Judge: Virginia Keeny, Case: 18VECV00290, Date: 2022-10-20 Tentative Ruling

Case Number: 18VECV00290    Hearing Date: October 20, 2022    Dept: W

CASE NO.:            18VECV00290

HEARING DATE: October 20, 2022

DEPARTMENT:  W

SUBJECT:             Request for Default Judgment

MOVING PARTY:              Cross-Plaintiff American Contractors Indemnity Complaint

OPPOSING PARTY:           None

COURT’S TENTATIVE RULING

The court DENIES WITHOUT PREJUDICE the request for default judgment. 

STATEMENT OF THE CASE

Plaintiff Barbara Cohen claims she was a victim of various scams carried on by contractors she hired to work on her home, including Defendants Oren Abutbul (Abutbul), Perri Bitton (Bitton), U.S. Veterans Home Services, Inc. (USVH), Trace Hancock (Hancock) and TSH Sales & Consulting dba TSH Construction and Design (TSH) (collectively “Contractor Defendants”).  She claims these Contractor Defendants overcharged for their work; convinced her to do unnecessary work; failed to perform work they agreed to, and were paid to, do; and/or improperly performed work they did do. (Compl. ¶¶ 28-68.)  In addition to the Contractor Defendants, Plaintiff also sued the license bond sureties, American Contractors Indemnity Company (ACIC), as surety for USVHS, and WESCO Insurance Company (WESCO), as surety for TSH (collectively the Surety Defendants).  The Complaint alleges eleven causes of action for: (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) negligence, (4) negligence per se, (5) fraudulent inducement, (6) fraud, (7) breach of express and implied warranties, (8) recovery on contractors’ license bonds, (9) disgorgement, (10) elder financial abuse and (11) conversion.   

On January 23, 2019, Defendant and Cross-Plaintiff ACIC filed a cross-complaint against Defendants USVH and Bitton and various Roe defendants (collectively the USVH Defendants).  ACIC alleged the USVH Defendants entered into an indemnity agreement with ACIC in exchange for a contractor’s bond.  Under the indemnity agreement, ACIC alleges the USVH Defendants promised to hold ACIC harmless from any and all claims or demands or legal expenses of any kind or nature that it may sustain under the bond.  (Cross Compl. ¶¶ 6,18.)  ACIC alleges it made a written demand to indemnify on the USVH Defendants, and they have refused to pay.  (Cross Compl. ¶¶ 8-9.)  ACIC’s Cross Complaint alleges four claims for: (1) breach of contract, (2) statutory indemnity, (3) declaratory relief, and (4) specific performance.  

This hearing is to address Cross-Plaintiff ACIC’s request for entry of default judgment against the USVH Defendants.  ACIC previously filed a request for entry of default judgment on February 22, 2022 which has now been superseded by another request for entry of default judgment filed on October 11, 2022.

Service of Summons: The proofs of service filed on March 26, 2019 indicate the Summons and Cross-Complaint were served on the USVH Defendants by substituted service.  The proofs of service show substituted service on March 3, 2019 by leaving the documents with Jane Bitton, a co-occupant at 6900 Platt Avenue, West Hills, California.  The declarations of mailing indicate the Cross-Complaint and Summons were mailed to that same address on March 4, 2019.  This service is sufficient.  

Entry of Default: Default was entered against the USVH Defendants on April 18, 2019.  The declaration of mailing on the request for entry of default indicates that a copy of the request was mailed to the USVH Defendants at 6900 Platt Avenue, West Hills, California.  This service was sufficient.

DEFAULT JUDGMENT REQUESTED

Damages:                                            $   21,468.08

Interest:                                              $   2,983.06

Costs:                                                    $        587.44

Attorney’s fees:                              $     1,034.04       

Total:                                                     $ 26,076.62

DISCUSSION

Cross-Plaintiff ACIC has failed to comply with two requirements of Rule 3.1800 of the Cal. Rules of Court, including failing to  (1) complete the declaration of non-military status for cross-defendant Perri Bitton, see Cal. Rules of Court 3.1800(a)(5);  and (2) to dismiss all other parties who are not subject to the default including Roe defendants, see Cal. Rules of Court 3.1800(a)(7).  Each of these requirements is mandatory and must be met before default judgment can be entered.  For these reasons, the Court DENIES WITHOUT PREJUDICE Cross-Plaintiff ACIC's request for entry of default judgment.