Judge: Michael P. Linfield, Case: 21STCV28129, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV28129    Hearing Date: February 28, 2023    Dept: 34

CROSS-DEFENDANT ARTER’S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

I.           BACKGROUND

On July 29, 2021, Plaintiffs Kevin Zachary Rice, Roberta Manetta, and Kendra Inman filed their Complaint against Defendants Phillip Charles Arter and S & W Roofing Corporation, Inc. on causes of action for negligence, breach of implied warranty of habitability, and constructive eviction.

On September 27, 2021, Defendant/Cross-Complainant Arter filed his Cross-Complaint against Defendant/Cross-Defendant S & W Roofing Corporation, Inc. and Cross-Defendant Gerardo Gonzalez on causes of action for breach of contract, negligence, indemnity, and contribution.

On June 13, 2022, by request of Defendant/Cross-Complainant Arter, the Clerk’s Office entered default on Defendant/Cross-Defendant S & W Roofing Corporation, Inc. regarding the Cross-Complaint.

On October 5, 2022, by request of Defendant/Cross-Complainant Arter, the Clerk’s Office entered default on Cross-Defendant Gerardo Gonzalez regarding the Cross-Complaint.

On October 26, 2022, by request of Plaintiffs, the Clerk’s Office dismissed with prejudice Defendant/Cross-Complainant Arter from the Complaint.

        On January 11, 2023, the Court granted Plaintiffs’ Request for Entry of Default Judgment against Defendant S & W Roofing Corporation Inc. in the amount of $899,315.00.

        On February 14, 2023, Cross-Complainant Arter filed:

(1)       CIV-100, Request for Court Judgment;

(2)       CIV-110, Request for Dismissal;

(3)       JUD-100, Proposed Judgment;

(4)       Declaration of Gregory J. Carpenter; and

(5)       Case Summary and Declaration of Philip Arter.

On February 16, 2023, the Clerk’s Office dismissed Roes 1 to 20 from the Cross-Complaint.

II.        ANALYSIS

Cross-Defendant requests the following items of damages as part of its default judgment:

(1)       $77,570.00 for inspections, test samples and clearances, abatement, clean up, repair, and restoration of the premises;

(2)       $28,000.00 in lost rent; and

(3)       $250,000.00 for indemnity and contribution for the sums paid by Cross-Complainant to Plaintiffs in settlement of their claims against him.

However, the Cross-Complaint only alleged the following damages:

“1. That Cross-Complainants recover from Cross-Defendants, and each of them, for expenses incurred in the defense of this litigation, including reasonable attorneys’ fees;

2. That if liable on the Complaint of Plaintiffs, Cross-Complainants pray judgment against Cross-Defendants, and each of them;

3. That if liable on the Complaint of Plaintiffs, Cross-Complainants pray equitable contribution from Cross-Defendants, and each of them, in proportion to the amount of negligence attributable to said Cross-Defendants, and each of them; For reasonable attorney's fees as according to proof;

4. For costs of suit incurred herein; and

5. For such other and further relief as to this Court may deem proper.”  (Cross-Complaint, p. 8:14 – p. 9:1.)

The $250,000.00 requested for indemnity and contribution is recoverable.  However, the $77,570.00 for inspections and repairs, and the $28,000.00 in lost rent are not “expenses incurred in the defense of this litigation” nor are they otherwise listed in the Prayer for Relief.

III.     CONCLUSION

The Court enters default judgment in the amount of $250,435.00 as indicated by the chart below: