Judge: Peter A. Hernandez, Case: 21PSCV00537, Date: 2023-10-10 Tentative Ruling

Case Number: 21PSCV00537    Hearing Date: October 10, 2023    Dept: K

Plaintiffs Olivia Hernandez’s and Sugey Lopez’s Application for Default Judgment is DENIED without prejudice.

Background   

This lawsuit involves a Property Assessed Clean Energy (“PACE”)/Home Energy Renovation Opportunity (“HERO”) loan. Plaintiffs Olivia Hernandez (“Hernandez”) and Sugey Lopez (“Lopez”) (hereinafter collectively, “Plaintiffs”) contend that, in the fall of 2018, Esmeralda de Vasquez (“de Vasquez”) and Aldo Manuel Perez Martinez (“Perez”), acting as unlicensed agents for Danneco Construction (“Danneco”), came to Hernandez’s home located at 569 La Seda Road, La Puente, California 91744 (the “Property”) and represented to Hernandez that they could build an extra dwelling unit on same for $55,000.00, that they could help her obtain a loan for the project, that the loan would not take the form of a lien, that she would not have to repay the loan until the unit was complete and that rental income from the unit would pay for the loan.

Although Hernandez was a Spanish speaker and the presentation was made in Spanish, the contracts provided to Hernandez were in English. Lopez is a co-owner of the Property. The total cost of the project was over $120,000.00 and the loan was ultimately recorded as a municipal tax lien against the home. Perez forged or fraudulently procedures Hernandez’s signature on a completion certificate before any work had been performed.

On October 4, 2021, Dan Thanh Danh’s (“Danh”) default was entered. On October 5, 2021, Danneco’s default was entered.

On January 3, 2022, de Vasquez’s and Perez’s defaults were entered.

On February 23, 2022, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Danneco, de Vasquez, Perez, Danh, County of Los Angeles (“County”) and Does 1-10 for:

1.                  Intentional Misrepresentation

2.                  Fraudulent Concealment

3.                  Negligent Misrepresentation

4.                  Financial Elder Abuse (Welf. & Inst. Code, §§ 15657.5-15657.6; Prob. Code, § 859)

5.                  Unfair and Deceptive Business Practices (Cal. Bus. & Prof. Code §§ 17200 et seq.)

6.                  Rescission of Contracts

7.                  Cancellation of Home Solicitation Contract (Cal. Civ. Code §§ 1689.5-1689.14)

8.                  Cancellation of Instruments (Civ. Code, § 3412)

9.                  Declaratory Relief

10.              Breach of Contract

11.              Breach of the Implied Warranty of Fitness for a Particular Purpose

On November 4, 2022, Plaintiffs dismissed County, with prejudice. On July 5, 2023, Plaintiffs dismissed de Vasquez, without prejudice.

An Order to Show Cause Re: Default Judgment as to all Defaulted Defendants is set for October 10, 2023.

Discussion

Plaintiffs’ Application for Default Judgment is denied without prejudice. The following defects are noted:

1.             Plaintiffs have failed to utilize the most current version of mandatory Judicial Council form CIV-100 [Rev. January 1, 2023].

2.             Plaintiff Lopez has failed to submit a declaration.

3.             It appears to the court that Plaintiff Hernandez does not speak, read and/or write English (i.e., “Plaintiff Oliva Hernandez[] is a Spanish-speaking senior citizen” [Case Summary, 4:10], “Ms. Hernandez does not speak English, but the contracts. . . were provided in English. . .” [Id., 5:16-17], “Ms. Hernandez is a native Spanish speaker and has limited proficiency in spoken and written English” [Id., 6:2-3], “I am a Spanish-speaking senior citizen” [Hernandez Decl., ¶ 1], “We spoke exclusively in Spanish” [Id., ¶ 6], “None of the paperwork I signed for the project was provided to me in Spanish and Defendants did not provide me with Spanish copies of them” [Id., ¶ 10] and “Danh had me sign an English-language paper document. . .” [Id., ¶ 18].) Plaintiff Hernandez’s declaration, however, is written in English and is not accompanied by a translator’s declaration.

4.             Hernandez’s declaration reflects non-compliance with Code of Civil Procedure § 2015.5.

5.             The court queries Plaintiff Hernandez’s entitlement to Probate Code § 859 double damages and requests further briefing in this regard. “The section 859 penalty is imposed when an interested party establishes both that the property in question is recoverable under section 850 and that there was a bad faith taking of the property.” (Estate of Kraus (2010) 184 Cal.App.4^th 103, 112.) Plaintiffs have not filed a probate action as per section 850.