Lawzilla Additional Information:
Company information about defendant K & R Towing.

Case Number: TC028972 Hearing Date: March 20, 2018 Dept: A

# 10. David Daryl Jones v. K&R Towing

Case No.: TC028972

Matter on calendar for: Hearing on request for default judgment; motion to set aside default; motion to change venue

Tentative ruling:

I. Background

The Court entered default against Defendant K&R Towing on February 7, 2018. The form Complaint alleges, in pertinent part: “[M]y 2013 Chevy Cruze, was removed from my home in Carson, California, and taken to Bakersfield, California wherein the incident occurred… Defendant… interrupted my efforts to attain relief from the colluding actions of the car dealer and lender for my purchase of my 2013 Chevy Cruze car.” No other facts are alleged. Plaintiff requests $30,000 in damages.

There are three motions or requests before the Court: Plaintiff’s request for default judgment, Defendant’s motion to set aside default, and Defendant’s motion to change venue.

II. Motion to set aside

Defendant filed a February 23, 2018 motion to set aside the default on the basis that Defendant first became aware that a lawsuit had been filed against it on February 7, 2018. Defendant’s “secretary/treasurer” Melissa Simpson “previously was sent some form pleadings from Plaintiff but did not understand what they meant and was not concerned due to a full hold harmless agreement signed and sent to me previously by Plaintiff’s lienholder, Wells Fargo Dealer Services, due to Plaintiff’s violation of contract and default on his agreement to purchase the 2013 Chevy Cruze.” (Simpson Decl., ¶ 5.) Alternatively, Defendant’s counsel states that Plaintiff “fail[ed] to properly name the corporation by which my client has done business since 2001… [Plaintiff], therefore, did not receive actual notice of this action by any other means until after entry of default.” (Gibbs Decl., ¶¶ 6-7.)

The memorandum of points and authorities associated with the motion states: “As can clearly be seen by the Declaration of Melissa Simpson, president of K&R Towing… she did not understand the existence of the summons and complaint in this matter due to the inappropriate listing of it as a business organization, form unknown, and the failure of Plaintiff to properly name and serve K&R Towing through its exclusive agent for service of process.” (Motion to Set Aside, Memo of Points and Authorities, 4:14-20.)

The Simpson Declaration does not state or imply this information. Simpson is also not the “president” of Defendant but the “secretary/treasurer.” (See Simpson Decl.)

The Court denies the motion to set aside without prejudice. Between the two declarations and the memorandum of points and authorities, Defendant has failed to present a consistent, credible narrative. The Simpson Declaration is incoherent. The Proof of Service states that “Ryan Simpson,” the purported owner of Defendant, was personally served. Such service may have been proper under CCP § 415.20. Defendant’s moving papers do not mention the name “Ryan Simpson,” nor is there a declaration from Ryan Simpson. Defendant does not appear to deny that a “Ryan Simpson” was personally served with the Summons and Complaint. Any future motion to set aside must address these questions. If a “Ryan Simpson” associated with Defendant does exist, he must submit a declaration signed under penalty of perjury.

Plaintiff did not file an opposition but instead filed a “Complaint of Perjury by False Declaration” where he alleges that, on the date when Ryan Simpson was allegedly served, Melissa Simpson spoke to Plaintiff “asking why Defendant was being sued.” Plaintiff’s opposition-like document contains statements of fact but was not signed under penalty of perjury. Regardless, and in lieu of Defendant’s failure to mention anything about Ryan Simpson, any future motion to set aside must include a declaration from Melissa Simpson addressing the allegation that she spoke to Plaintiff about this lawsuit on December 26, 2017.

III. Motion to change venue

Defendant’s motion to change venue cannot be heard because the Court denies the motion to set aside. Defendant lacks standing. Regardless, the Court would deny the motion to change venue because Plaintiff’s Complaint states: “[M]y 2013 Chevy Cruze, was removed from my home in Carson, California…” The Court does not have a basis at this time from which to determine whether a different venue is proper here.

IV. Defendant’s requests for sanctions

The Court necessarily denies Defendant’s various requests for sanctions, procedurally and on the merits.

V. Request for default judgment

The Court denies Plaintiff’s request for default judgment because:

· Plaintiff has failed to prove his case. The Jones Decl. fails to cite to any authorities affording Plaintiff relief. The Complaint is deficient. Plaintiff must submit a detailed memorandum of points and authorities establishing a legal basis for relief.

· Plaintiff has failed to prove why he is entitled to recover $35,000 (or $30,000, or any damages).

· Plaintiff requests $5,000 more in damages on default than the Complaint requests. This is improper. To recover this extra $5,000, Plaintiff must either serve an amended complaint or a statement of damages on Defendant. Plaintiff’s unserved “Declaration to Amend Damages” is legally insufficient.

VI. Ruling

The Court denies without prejudice Plaintiff’s request for default judgment.

The Court denies without prejudice Defendant’s motion to set aside and motion to change venue.

The Court denies with prejudice Defendant’s request for sanctions.