Superior Court, State of California

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
Mark Rosales, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: FEBRUARY 19, 2015 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
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CASE #
CASE TITLE
RULING
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113CV256559 W. Robertson v. C.
Cartinhour, Jr.
SEE BELOW FOR TENTATIVE RULING
ON DEFENDANT’S MOTION TO QUASH
SERVICE OF SUMMONS AND TO
DISMISS COMPLAINT. The Motion by
Finkel Law Group, P.C. to be Relieved as
Counsel for Defendant William C.
Cartinhour, Jr. is GRANTED. The Case
Management Conference is Continued to
April 21, 2015 at 10:00 a.m. in Department 3.
LINE 2
114CV265278 Top Gun Drywall Supply, SEE TENTATIVE RULING BELOW
Inc. v. Layton
Construction Co., Inc., et
al.
LINE 3
114CV268466 B. Sarnevesht v. Pacific
Gas and Electric
LINE 4
110CV181018 MCT Group v. V. Stevens SEE TENTATIVE RULING BELOW
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113CV252142 Bridge Bank, National
Association v. G.
Ballelos, et al.
Continued to April 2, 2015 at 9:00 a.m. in
Department 3.
LINE 6
113CV243348 E. Berg v. C. Berg
REASSIGNED to Department 21.
LINE 7
114CV274105 J. Herrera v. J. Salamida
APPEARANCE REQUIRED
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109CV148207 N. Toledo, et al. v. Wet
Investments Inc.
REASSIGNED to Department 21.
LINE 9
111CV214032 The Board of Trustees of
CA State University v.
Niles Bolton Associates,
Inc.
OFF CALENDAR
The Demurrer to the Complaint is
SUSTAINED WITHOUT LEAVE TO
AMEND.
LINE 10 114CV267677 Wells Fargo Bank v. H.
Pham
REASSIGNED to Department 21.
LINE 11 113CV244710 E. Santa Clara Grocery,
LLC v. K. Small, et al.
APPEARANCE REQUIRED
LINE 12
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
Mark Rosales, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
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Calendar line 1
Case Name: Robertson v. Cartinhour
Case No.:
1-13-CV-256559
This is an action for breach of contract and fraud. Defendant William C. Cartinhour, Jr.
(“Defendant”) moves to quash service of summons and to dismiss the complaint for
inconvenient forum and makes a request for judicial notice in support thereof and in support of
the reply. (Code Civ. Proc. [“CCP”], § 418.10.) Plaintiff Wade Robertson (“Plaintiff”) makes a
request for judicial notice in support of his opposition. 1
Any purported requests for judicial notice that do not comply with California Rules of
Court, rule 3.1113(l) are denied.
Defendant’s request for judicial notice in support of the motion is GRANTED. (See
Evid. Code, § 452, subds. (a) & (d); see also Lockley v. Law Office of Cantrell, Green, Pekich,
Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [“Lockley”] [courts may “take judicial notice
of the existence” of documents in a court file and “facts in court records that are the result of an
adversarial hearing that involved the question of their existence or nonexistence,” but not other
facts or “the truth of hearsay statements” in the records]; see also Gbur v. Cohen (1979) 93
Cal.App.3d 296, 301 [“Gbur”] [relevance].)
Plaintiff’s request for judicial notice in support of the initial opposition is GRANTED
as to the existence of the court records, but not as to the truth of hearsay statements or facts that
are not the result of an adversarial hearing concerning the question of their existence. (See
Evid. Code, § 452, subd. (d); see also Gbur, supra, at p. 301; see also Lockley, supra, at p.
882.)
Defendant’s request for judicial notice of a copy of the subject contract (“the Contract”)
in support of the reply is GRANTED. (See Evid. Code, § 452, subd. (d); see also Gbur, supra,
at p. 301; see also Lockley, supra, at p. 882.)
Defendant moves to quash for lack of proper service, and moves to dismiss for
inconvenient forum based on lack of personal jurisdiction.
