Case Number: BC671970 Hearing Date: January 17, 2018 Dept: 40

On August 10, 2017, lender, plaintiff National Funding, Inc., filed a complaint against borrowers, defendants Designr1 Software, LLC, Rainer Hoffmueller, and Does 1 through 10 for (1) breach of written loan agreement and (2) breach of written guaranty, praying for $144,456.28 in principal damages. Plaintiff requests a court judgment against defendants in the principal amount of $144,456.28 plus interest, costs, and attorneys’ fees for a total of $153,609.51.

Procedural Requirements

On October 17, 2017, default was entered against both defendants. No pending motion to vacate default appears in the record. The default judgment packet includes a request for dismissal of Does 1 through 10 and a proposed form of judgment on the appropriate Judicial Council forms. Plaintiff’s counsel signed a declaration of nonmilitary status. Plaintiff requests the same amount of principal damages as prayed for in the complaint. Plaintiff properly requests to use a copy of the loan contract in lieu of the original. The Court intends to sign the proposed order granting plaintiff’s request.

Plaintiff personally served Hoffmueller individually and on Designer1’s behalf at 6510 S. Hazelton Lane, Unit 139, Tempe, Arizona. The Arizona Secretary of State records show that this address is defendants’ current address. Evid. Code § 452(c). The Court is persuaded that defendants received proper notice of this action.

Therefore, the default judgment request is procedurally proper.

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.

Here, in support of its claims, plaintiff submitted the declaration of its portfolio management director Sandra Otero. The declaration authenticates a copy of the business loan agreement, whereby plaintiff loaned Designer1 $117,902.94, which Hoffmueller guaranteed, with a total repayment obligation of $165,064.32. Otero Decl. ¶¶ 4, 5, Exh. A, Agreement ¶ 32. On July 28, 2017, defendants defaulted, leaving a balance of $144,431.28. Otero Decl. ¶¶ 6, 8, Exh. C. Defendants also owe 1 $25 insufficient fund charge for a total of $144,456.28. Otero Decl. ¶¶ 4, 8, 10, Exh. A, Agreement ¶ 12; Exh. C. This evidence is sufficient.

Interest

Plaintiff requests $5,183.67 in prejudgment interest and properly submitted a declaration regarding computation of interest. CCP § 585. Otero states that plaintiff’s counsel sent defendants a demand letter on May 31, 2017. Otero Decl. ¶ 7, Exh. B.

“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); see North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828 (stating, “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.”)

Plaintiff requests interest on this contact action at 10 percent from July 28, 2017 to December 6, 2017. The damages became liquidated, however, on August 10, 2017, when plaintiff commenced this action. There is no evidence of a demand letter or the like stating the amount of damages sought. Additionally, the default judgment package is stamped “received” on December 5, 2017. Therefore, interest is properly calculated as $4,630.52.

Costs

Plaintiff requests $635 in costs for $435 in filing fees and $200 in process server’s fees. The process server’s fees amount is supported by the proofs of service of summons, which state that the charges were $150 and $50. These amounts are recoverable, reasonably necessary, and supported.

Attorneys’ Fees

Plaintiff requests $3,334.56 in attorneys’ fees pursuant to the fee schedule set forth in Local Rule 3.214. The agreement provides for attorneys’ fees. Otero Decl. ¶ 4, Exh. A, Agreement ¶ 14. Local Rule 3.214, subdivision (a) provides a fee schedule for such damages for over $100,000, as here, as $2,890 plus 1 percent of the excess over $100,000. Therefore, plaintiff is entitled to $2,890 plus 1 percent of $44,456.28, or $444.56, which equals $3,334.56 as requested.

Conclusion

The Court intends to sign the proposed judgment with interest modified to $4,630.52.