Judge: Michael Shultz, Case: 19CMCV00150, Date: 2022-10-12 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 19CMCV00150 Hearing Date: October 12, 2022 Dept: A
19CMCV00150
Mary Cuevas v. Benji Home Improvements Financial Solutions, et al.
[TENTATIVE] ORDER
The First Amended Complaint
(“FAC”) filed on 2/19/21 alleges that Plaintiff contracted with Defendants to
perform home improvements on her property. Defendants, Referral Design &
Construction, Inc., dba Green Pro Direct did not complete the construction
services but charged Plaintiff $92,000 for $5,000 worth of work. Plaintiff
incurred additional expenses to complete the work. Plaintiff alleges claims for:
breach of contract, negligence, cancellation of instrument, fraud, and
recission and total damages of $165,000.
On August 20, 2021, Defendant, GreenPro Direct, Inc. erroneously sued as Referral Design
& Construction, Inc., dba Green Pro Direct filed its answer. On June 6,
2022, the Hon. Thomas D. Long struck the answer as Defendant was a suspended
corporation. Plaintiff now seeks judgment against Green Pro Direct.
The Request for Court Judgment is
defective because it seeks judgment against “Green Pro Direct.” The defaulting
party is GreenPro Direct, Inc. erroneously sued as Referral Design &
Construction, Inc., dba Green Pro Direct as reflected in its Answer of 8/20/21.
To obtain an enforceable judgment by default, the complaint must name the
business entity in its right capacity.” Earl W. Schott, Inc. v. Kalar (1993) 20 Cal.App.4th 943, 946.
The fictitious name “Green Pro
Direct” does not create a legal entity separate from Referral Design &
Construction, Inc., rather "[t]he
designation [DBA] means ‘doing business as’ but is merely descriptive of the
person or corporation who does business under some other name. Doing
business under another name does not create an entity distinct from the person
operating the business.’ [Citation.] The business name is a fiction, and so
too is any implication that the business is a legal entity separate from its
owner.” Pinkerton's, Inc. v. Superior
Court (1996) 49 Cal.App.4th 1342, 1348 [italics in original]. The individual who does
business as a sole proprietor under one or several names "remains one
person, personally liable for all his obligations. So also, with a
corporation which uses more than one name.” Pinkerton's, at 1348.
Moreover, the contract submitted
by Plaintiff is made between Plaintiff and “Green Pros, LLC (“Green Pros”), not
“Green Pro Direct” against whom Plaintiff seeks judgment. Cuevas Declaration,
Ex. 1, .pdf page 8, ¶ 1. Plaintiff did not sue an LLC.
Given that Plaintiff seeks
judgment against an entity with whom Plaintiff did not contract, the request is
fatally defective. Accordingly, the Request for Court Judgment is DENIED.