1
Plaintiff also filed objections to Defendant’s request for judicial notice in support of the motion, a
second opposition, a “Notice to the Court of Superseded Pleadings in Opposition,” an objection to Defendant’s
request for judicial notice in support of the motion, and an “Objection and Request to Strike” certain “factual
allegations contained in” the reply. These papers are procedurally defective. Any purported requests for judicial
notice that do not comply with California Rules of Court, rule 3.1113(l)—i.e. the requests with the second
opposition and “objection and request to strike”—are denied. Since there is no authority requiring a court to rule
on evidentiary objections made in connection with a motion to quash and/or dismiss, the Court declines to rule on
these objections. Moreover, Plaintiff’s arguments do not justify a denial of the request for judicial notice. With
respect to the second opposition, There is no legal basis supporting his position that he may “correct” his
opposition by asserting new arguments in a second opposition. In any event the only two arguments in that
document that are not stated in the initial opposition either lack merit (a motion to set aside default or an ex parte
application are not general appearances [see Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1251
[moving to set aside default judgment is not a general appearance]; see also CCP, § 418.11 [ex parte application
“is not a general appearance”]) or do not effect the outcome of this motion. Lastly, Plaintiff cites no legal basis
authorizing him to submit an “objection and request to strike” portions of the reply. In any event, the arguments
contained in that document lack merit.
With respect to the motion to quash for lack of proper service, Plaintiff caused the
papers to be served on Defendant in substantial compliance with the procedures set forth in
CCP, section 415.40. Thus, the Court will not grant the motion to quash for lack of proper
service.
Defendant challenges personal jurisdiction. Although he asserts his arguments with
respect to personal jurisdiction as a forum issue, personal jurisdiction also pertains to the
motion to quash. Inconvenient forum is not a jurisdictional doctrine; rather, it is an equitable
doctrine invoking the court’s discretionary power to decline to exercise jurisdiction. (Stangvik
v. Shiley Inc. (1991) 54 Cal.3d 744, 75.) Since a court must be able to exercise personal
jurisdiction before exercising its discretion to decline to do so, the Court will first consider
whether the motion to quash should be granted for lack of personal jurisdiction. If the Court
finds the exercise of personal jurisdiction to be reasonable, then it will consider whether it
should decline to exercise personal jurisdiction for inconvenient forum.
Personal jurisdiction over a nonresident-defendant requires such “minimum contacts”
with the state that the exercise of jurisdiction does not violate traditional notions of fair play
and substantial justice. (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054,
1062.) The plaintiff bears the initial burden to present evidence justifying the exercise of
jurisdiction, then the defendant bears the burden to show that the exercise of jurisdiction would
be unreasonable. (Id.) Personal jurisdiction may be either general or specific. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445 [“Vons”].) Plaintiff asserts
that the Court may reasonably exercise either general or specific jurisdiction in this case.
General jurisdiction requires contacts that are substantial, continuous, and systematic, and in
such a case, the specific cause of action does not need to be connected with the defendant’s
business relationship with the forum. (Id., at p. 445.) Contrary to Plaintiff’s assertion, his
evidence does not suggest that Defendant’s contacts are sufficient to confer general
jurisdiction. Rather, his evidence shows that Defendant’s only contact with the California
forum is his complaint to the State Bar about Plaintiff’s out-of-state conduct.
“If the nonresident defendant does not have substantial and systematic contacts in the
forum sufficient to establish general jurisdiction, he or she still may be subject to the specific
jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum
benefits ([citation]), and the controversy is related to or arises out of a defendant’s contacts
with the forum. [Citation.]” (Vons, supra, at p. 446, quotation marks omitted.) Specific
jurisdiction requires a showing that (1) the defendant purposefully availed himself of the
privilege of conducting activities in the forum; (2) the plaintiff’s cause of action “arises out of”
or is “related to” the defendant’s contact with the forum; and (3) the forum state’s exercise of
personal jurisdiction comports with fair play and substantial justice (Pavlovich v. Super. Ct.
(2002) 29 Cal.4th 262, 269; Snowney, supra, at p. 1068.) Plaintiff shows purposeful availment
through evidence that Defendant filed a complaint against Plaintiff with the State Bar State Bar
and sought reimbursement through its client security fund. However, Plaintiff fails to meet his
burden with respect to the relatedness of Defendant’s contacts and Plaintiff’s claims.
Therefore, it would be unreasonable for the Court to exercise jurisdiction over Defendant.
Moreover, even if Plaintiff had met his initial burden, Defendant’s evidence shows that
it would violate traditional notions of fair play and substantial justice for the Court to exercise
jurisdiction over him. Plaintiff has initiated various legal proceedings against Defendant in the
District of Columbia. The Contract upon which Plaintiff’s claims are based states that it is
governed by the laws of the District of Columbia. The alleged business venture (“the
Partnership”) which is the subject of the Contract is a District of Columbia partnership entity,
controlled by the laws of that jurisdiction. Courts in Tennessee and New York have determined
that the District of Columbia is the proper forum to litigate disputes arising from the Contract
and the Partnership. Lastly, the Defendant’s evidence shows that Plaintiff has been initiating
legal proceedings against him in various jurisdictions in a bad-faith effort to delay/prevent
Defendant from collecting a $7 million judgment from a case also based on the Contract and
the Partnership. In light of the foregoing, exercising personal jurisdiction over Defendant
would violate traditional notions of fair play and substantial justice.
