Judge: Melvin D. Sandvig, Case: 21CHCV00838, Date: 2022-09-07 Tentative Ruling
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Case Number: 21CHCV00838 Hearing Date: September 7, 2022 Dept: F47
Dept. F-47
Date: 9/7/22 TRIAL DATE: None set.
Case #21CHCV00838
(1) MOTION TO SEVER THE ACTION AND ENTER A JUDGMENT
PURSUANT TO STIPULATION
(2) MOTION FOR ENTRY OF JOINT AND SEVERAL JUDGMENT PURSUANT TO WRITTEN STIPULATION
Motion to Sever the Action and Motion for Entry of Joint and Several Judgment filed on 7/13/22
MOVING PARTY: Plaintiff Hirsch Pipe & Supply Co., Inc.
RESPONDING PARTY: None
NOTICE: ok
RELIEF REQUESTED IN MOTION TO SEVER ACTION: An order severing the first, second, third, fourth, and fifth causes of action from the seventh cause of action and allowing Plaintiff to proceed with the seventh cause of action against Defendant Navigators.
RELIEF REQUESTED IN MOTION FOR ENTRY OF JOINT AND SEVERAL JUDGMENT: An order entering joint and several judgment pursuant to written stipulation against Defendants RH Plumbing Solutions Inc. and Rafael Angel Hernandez.
RULING:
The motion to sever action and enter a judgment pursuant to stipulation is DENIED.
The motion for entry of joint and several judgment pursuant to written stipulation is CONTINUED to 10/28/2022.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement for the supply of materials. Plaintiff Hirsch Pipe & Supply Co., Inc. alleges that, on or about March 28, 2011, Plaintiff entered into a written credit application and agreement with Defendant RH Plumbing Solutions Inc. (“RH Plumbing”) for Plaintiff to supply RH Plumbing with plumbing fixtures, pipe supply, and related materials for use in construction in exchange for payment by the 25th of the month following the date of invoice. Plaintiff alleges that to induce Plaintiff to extend credit to RH Plumbing, Defendant Rafael Angel Hernandez (“Hernandez”) executed a personal guaranty with respect to any indebtedness of RH Plumbing. Plaintiff alleges Defendants have failed to make payments in the principal sum of $34,095.53.
On 10/28/21, Plaintiff filed this action against Defendants RH Plumbing, Hernandez, Hudson Insurance Company (“Hudson”), and Navigators Insurance Company (“Navigators”) for (1) Breach of Contract (against RH Plumbing), (2) Materials Sold and Delivered (against RH Plumbing), (3) Open Book Account (against RH Plumbing), (4) Account Stated (RH Plumbing), (5) Breach of Personal Guaranty (against Hernandez), (6) To Enforce Claim Against Contractor’s License Bond 1 (against RH Plumbing and Hudson), and (7) To Enforce Claim Against Contractor’s License Bond 2 (against RH Plumbing and Navigators).
On 1/21/22, default was entered against Defendants RH Plumbing and Hernandez. Defendant/Cross-Complainant Navigators also filed a cross-complaint against Rafael Hernandez Lopez dba RH Plumbing for indemnity that day.
On 2/3/22, Defendant/Cross-Complainant Hudson filed a cross-complaint against Plaintiff and Defendants RH Plumbing and Hernandez for declaratory relief.
On 6/22/22, pursuant to Plaintiff’s request, dismissal was entered as to the sixth cause of action in the complaint. Pursuant to Hudson’s request, dismissal was also entered as to Hudson’s cross-complaint that day.
Plaintiff now moves for a court order severing the first, second, third, fourth, and fifth causes of action from the seventh cause of action and allowing Plaintiff to proceed with the seventh cause of action against Defendant Navigators. Additionally, Plaintiff moves for a court order entering joint and several judgment against Defendants RH Plumbing and Hernandez pursuant to a written stipulation. No oppositions have been filed.
MOTION TO SEVER THE ACTION AND ENTER JUDGMENT PURSUANT TO STIPULATION
Plaintiff cites to CCP section 1048 to support the request to sever the first, second, third, fourth, and fifth causes of action from the seventh cause of action.
CCP section 1048 provides that “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” CCP § 1048.
CCP section 1048 only authorizes the court to sever causes of action for the purpose of conducting separate trials. It does not provide authority for severing causes of action for the purpose of entering judgment, which is what Plaintiff seeks.
Accordingly, the motion to sever is denied.
The Court notes that whether entry of a several judgment is appropriate pursuant to CCP section 579 in this case is addressed in the motion for entry of joint and several judgment.
MOTION FOR ENTRY OF JOINT AND SEVERAL JUDGMENT PURSUANT TO WRITTEN STIPULATION
Plaintiff has cited to no authority to support this motion for entry of joint and several judgment pursuant to written stipulation. However, as Plaintiff is seeking entry of judgment based on a written stipulation between the parties, it appears Plaintiff’s request may be for entry of judgment pursuant to CCP section 664.6. Thus, in the interest of judicial economy, the Court construes this motion as a motion for entry of judgment pursuant to CCP section 664.6
CCP section 664.6 provides that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” CCP § 664.6.
Here, Plaintiff and Defendants RH Plumbing and Hernandez entered into a written Stipulation for Entry of Joint and Several Judgment. Motion, Riggen Decl., ¶ 4, Ex. 1. Pursuant to the Stipulation, Plaintiff and Defendants R H Plumbing and Hernandez agreed that a joint and several judgment may be entered in this action in favor of Plaintiff and against R H Plumbing and Hernandez in the principal amount of $31,961.78. Id. The Stipulation also provides that if Plaintiff is required to file the Stipulation, Plaintiff would acknowledge all payments received from Defendants and reduce the total amount by said sum. Id. The Stipulation further provides that if Plaintiff is required to file the Stipulation with the court, Plaintiff may file a declaration in support of additional attorney’s fees, costs, and accrued prejudgment interest/service charges to be added to the principal amount of the judgment. Id.
