Judge: Stephen P. Pfahler, Case: 19CHCV00920, Date: 2022-09-15 Tentative Ruling

Case Number: 19CHCV00920    Hearing Date: September 15, 2022    Dept: F49

Dept. F-49 

Date: 9-15-22  

Case #19CHCV00920  

Trial Date: 2-6-23 c/f 3-21-22 c/f 12-6-21  

DISQUALIFY COUNSEL 

MOVING PARTY: Plaintiffs/Cross-Defendants, Art & More Construction, Inc. 

RESPONDING PARTY: Unopposed/Defendants, Albert and Jaklin Benji  

RELIEF REQUESTED 

Motion to Disqualify  

SUMMARY OF ACTION 

Plaintiff, Shlomo Maymom aka Art & More Construction, Inc. alleges entry into contract with Defendants Shahyad 26, LLC, Benji Construction Group and Benji & Associates Realty on July 10, 2019 for the provision of certain contractor services and materials for real property located at 5941 Encino Ave., Encino. On October 17, 2019, the Benji defendants told Plaintiff to cease construction, due to the rejection of the building plan by the City of Los Angeles. A new set of plans were presented, which led to approval by Building and Safety in “late October 2019. Regardless, a dispute ensued over the project, which led to the Benji defendants declaring Plaintiffs “banned” from the project and therefore unable to complete the project. Plaintiffs allege an outstanding balance of $174,000 for material and labor.  

On November 15, 2019, Plaintiff filed a complaint for breach of written contract, breach of the covenant of good faith and fair dealing, failure to disclose, and unfair business practices. On November 18, 2019, Plaintiff filed a Notice of Lis Pendens. A lis pendens was recorded on November 20, 2019. On February 7, 2020, Plaintiff recorded a mechanic’s lien. 

On February 20, 2020, the court granted the ex parte motions of Defendant Shahyad 26, LLC to expunge the lis pendens and mechanics lien on the property. The court ordered Defendant to separately file any motion for attorney fees. 

On March 4, 2020, the court sustained the demurrer to the complaint with 30 days leave to amend. On July 6, 2020, Defendant Shahyad 26, LLC, Benji Consulting Group, Benji & Associates Realty, and Albert Benji filed a cross-complaint against Art & More Construction, Inc., Shlomo Maymon, and Business Alliance Insurance Co. for breach of contract, common counts, fraud, negligence, and contractor’s license bond. 

On August 28, 2020, the clerk entered a default against cross-defendant Shlomo Maymom and Art & More Construction, Inc. on the Shahyad 26, LLC cross-complaint. Business Alliance Insurance Company answered the cross-complaint on September 8, 2020, and filed a cross-complaint against Shlomo Maymom and Art & More Construction, Inc. for Indemnity and Reimbursement. 

On October 6, 2020, the court awarded Defendant, Shahyad 26, LLC $4,540 in attorney fees and costs against Shlomo Maymom and Art & More Construction, Inc.  

On November 17, 2020, the clerk entered a default against Shlomo Maymon on the Business Alliance Insurance Company cross-complaint. 

On February 9, 2021, the court denied the motion of Shlomo Maymon and Art & More Construction, Inc. for leave to file an amended pleading, and to vacate the default by Business Alliance Insurance Company. On February 9, 2021, the clerk entered a default against Art & More Construction, Inc. in favor of Cross-Complainant Business Alliance Insurance Co. On February 17, 2021, Plaintiff filed a first amended complaint for Breach of Written Contract, Breach of Covenant of Good Faith and Fair Dealing, Failure to Disclose, and Unfair Business Practices.¹ 

On February 22, 2021, the court denied the motion to dismiss the action due to the late filed first amended complaint.  

On January 28, 2022, Plaintiff substituted in Jaklin Benji for Doe 1. On February 10, 2022, Plaintiff filed an amendment to the complaint indicating Art & More Construction, Inc. is the “true name” instead of Shlomo Maymon. On June 15, 2022, the clerk entered a default as to Jaklin Benji. 

On July 29, 2022, the court sustained the demurrer of Shahyad 26, LLC, et al. to the first amended complaint with 20 days leave to amend as to the Failure to Disclose cause of action, and without leave to amend as to the Unfair Business Practices claim. No second amended complaint was filed; Defendants answered the first amended complaint on August 24, 2021. 

On August 12, 2022, Plaintiff filed this instant Motion to Disqualify Counsel.

On September 1, Defendants filed their opposition.

RULING: Off-Calendar. 

Plaintiff Art & More Construction, Inc. moves to disqualify counsel for Albert and Jaklin Benji on grounds that representation of both parties constitutes a conflict of interest, and therefore a basis of prejudicial harm to Plaintiff. Defendants in opposition state that Plaintiff’s counsel was disbarred on August 29, 2022, and therefore cannot appear on the subject matter. Defendants also challenge the standing of Plaintiff to bring the motion to disqualify. Defendants also maintain that prior representation will not constitute an automatic basis for withdrawal, and grounds otherwise don’t exist for disqualification. 

Given the default against Jaklin Benji entered on June 15, 2022, Jaklin Benji cannot file any responsive pleading unless and until the default is set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc.¿(1984) 155 Cal.App.3d 381, 385–386 [“‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right¿of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings’”].) The court therefore declines to consider the substantive argument opposing the motion.  

Nevertheless, the court verified on the State Bar of California web site that attorney Linda Darlene Lucero, bar number 283081 is in fact not eligible to practice law in the state of California. Plaintiff, as a corporate entity may not may not appear in this action. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 731.) 

The court therefore takes the motion off-calendar. Should Plaintiff find new counsel and seek to re-file the motion, the court will not substantively consider any motion on the merits until after the hearing on the motion to vacate the default set for October 6, 2022. 

Clerk to give notice to all parties.