TONYA WINN VS GEMDALE USA CORPORATION, ET AL.

Tentative Rulings

Case Number: *******0381    Hearing Date: February 22, 2021    Dept: F49

Case Number: 19CHCV00920    Hearing Date: February 22, 2021    Dept: F49

Dept. F-49

Calendar # 4

Date: 2-22-21 c/f 11-25-20

Case # 19CHCV00920

Trial Date: N/A

DISMISS

MOVING PARTY: Defendant/Cross-Complainant, Shahyad 26, LLC, et al.

RESPONDING PARTY: Unopposed/Plaintiffs/Cross-Defendants, Shlomo Maymom aka Art & More Construction, Inc.; Art & More Construction, Inc.[1]

RELIEF REQUESTED

Motion to Dismiss the Action

SUMMARY OF ACTION

Plaintiff, Shlomo Maymom aka Art & More Construction, Inc. alleges entry into contract with Defendants Shahyad 26, LLC, Benji Construction Group and Benji & Associates Realty on July 10, 2019 for the provision of certain contractor services and materials for real property located at 5941 Encino Ave., Encino. On October 17, 2019, the Benji defendants told Plaintiff to cease construction, due to the rejection of the building plan by the City of Los Angeles. A dispute ensued, and the Benji defendants “banned” Plaintiff from the project.

On November 15, 2019, Plaintiff filed a complaint for breach of written contract, breach of the covenant of good faith and fair dealing, failure to disclose, and unfair business practices. On November 18, 2019, Plaintiff filed a Notice of Lis Pendens. A lis pendens was recorded on November 20, 2019. On February 7, 2020, Plaintiff recorded a mechanic’s lien.

On February 20, 2020, the court granted the ex parte motions of Defendant Shahyad 26, LLC to expunge the lis pendens and mechanics lien on the property. The court ordered Defendant to separately file any motion for attorney fees.

On March 4, 2020, the court sustained the demurrer to the complaint with 30 days leave to amend. The court record shows no amended complaint on file. On July 6, 2020, Defendant Shahyad 26, LLC filed a cross-complaint for breach of contract, common counts, fraud, negligence, and contractor’s license bond.

On August 28, 2020, the clerk entered a default against cross-defendant Shlomo Maymom and Art & More Construction, Inc. on the Shahyad 26, LLC cross-complaint. Business Alliance Insurance Company answered the cross-complaint on September 8, 2020, and filed a cross-complaint against Shlomo Maymom and Art & More Construction, Inc. for Indemnity and Reimbursement.

On October 6, 2020, the court awarded Defendant, Shahyad 26, LLC $4,540 in attorney fees and costs against Shlomo Maymom and Art & More Construction, Inc.

On November 17, 2020, the clerk entered a default against Shlomo Maymon and Art & More Construction, Inc. on the Business Alliance Insurance Company.

On February 9, 2021, the court denied the motion for leave to file an amended pleading, and to vacate the default. On February 17, 2021, Plaintiff filed a first amended complaint for Breach of Written Contract, Breach of Covenant of Good Faith and Fair Dealing, Failure to Disclose, and Unfair Business Practices.

RULING: Denied.

Shahyad 26, LLC and Albert Benji move to dismiss the complaint due to the failure of Plaintiff to file an amended complaint following the March 4, 2020 order sustaining the demurrer to the complaint with 30 days leave to amend. (Code Civ. Proc., ; 581, subd. (f)(2).)

The court record now shows a first amended complaint filed on February 17, 2021. The motion is denied.

Moving Parties to give notice.