Hearing Date: Wednesday, August 28, 2019

Posted on lacourt.org: August 22, 2019

Case Name: Capital One Bank (USA), N.A. v. Young J. Yang

Case No.: 19STCV00890

Motion: Order Clerk to Enter Clerk’s Judgment

Notice: OK

Ruling: Plaintiff Capital One Bank (USA), N.A.’s motion for an order directing the Court Clerk to enter Clerk’s judgment in favor of Plaintiff and against Defendant Young J. Yang in the amount of $36,523.60 is GRANTED.

Plaintiff is ordered to resubmit the request for entry of default judgment by the clerk (form CIV-100) completely and correctly filed out with all the appropriate information. If the form is completely and correctly completed by plaintiff, the Clerk of the Court is ordered to enter judgment in favor of Plaintiff Capital One Bank (USA), N.A and against Defendant Young J. Yang in the amount of $36,523.60.

Moving party to give notice.

BACKGROUND

On January 9, 2019, Plaintiff Capital One Bank (USA), N.A. (“Plaintiff”) filed the Complaint against Defendant Young J. Yang (“Defendant”) for (1) common counts. Plaintiff alleges Defendant is the obligor on a credit card account, and Defendant used such credit card account to become indebted to Plaintiff in the amount of $36,029.10.

On April 26, 2019, Plaintiff filed a from CIV-100 requesting that the Clerk enter Defendant’s default and enter Clerk’s judgment against Defendant. The Clerk entered Defendant’s default only. On May 7, 2019, the Clerk refused to enter default judgment against Defendant, stating “Clerks judg cannot be entered when 585 declaration is for goods, services loans or extensions of credit subject to 395(B). Submit for Court judgment.” Plaintiff seeks an order requiring the Clerk to enter default judgment.

ANALYSIS

A. Clerk’s Refusal to Enter Default Judgment

Code of Civil Procedure (“CCP”) Section 585 permits entry of a judgment after a defendant’s default has been entered. CCP Section 585.5 requires every application to enter default under subdivision a of Section 585 shall include an affidavit state facts showing that the action is or is not subject to three statutes, including CCP Section 395(b). CCP § 585.5(a).

CCP Section 395(b) prescribes the proper venue for “an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use.” Here, Plaintiff admitted on the form CIV-100 filed April 26, 2019 that this action is covered by CCP Section 395(b). However, CCP Section 395(b) says nothing about default judgments.

Returning to CCP Section 585.5, subdivision (b) allows a defendant to file a motion to set aside default judgment and defend the action within 60 days of receiving notice of a procedure enforcing the default judgment, if the default judgment was not entered in compliance with CCP Section 395(b). Possibly, the Court Clerk sought to avoid the default judgment here being set aside under CCP Section 585.5(b), and therefore directed Plaintiff to seek Court judgment. However, this reasoning does not withstand scrutiny because nothing in CCP Section 585.5 indicates that the Court entering Defendant’s default could avoid Defendant later filing a motion to set aside default judgment. Further, Plaintiff included an unusual attachment with the Complaint: a declaration that venue was proper in this “judicial district” because Defendant resides at 3033 Wilshire Blvd, Los Angeles, California. Although CCP Section 585.5 does not require a such declaration, Plaintiff provided the information necessary to make a venue determination under CCP Section 395(b).

The Court is not persuaded by the logic of the Clerk’s refusal to enter default judgment. While the Clerk should certainly check that Plaintiff’s venue allegations are correct by verifying that grounds exist under CCP Section 395(b) to hear this action in this court, nothing in CCP Section 585.5 or CCP Section 395(b) prohibits the clerk from determining Plaintiff has properly alleged venue.

Lastly, it appears Plaintiff has alleged the proper venue because Plaintiff attached to the Complaint a “Statement of Location/Venue” which states Plaintiff filed this action in the superior court of Los Angeles County because Defendant resides in Los Angeles County.

B. Duty to Enter Default Judgment

Plaintiff argues the Court Clerk was under a ministerial duty to enter default judgment against the Defendant.

Code of Civil Procedure section 585, subdivision (a), provides in pertinent part as follows: “In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has … been served, other than by publication, and no answer … has been filed with the clerk of the court within the time specified in the summons, … the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant … so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, … or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant…” CCP § 585(a) (emphasis added). Three key elements can be distilled from the statute above: (1) the action is one arising upon a contract or judgement; (2) seeks recovery of money or damages only in a fixed or determinable amount[1]; and (3) the defendant was not served by publication. Allowing the court clerk to enter an immediate default judgment against the defendant is akin to a grant of judicial power, so the requirements are very strictly construed. See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 692.

“In line with this interpretation of Code of Civil Procedure section 585, subdivision 1, it has been held the clerk can enter a judgment in an action on an account stated, and on an open book account, but cannot do so in an action requiring any sort of accounting.” HSBC Bank Nevada, N.A. v. Aguilar (2012) 205 Cal.App.4th Supp. 6, 11; See also Diamond Nat’l Corp. v. Golden Empire Builders, Inc. (1963) 213 Cal.App.2d 283, 288-289; Fallon & Co. v. United States Overseas Airlines, Inc. (1961) Cal.App.2d 546, 551-552. “If the complaint states a cause of action for the recovery of general damages in a specified amount alleged to have resulted from the defendant’s breach of contract and the default of the defendant has been entered, it is the duty of the clerk to enter judgment in accordance with the prayer of the complaint.” HSBC, supra, 205 Cal.App.4th Supp. at p. 11. The Court in HSBC, supra, 205 Cal.App.4th Supp. held the Court Clerk was obligated to enter default judgment on a complaint for open book account and account stated by a credit card company against a defendant who failed to pay the accumulated credit card charges. Ibid. The result of the clerk’s entry of default was that the defendant effectively admitted all of the allegations of the plaintiff’s complaint. Id. at p. 12. The plaintiff’s common count causes of action were for a fixed and definite sum. Ibid. Therefore, “[a]ll that was left to do was for the clerk to enter judgment in the amount of the open book account as alleged in the complaint.” Ibid.

Here, Plaintiff has strictly complied with the requirements of CCP Section 585(a) and is entitled to have the clerk enter default judgment. Plaintiff has brought an action arising upon contract, specifically a suit for open book account on the credit card contract between Plaintiff and Defendant. Plaintiff has alleged a sum certain of damages in the complaint, based on the outstanding balance on the credit card: $36,029.10. Plaintiff sought clerk’s judgment for the $36,029.10 demanded in the complaint as well as $494.50 in costs, for a total of $36,523.60.[2] Defendant was served by personal service on February 21, 2019 at 303 N. La Peer Drive in Beverly Hills. The entry of Defendant’s default admitted all the allegations in the Complaint, including that venue in this judicial district was proper based on Defendant’s residence. Therefore, the Court Clerk was obligated to enter judgment against Defendant for $36,523.60.

Accordingly, Plaintiff’s motion for an order directing the Court Clerk to enter judgment in favor of Plaintiff and against Defendant in the amount of $36,523.60 is GRANTED.

[1] The plaintiff can also be awarded costs. CCP § 585(a).

[2] The final paragraph of the present motion requests an order directing default be entered in a different amount, without explanation for the change.