This case was last updated from Los Angeles County Superior Courts on 10/16/2020 at 09:51:10 (UTC).

BEACHCITI CONSTRUCTION INC VS RICH ESTATE PROPERTIES INC ET

Case Summary

On 05/25/2018 BEACHCITI CONSTRUCTION INC filed an Other lawsuit against RICH ESTATE PROPERTIES INC ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY J. FUJIE and DENNIS J. LANDIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7608

  • Filing Date:

    05/25/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY J. FUJIE

DENNIS J. LANDIN

 

Party Details

Plaintiffs and Petitioners

BEACHCITY CONSTRUCTION INC.

BEACHCITI CONSTRUCTION INC.

Defendants, Respondents and Cross Plaintiffs

DOES 1-10

KHATIBI RICHARD

ROODI DAVID

RICH ESTATE PROPERTIES INC.

Plaintiffs and Cross Defendants

BEACHCITI CONSTRUCTION INC.

BERENGIAN MORY

Attorney/Law Firm Details

Plaintiff, Petitioner and Cross Defendant Attorneys

KRAFT KARLA J. ESQ.

KRAFT KARLA ESQ.

KRAFT KARLA

Defendant, Respondent and Cross Plaintiff Attorneys

KWASIGROCH MICHAEL D. ESQ.

KWASIGROCH MICHAEL D.

 

Court Documents

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: REPLY/DEMURRER)

8/21/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: REPLY/DEMURRER)

Minute Order - MINUTE ORDER (HEARING ON MOTION TO SET ASIDE/VACATE JUDGMENT (CCP 473))

8/13/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO SET ASIDE/VACATE JUDGMENT (CCP 473))

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

3/19/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

PROOF OF SERVICE SUMMONS

7/18/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

7/18/2018: PROOF OF SERVICE SUMMONS

AFFIDAVIT OF DUE DILIGENCE

7/25/2018: AFFIDAVIT OF DUE DILIGENCE

NOTICE OF CONTINUANCE OF OSC RE FAILURE TO FILE PROOF OF SERVICE; NOTICE OF CASE MANAGEMENT CONFERENCE

8/3/2018: NOTICE OF CONTINUANCE OF OSC RE FAILURE TO FILE PROOF OF SERVICE; NOTICE OF CASE MANAGEMENT CONFERENCE

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE HEARING ON DEMURRER AND MOTION TO STRIKE

11/21/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE HEARING ON DEMURRER AND MOTION TO STRIKE

Notice of Ruling - NOTICE OF RULING PLAINTIFF AND CROSS-DEFENDANT BEACHCITI CONSTRUCTION, INC. AND CROSS-DEFENDANT MORY BERENGIANS NOTICE OF RULING

11/25/2019: Notice of Ruling - NOTICE OF RULING PLAINTIFF AND CROSS-DEFENDANT BEACHCITI CONSTRUCTION, INC. AND CROSS-DEFENDANT MORY BERENGIANS NOTICE OF RULING

Opposition - OPPOSITION OPPOSITION TO EXPARTE TO STRIKE FIRST AMENDED CROSSCOMPLAINT

8/27/2019: Opposition - OPPOSITION OPPOSITION TO EXPARTE TO STRIKE FIRST AMENDED CROSSCOMPLAINT

Proof of Service (not Summons and Complaint)

8/27/2019: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION REQUESTING ORDER)

8/28/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION REQUESTING ORDER)

Notice - NOTICE OF NON-OPPOSITION TO PLAINTIFF AND CROSS-DEFENDANT'S MOTION TO COMPEL DISCOVERY RESPONSES, AS TO RICH ESTATE PROPERTIES AND RICHARD KHATIBI

6/21/2019: Notice - NOTICE OF NON-OPPOSITION TO PLAINTIFF AND CROSS-DEFENDANT'S MOTION TO COMPEL DISCOVERY RESPONSES, AS TO RICH ESTATE PROPERTIES AND RICHARD KHATIBI

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO ADVANCE THE HEARING DATE OF ITS MOTION FOR SUMMARY ADJUDICATION OR, IN THE ALTERNATIVE, TO CONTINUE THE TRIAL

5/17/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO ADVANCE THE HEARING DATE OF ITS MOTION FOR SUMMARY ADJUDICATION OR, IN THE ALTERNATIVE, TO CONTINUE THE TRIAL

ANSWER OF DEFENDANT RICHARD KHATIBI TO COMPLAINT OF BEACHCITI CONSTRUCTION INC.