Thus, the Court lacks personal jurisdiction over Defendant. In any event, the proper
forum to hear this dispute is the District of Columbia.
Since the Court lacks personal jurisdiction over Defendant, the motion to quash or to
dismiss is GRANTED. 2
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2
Plaintiff requests jurisdictional discovery. However, it is apparent from the evidence presented that such
discovery would likely not reveal any evidence supporting jurisdiction. Accordingly, that request is denied.
Calendar line 2
Case Name: Top Gun Drywall Supply, Inc. v. Layton Construction Co., Inc., et al.
Case No.: 1-14-CV-265278
Defendant/cross-complainant/cross-defendant Layton Construction Co., Inc. (“Layton”)
demurs to the cross-complaint (“Cross-Complaint”) filed defendant/cross-complainant/crossdefendant Champion Construction, Inc. dba Champion Construction Services (“Champion”).
This is an action for breach of contract, indemnity and fraud arising out of a payment
dispute in a construction protect. In March of 2012, Champion bid on a project making various
improvements on the property located at 19800 Vallco Parkway in Cupertino (the “Project”)
and was selected by general contractor Layton to perform the drywall and metal framing.
(Cross-Complaint, ¶ 9.)
In August 2012, Layton required that another drywall contractor be brought in to split
the work on the project and selected defendant Mission Drywall Systems (“Mission”) to fulfill
that role. (Cross-Complaint, ¶¶ 10, 11.) In October 2012, Layton executed separate
drywall/metal framing subcontracts with Mission and Champion which allocated work on the
drywall/metal framing and required the subcontractors to supply all materials and labor. (Id., ¶
12.) The subcontracts also provided that if either Mission or Champion did not perform,
Layton was responsible for completion of the Project. (Id., ¶ 13 and Exhibits A and B.)
Following the execution of the contract and at Layton’s request, Champion ordered the
materials up front for the entire project through plaintiff Top Gun Drywall Supply, Inc. (“Top
Gun”) and began billing the materials as they were delivered for the initial phase of drywall
installation. (Cross-Complaint, ¶¶ 14, 15.) Layton demanded that Top Gun’s invoices be split
between Mission and Champion, regardless of the phase for which the materials were
provided, and withheld payment until this was done. (Id., ¶ 16.) Champion acquiesced to the
demand. (Id.)
On July 22, 2013, having concluded its work, Champion advised Top Gun that all
remaining materials were to be billed to Mission. (Cross-Complaint, ¶ 19.) Layton paid
Champion and Top Gun via joint checks for the full amount of materials billed under
Champion’s subcontract; in turn, Top Gun received payment in full for all materials billed
under Champion’s subcontract and as a result, issued an unconditional final waiver and release
to Champion on October 10, 2013. (Id., ¶ 20.)
Champion alleges that Layton subsequently failed to pay Mission and Top Gun for all
materials billed through Mission’s subcontract. (Cross-Complaint, ¶ 20.) Upon learning that
Mission no longer had a construction license and that Top Gun did not pre-lien Mission’s
materials, Layton took over all of Mission’s remaining subcontractor work and asked
Champion to complete the remaining drywall and framing. (Cross-Complaint, ¶¶ 21-23.)
Pursuant to an oral agreement, Champion agreed to perform labor and Layton assumed the
obligation for payment of the materials under Mission’s subcontract. (Id., ¶ 23.) As part of the
agreement, Layton also represented that it would be solely responsible for the remaining
materials to Top Gun and therefore Champion would not be required to invoice them. (Id., ¶
24.)
Champion alleges that Layton falsely and intentionally represented that it would be
paying for the remaining materials so as to induce it to continue working on the Project.
(Cross-Complaint, ¶ 26.) It further alleges that Layton never had any intention of paying for
the materials. (Id.) In reliance on these representations, Champion performed all remaining
labor on the Project and executed waivers and releases to Layton. (Id., ¶ 27.) Layton directed
Champion to obtain a different materials supplier for additional materials needed to complete
work in order to further avoid paying Top Gun. (Id., ¶ 28.)
