Judge: Maurice A. Leiter, Case: 23STCV13330, Date: 2024-04-11 Tentative Ruling

Case Number: 23STCV13330    Hearing Date: April 11, 2024    Dept: 54

Hearing Date: April 11, 2024

Department 54, Judge Maurice A. Leiter

Motion to Set Aside Entry of Default;

Demurrer to Complaint

T/R:      DEFENDANTS’ MOTION TO SET ASIDE DEFAULT IS GRANTED.

DEFENDANTS’ DEMURRER IS OVERRULED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, oppositions, and replies.

BACKGROUND

On June 9, 2023, Plaintiff Laura Spensley sued Defendants Yaniv Ben Ami, Yaniv Ben Ami Living Trust, Keren Shabat, and EG Renovation, Inc., asserting causes of action for (1) breach of oral contract; (2) fraud in the inducement; (3) breach of the covenant of good faith and fair dealing; (4) unjust enrichment; (5) conversion; (6) quiet title; (7) declaratory relief; (8) constructive trust; (9) punitive damages; and (10) construction defects.

Plaintiff alleges she engaged Defendants to build an accessory dwelling unit (ADU) on her real property. Plaintiff alleges Defendants’ construction was defective and Defendants overcharged her.

ANALYSIS

A. Motion to Set Aside Entry of Default

CCP § 473(b) provides, in pertinent part, “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Defendants Yaniv Ben Ami and Keren Shabat move to set aside the default entered against them on February 2, 2024. Moving Defendants were served with the complaint by Notice of Acknowledgment and Receipt on December 4, 2023 and by publication on December 15, 2023. The December 4, 2023 notice of acknowledgment contained Defendants’ signatures but the signatures were not dated. Defendants represent that their attorney asked them to re-sign the notice of acknowledgment on February 2, 2024 in order to add the date to the signature.

Defendants provide the declaration of Ami only, who states “the default was entered without my thinking about any awareness of publication. The default was made unexpectedly.” (Decl. Ami.)

In opposition, Plaintiff asserts Defendants have failed to establish excusable neglect or mistake. Plaintiff argues that a dated signature is not necessary to enforce a notice of acknowledgment and receipt. Plaintiff emphasizes that Defendants did have actual notice of the complaint.

The Court will set aside default. Defendants were made to believe that the December 4, 2023 notice of acknowledgement was defective; they were told to re-sign on February 2, 2024. That is an adequate showing of excusable mistake.

Defendants’ motion to set aside default is GRANTED.

B. Demurrer to Complaint

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendants Yaniv Ben Ami Living Trust and EG Renovations demur to the complaint on the grounds that it is uncertain and fails to state sufficient facts.

Defendants assert that Plaintiff’s allegations are vague as to time and do not provide details of the transactions. For example, Plaintiff alleges Defendants incorrectly installed roof flashing. Defendants argue that Plaintiff must allege how Defendants incorrectly installed roof flashing. The Court disagrees. Plaintiff has alleged ultimate facts and has provided sufficient detail of Defendants’ alleged wrongdoing.

Defendants also contend that the claims for unjust enrichment, constructive trust, punitive damages, and declaratory relief fail because they are remedies rather than causes of action. Plaintiff may allege entitlement to the remedies in the complaint. That these remedies are titled as causes of action is of no material consequence.

Defendants’ demurrer is OVERRULED.