Judge: Randy Rhodes, Case: 21CHCV00652, Date: 2023-02-27 Tentative Ruling
Case Number: 21CHCV00652 Hearing Date: February 27, 2023 Dept: F51
Dept. F-51
Date: 2/27/23
Case #21CHCV00652
DEFAULT
PROVE-UP
Default entered on 7/15/22.
MOVING PARTY: Plaintiff Rreef America Reit II Corp.,
DD, a Maryland corporation (“Plaintiff”)
RESPONDING PARTY: Defendant Five Star Ontario Inc.,
a California corporation (“Five Star”)
NOTICE: OK
RELIEF REQUESTED: A court judgment of default
against Five Star.
TENTATIVE RULING: The default judgment is
denied without prejudice.
BACKGROUND
Plaintiff, a property owner,
brings this action against Five Star, a general contractor, and others, for an
alleged breach of a service agreement wherein Five Star was to perform pool
deck resurfacing work for Plaintiff at its property located at 28160 McBean
Parkway, Valencia CA. Plaintiff alleges that Five Star failed to perform its
obligations under the service agreement by failing to perform remedial measures
to cure its previous defective workmanship.
On 8/25/21, Plaintiff filed
the instant action against Five Star, R&D Waterproofing, Inc., and
Crossfield Products Corp. (collectively, “Defendants”), alleging the following
causes of action: (1) Strict Liability; (2) Strict Liability (Component
Products); (3) Negligence; (4) Breach of Contract; (5) Breach of Warranty; and
(6) Breach of Implied Warranty. All causes of action except that for Strict
Liability (Component Products) (COA #2) are alleged against Five Star.
On 9/30/21, R&D
Waterproofing, Inc., the subcontractor defendant, filed its answer. On 7/15/22,
defaults were entered against defendants Five Star and Crossfield Products
Corp. (“Crossfield”). The default against Crossfield was later set aside, and
Crossfield was later dismissed from the action on 10/6/22.
On
9/26/22, Plaintiff attempted to file the instant motion and accompanying
documents, but the e-filing was rejected by the Court clerk for the following
reason: “A Default Judgment cannot be requested/entered as to one party
when there are other defendants who have filed an answer in this case. Only one
Judgment will be entered, therefore this case is not yet at issue.” (Ex. C to
Pl.’s Mot.)
On 12/16/22, Plaintiff filed the
instant motion for default judgment against Five Star. No opposition has been
filed to date.
ANALYSIS
A party in default has confessed the material allegations of the
complaint. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361–362.)
Usually, when evaluating a default prove-up package, if the complaint properly
states a cause of action, the only additional proof required for the judgment
is that needed to establish the amount of damages. (Carlsen v. Koivumaki
(2014) 227 Cal.App.4th 879, 898.) “In 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.” (Code Civ Proc. § 579.) Here, Plaintiff moves for
a default judgment as against Five Star only.
“A party
seeking a default judgment on declarations must use mandatory Request for Entry
of Default (Application to Enter Default) (form CIV-100), unless the action is
subject to the Fair Debt Buying Practices Act, Civil Code section 1788.50 et
seq.” (Cal. Rules of Court, rule 3.1800(a).) Here, Plaintiff has failed to
include Judicial Council form CIV-100 in its moving papers, as required under
rule 3.1800 of the California Rules of Court. Accordingly, the Court denies the
motion without prejudice.
CONCLUSION
The motion for default judgment is denied without
prejudice.