Top Gun filed an action against Cupertino, Layton, Mission and Champion regarding
unpaid materials. Top Gun alleges, in pertinent part, that it entered into a series of written and
verbal agreements with Champion whereby Top Gun agreed to furnish labor, materials,
services and/or equipment to Champion for the Project and that Champion breached those
agreements by failing to pay for the remaining materials supplied. (Cross-Complaint, ¶¶ 30,
31.)
On December 5, 2014, Champion filed the Cross-Complaint against Layton asserting
the following causes of action: (1) implied contractual indemnity; (2) equitable indemnitycomparative fault; (3) declaratory relief; (4) intentional misrepresentation; (5) false promise;
(6) negligent misrepresentation; (7) breach of contract; and (8) breach of implied covenant of
good faith and fair dealing. Champion seeks indemnification from Layton for its alleged
failure to pay all sums owed to Top Gun.
On January 9, 2015, Layton filed the instant demurrer to the Cross-Complaint and each
of the eight causes of action asserted therein on the ground of failure to state facts sufficient to
constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)
Champion’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)
Layton’s demurrer to the first (implied contractual indemnity) and second (equitable
indemnity- comparative fault) causes of action on the ground of failure to state facts sufficient
to constitute a cause of action is OVERRULED. In demurring to these causes of action,
Layton asserts that these claims cannot be maintained because (1) Layton cannot be a joint
tortfeasor which is required to state a claim for implied contractual indemnity and (2) the
written indemnification agreement does not require Layton to indemnify Champion. Neither of
these arguments is persuasive.
As a general matter, California recognizes two types of indemnity: express and implied
(equitable). (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1030.) The
former arises “by virtue of express contractual language” while the latter is “premised on a
joint legal obligation to another for damages.” (Prince v. Pacific Gas & Electric Co. (2009) 45
Cal.4th 1151, 1120.)
It is true, as Layton asserts, that the doctrine of equitable indemnity “applies only
among defendants who are jointly and severally liable to the plaintiff.” (BFGC Architects
Planners, Inc. v. Forcum/Mackey Construction, Inc., et al. (2004) 119 Cal.App.4th 848, 852
[internal citations omitted].) However, in the context of equitable indemnity, joint and several
liability is “fairly expansive” and, contrary to Layton’s argument, is “not limited to the old
common term ‘joint tortfeasor’ …. It can apply to acts that are current or successive, joint or
several, as long as they create a detriment caused by several actors.” (Id., citing Yamaha
Motor Corp. v. Paseman (1990) 219 Cal.App.3d 958, 964 [internal quotations omitted,
emphasis added].) Moreover, while equitable indemnity generally requires that there be some
basis for tort liability against the proposed indemnitor, implied contractual indemnity between
the indemnitor and the indemnitee can itself provide a basis for equitable indemnity.” (Id.,
citing Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1028-1035.)
Implied contractual indemnity, in turn, has been described as:
a form of equitable indemnity, arising from equitable considerations either by
contractual language not specifically dealing with indemnification or by the
equities of the specific matter. The right to implied contractual indemnity is
predicated on the indemnitor’s breach of contract …. [and] is applied to contract
parties and [] designed to apportion loss among contract parties based on the
concept that one who enters a contract agrees to perform the work carefully and
to discharge foreseeable damages resulting from that breach. As a form of
equitable indemnity, the doctrine rests on the equities apparent from the
surrounding circumstances, because contracting parties should share loss in
proportion to their breach. An implied contractual indemnity claim does not
amount to a claim for contribution from joint tortfeasors because it is founded
neither in tort not on any duty that the indemnitor owes to the injured party.
Rather, it is predicated on the indemnitor’s breach of duty owing to the
indemnitee to properly perform its contractual responsibilities.
(Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th
1328, 1350-1351 [internal quotations and citations omitted].)
The foregoing authorities establish that Layton need not be a joint tortfeasor in order
for Champion to maintain a claim against it for some form of equitable indemnity; it is enough
that Champion has pleaded that it had a contractual relationship with Layton to perform
drywall and framing on the Project, that Layton did not perform its obligations under that
agreement (i.e., provide payment to Top Gun for materials provided), and that it incurred
damages (the lawsuit asserted against it by Top Gun) as a result.
