Case Number: BC669771 Hearing Date: May 23, 2018 Dept: 51

Plaintiff Navy Federal Credit Union sues defendant Chavonny P. Tillotson and Does 1 through 5 for damages resulting from an unpaid credit card.

On July 25, 2017, plaintiff filed a complaint for (1) breach of contract, (2) account stated, and (3) book account.

On May 7, 2018, default was entered against Tillotson (hereinafter defendant).

Plaintiff now seeks default judgment against defendant in the principal amount of $25,080.40 plus interest, costs, and attorneys’ fees for a total judgment of $30,913.99.

Procedural Requirements

On May 7, 2018, default was entered against defendant. No pending motion to vacate default appears in the record. The default judgment packet includes a request for dismissal of Does 1 through 5 and a proposed form of judgment on the appropriate Judicial Council forms. Plaintiff’s counsel signed a declaration of nonmilitary status. The complaint prays for an amount lower than the requested principal default judgment amount. Plaintiff requests to use a copy of the contract in lieu of the original. (Specifically, plaintiff states that by using the credit card, an applicant agrees to the terms in the credit card agreement, and accordingly there is no executed, original agreement. Nation Decl. 2:21-25.)

Plaintiff’s proof of service of summons, filed March 28, 2018, states that plaintiff substitute- served defendant by leaving the summons and complaint at defendant’s door and mailing a copy to the same address. Although the record indicates that attempts to serve at other addresses were unsuccessful, there is no indication of why the address listed in the proof of service of summons, 637 N. Bronson Ave. Apt. 205, Los Angeles, CA 90004, was plaintiff’s current address. Plaintiff’s counsel must explain where that address came from and why that address was determined to be defendant’s address.

Evidentiary Support

For a plaintiff to prove entitlement to damages after entry of default, the plaintiff must “merely establish a prima facie case,” a showing that is lower than that under the preponderance of the evidence standard. Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.

In support of its claims, plaintiff submitted the declaration of Sharon Nation, plaintiff’s Delinquency Risk Specialist and a custodian of its books and records. The declaration authenticates the credit card agreement, under which defendant was required to make monthly payments on the card. Nation Decl., Exh. A (Credit Card Agreement) ¶¶ 3, 8. Nation states that plaintiff failed to make scheduled payments from March 4, 2017 onward. Id. at 2:26-27. Accordingly, the entire unpaid principal balance became immediately due and payable. Id. at 3:1-2; Credit Card Agreement ¶ 15. The declaration includes an account statement for the billing cycle ending on February 7, 2017, showing that the total balance due is $25,048.40. Nation Decl., Exh. B.

This evidence is sufficient. Accordingly, plaintiff has met its burden of establishing a prima facie case. The principal default judgment amount will be reduced, however, to the amount listed in the complaint ($25,048.40.)

Interest

Plaintiff requests $4,332.63 in interest, reflecting the contract rate of 15.15% on the total balance due through April 25, 2018.

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day.” Civ. Code § 3287(a).

“Under subdivision (a) the court has no discretion, but must award prejudgment interest upon request, from the first day there exists both a breach and a liquidated claim.” North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828.

The rate of interest in the contract applies. Civ. Code § 3289(a).

Here, there is no indication of a demand letter in the record. The first day there existed both a breach and a liquidated claim, therefore, is July 25, 2017, the date the complaint was filed. The last day will be adjusted to April 27, 2018, the date of Nation’s declaration.

With those adjustments, plaintiff is entitled to $2,869.52 in interest.

Costs

Plaintiff requests $510.00 in costs for $435 in filing fees and $75 in process server’s fees. The process server’s fees appears reasonable, especially considering the number of attempts made to serve process. These costs are therefore proper.

Attorneys’ Fees

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16. A party may entitled to recover attorneys’ fees by statute or contract. CCP § 1021.

Here, although plaintiff does not state why it is entitled to attorneys’ fees, paragraph 15 of the Credit Card Agreement upon a breach, plaintiff may “declare due and payable the unpaid portion of your balance, together with all costs relating to the collection of this account, including but not limited to . . . court costs, expenses, and attorney’s fees.” Therefore, plaintiff is entitled to recover its reasonable attorneys’ fees. The amount plaintiff requests ($990.96) is actually less than the amount provided in Local Rule 3.214, subdivision (a). The amount is therefore proper.

Conclusion

The Court is inclined to enter judgment of $25,048.40 in principal damages, $1,894.07 in interest, $510.00 in costs, and $990.96 in attorneys’ fees for a total judgment of $29,418.88, provided that plaintiff’s counsel explains why defendant was properly served.