PARMANAND KUMAR VS RODOLFO CERRILLO LOPEZ, INDIVIDUALLY

Tentative Rulings

Case Number: 17STLC02089    Hearing Date: July 08, 2020    Dept: 26

Kumar v. Lopaz, et al.

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP § 473(b), (d); § 473.5)

TENTATIVE RULING:

Based on the foregoing, Defendant American Contractors Indemnity Company’s Motion for Judgment on the Pleadings is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On September 22, 2017, Plaintiff Parmanand Kumar (“Plaintiff”) filed this action against Defendants Rodolfo Cerrillo Lopaz, Rudy’s Mechanical Plumbing, and American Contractors Indemnity Company (“Defendant ACIC”). On October 29, 2018, the Court entered default judgment against Defendants Lopaz and Rudy’s Mechanical Plumbing. Following Defendant ACIC’s default and subsequent motion to vacate default, which the Court granted, it filed an Answer on October 24, 2019. On December 12, 2019, Defendant ACIC filed the instant Motion for Judgment on the Pleadings. Plaintiff filed his opposition on April 15, 2020 and Defendant ACIC replied on April 21, 2020.

Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

Meet and Confer Requirement

The Motion is accompanied by a meet and confer declaration that satisfies the requirements of Code of Civil Procedure section 439. (Motion, Supp. Blush Decl.)

Objections to Evidence

Plaintiff objects to the declaration of Susan Blush in support of the Motion for Judgment on the Pleadings. The Court rules on the objections as follows:

# 1 overruled, except as to “I found that he had not had an active license since 2010.”

# 2 overruled;

# 3 sustained

Plaintiff also objects to the Request for Judicial Notice, which asks the Court to take judicial notice of:

1. Printout from the California Contractors State Licensing Board relating to the general contractor license of Paramand Kumar;

2. “Total View Report" from First American (Title Company) Data Tree showing the public records of the history of ownership of the property known as 3400 Inglewood Blvd, Los Angeles, CA 90066-1916; and

3. Revised Declaration of Plaintiff Paramand Kumar filed October 29, 2018 in this action.

Plaintiff’s objections to the requests are ruled on as follows:

#1 overruled; #s2-3 sustained.

Discussion

The Complaint alleges eight (8) causes of action, as follows: (1) breach of contract; (2) common counts; (3) conspiracy; (4) fraud; (5) conspiracy; (6) intentional tort; (7) violation of Business & Professions Code; (8) foreclosure of contractor’s licensure bond; (9) foreclosure of contractor’s license bond; (10) unjust enrichment; and (11) general damages. The basis of the Complaint is that Plaintiff entered into a plumbing construction agreement with Defendants Lopaz and Rudy’s Mechanical Plumbing for $26,000.00. (Compl., ¶10 and Exh. A.) The contract was secured by Bond No. SC6049237 in the amount of $12,500.00 from the Defendant ACIC. (Id. at ¶11.) Around May 2015, by misrepresentation and shoddy work, Defendants Lopaz and Rudy’s Mechanical Plumbing were allegedly paid $30,700.00 by Plaintiff without completing the work as agreed. (Id. at ¶13.) Despite Plaintiff’s demand that Defendants complete the work, as of July 2015, the had breached the agreement by abandonning the project. (Id. at ¶¶16-18.) In August 2015, Plaintiff attached the Bond from Defendant ACIC. (Id. at ¶19.)

The Complaint broadly alleges each of the causes of action against all Defendants, but it appears that only the ninth cause of action is made against Defendant ACIC. In this cause of action, Plaintiff alleges that he is entitled to the value of the Bond due to Defendants’ violation of sections 7107, 7109 7110, 7111, 7113, 7114, 7115, 7118, 7119, and 7159.

Cause of Action for Foreclosure of Contractor’s License Bond

As an initial matter, the Court notes that the Complaint does not clearly allege the elements of its cause of action against Defendant ACIC. None of the statutes cited in the ninth cause of action create liability by Defendant ACIC to Plaintiff. In Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 39, the California Supreme Court explained that [t]o ascertain the nature and extent of [the surety’s] liability, [the Court] look[s] first to the express terms of the performance bond.” (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28.) It further directed that “where a bond incorporates another contract by an express reference thereto, ‘the bond and the contract should be read together and construed fairly and reasonably as a whole according to the intention of the parties.’ [citations omitted].” (Id. at 39-40.)

The Complaint here neither attaches the Bond nor cites its relevant terms to demonstrate that Defendant ACIC can be liable to Plaintiff. The Court, therefore, has serious concerns about whether Plaintiff has adequately alleged a claim against Defendant ACIC.