The Stipulation complies with CCP section 664.6 requirements. Generally, this means that judgment may be entered pursuant to CCP section 664.6. However, Plaintiff has raised a concern regarding the entry of judgment as a several judgment because Plaintiff would like to proceed with the seventh cause of action against co-defendant Navigators. The Court will thus address whether several judgment is proper in this case before finding whether judgment may be entered pursuant to CCP section 664.6.
Regarding Defendant Hernandez, the Court notes that any judgment entered against Hernandez would not violate the final judgment rule because only the fifth cause of action is asserted against Hernandez and entry of judgment against Hernandez would resolve the case as to Hernandez. To this extent, no several judgment is necessary with respect to Hernandez and judgment may simply be entered against Hernandez.
As for RH Plumbing, Plaintiff has asserted the first through fourth causes of action, as well as the seventh cause of action against RH Plumbing. While the first through fourth causes of action are only asserted against RH Plumbing, the seventh cause of action has been asserted against RH Plumbing and Navigators. As Navigators has filed an answer to the complaint, the seventh cause of action has yet to be resolved. This means that judgment may only be entered against RH Plumbing if the Court finds several judgment as to the seventh cause of action is proper in this case.
CCP section 579 provides that “[i]n an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.” CCP § 579.
The seventh cause of action is to enforce a claim against a Contractor’s License Bond. RH Plumbing is not the surety on the contractor’s license bond, meaning RH Plumbing cannot be held liable on the seventh cause of action. Under these circumstances, the Court finds that a several judgment against RH Plumbing is proper in this case.
As judgment may be entered against Hernandez and several judgment is proper as to RH Plumbing, Plaintiff is entitled to entry of judgment pursuant to CCP section 664.6.
With respect to the amount of judgment, Plaintiff has indicated that it is seeking a total of $38,327.65, consisting of $28,927.39 in principal, $6,250.26 in interest, $2,280.00 in attorney’s fees, and $870.00 for first appearance filing fees for Defendants RH Plumbing and Hernandez. Pursuant to the Stipulation, Plaintiff is entitled to a principal amount of $31,961.78 less credits for any payments made by Defendants, plus prejudgment interest/service changes, attorney’s fees, and costs.
Regarding the amount of principal sought, Plaintiff explains that while no payments have been received from RH Plumbing and Hernandez, Plaintiff received a payment from Hudson Insurance Company in the amount of $3,034.39, thus reducing the principal balance from $31,961.78 to $28,927.39. See Willner Decl., ¶ 14. Plaintiff is thus entitled to $28,927.39 in principal.
Regarding interest, Plaintiff explains that Defendants agreed to an interest rate charge of 18% per annum on all past due accounts. See Willner Decl., ¶ 13. Plaintiff has provided a copy of the Credit Agreement between Plaintiff and RH Plumbing, which also includes the personal guaranty executed by Hernandez. Id., ¶¶ 6, 13, Ex. A. The Credit Agreement provides that “[a]ll accounts not paid by the 25th of the month following the date of invoice shall be subject to a service charge of 1.5% levied against all past due invoices.” Id., Ex. A, Terms and Conditions, Payment Terms. While the provision indicates the 1.5% is a “service charge,” the Court finds that the 1.5% levied on all past due invoices is in effect an interest charge at the monthly rate of 1.5%, which amounts to 18% annual interest. Even if the “service charge” were not akin to interest, the Stipulation provides for the inclusion of “prejudgment interest/service charges.” Plaintiff has also provided a calculation to support the $6,250.26 in interest. See Willner Decl., ¶ 16. The interest is properly calculated. Plaintiff is thus entitled to $6,250.26 in interest.
With respect to attorney’s fees, the Court finds that the $2,280.00 requested is unreasonable. The Court will award attorney’s fees in the amount of $1,140.00 (3 hours at $380.00 per hour).
As for the $870.00 requested as costs for first appearance filing fees for Defendants RH Plumbing and Hernandez, the Court finds there is no evidence that Plaintiff paid these fees. Plaintiff’s counsel indicates that the Stipulation was separately filed with the Court together with first appearance fees for RH Plumbing and Hernandez. See Motion, Riggen Decl., ¶ 4. However, a review of the Court’s records does not show any first appearance fees were paid on behalf of Defendants RH Plumbing and Hernandez. While the Court would generally decline to award such costs under such circumstances, the Court notes that first appearance fees must be paid on behalf of RH Plumbing and Hernandez before judgment can be entered pursuant to the Stipulation. The Court will thus continue the hearing on the motion to allow Plaintiff an opportunity to pay first appearance fees on behalf of Defendants RH Plumbing and Hernandez and provide proof of such payment.
Based on the foregoing, the motion for entry of joint and several judgment pursuant to a written stipulation is CONTINUED to 10/28/2022.
Plaintiff is ordered to pay first appearance fees on behalf of Defendants RH Plumbing Solutions Inc. and Rafael Angel Hernandez and submit proof of such payment.
Upon proof of payment of first appearance fees for Defendants RH Plumbing and Hernandez, the Court is inclined to grant the motion and enter judgment in favor of Plaintiff and against RH Plumbing and Hernandez in a total amount of $37,187.65, consisting of $28,927.39 in principal damages, $6,250.26 in interest, $1,140.00 in attorney’s fees, and $870.00 in costs.