9/20/2018: ANSWER OF DEFENDANT RICHARD KHATIBI TO COMPLAINT OF BEACHCITI CONSTRUCTION INC.

AMENDED PROOF OF SERVICE SUMMONS

9/24/2018: AMENDED PROOF OF SERVICE SUMMONS

133 More Documents Available

 

Docket Entries

  • 12/08/2020
  • Hearing12/08/2020 at 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 12/01/2020
  • Hearing12/01/2020 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/08/2020
  • DocketAmended Cross-Complaint ( (3rd)); Filed by Rich Estate Properties, Inc. (Cross-Complainant)

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  • 09/22/2020
  • DocketNotice of Ruling; Filed by BeachCiti Construction, Inc. (Plaintiff); Mory Berengian (Cross-Defendant)

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  • 09/18/2020
  • Docketat 10:45 AM in Department 56; Ruling on Submitted Matter

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  • 09/18/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 09/18/2020); Filed by Clerk

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  • 09/18/2020
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 08/28/2020
  • Docketat 3:00 PM in Department 56; Non-Appearance Case Review (reRuling on Demurrer) - Held

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  • 08/28/2020
  • DocketMinute Order ( (Non-Appearance Case Review re: Ruling on Demurrer)); Filed by Clerk

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  • 08/21/2020
  • Docketat 3:00 PM in Department 56; Non-Appearance Case Review (reReply/Demurrer) - Held

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188 More Docket Entries
  • 06/01/2018
  • DocketNotice; Filed by BeachCiti Construction, Inc. (Plaintiff)

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  • 06/01/2018
  • DocketNOTICE OF PENDENCY OF ACTION [CIV. PROC. CODE 405 ET SEQ.]

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  • 05/31/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 05/31/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/31/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/31/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 05/29/2018
  • DocketSummons; Filed by BeachCiti Construction, Inc. (Plaintiff)

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  • 05/29/2018
  • DocketSUMMONS

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  • 05/25/2018
  • DocketComplaint; Filed by BeachCiti Construction, Inc. (Plaintiff)

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  • 05/25/2018
  • DocketPLAINTIFF BEACHCITI CONSTRUCTION, INC.'S VERIFIED COMPLAINT: (1) FORECLOSE MECHANIC'S LIEN; ETC

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Tentative Rulings

Case Number: BC707608    Hearing Date: August 13, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BEACHCITI CONSTRUCTION, INC., etc.,

Plaintiff,

vs.

RICH ESTATE PROPERTIES, INC.., etc., et al.,

Defendants.

RICH ESTATE PROPERTIES, INC.,

Cross-Complainant,

vs.

BEACHCITI CONSTRUCTION, INC., et al.,

Cross-Defendants.

CASE NO.: BC707608

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE AND/OR VACATE JUDGMENT AND RULING ON DEMURRER AND MOTION TO STRIKE

Date: August 13, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendant and Cross-Complainant Rich Estate Properties, Inc.; Defendant Richard Khatibi (“Defendants”)

RESPONDING PARTIES: Plaintiff and Cross-Defendant BeachCiti Construction, Inc. (“BCI”) and Cross-Defendant Mory Berengian (“Berengian”)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

This action arises from the alleged nonpayment for a renovation of a home. BCI filed a complaint against Defendants alleging causes of action for: (1) foreclosure of mechanic’s lien; (2) breach of contract; (3) breach of implied contract; (4) common count—work labor, services rendered; and (5) common count—reasonable value of services rendered.

Defendant Rich Estate Properties, Inc. filed the operative First Amended Cross-Complaint (“FAXC”) against Cross-Defendants alleging causes of action for: (1) fraud; (2) rescission and restitution; (3) violation of California Business and Professions Code, Section 17200; (4) rescission and restitution; (5) violation of California Business and Professions Code, Section 7159; (6) violation of California Business and Professions Code, Section 7160; (7) negligence; and (8) declaratory relief.

On October 1, 2019, Berengian and BCI filed a demurrer to each cause of action in the FAXC. Berengian and BCI also filed a motion to strike portions of the FAXC. The hearing on the demurrer and motion to strike with respect to the FAXC was set for November 21, 2019.