Basis of Motion for Judgment on the Pleadings

Defendant ACIC moves for judgment on the pleadings on the grounds that due to being unlicensed during the relevant times, Plaintiff’s claims as a contractor are barred by Cal. Business and Professions Code section 7031, subdivision (a), which states in relevant part:

Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person, except that this prohibition shall not apply to contractors who are each individually licensed under this chapter but who fail to comply with Section 7029.

(Bus. & Prof. Code, § 7031, subd. (a) (emphasis added).) Defendant ACIC argues that the relevant issue is whether the Complaint and matters of which the Court may take judicial notice demonstrate that Plaintiff was engaged in the business or acting in the capacity of a contractor and therefore, if unlicensed at the time, is barred from bringing this action.

Characterization of Plaintiff’s role in the contract

The body of the Complaint does not specifically allege that Plaintiff entered into the plumbing contract with Defendants Lopaz and Rudy’s Mechanical Plumbing as a contractor. It simply alleges that Plaintiff is an individual to whom Defendants Lopaz and Rudy’s Mechanical Plumbing agreed to provide plumbing construction. (Compl., ¶¶1, 10.) The agreement, which is attached to the Complaint is entitled “Proposal and Subcontract Agreement,” refers to Plaintiff as “contractor” and refers to Defendant Rudy’s Mechanical Plumbing (Id. at Exh. 1.) However, Plaintiff does not sign the agreement as a contractor. Rather, Plaintiff crossed-off the word “contractor” under his signature and replaced it with “owner representative.” (Id. at Exh. 1, p. 2.)

Defendant ACIC also points to Plaintiff October 29, 2018 declaration in this action, in which he refers to himself as the general contractor and owners’ representative on the project that is the subject of the agreement with Defendants Lopaz and Rudy’s Mechanical Plumbing. (Motion, RJN, Exh. 3, ¶3.) Judicial notice of the contents of a party admission in a court-filed declaration can be appropriate as a matter that cannot be reasonably controverted. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) The Court declines to take judicial notice of the declaration as a party admission that Plaintiff was acting as a general contractor. The term “general contractor” has a specific legal definition under the Business & Professions Code: “a general building contractor is a contractor whose principal contracting business is in connection with any structure built, being built, or to be built, for the support, shelter, and enclosure of persons, animals, chattels, or movable property of any kind, requiring in its construction the use of at least two unrelated building trades or crafts, or to do or superintend the whole or any part thereof.” (Cal. Bus. & Prof. Code, § 7057, subd. (a).) The evidence presented above by Defendant ACIC does not indicate that either the Complaint, agreement or declaration intended to represent Plaintiff was acting as a general contractor, as opposed to the homeowners’ representative.

Based on the foregoing, the Court does not find that Plaintiff was required to allege that he was “engaged in the business or acting in the capacity of a contractor” during the execution and performance of the agreement.

Status of Plaintiff’s Contractor’s License During Entry and Performance of the Agreement

Defendant ACIC also seeks to present evidence that Plaintiff was not licensed at the time he entered into the contract with Defendants Lopaz and Rudy’s Mechanical Plumbing, which would be required if he was acting as a general contractor on the project. The agreement is dated October 23, 2014. (Compl., Exh. 1, p. 2.) The Court takes judicial notice of the California Contractors State Licensing Board’s printout with respect to Plaintiff. The printout itself, however, does not speak to Plaintiff’s contractor status at the time the agreement was signed. The printout pertains only to Plaintiff’s contractor’s license status as of December 10, 2019. (Motion, RJN, Exh. 1.) Defendant ACIC’s attorney’s supporting declaration includes information about what she contends was the status of Plaintiff’s contractor’s license from 2010 to 2019. The Court, however, finds that portion of the declaration to be inadmissable hearsay. Therefore, the Court does not find that the Complaint or any judicially noticable facts demonstrate that Plaintiff was unlicensed at the time the agreement was executed or performed.

Conclusion

As discussed above regarding the Court’s concerns that Plaintiff has adequately alleged a claim against Defendant American Contractor’s Indemnity Company, the Motion for Judgment on the Pleadings is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.

Hearing on this matter may need to be conducted at 2:00 p.m.  Please e mail clerk at: SSCdept26@lacourt.org 

Case Number: 17STLC02089    Hearing Date: October 24, 2019    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b), (d); § 473.5)

TENTATIVE RULING:

Defendant American Contractors Indemnity Company’s Motion to Set Aside Entry of Default and Default Judgment is GRANTED. ANSWER TO BE DEEMED FILED AS OF THE DATE OF THIS ORDER.

SUMMARY OF COMPLAINT: Action for breach of construction contract and related claims.

REQUEST FOR RELIEF: Set aside default judgment entered against ACIC on the grounds that it is void and service of the Summons and Complaint did not result in actual notice of the action.

