Judge Thomas Falls, Case 20PSCV00733 2022-08-04 Tentative Ruling

Judge: Thomas Falls, Case: 20PSCV00733, Date: 2022-08-04 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 20PSCV00733 Hearing Date: August 4, 2022 Dept: R

Irma Fajardo v. Abner Fuentes (20PSCV00733)

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Plaintiff Irma Fajardo dba El Barril Bar’s Application for Default Judgment

Tentative Ruling

Plaintiff Irma Fajardo dba El Barril Bar’s Application for Default Judgment is GRANTED, contingent upon submission of a CIV-100 form.

Background

This case arises from a contract dispute after Plaintiff hired Defendant to do renovations and construction. Plaintiff Irma Fajardo dba El Barril Bar (“Plaintiff”) alleges as follows: On or about October 24, 2019, Plaintiff and Abner Fuentes dba TJD Contracting, Inc./Remodeling Inc. (“Defendant”) entered into a written contract for the construction and renovation of the kitchen of the La Puente restaurant known as El Barril Bar (“Restaurant”). Defendant quoted a total price of $32,500.00 and agreed to complete the work within 90 days. Defendant also agreed to keep the kitchen partially open and functioning during the work. Plaintiff paid more than $33,000.00. After getting fully paid, Defendant abandoned the project and refused to finish. A restaurant customer recently slipped and fell on an area that was negligently furnished by Defendant is now in the process of suing Plaintiff. Defendant is believed to be unlicensed/improperly licensed.

On October 28, 2020, Plaintiff filed suit against Defendant and Does 1 through 10 for:

1. Breach of Contract and

2. Violations of Business and Professions Code section 7031

On March 24, 2021, Defendant’s default was entered.

On October 7, 2021, the court denied without prejudice Plaintiff’s first application for default judgment, noting the following defects: (i) Plaintiff did not provide the court with any documentary evidence and (ii) Plaintiff did not provide a summary of the case as required per California Rules of Court Rule 3.1800, subdivision (a)(1).

On January 28, 2021, Plaintiff re-filed its application for default judgment, which the court again denied on March 24, 2022.

On July 25, 2022, Plaintiff re-filed its Application.

Discussion

Previously, the court denied Plaintiff’s application for the following reason:

A comparison of the instant application and the first one filed on August 10, 2021 reveals that proper evidence has still not been submitted in support of allegations that “the entire project was abandoned unfinished.”

Specifically, the contract, amongst other things, was for the complete installation of a commercial hood; one stove and grill; sinks; refrigerators; freezers; tables; and modification or extensions to gas lines. However, Plaintiff’s submission of photographs (as Exhibit 8) does not aid the court in ascertaining what conditions were like before Defendant undertook performance. All that is submitted are photos of exposed walls and areas, neither of which illustrates where in the restaurant the photos are of. Moreover, if the photos are of the kitchen, the court seeks clarification as to why the agreement provided, as alleged in the complaint, that “Defendants agreed to keep the kitchen partially open and functioning during the renovation and construction,” when the photos illustrate the complete demolishment of the kitchen. Furthermore, if there was no kitchen, the court seeks clarification as to how the restaurant was “intermittently” closed (Complaint ¶20) rather than permanently closed.

(March 24, 2022 Tentative Ruling.)

This time, Plaintiff explains that she does not have photos of the work prior to the renovation because Defendant “kept all the documents related to the renovation project including pictures used to prepare the initial blueprint.” (Supp. Decl. p. 3.) That said, Plaintiff did submit some photos she was able to find in her own records. Based thereon, the court finds the newly submitted photos to more clearly illustrate that a job was started and then abandoned.

While Plaintiff has cured the evidentiary defect, Plaintiff has not submitted a new CIV-100 form, which is necessary as the court denied the previous CIV-100 form. Plaintiff is to submit a new one.

Conclusion

Based on the foregoing, the court GRANTS Plaintiff’s application for default judgment, contingent upon submission of a CIV-100 form as the instant application has not provided one. The CIV-100 form must seek an identical amount as the JUD-100 form ($33,000.00 in damages).