Case Number: BC499766    Hearing Date: July 15, 2014    Dept: 34

Moving Party: Plaintiff TGA Premier Junior Golf Franchise LLC (“plaintiff”)

Resp. Party: None

Plaintiff’s Motion for Summary Judgment is taken OFF CALENDAR because the defendants are in default. The Court sets an order to show cause re default judgment against defendants Brian Bevins and BP Bevins Golf LLC.

PRELIMINARY COMMENTS:

The Court appreciates Plaintiff having supplied the Court with a hyperlinked CD of this motion.

BACKGROUND:

Plaintiff commenced this action on January 23, 2013, against defendants BP Bevins Golf LLC and Brian Bevins for misappropriation of trade secrets, breaches of franchise agreement, and accounting. The action pertains to a franchise agreement wherein Bevins agreed to become a franchisee of TGA. Defendant allegedly operated a separate business outside the franchise without informing plaintiff and in breach of the agreement. Bevins stopped paying royalties and other amounts due under the franchise agreement. Bevins also stopped submitting royalty reports and did not pay royalties for the separate business. Defendants also breached their agreement to return and stop using plaintiff’s confidential information.

Default was entered against defendant BP Bevins Golf LLC on 6/3/13.

Brian Bevins filed and served an answer to the complaint on 6/28/13. The Court sustained plaintiff’s demurrer to this answer on 2/4/14, but Bevins failed to timely file an amended answer. Thereafter, default was entered against Bevins on 3/3/14.

ANALYSIS:
Plaintiff seeks summary judgment against defendants BP Bevins Golf LLC and Brian Bevins. Both of these defendants are currently in default. Therefore, a motion for summary judgment is unnecessary and improper.

In the notice of motion, plaintiff acknowledges that the defendants were in default at the time the motion was filed, but expresses concern that Bevins could seek relief from default. The record does not show that either defendant has ever filed a motion for relief from default, and the Court has not granted any such relief. Plaintiff requests that, if the defaults still stand, the Court should consider the instant motion to be a default judgment prove-up. The Court declines to do so because plaintiff has not submitted all of the documents required for a default judgment. Notably, plaintiff has not submitted a mandatory CIV-100 form or proposed form of judgment indicating the requested judgment amount or the amount of any interest, costs, or attorney’s fees. (See Cal. Rules of Court, rule 3.1800(3), (4), (6), (9).) Plaintiff does not point to any evidence establishing a judgment amount to be entered. (See id., rule 3.1800(2), (8).) Plaintiff has not dismissed the Doe defendants. (See id., rule 3.1800(7).)

Accordingly, the Court takes the instant motion OFF CALENDAR and sets an order to show cause re default judgment. Plaintiff must submit a proper default judgment packet with all required documents.

An OSC re Entry of Default Judgment is set for _____________.