Judge: Frank M. Tavelman, Case: 24BBCV00278, Date: 2025-03-14 Tentative Ruling

Case Number: 24BBCV00278    Hearing Date: March 14, 2025    Dept: A

MOTION TO HOLD DEFAULT IN ABEYNCE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

The Sangari and Rechner Family Trust, Jefferey Rechner, and Marzieh Nikbakht-Sangari (Plaintiffs) bring this action against Serob Habesyan, Archstone Design Showroom Inc. (Archstone), Kitchen Bath & Flooring Center; KB Flooring Center; NOHO Tile Center, Hudson Insurance Company, Alfredo Mendoza, Mendoza Pool & Plaster, Inc., Hartford Insurance Company of the Midwest (Hartford) and Does 1-20 (collectively Defendants). Plaintiffs allege the negligence of each defendant in the construction of a property located at 3400 Longridge Terrace, Sherman Oaks, CA 91423.

On October 8, 2024, Plaintiffs amended their Complaint to name APA Tile Company, Inc. (APA) as Doe 1. On December 18, 2024, the Court entered default against APA. Before the Court is a motion by Plaintiffs to hold this default in abeyance until the matter is fully litigated. No opposition has been filed by any party. As per California Rules of Court, Rule 8.54(c) “A failure to oppose a motion may be deemed a consent to the granting of the motion.”

ANALYSIS: 

This action concerns several alleged defects in the construction of Plaintiffs’ home. Plaintiffs allege Mendoza Defendants were hired to perform pool work alongside the work that Archstone was conducting on the pool deck. (Compl. ¶¶ 28-29.) Both Archstone and Mendoza defendants are alleged to be in some way responsible for waterproofing around the pool. (Id.) Plaintiffs allege that soon after the work on the pool was completed, the guest house under the pool deck experienced significant leaks. (Compl. ¶ 31.) Plaintiffs allege that Archstone disclaimed liability and instead suggested the leaks were caused by negligence on Mendoza Defendant’s behalf. (Id.)  Plaintiffs allege that Archstone then conducted repairs on what they claimed was Mendoza’s defective work for additional payment. (Compl. ¶ 32.) Plaintiffs maintain that it was the defective work of both Archstone and Mendoza Defendants that caused the leaking in the guest house. (Compl. ¶ 38.) Plaintiffs allege Mendoza Defendants failed to install waterproof tile on the adjacent spa and that Archstone installed defective waterproofing through the pool deck. (Compl. ¶¶ 36-39.)

As concerns APA, Plaintiffs contend that they were a subcontractor hired by Archstone to “perform at least some waterproofing of the pool deck/guest house.” (Nikolaeva Decl. ¶ 9.)  After consulting with the California Contractors License Board’s directory, Plaintiffs’ counsel determined that APA was not licensed to perform this work. (Id.)

In determining whether to hold a default judgment in abeyance, the primary authority on the matter is the 4th District Court of Appeal ruling in Mirabile v. Smith. There, a plaintiff sued two partners on a contract. One partner answered but the other defaulted. (Mirabile v. Smith (1953) 119 Cal.App.2d 685.) The answering defendant contended that no contract existed. The court held that the default should be held in abeyance until the case was “finally determined upon” by the answering defendant where the answering defendant's position is “equally applicable against both of these defendants.” (Id. at 688.) The court stated that were the law otherwise, “a grave injustice would result.” (Id. at 689; see also Freeman v. Churchill (1947) 30 Cal.2d 453, 461 [where a defense presented by a non-defaulting defendant is not personal to him but goes to the merits of the case, the defense pleaded by the non-defaulting defendant inures to the benefit of the defaulting defendant as well].)

The Court finds Plaintiffs’ arguments in support of the abeyance persuasive. Plaintiffs’ claims of negligence leading to leaks in the guest house are equally applicable to the appearing Archstone as to the non-appearing APA. To this extent that APA was contracted in some unknown capacity to waterproof the premises, the allegations against them and their contractor Archstone are inseparable. As such, the Court finds it would be appropriate to hold default in abeyance until such time as Plaintiffs’ claims against Archstone are finally determined.  

Accordingly, the unopposed motion to hold the default in abeyance is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

The Sangari and Rechner Family Trust, Jefferey Rechner, and Marzieh Nikbakht-Sangari’s Motion to Hold Default in Abeyance came on regularly for hearing on March 14, 2025 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO HOLD THE DEFAULT AGAINST APA TILE COMPANY, INC. IN ABEYANCE IS GRANTED.  

PLAINTIFFS TO GIVE NOTICE.

IT IS SO ORDERED.