attorney declaration re cost code of civil procedure

Cal. Super. - 1st Dist.March 11, 2020

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3162162ATTORNEY DECLARATION RE: COSTS (CCP §1033) AND EVIDENCE CODE §1550 Christopher A. Beyer, State Bar #213264 Karen Etsell Lusis, State Bar #272739 Camryn P. Berk, State Bar #317565 Thomas G. Wesch, State Bar #317624 Christine Siduguen, State Bar #240380 RAUSCH STURM 3131 Camino Del Rio N., Suite 350 San Diego, CA 92108 Telephone: (877) 215-2552 Facsimile: (877) 396-4464 E-mail Address: LawfirmCA@rsieh.com Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO, CIVIC CENTER COURTHOUSE TD Bank USA, N.A., Plaintiff, vs. HENRY LOUIE, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: CGC-18-569256 ATTORNEY DECLARATION RE: COSTS (CODE OF CIVIL PROCEDURE §1033) AND EVIDENCE CODE §1550 LIMITED CIVIL CASE I, the undersigned, hereby declare and state as follows: 1. I am an attorney licensed to practice before courts of the State of California. I have personal knowledge of the facts set forth herein, and if sworn as a witness, I would and could testify thereto. 2. This is the proper venue and court location for this action because it is upon information and belief that Defendant resided in this court's jurisdiction at the commencement of this action. 3. Plaintiff TD Bank USA, N.A. (“Plaintiff”) is seeking to recover from Defendant HENRY LOUIE (“Defendant”) the past-due balance on a credit card account ending in ************5982, which was opened and used by Defendant for value received. 4. The amount due is the result of transactions that occurred on the Account, which upon information and belief, were for personal, family, or household purposes, occurring through use by Defendant or by authorized users. 1 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 01/21/2020 Clerk of the Court BY: NADITA MASON Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3162162ATTORNEY DECLARATION RE: COSTS (CCP §1033) AND EVIDENCE CODE §1550 5. This action is not subject to the provisions of section 2981, et seq. (Rees-Levering Act) or section 1801, et seq. (Unruh Act) of the California Civil Code. REQUEST FOR COSTS PURSUANT TO CODE OF CIVIL PROCEDURE §1033 6. Prior to the commencement of this action, as part of our office's usual course of business and pursuant to Code of Civil Procedure, section 1033, subsection (b)(2), Plaintiff mailed to Defendant’s last known address(es) a written notice of the intended legal action against Defendant and that such action could result in a judgment against Defendant that would include costs and other reasonable fees allowed by law. Upon information and belief, this letter was not returned as undeliverable. A true and correct copy of the letter sent to Defendant is attached hereto as Exhibit 1. 7. When Defendant failed to pay the balance due, Plaintiff filed and served the Complaint on Defendant. A copy of the proof of service, with proof of costs incurred, as well as any declarations regarding attempts at service, is attached hereto as Exhibit 2. 8. Plaintiff is seeking to recover the actual costs of the filing fee, e-filing fees, and fees for service of process and any attempts at service, if applicable, for a total amount of $342.90. JUDGMENT CALCULATIONS 9. The Complaint asserts claims for a balance due of $2,611.26, plus court costs of $225.00, service fees of $100.00, and e-filing fees of $17.90 for a total sum due of $2,954.16. 10. Plaintiff is entitled to recover the actual costs of a filing fee and the actual costs of service of process, as listed below: Filing Fee: $225.00 Service Fee: $100.00 E-filing Fees: $17.90 Total: $342.90 REQUEST FOR JUDGMENT BY DEFAULT 11. Within the statutory period, an account was stated in writing by and between Defendant and Plaintiff, in which it was agreed that Defendant was indebted on the account. 12. Regular monthly statements were mailed to Defendant listing the debits, credits, and balance due on the account. By using the Account, Defendant expressly or impliedly agreed and promised to repay 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3162162ATTORNEY DECLARATION RE: COSTS (CCP §1033) AND EVIDENCE CODE §1550 the obligation. Plaintiff has no record of Defendant timely objecting to the monthly statements after receipt and an unpaid sum remains due and owing. 13. Plaintiff or Plaintiff’s counsel has made demand upon Defendant for repayment of the balance, however, Defendant has failed to satisfy the outstanding balance due. Plaintiff has duly performed all promises, conditions, and agreements on its part to be performed. 14. I am informed that Defendant has failed to answer or defend Plaintiff's complaint within the time allowed by law, and therefore, the allegations of the complaint are to be admitted. 15. As of the date of this default request, there is due and owing the unpaid sum of $2,954.16. Plaintiff waives its right to collect any balance over the current balance due and owing, and waives any security interests it might hold. (See Exhibit 3.) 16. Accordingly, Plaintiff requests judgment as asserted in the complaint for a total sum due of $2,954.16, which includes the principal amount of $2,611.26, plus the filing fee, e-filing fees, and fees for service of process and attempts at service, if applicable, of $342.90. REQUEST TO ACCEPT COPIES IN LIEU OF ORIGINALS 17. Plaintiff either mailed original statements of the account and/or any original application/contract to Defendant, or said original documents cannot be located. In its normal business and procedures, Plaintiff maintains records electronically, and thus, originals are not available. 18. Plaintiff has provided this office with a true and correct copy of the original statements of the account and/or any original application/contract, which is attached as Exhibit 3. 19. Accordingly, Plaintiff requests that this Court accept any copies of documents produced as part of this default request in lieu of the originals, pursuant to Evidence Code, section 1550. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. DATED: RAUSCH STURM Attorneys for Plaintiff 3 01/15/2020 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3162162 EXHIBIT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3162162 EXHIBIT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3162162 EXHIBIT 3