Champion’s second argument regarding the terms and conditions of the written
subcontract between the parties ignores Champion’s allegations regarding a subsequent oral
agreement between the parties that was executed after it finished the work that it was originally
contracted to do. While Champion alleges that the oral agreement to perform specified
portions of Layton’s subcontract with Mission was subject to the written subcontract between
Layton and Mission, Layton ignores the effect that the terms of the oral agreement, specifically
its promise to pay for remaining materials provided by Top Gun, had on the contractual
arrangement between the parties. As articulated above, implied contractual indemnity can
arise either from “contractual language not specifically dealing with indemnification” or “the
equities of the specific matter.” (Sehulster Tunnels/Pre-Con, supra, 111 Cal.App.4th at 13501351.) Moreover, the right to implied contractual indemnity is predicated on the indemnitor’s
breach of contract. (Id.) Here, Layton is alleged to have breached the oral agreement between
itself and Champion by failing to pay Top Gun. This is sufficient.
Layton’s demurrer to the third cause of action (declaratory relief) on the ground of
failure to state facts sufficient to constitute a cause of action is OVERRULED. Layton’s
insistence that no claim for declaratory relief has been stated because no actual controversy
exists is unavailing. “A cross-complaint for equitable indemnity may properly take the form of
an action for declaratory relief.” (Allen v. Southland Plumbing, Inc. (1988) 201 Cal.App.3d 60,
64 [internal citations omitted].) For the reasons set forth above, Champion has sufficiently
pleaded claims for equitable indemnity.
Layton’s demurrer to the fourth (intentional misrepresentation), fifth (false promise)
and sixth (negligent misrepresentation) causes of action on the ground of failure to state facts
sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO
AMEND. “Fraud must be pleaded with specificity rather than with general and conclusory
allegations. The specificity requirement means a plaintiff must allege facts showing how,
when, where, to whom, and by what means the representations were made, and, in the case of a
corporate defendant, the plaintiff must allege the names of the persons who made the
representations, their authority to speak on behalf of the corporation, to whom they spoke, what
they said or wrote, and when the representation was made.” (West v. JP Morgan Chase Bank,
N.A. (2013) 214 Cal.App.4th 780, 792 [internal citations and quotations omitted].) Here,
Champion fails to plead fraud with the requisite particularity in failing to set forth specific
allegations regarding where, when, to whom, and by what means the purported
misrepresentations were made. Champion’s allegations regarding who specifically was
responsible for making the misrepresentations, which are based on information and belief,
suffer from an additional deficiency in that they are not supported by the particular facts upon
which the allegations are based. (See Dowling v. Spring Val. Water Co. (1917) 174 Cal. 218,
221 [“[i]t is not sufficient to allege fraud or its elements upon information and belief unless the
facts upon which the belief is founded are stated in the pleading”]; see also Findley v. Garrett
(1952) 109 Cal.App.2d 166, 176-179.)
While Champion’s fraud claims are deficient as currently pleaded due to the lack of
specificity, the Court disagrees with Layton’s contentions that Champion has not sufficiently
pleaded proximate cause and that the fraud claims are barred by the economic loss rule.
First, proximate cause is “normally a question of fact” (Parker City & County of San
Francisco (1958) 158 Cal.App.2d 597, 607) and the allegations of the Cross-Complaint, read
in toto, set forth that Champion’s role as a defendant in Top Gun’s lawsuit is the result of its
continued involvement in the Project, which was induced by Layton, and Layton’s failure to
pay for materials provided by Top Gun as promised.
Second, while the economic loss rule generally “prevents the law of contract and the
law of tort from dissolving into one another” and “requires a purchaser to recover in contract
for purely economic loss due to disappointed expectations,” tort damages “have been permitted
in contract cases where a breach of duty directly causes physical injury; for breach of the
covenant of good faith and fair dealing in insurance contracts; for wrongful discharge in
violation of fundamental public policy; or where the contract was fraudulently induced.”
(Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988-990 [internal citations
omitted] [emphasis added].) Here, Champion alleges that it was fraudulently induced to enter
into the oral agreement with Layton to complete Mission’s phase of the drywall and metal
framing on the project. Consequently, the economic loss rule does not bar Champion’s tort
claims.
