Judge: Cherol J. Nellon, Case: 20STCV01265, Date: 2023-10-03 Tentative Ruling

Case Number: 20STCV01265    Hearing Date: January 16, 2024    Dept: 14

Ivry v. Villa Marina East V Condominium Association


Case Background

Case No. 20 STCV 01265

            Plaintiff Simona Ivry (“Ivry”) lives in a 3^rd-floor condominium. She alleges that Defendants removed, or allowed the removal of, load-bearing walls in the 1^st-floor condominium below hers, resulting in damage to her unit.

Complaint

            On January 10, 2020, Plaintiff Ivry filed her Complaint for (1) Breach of CC&Rs, (2) Negligence, and (3) Nuisance against Defendants Villa Marina East V Condominium Association (“HOA”), Donald Alan Zambos (“Zambos”), and DOES 1-10.

On February 19, 2020, Defendant HOA filed its Answer.

On August 6, 2020, Defendant Zambos filed his Answer.

            On February 5, 2021, Plaintiff Ivry filed an “Amendment to Complaint” substituting Defendant Metal Supply, LLC (“Metal Supply”) in lieu of DOE 1.

On September 1, 2022, Plaintiff Ivry filed two “Amendments to Complaint” substituting Defendants Cardoso & Associates, Inc. (“Cardoso”) and RJ Covington General Contractor, Inc. (“Covington Business”) in lieu of DOES 2-3, respectively.

On October 7, 2022, Defendant Cardoso filed its Answer.

            On October 21, 2022, Plaintiff Ivry filed an “Amendment to Complaint” substituting Defendant RJ Covington (“Covington”) in lieu of DOE 4.

On November 4, 2022, Defendant Covington filed his Answer.

            On June 20, 2023, Plaintiff Ivry filed an “Amendment to Complaint” substituting Defendant City of Los Angeles Department of Building and Safety (“LA DBS”) in lieu of DOE 5.

            On December 29, 2023, Plaintiff Ivry voluntarily dismissed Defendant LA DBS, without prejudice.

HOA Cross-Complaint

            On February 19, 2020, Defendant HOA filed its Cross-Complaint for (1) Indemnity and (2) Contribution against Cross-Defendants Zambos, MBN Enterprise, Inc. dba Decker Construction and Development (“MBN”), and ROES 1-20.

On September 9, 2020, the default of Defendant MBN was entered.

On September 10, 2020, Cross-Defendant Zambos filed his Answer.

            On September 9, 2020, Cross-Complainant HOA filed two “Amendments to Cross-Complaint” substituting Defendants Decker Swanson Enterprises, Inc. (“Decker Swanson”) and Design Tech Home Inc. dba Design Tech Construction Services (“Design Tech”) in lieu of ROES 1-2, respectively.

On May 18, 2021, Intervenor Atain Specialty Insurance Company (“Atain”) intervened to file an answer[1] on behalf of its insured, Decker Swanson Enterprises, Inc.

            On July 6, 2021, Cross-Complainant HOA filed an “Amendment to Cross-Complaint” substituting Defendant Metal Supply in lieu of ROE 1.

            On September 16, 2022, Cross-Complainant HOA filed an “Amendment to Cross-Complaint” substituting Cross-Defendant Covington Business in lieu of ROE 4.

            On February 14, 2023, Cross-Defendant HOA filed an “Amendment to Complaint” substituting Cross-Defendant Covington in lieu of DOE 5.

On April 10, 2023, Cross-Defendant Covington filed his Answer.

On October 30, 2023, Cross-Complainant HOA voluntarily dismissed Cross-Defendant Covington Business, without prejudice.

Cardoso Cross-Complaint

            On October 7, 2022, Defendant Cardoso filed its Cross-Complaint for (1)-(2) Indemnity and (3) Declaratory Relief against Cross-Defendant MOES 1-100.

Case No. 22 STCV 37760

            Plaintiffs Morton Algaze and Sandra Lee Algaze (“Plaintiff Algazes”) in this case are the occupants of the second-floor unit, between Plaintiff Ivry and Defendant Zambos in the above case. They also allege structural problems with their unit.

            On February 17, 2023, Plaintiff Algazes filed their First Amended Complaint for Breach of CC&Rs against Defendants HOA, Zambos, and DOES 1-50.

            On April 5, 2023, Defendant HOA filed its Answer.

            On May 30, 2023, Defendant Zambos filed his Answer.

HOA Cross-Complaint

            On April 5, 2023, Defendant HOA filed its Cross-Complaint for (1) Indemnity and (2) Contribution against Cross-Defendants Covington Business, Covington, Decker Swanson, Metal Supply, and MOES 1-50.

            On July 13, 2023, Cross-Defendant Covington filed their Answer.

            On October 19, 2023, Cross-Complainant HOA voluntarily dismissed Cross-Defendant Covington Business, without prejudice.

