Defendant has not responded to the Complaint or the FAC.

The Court makes notations of several facts of this case. First, Plaintiff in his Opposition states: “Defendant also filed a Motion to Dismiss Amended Complaint, which was denied and that they did not oppose.” As of the filing of Plaintiff’s Opposition, there has been no ruling on the Motion to Dismiss. Additionally, a party would not oppose its own motion. Second, Plaintiff believes that the affidavit that Defendant is referring to and the affidavit that the Court referred to in its September 06, 2022 Statement of Decision are different. This is not the case. Both Defendant and the Court refer to Cal. Civ. Code §§ 1812.10 and 2984.4 which require either (1) an affidavit stating facts showing that the action has been commenced in a superior court and court location described in this section as a proper place for the trial of the action to be filed concurrently with the complaint, or (2) that those facts may be stated in a verified complaint. Finally, Plaintiff’s assertion that the Court has shown that Plaintiff’s FAC, filed on July 27, 2022, is a perfected complaint. This is incorrect. In the Statement of Decision corresponding with the Court’s September 06, 2022 Order, the Court held that the proposed SAC had issues and that Cal. Rules of Court, Rule 3.1324 was not followed. The Court denied the Motion for Leave to file a SAC on those grounds, not on the basis that the FAC was perfected.

The language of the Cal. Code Civ. Proc. § 369a reads, in relevant part:

If a plaintiff fails to file the affidavit or state facts in a verified complaint required by this section, no further proceedings may occur, but the court shall, upon its own motion or upon motion of any party, dismiss the action without prejudice. The court may, on terms that are just, permit the affidavit to be filed subsequent to the filing of the complaint and a copy of the affidavit shall be served on the defendant. The time to answer or otherwise plead shall date from that service.

(Cal. Code Civ. Proc. § 369a(a).)

Plaintiff’s filed Affidavit is not taken into consideration as it (1) was not filed with the Complaint, (2) it was not filed with the FAC, and (3) it is the court’s discretion to allow an affidavit to be filed subsequent to the filing of a complaint.

No just cause exists to allow the affidavit to be filed subsequent to the filing of the FAC due to the following reasons:

The Court informed Plaintiff of the deficiency in its September 06, 2022 Statement of Decision and Plaintiff did not attempt to rectify the deficiency;
The gravamen of the FAC is that Defendant violated a federal injunctive relief order, but there is no allegation in the FAC as to how Plaintiff is connected to the case cited or how a state court has jurisdiction; and
It appears that the issue is related to credit card holders and their account; however, neither retail installments (Cal. Civ. Code, § 1812.10; see also Cal. Civ. Code § 1801.6) or automobile sales (Cal. Civ. Code 2984.4; see also Cal. Civ. Code § 2981) are applicable.

While Defendant requests that the action be dismissed with prejudice, the statutory language states clearly that the action shall be dismissed without prejudice. The Court follows the statute as the Legislature intended.

Accordingly, the Motion to Dismiss is GRANTED. The action is dismissed without prejudice pursuant to Cal. Code Civ. Proc. § 369a(a).

Ex Parte Application of Motion to Support Request of Entry of Default Judgment Pursuant to Cal. Code Civ. Proc. § 585

As the Court has granted to the Motion to Dismiss, the Request of Entry of Default Judgment pursuant to Cal. Code Civ. Proc. § 585 is now MOOT.

Had the Court not granted the Motion to Dismiss, it would still be unable to place Defendant in default as (1) Defendant appeared via a Motion to Dismiss as allowed by statute (see Cal. Code Civ. Proc. § 585(a)) and (2) Plaintiff did not move to place Defendant in default prior to Defendant’s responsive filing. The Court highlights the legal standard, mentioned ante:

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Conclusion

Defendant Bank of America, N.A.’s Motion to Dismiss is GRANTED. The action is dismissed without prejudice.

Plaintiff Will. M. Pryor’s Ex Parte Application Notice of Motion to support request of Entry of Default Judgment Pursuant to Cal. Code Civ. Proc. § 585 is MOOT.