On November 21, 2019, Defendants filed an ex parte application for continuance of the hearings on the motion to strike and demurrer with respect to the FAXC. The ex parte application indicated that Defendants wished to continue the hearings on the demurrer and motion to strike as to the FAXC because counsel never calendared a response date. The ex parte application included a declaration from Defendants’ counsel, Michael D. Kwasigroch (“Kwasigroch”), who declared that he failed to calendar a response due to an error. The Court denied Defendants’ ex parte application.

On November 21, 2019, the Court sustained without leave to amend the demurrer of BCI and Berengian to the entire FAXC. The Court also granted BCI and Berengian’s motion to strike as to the FAXC without leave to amend. The demurrer and motion to strike were both unopposed and that was the basis for the Court’s ruling.

On December 17, 2019, the Court entered judgment and indicated that BCI was the prevailing party on both the complaint and FAXC. Judgment as to the FAXC was entered entirely in favor of BCI due to the dismissal of the FAXC with prejudice after sustaining the demurrer and granting the motion to strike as to the FAXC. On January 9, 2020, BCI filed and served notice of entry of judgment.

On March 9, 2020, Defendants filed and served a motion to set aside and/or vacate: (1) judgment entered against them on December 17, 2019; and (2) the ruling on the demurrer and motion to strike with respect to the FAXC. Defendants assert that: (1) discretionary relief pursuant to California Code of Civil Procedure, Section 473(b) is appropriate; and (2) mandatory relief pursuant to an attorney affidavit of fault under California Code of Civil Procedure, Section 473(b) is appropriate.

BCI and Berengian oppose Defendants’ motion on the sole ground that Defendants’ motion is untimely pursuant to California Rules of Court, Rule 3.2231(b)(1).

On July 24, 2020, the Court continued the hearing on Defendants’ motion to set aside/vacate judgment in order for counsel for BCI and Berengian to submit a statement determining whether California Rules of Court, Rule 3.221(b)(1) applies. On July 31, 2020, Berengian and BCI filed a supplemental brief indicating that California Rules of Court, Rule 3.2231(b)(1) does not apply in this circumstance. Thus, this Court’s ruling will not address arguments with respect to California Rules of Court, Rule 3.2231(b)(1) as it is inapplicable. As such, BCI and Berengian lack a basis for argument as their opposition only argues that Rule 3.2231(b)(1) applies and as such Defendants’ motion is untimely.

Declaration of Defendants’ Counsel

In support of their motion to set aside/vacate judgment as well as the Court’s ruling with respect to the demurrer to the FAXC, Defendants present the declaration of Kwasigroch, who declares that: (1) he never calendared a response date to the demurrer and motion to strike with respect to the FAXC (Kwasigroch Decl. at ¶ 3); (2) this was due to an error pursuant to CCP section 473(b) (Id.); (3) he regularly and personally calendars all of his dates but for some reason he did not do so for those motions, and it is a rare occurrence that he fails to calendar a response date (Id.); and (4) his client has more than sufficient grounds for opposition to the demurrer and motion to strike and such full opposition is submitted under separate cover in support of Defendants’ motion[1]. (Id. at ¶ 4.)

DISCUSSION

“The court may . . . 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.” (Code Civ. Proc. § 473(b).)

“[T]he law favors a trial on the merits . . . and therefore liberally construes section 473.” (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.) “Doubts in applying section 473 are resolved in favor of the party seeking relief from default . . . and if that party has moved promptly for default relief only slight evidence will justify an order granting such relief.” (Id. at 1478.) “The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence.” (Id.) “Discretion is abused in granting relief from default if the moving party’s supporting affidavit or declaration fails to set forth facts sufficient to constitute grounds for relief.” (Transit Ads, Inc. v. Tanner Motor Livery, Limited (1969) 270 Cal.App.2d 275, 280.) “While not every mistake of an attorney constitutes excusable neglect . . . calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.” (Nilsson v. Los Angeles (1967) 249 Cal.App.2d 976, 980.)

California Code of Civil Procedure, Section 473(b) says that “the court shall, whenever an application for relief is made no more than six months after entry of judgment . . . and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default . . . or resulting default judgment entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

Issue No.1: Procedural Irregularity

The Court finds that the declaration of Kwasigroch sets forth sufficient grounds for a finding of mistake and excusable neglect. Defendants’ motion is also timely under Section 473(b). Defendants’ motion, however, failed to provide the Court with a copy of the pleading proposed to be filed therein which is a requirement for relief under California Code of Civil Procedure, Section 473(b).