Layton’s demurrer to seventh cause of action (breach of contract) on the ground of
failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’
LEAVE TO AMEND. Damages suffered by a plaintiff as a result of the defendant’s breach is
a required element of a cause of action for breach of contract. (See Lortz v. Cornell (1969) 273
Cal.App. 286, 290.) Here, Champion alleges that Layton’s purported breach of the parties’
oral agreement resulted in the following damages: (1) attorneys’ fees incurred defending itself
against Top Gun’s lawsuit for payment for drywall materials provided; and (2) any potential
recovery by Top Gun against Champion. (Cross-Complaint, ¶ 89.) Neither of these items
suffices as recoverable damages. First, attorneys’ fees are generally not considered “damages”
and instead are controlled by statute or contract. (See, e.g., Woodward v. Bruner (1951) 104
Cal.App.2d 83, 86 [stating that law of damages does not include within its scope attorney
fees].) Though Champion argues that there is a contractual basis for attorneys’ fees via Layton
and Mission’s agreement and Civil Code section 1717, this is not pleaded in the CrossComplaint and the agreements referred to are not attached to the pleading as indicated therein.
Second, ordinarily a plaintiff cannot recover compensatory damages for a liability incurred
regarding a third party. (Pacific Pine Lumber Co. v. W.U. Tel. Co. (1898) 123 Cal. 428.) The
limited exception to this rule is that attorney fees incurred as a direct result of another’s tort
may be recoverable as damages. (See Jordache Enterprises, Inc. v. Brobeck Phleger &
Harrison (1998) 18 Cal.4th 739, 751.) Here, however, there is no allegation of Layton having
committed a tort against Top Gun.
Layton’s demurrer to the eighth cause of action (breach of the implied covenant of
good faith or fair dealing) on the ground of failure to state facts sufficient to constitute a cause
of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. As currently pleaded, this
cause of action is duplicative of Champion’s breach of contract claim. If a plaintiff’s breach of
the covenant of good faith allegations “do not go beyond the statement of a mere contract
breach and, relying on the same alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they may be disregarded as no
additional claim is actually stated.” (Careau & Co. v. Pacific Business Credit, Inc. (1990) 222
Cal.App.3d 1371, 1395.)
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Calendar line 4
Case Name: MCT Group v. Vincent Stevens
Case No.: 1-10-CV-181018
Defendant Vincent Stevens (“Defendant”) moves to quash service of summons and
complaint and set aside default judgment as void.
This is an action for various common counts. According to the allegations of the
complaint, Defendant became indebted to Operating Engineers Local Union # 3 Federal Credit
Union, plaintiff MCT Group’s (“Plaintiff”) assignor, and has failed to pay all amounts due and
owing. (Complaint, ¶¶ 8, 10, 12.) As of August 24, 2010, Defendant allegedly owed a total of
$10,925.15 plus suit costs and interest.
On December 23, 2014, Defendant filed the instant motion to quash service of
summons and set aside default judgment as void on the ground that the substituted service
purportedly executed by Plaintiff was defective.
According to the proof of service of summons filed with the Court on December 30,
2010, substituted service was effectuated on Defendant by leaving copies of the summons and
complaint with one Cynthia Castro, an occupant of the residence located at 2666 Puccini
Avenue #12, San Jose. Substituted service was made after several attempts at personal service
failed.
Defendant asserts that not only does the address 2666 Puccini Avenue #12 not exist,
but a similarly addressed house was not his dwelling house or usual place of abode at the time
of the alleged service. Thus, he argues, he was never properly served with the summons and
complaint in this matter and therefore the subsequent default judgment is void as a matter of
law.
The Court will not address the merits of the foregoing argument because the instant
motion is untimely. Defendant does not contend that the resulting default judgment is facially
invalid, only that it is void because of improper service. In such a circumstance, a motion for
relief in the action must be sought no later than two years after entry of the default judgment.
(Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121-1122 [motion for relief from
judgment valid on its face but void for improper service is governed by analogy to statutory
period for relief provided by Code of Civil Procedure section 473.5, that is, the two-year outer
limit]; Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181 .) Here, the default judgment
against Defendant was entered on March 23, 2011, but the instant motion was not filed until
December 23, 2014, well over two years later.
The Court notes that there is no time limit on a collateral attack on a void judgment and
only a direct attack; thus, Defendant can still file an independent action to set aside the default
judgment for lack of personal jurisdiction. (Rochin v. Pat Johnson Mfg. Co. (1998) 67
Cal.App.4th 1228, 1239; see also Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426,
1444.) Denial of the instant motion does not preclude such an action by Defendant; i.e., the
denial, especially as it was based on procedural and not substantive grounds, is not entitled to
collateral estoppel effect. (Groves v. Peterson (2002) 100 Cal.App.4th 659, 668.)
In accordance with the foregoing analysis, Defendant’s motion is DENIED.
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