On 01/29/2016 THE TERMINIX INTERNATIONAL COMPANY LP filed a Contract - Other Contract lawsuit against ALL STAR CONSTRUCTI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARC MARMARO. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
TERMINIX INTERNATIONAL COMPANY THE L.P.
THE TERMINIX INT'L COMPANY LP
ALL STAR CONSTRUCTION
ALL STAR CONSTRUCTION INC.
HINSHAW & CULBERTSON LLP
PON SEAN NICHOLAS
6/11/2018: REQUEST FOR ENTRY OF DEFAULT
6/12/2018: Minute Order
2/20/2019: Minute Order
2/27/2019: Notice of Ruling
3/6/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice
4/25/2019: Amendment to Complaint (Fictitious/Incorrect Name)
4/5/2016: NOTICE OF CASE MANAGEMENT CONFERENCE
6/23/2016: PROOF OF SERVICE SUMMONS
6/30/2016: PROOF OF SERVICE OF SUMMONS
8/23/2016: Minute Order
11/15/2016: Minute Order
12/28/2016: Minute Order
2/3/2017: Minute Order
8/21/2017: Minute Order
9/26/2017: NOTICE RE STATUS CONFERENCE
11/9/2017: Minute Order
Amendment to Complaint (Fictitious/Incorrect Name); Filed by The Terminix Int'l Company, LP (Plaintiff)Read MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
Notice of Ruling; Filed by The Terminix Int'l Company, LP (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 37; Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) - HeldRead MoreRead Less
at 1:30 PM in Department 37; Court OrderRead MoreRead Less
Certificate of Mailing for (Minute Order (IN CHAMBERS COURT ORDER) of 02/20/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473))); Filed by ClerkRead MoreRead Less
Minute Order ( (IN CHAMBERS COURT ORDER)); Filed by ClerkRead MoreRead Less
Notice (of Non Receipt of Opposition); Filed by The Terminix Int'l Company, LP (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 37; Hearing on Ex Parte Application (OF THE TERMINIX ANSWER INTERNATIONAL COMPANY) - Held - Motion DeniedRead MoreRead Less
Minute order entered: 2016-05-19 00:00:00; Filed by ClerkRead MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
Case Management Statement; Filed by The Terminix Int'l Company, LP (Plaintiff)Read MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
OSC-RE Other (Miscellaneous); Filed by ClerkRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by The Terminix Int'l Company, LP (Plaintiff)Read MoreRead Less
COMPLAINT FOR INDEMNITY AND CONTRIBUTIONRead MoreRead Less
Case Number: BC608803 Hearing Date: July 09, 2020 Dept: 37
HEARING DATE: July 9, 2020
CASE NUMBER: BC608803
CASE NAME: The Terminix International Company, L.P. v. All Star Construction, Inc.
DEFAULT ENTERED: November 27, 2019
PLAINTIFF’S APPLICATION FOR DEFAULT JUDGMENT
TENTATIVE: Upon Plaintiff filing a Civ-110 form dismissing the Roe Defendants, Judgment will be entered against Defendant All Star Construction, Inc. in the total amount of $107,821.52
Summary of Complaint:
Plaintiff the Terminix International Company L.P. (“Terminix”) alleges that non-parties Dan Molina and Nana Haneda-Echeverria (the “Molinas”) filed a demand for arbitration for damages against Terminix with the American Arbitration Association (“AAA”) on July 29, 2015. Terminix alleges that there was a subcontractor agreement (the “Agreement”) between Terminix and Defendant All Star Construction (“All Star”) that required All Star to indemnify and defend Terminix from and against any and all claims or causes of action or damages which Terminix may incur by reason of acts or omissions of All Star.
In the Complaint, Plaintiff alleges three causes of action for: (1) contractual indemnity; (2) equitable indemnity and (3) comparative contribution.
Default was entered against All-Star on October 28, 2016. Plaintiff’s request for default judgment came to hearing on June 11, 2018, at which time the court denied the request, finding that Defendant “All-Star Construction” appeared to be the fictitious business name of non-party Zachary Archibek and not a corporation. The court set an OSC re: proof of service for July 16, 2018. Plaintiff did not appear at the July 16, 2018 hearing and the court dismissed this matter on that date.
On February 20, 2019 the court granted Plaintiff’s Motion to Set Aside/Vacate Dismissal and set aside the dismissal entered on July 16, 2018. ordered Plaintiff to file and serve an amendment to the Complaint within 30 days which corrects the name of Defendant “All-Star Construction, Inc.”
On April 25, 2019, Plaintiff filed an amendment to the Complaint correcting Defendant All Star Construction’s name to “All Star Construction, Inc.”
On October 15, 2019, Plaintiff filed a First Amended Complaint (“FAC”). The Summons on Plaintiff’s FAC indicates that Defendant’s name was “All Star Construction.”