OPPOSITION: The motion is untimely as it was not brought within six months of entry of default. Nor is the motion supported by evidence of any mistake, inadvertence or excusable neglect by Defendant.

REPLY: The motion is timely brought less than six months after the entry of default judgment. A void default or default judgment may be set aside under Code of Civil Procedure section 473.5. This is also permitted through a request for equitable relief. Defendant was not served with the Summons or Complaint, or the request for entry of default.

ANALYSIS:

On September 22, 2017, Plaintiff Parmanand Kumar (“Plaintiff”) filed this action against Defendants Rodolfo Cerrillo Lopaz, Rudy’s Mechanical Plumbing, and American Contractors Indemnity Company (“Defendant ACIC”). Plaintiff filed a proof of substitute service with respect to Defendant ACIC on November 30, 2017. On July 27, 2018, the Court entered default against Defendant ACIC. Default judgment was been entered against Defendant ACIC on October 29, 2018 in the amount of $12,500.00.

Defendant ACIC filed the instant Motion to Vacate Default and Default Judgment (“the Motion”) on June 4, 2019. Plaintiff filed his opposition on July 17, 2019 and Defendant ACIC replied on July 23, 2019.

Code of Civil Procedure section 473, subdivision (d)

“‘[A] void at any time [Citation.]” (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 233 Cal.Rptr.3d 814, 829.) A trial court has the inherent power to set aside a judgment void on its face at any time.” (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588 (emphasis added).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (See Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t[he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from a default judgment valid on its face but otherwise void because of improper service” (citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124).)

Defendant ACIC does not contend the judgment is void on its face. Rather, because it argues that the judgment is void for lack of proper service, the Court must consider whether the motion is timely under Code of Civil Procedure section 473.5. Code of Civil Procedure section 473.5, subdivision (a) provides: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.

Here, there is no indication that notice of entry of default or judgment was served on Defendant ACIC. As default judgment was entered on October 29, 2018, the Motion was timely brought less than two years after entry of default judgment. Plaintiff filed a proof of substitute service of the Summons and Complaint that states the papers were served on Defendant ACIC through its Agent for Service of Process, Anna Noveman, on September 28, 2017. (Proof of Substitute Service, filed 11/30/17, ¶3.) Specifically, the proof of service states that the papers were left at 801 S. Figueroa Street, Suite 700, Los Angeles, California” with “Employee of the Defendant, female, fair skin, black hair, blak [sic] eyes, 5’-7” tall, 135 Lbs.” (Id. at ¶¶4-5.) The papers were thereafter mailed to the service address on the same date. (Id. at ¶5.) Notably, however, the papers were not served by a registered California process server, so the proof of service is not entitled a presumption of accuracy. (See Cal. Evid. Code, § 647.)

Defendant ACIC disputes that the Summons and Complaint were ever delivered to the service address as they were not logged by its staff or distributed to Noveman. (Motion, Noveman Decl., ¶¶13-16; Viramontes Decl., ¶¶2-5; Banderas Decl., ¶¶2-5.) It processes all legal papers delivered or mailed to the service office, first through a Licensing Assistant III, then through a Bond Claims Assistant II, and utlimately through Noveman. (Ibid.) All legal papers are logged and distributed according the bond at issue. (Ibid.) Noveman admits seeing a copy of the Summons and Complaint that were mailed in late September 2018; those papers were received on October 5, 2017. (Motion, Noveman Decl., ¶11.) However, those the papers were not addressed to her personally, or as the the agent for service of process. (Ibid.) Defendant ACIC also disputes receipt of any of the other filings in this action that were purportedly mailed to the service address. (Motion, Noveman Decl., ¶¶13-16; Viramontes Decl., ¶¶2-5; Banderas Decl., ¶¶2-5.)

Defendant ACIC has demonstrated that service did not substantially comply with the statutory requirements. Under Code of Civil Procedure section 415.20, subdivision (a), after delivery of the papers, they must also be mailed “to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20, subd. (a).) Here, there is no dispute that the documents mailed to Defendant ACIC were not addressed to Noveman. Defendant ACIC thereafter informed Plaintiff that this attempt at service was improper and sought proof of service from him. (Motion, Noveman Decl., Exh. 3.) Plaintiff made no response to demonstrate that service was proper and that a response was required by Defendant ACIC. Plaintiff also incorrectly argues that mailing the papers to Defendant ACIC’s in-house counsel was sufficient service, without citing to any legal authority. (Opp., p. 5:5-16.)

Finally, Defendant ACIC has demonstrated the existence of a meritorious defense and filed a copy of its proposed Answer. Based on the foregoing, the Motion to Set Aside Entry of Default and Default Judgment is GRANTED.

Moving party to give notice.