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.