The Court wishes to give Defendants an opportunity to conform to the mandate of California Code of Civil Procedure, Section 473(b). Conditioned on Defendants’ filing and serving a copy of their opposition to the demurrer and motion to strike in connection with the FAXC prior to the hearing on the instant motion, the Court GRANTS Defendants’ motion to set aside and/or vacate: (1) judgment entered against them on December 17, 2019; and (2) the ruling on the demurrer and motion to strike with respect to the FAXC.

BCI and Berengian are to re-notice and re-file their demurrer and motion to strike as to the FAXC for a date in September of 2020. Defendants shall have the opportunity to oppose such demurrer and motion to strike. BCI and Berengian may file a reply brief to such opposition.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 13th day of August 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] A review of the electronic court file does not show the filing that counsel describes. No such opposition was filed in connection with the moving or reply papers.

Case Number: BC707608    Hearing Date: July 24, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BEACHCITI CONSTRUCTION, INC., etc.,

Plaintiff,

vs.

RICH ESTATE PROPERTIES, INC.., etc., et al.,

Defendants.

RICH ESTATE PROPERTIES, INC.,

Cross-Complainant,

vs.

BEACHCITI CONSTRUCTION, INC., et al.,

Cross-Defendants.

CASE NO.: BC707608

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE AND/OR VACATE JUDGMENT AND RULING ON DEMURRER AND MOTION TO STRIKE

Date: July 24, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendant and Cross-Complainant Rich Estate Properties, Inc.; Defendant Richard Khatibi (“Defendants”)

RESPONDING PARTIES: Plaintiff and Cross-Defendant BeachCiti Construction, Inc. (“BCI”) and Cross-Defendant Mory Berengian (“Berengian”)

The Court has considered the moving and opposition papers. No reply papers were filed.

BACKGROUND

This action arises from the alleged nonpayment for a renovation of a home. BCI filed a complaint against Defendants alleging causes of action for: (1) foreclosure of mechanic’s lien; (2) breach of contract; (3) breach of implied contract; (4) common count—work labor, services rendered; and (5) common count—reasonable value of services rendered.

Defendant Rich Estate Properties, Inc. filed the operative First Amended Cross-Complaint (“FAXC”) against Cross-Defendants alleging causes of action for: (1) fraud; (2) rescission and restitution; (3) violation of California Business and Professions Code, Section 17200; (4) rescission and restitution; (5) violation of California Business and Professions Code, Section 7159; (6) violation of California Business and Professions Code, Section 7160; (7) negligence; and (8) declaratory relief.

On November 21, 2019, the Court sustained without leave to amend the demurrer of BCI and Berengian to the entire FAXC. The Court also granted BCI and Berengian’s motion to strike as to the FAXC without leave to amend. The demurrer and motion to strike were both unopposed and that was the basis for the Court’s ruling.

On December 17, 2019, the Court entered judgment and indicated that BCI was the prevailing party on both the complaint and FAXC. Judgment as to the FAXC was entered entirely in favor of BCI due to the dismissal of the FAXC with prejudice after sustaining the demurrer and granting the motion to strike as to the FAXC. On January 9, 2020, BCI filed and served notice of entry of judgment.

On March 9, 2020, Defendants filed and served a motion to set aside and/or vacate: (1) judgment entered against them on December 17, 2019; and (2) the ruling on the demurrer and motion to strike with respect to the FAXC. Defendants assert that: (1) discretionary relief pursuant to California Code of Civil Procedure, Section 473(b) is appropriate; and (2) mandatory relief pursuant to an attorney affidavit of fault under California Code of Civil Procedure, Section 473(b) is appropriate.

BCI and Berengian oppose Defendants’ motion on the grounds that Defendants’ motion is untimely pursuant to California Rules of Court, Rule 3.2231(b)(1).

DISCUSSION

“The court may . . . 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.” (Code Civ. Proc. § 473(b).)

“[T]he law favors a trial on the merits . . . and therefore liberally construes section 473.” (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.) “Doubts in applying section 473 are resolved in favor of the party seeking relief from default . . . and if that party has moved promptly for default relief only slight evidence will justify an order granting such relief.” (Id. at 1478.) “The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence.” (Id.) “Discretion is abused in granting relief from default if the moving party’s supporting affidavit or declaration fails to set forth facts sufficient to constitute grounds for relief.” (Transit Ads, Inc. v. Tanner Motor Livery, Limited (1969) 270 Cal.App.2d 275, 280.) “While not every mistake of an attorney constitutes excusable neglect . . . calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.” (Nilsson v. Los Angeles (1967) 249 Cal.App.2d 976, 980.)

