Judge: Stephen P. Pfahler, Case: 19CHCV00920, Date: 2022-10-06 Tentative Ruling

Case Number: 19CHCV00920    Hearing Date: October 6, 2022    Dept: F49

Dept. F-49

Date: 10-6-22 c/f 9-26-22

Case #19CHCV00920

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

SET ASIDE DEFAULT

MOVING PARTY: Defendant, Jaklin Benji

RESPONDING PARTY: Unopposed/Plaintiffs/Cross-Defendants, Maymon dba Art & More Construction, Inc.[1]

RELIEF REQUESTED

Motion to Set Aside June 15, 2022 Default Against Jaklin Benji

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.[2]

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.

RULING: Granted.

Defendant Jaklin Benji moves to set aside the June 15, 2022 default on grounds of mistake, inadvertence and/or excusable neglect.

Code of Civil Procedure section 473 subdivision (b) provides in part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. (Citation.) The six-month period runs from entry of default, not entry of judgment.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The clerk entered default on April 28, 2022, and the subject motion was filed on July 1, 2022, which is within 180 days of the default entry dates. The court considers this timely motion under the statutory relief provisions. (Ibid.)

“[A] trial court is obligated to set aside a default, default judgment, or dismissal if the motion for mandatory relief (1) is filed within six months of the entry of judgment, (2) ‘is in proper form,’ (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default or dismissal was in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.’” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.)

Counsel seemingly concedes to mistake, inadvertence, and/or excusable standard, due to the entry of default while counsel was on vacation. Counsel also waited for presentation of the proof of service thereby leading to further delay. [Declaration of Ethan Michael.] The court accepts the declaration of counsel, and grants the motion.

Defendant to separately file the answer submitted with the motion within 10 days of this order.

Defendant Jaklin Benji to also give notice to all parties.

The court also notes that the September 26, 2022, filed Notice of Case Reassignment to Department F51, effective October 10, 2022, instructs Plaintiffs’ counsel to send notice. Because counsel is disbarred, and Plaintiffs present no proof of substitution of counsel, the court orders Defendants to provide notice of the reassignment to all parties.