Service of Summons:
Plaintiff filed a proof of service on October 24, 2019 indicating that All Star was served with the Summons and FAC on October 17, 2019. Service was performed by leaving documents with William F. Turner, registered agent for service of process at 1451 Rimpau Avenue, Suite 108, Corona, California 92879 on October 17, 2019.
The court notes that on January 15, 2019, Plaintiff previously filed a “Declaration of Aji N. Abiedu regarding Proper Service of Summons and Complaint.” Abiedu attests that according to the California Secretary of State, All Star’s Articles of Incorporation names William F. Turner as its Agent for Service of Process. (Abiedu Decl. ¶ 3, Exhibit A.)
Accordingly, the service was sufficient. (Code Civ. Proc., §§ 415.20, subd. (a); 415.40.)
Entry of Default:
Default was entered against All Star on November 27, 2019 as to the FAC. The declaration of mailing indicates that a copy of the request for entry of default was served on All Star by serving William F. Turner at the above address. Accordingly, this is sufficient for the statutory requirements of Code of Civil Procedure § 587.
SUBMITTED DOCUMENTS: (Cal. Rules of Court, rule 3.1800):
Dismissal or judgment of non-parties to the judgment NO
Use of JC Form CIV-100 YES
Memorandum of costs YES
Declaration of nonmilitary status for each defendant YES
Summary of the case YES
585(d) declarations/admissible evidence in support YES
Interest computation (as necessary) N/A
Request for attorney fees (Local Rule 3.214) YES
Proposed judgment YES
Exhibits (as necessary) YES
DEFAULT JUDGMENT REQUESTED:
• Damages: $ 75,000
• Interest: $ 0
• Attorney fees: $ 27,019.60
• Costs: $ 5,801.92
Total: $ 107,821.52
Pursuant to Code of Civil Procedure section 585, Plaintiff requests a court judgement against Defendant in the total amount of $107,821.52.
First, the court notes that Plaintiff has not dismissed Roes 1 through 100 from the FAC. Thus, the court requests Plaintiff bring a Civ-110 form to the hearing dismissing these Defendants.
Plaintiff requests an award of principal damages in the total amount of $75,000.00. Plaintiff submits the declaration of its attorney, Frederick J. Ufkes (“Ufkes”) in support of its request. Ufkes attests that on July 28, 2015, Don Molina and Nana Haneda-Echiverria (“Claimants”) and Plaintiff entered into an arbitration, which alleged that claimants’ property suffered damage as a result of several home improvement contracts in 2013 between Plaintiff and Claimants. (Ufkes Decl. ¶ 3.) Further, Ufkes attests that during this time frame there was a Contractor Agreement between Plaintiff and Defendant requiring Defendant to indemnify and defend Plaintiff from claims by Claimants. (Ufkes Decl. ¶ 4, Exhibit A.) According to Ufkes, the parties to the arbitration reached a settlement in or around April 28, 2018, in which Plaintiff agreed to pay claimants seventy-five thousand dollars ($75,000.00) to resolve the underlying claim. (Ufkes Decl. ¶ 7.)
Plaintiff has also submitted a copy of the Contractor Agreement between Plaintiff and Defendant in support of its claim. The Contractor Agreement provides in relevant part as follows:
“8. Indemnity and Hold Harmless. Notwithstanding anything to the contrary set forth in this Agreement and notwithstanding any claim that Terminix shall not have properly performed the duties with respect to this Agreement, and to the fullest extent permitted by law, Contractor agrees to indemnify, hold harmless, and defend Terminix, its agents and employees, from and against any and all actions or causes of action, claims, demands, liabilities, damage or expense of whatsoever kind and nature, including but not limited to attorney’s fees, which Terminix, its agents or employees, may suffer or incur by reason of bodily injury, including death, to any person or persons, or by reason of damage to or destruction of any property, including the loss of use thereof, or by reason of any noncompliance or violation of the terms of this Agreement by Contractor, arising out of or in any manner connected this Agreement.”
Given the foregoing, the court finds that Plaintiff has demonstrated its entitlement to $75,000 in principal damages.
Plaintiff requests costs in the total amount of $5,801.92. Plaintiff’s memorandum of costs indicates that this amount compromise entirely of filing fees and process server’s fees. Filing fees and process server are recoverable as costs on default. (Code Civ. Proc. § 1033.5, subds. (a)(1), (a)(4).)
Accordingly, Plaintiff has demonstrated its entitlement to costs in the total amount of $5,801.92.
Plaintiff requests an award of attorney fees in the total amount of $27,019.60. Ufkes attests that Plaintiff is entitled to such an award because the Contractor Agreement at paragraph 8, described above, provides that Plaintiff is entitled to recover attorney fees and costs it incurred in this matter and that those were the fees incurred. (Ufkes Decl. ¶ 9.)
Plaintiff’s Application for default judgment will be GRANTED. Upon Plaintiff filing a Civ-110 form dismissing the Roe Defendants, Judgment will be entered against Defendant All Star Construction, Inc. in the total amount of $107,821.52.
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