Re: Ocwen Loan Servicing, LLC v. Mary Esther Serna Superior Court Case No. 17CECG00260

Hearing Date:

Thursday February 8, 2018

(Dept. 501)

Motion:

Default Prove Up

Tentative Ruling:

To DENY.

Explanation:

Cal. Rules of Court, rule 3.1800, subd. (a): To request Court Judgment, Plaintiff must file the mandatory CIV-100 form. (Cal. Rules of Court, rule 3.1800, subd. (a); see also Simke, Chodos, Silberfeld & Anteau, Inc. v Athans (2011) 195 Cal.App.4th 1275, 1287.)

Here, a CIV-100 form has been submitted, but it is not adequate. Upon resubmission, the “request for Court Judgment” box must be checked.

Fresno County Superior Court, Local Rule 2.1.14: A default packet conforming to California Rules of Court, rule 3.1800 should be filed with the Clerk at least 10 days prior to the hearing. (Local Rule 2.1.14.) This includes (e.g.): declaration(s) conforming to Code of Civil Procedure section 585, evidence proving-up damages (e.g. ledgers, proof of damages), and a proposed judgment.

Here, Plaintiff fails to comply with Fresno County Superior Court, Local Rule 2.1.14 as no declarations are submitted. Upon resubmission, declarations must be submitted at least 10 days prior to the hearing.

DOEs: In defaults, California Rules of Court section 3.1800, subdivision (a)(7) requires a dismissal of all parties against whom judgment is not sought. Additionally, no default judgment may be entered against someone served as a ‘Doe’ unless additional requirements are met. (Pelayo v. JJ Lee Mgmt. Co., Inc. (2009) 174 Cal.App.4th 484, 496.)

Here, Plaintiff has not dismissed DOEs 1-20; they must be dismissed before judgment can be entered.

Quiet Title, Default Prove – Up: Code of Civil Procedure section 764.010 requires an evidentiary hearing in a quiet title action after default. In quiet title actions, judgment may not be entered by the normal default prove-up methods; the court must require evidence of the plaintiff’s title. All proof that plaintiff would have had to present at trial must be presented at that hearing; declarations are not adequate and other summary procedures will not be permitted. Live witnesses must testify, and complete

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authentication of the underlying real property records is essential. (Yeung v. Soos (2004) 174 Cal.App.4th 484, 581.) The standard of proof is clear and convincing. (Cal. Evid. Code § 662.)

Here, Plaintiff is requesting quiet title, so a hearing is required wherein witnesses testify and authenticate property records.

Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: MWS on 02/07/18
(Judge’s initials) (Date)