J. B. WHOLESALE ROOFING AND BUILDING SUPPLIES, INC., A CALIFORNIA CORPORATION VS SUPERIOR ROOF SOLUTIONS INC., A CALIFORNIA CORPORATION, ET AL.

Tentative Rulings

Case Number: *******1398 Hearing Date: August 16, 2023 Dept: F47

Dept. F47

Date: 8/16/23

Case #*******1398

MOTION TO SEVER

Motion filed on 5/8/23.

MOVING PARTY: Plaintiff J.B. Wholesale Roofing and Building Supplies, Inc.

RESPONDING PARTY: All other parties

NOTICE: ok

RELIEF REQUESTED: An order severing Defendants Superior Roof Solutions Inc. (SRS) and David Sager (Sager) from this action and entering judgment by default against SRS under the 1^st, 2^nd, 3^rd, 4^th and 6^th causes of action of Plaintiff’s complaint, and against Sager under the 5^th cause of action of Plaintiff’s complaint.

RULING: The unopposed motion is granted.

SUMMARY OF ACTION & PROCEDURAL HISTORY

Plaintiff J.B. Wholesale Roofing and Building Supplies, Inc. (Plaintiff), a wholly owned subsidiary of SRS Distribution Inc., a Delaware corporation, is in the business of selling, among other things, roofing material, equipment, supplies and related goods for use in construction and other applications (Materials). This action arises from the furnishing of Materials to Defendant Superior Roof Solutions Inc., a California corporation (SRS) for use in its business.

On or about 3/18/21, Plaintiff and SRS executed a written credit application and agreement (Credit Agreement) for the supply of Materials. On the same date, Defendant David Sager (Sager), the owner of SRS, agreed in writing to personally guarantee payment of all past, present, and future indebtedness of SRS to Plaintiff (the Guaranty) (SRS and Sager may be collectively referred to as Defendants).

Based on the Credit Agreement and Guaranty, Plaintiff opened a credit account for

SRS, pursuant to which Plaintiff supplied Materials on credit for, among other things, use in SRS’s business. The terms and conditions of the Credit Agreement and Guaranty made in

consideration of Plaintiff opening a credit account for SRS are applicable to the account

opened under the Credit Agreement. Said terms and conditions are also contained in the

written invoices used to confirm the purchases by SRS from Plaintiff. The terms and

conditions of the Credit Agreement, the Guaranty, and the confirming invoices form the

written contract by which Plaintiff supplied Materials to SRS (the Contract).

The Contract provided, in relevant part, that Plaintiff would sell Materials to SRS, and that SRS would pay Plaintiff for said Materials by the 25th day of the month from the date of invoice. Pursuant to the Contract, Plaintiff provided Materials to SRS at the request of SRS. Each shipment of Materials to SRS was confirmed by an invoice sent to SRS.

On 12/15/22, Plaintiff filed this action against Defendants to collect the amounts owed for the Materials provided. Plaintiff’s complaint also seeks enforcement of Plaintiff’s claim against the license bond of SRS. The license bond surety, Defendant/Cross-Complainant Merchants Bonding Company (Mutual), an Iowa corporation (Merchants), has filed an interpleader cross-complaint, which Plaintiff has answered and which remains pending.

After having been served with the summons and complaint, SRS and Sager (Defendants) have failed to file responsive pleadings. As a result, default was entered against Defendants on 2/9/23.

On 5/8/23, Plaintiff filed and served the instant motion which seeks an order severing SRS and Sager from this action and entering judgment by default against SRS on the 1^st, 2^nd, 3^rd, 4^th and 6^th causes of action in Plaintiff’s complaint, and against Sager on the 5^th cause of action in Plaintiff’s complaint in the amount of $32,533.46 which includes interest, attorneys’ fees and costs, as recoverable under the Contract and applicable law. On 5/8/23, Plaintiff also dismissed Does 1-20. No opposition or other response to the motion has been filed.

Upon the granting of this motion, Plaintiff indicates that it will proceed to prosecute the remaining license bond claim against Merchants and Does 21-30, inclusive.

ANALYSIS

Since all defendants named in this action are jointly and severally liable to Plaintiff on the claims alleged in this action, Plaintiff properly joined all defendants in this action. See CCP 379.

CCP 579 provides:

“In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.”

CCP 1048(b) provides:

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”

The Court finds that it is in the interests of justice and judicial economy to sever this action and enter default judgment against Defendants as requested.

CONCLUSION

The motion is granted.