As Consolidated

            On July 11, 2023, this court ordered the two cases consolidated for all purposes. Five pleadings remain pending: (1) Plaintiff Ivry’s Complaint against Defendants HOA, Zambos, Metal Supply, Cardoso, and Covington, (2) Plaintiff Algazes’ Complaint against Defendants HOA and Zambos, (3) Defendant HOA’s first cross-complaint against Cross-Defendants Zambos, MBN, Decker Swanson, Design Tech, Atain, Metal Supply, and Covington, (4) Defendant Cardoso’s complaint against the MOES, and (5) Defendant HOA’s second cross-complaint against Cross-Defendants Covington, Decker Swanson and Metal Supply.

            Jury Trial is currently set for February 20, 2024.

(1)        OSC re: Entry of Default

            On October 3, 2023, this court issued an OSC re: Entry of Default of (a) Defendant Metal Supply for failure to answer the Ivry Complaint, (b) Defendant Covington Business for failure to answer the Ivry Complaint, and (c) Cross-Defendant Design Tech for failure to answer the HOA’s first Cross-Complaint. The OSC was set for October 20, 2023.

            The OSC was held on October 20, 2023, as scheduled. Plaintiff Ivry had filed a request for entry of Metal Supply’s default the morning of the hearing, but it had not been processed. Plaintiff Ivry had not filed a request for entry of Covington Business’s default, however, and Cross-Complainant HOA had not filed a request for entry of Cross-Defendant Design Tech’s default. The OSC was continued to December 28, 2023.

            The clerk’s office rejected the request for entry of Metal Supply’s default. (Notice of Rejection filed October 20, 2023). No other requests were filed by any counsel.

            The OSC was held again on December 28, 2023. Counsel for Plaintiff Ivry and Cross-Complainant HOA assured the court that action would be taken. (Minute Order of December 28, 2023). The OSC was continued to the instant date.

            On January 5, 2024, Plaintiff Ivry again filed a request for entry of Metal Supply’s default. On January 9, 2024, the clerk’s office rejected the request. No similar attempt has been made to enter the default of Defendant Covington Business. And Cross-Complainant HOA has made no similar attempt to enter the default of Cross-Defendant Design Tech.

            Code of Civil Procedure §§ 583.410(a) and 583.420(a)(2) and California Rules of Court Rule 3.1340 vest this court with discretion to dismiss a case for lack of prosecution if it has not been brought to trial within either two (Section 583.420(a)(2)(B) and Rule 3.1340) or three (Section 583.420(a)(2)(A)) years.

            Defendant Metal Supply will have been a named defendant in the Ivry Complaint for three years on February 5, 2024. Defendant Covington Business has been a named defendant in the Ivry Complaint for well over two years. Cross-Defendant Design Tech has been a named cross-defendant in the HOA’s first cross-complaint for over three years. It is time they were either defaulted or dismissed.

            The OSC re: default is CONTINUED to February 8, 2024, at 8:30 am.

            The court also sets an OSC re: dismissal of the Complaint filed on January 10, 2020, against Defendants Metal Supply, LLC and RJ Covington General Contractor, Inc., as well as of the Cross-Complaint filed by Defendant HOA on February 19, 2020, as against Cross-Defendant Design Tech Home Inc. dba Design Tech Construction Services. That OSC will also be held on February 8, 2024, at 8:30 am.

            There will be no further continuances of either OSC.

(2)        OSC re: Dismissal

            On October 3, 2023, this court issued an OSC re: Dismissal of the Ivry Complaint against Defendant LA DBS, and the HOA’s first Cross-Complaint against Metal Supply and Covington Business, for failure to timely serve those parties with the relevant pleadings. The OSC was set for October 20, 2023.

            The OSC was held on October 20, 2023, as scheduled. The HOA had filed a request for dismissal of Cross-Defendant Covington Business. No other dismissals had been filed. The OSC was continued to December 28, 2023.

            The OSC was held again on December 28, 2023. Counsel for Plaintiff Ivry had filed a request for dismissal of Defendant LA DBS. The OSC was continued to the instant date.

            As of the present date, no further requests for dismissal have been filed.

            The OSC re: Dismissal of the Ivry Complaint against Defendant La DBS is now DISCHARGED. The OSC re: Dismissal of the HOA’s first Cross-Complaint against Cross-Defendant Covington Business is now DISCHARGED. Both of those parties have been dismissed from the relevant pleadings.

            The Cross-Complaint filed by Defendant HOA on February 19, 2020, as against Cross-Defendant Metal Supply, is DISMISSED pursuant to Code of Civil Procedure § 583.210(a) for failure to timely serve. See Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5^th 1055, 1061 (“[i]n short, a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant”). Cross-Complainant HOA filed its cross-complaint in the Ivry Case on February 19, 2020. All Cross-Defendants should have been served by February 19, 2023. But Cross-Complainant HOA has neither served nor dismissed Cross-Defendant Metal Supply. There is no reason to continue this OSC any further.