California Code of Civil Procedure, Section 473(b) says that “the court shall, whenever an application for relief is made no more than six months after entry of judgment . . . and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default . . . or resulting default judgment entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

Issue No.1: Untimeliness of Defendants’ Motion

California Rules of Court, Rule 3.2231(a) provides that “’i]n any actions governed by the rules in this article, any postjudgment motion except for a motion for attorney’s fees and costs is governed by this rule.” California Rules of Court, Rule 3.2231(b)(1) provides that with respect to postjudgment motions brought pursuant to California Code of Civil Procedure, Section 473, such motion must be filed and served at the earliest of: (1) five days after the court clerk mails to the moving party a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was served; or (2) five days after the moving party is served by any party with a written notice of judgment or a file-stamped copy of the judgment, accompanied by a proof of service.

Here, Defendants were served with notice of entry of judgment on January 9, 2020. (Kraft Decl. at Exhibit B.) Defendant’s motion, however, was not filed and served until March 9, 2020. Defendants’ motion is untimely as Defendants failed to comply with the requirement set forth in California Rules of Court, Rule 3.2231(b)(1). Defendants’ instant motion is a motion brought after judgment was entered. Defendants failed to file their motion within five days of being served with the notice of entry of judgment.

Therefore, the Court DENIES Defendants’ motion to set aside and/or vacate:(1) judgment entered against them on December 17, 2019; and (2) the November 21, 2019 ruling on the demurrer and motion to strike with respect to the FAXC.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 24th day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC707608    Hearing Date: November 21, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BEACHCITI CONSTRUCTION, INC., etc.,

Plaintiff,

vs.

RICH ESTATE PROPERTIES, INC.., etc., et al.,

Defendants.

RICH ESTATE PROPERTIES, INC.,

Cross-Complainant,

vs.

BEACHCITI CONSTRUCTION, INC., et al.,

Cross-Defendants.

CASE NO.: BC707608

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED CROSS-COMPLAINT; MOTION TO STRIKE

Date: November 21, 2019

Time: 8:30 a.m.

Dept. 56

Jury Trial: April 20, 2020

MOVING PARTIES: Cross-Defendants Beachciti Construction, Inc. and Mory Berengian

The Court has considered the moving papers. No opposition papers were filed. Any

opposition papers were required to be filed and served by November 7, 2019 pursuant to

California Code of Civil Procedure, Section 1005(b).

BACKGROUND

This action arises from the alleged nonpayment for a renovation of a home. Plaintiff filed a complaint against Defendants alleging causes of action for: (1) foreclose mechanic’s lien; (2) breach of contract; (3) breach of implied contract; (4) common count—work labor, services rendered; and (5) common count—reasonable value of services rendered.

Cross-Complainant filed the operative First Amended Cross-Complaint (“FAXC”) against Cross-Defendants alleging causes of action for: (1) fraud; (2) rescission and restitution; (3) violation of California Business and Professions Code, Section 17200; (4) rescission and restitution; (5) violation of California Business and Professions Code, Section 7159; (6) violation of California Business and Professions Code, Section 7160; (7) negligence; and (8) declaratory relief.

Cross-Defendants filed a demurrer to the first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action in the FAXC on the grounds that each cause of action therein fails to state facts to constitute a cause of action. Cross-Defendants also filed a motion to strike portions of the FAXC. Cross-Complainant failed to file an opposition to Cross-Defendants’ demurrer or motion to strike with respect to the FAXC.

Due to Cross-Defendants’ demurrer being unopposed, the Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer of Cross-Defendants to the first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action in the FAXC. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20; see also Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The Court sustains the demurrer to the FAXC without leave to amend because Cross-Complainant has failed to oppose Cross-Defendants’ demurrer and thus has not met its burden in showing that there is a reasonable possibility that the FAXC can be amended to state sufficient causes of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Cross-Complainant has had an opportunity to amend its pleading to state sufficient causes of action as this is Cross-Complainant’s second iteration of its cross-complaint.

Due to Cross-Defendants’ motion to strike being unopposed, and the demurrer to each cause of action in the FAXC being sustained without leave to amend as indicated above, the Court GRANTS Cross-Defendants’ motion to strike WITHOUT LEAVE TO AMEND. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 21st day of November 2019

Hon. Holly J. Fujie

Judge of the Superior Court