Case Number: KC056883    Hearing Date: July 16, 2014    Dept: O

Du, et al. v. Mohammadi, et al. (KC056883)

Defendant/Cross-Defendant Soils and Geology, Inc.’s MOTION FOR SUMMARY JUDGMENT

Respondent: 1. Plaintiffs Du and Feng
2. Defendants Z. and M. Mohammadi

TENTATIVE RULING

Defendant/Cross-Defendant Soils and Geology, Inc.’s motions for summary judgment are DENIED.

MSJ

Defendant moves for summary judgment on the Complaint and Cross-Complaint on the ground that the 10 year statute of repose in CCP 337.15 already ran. The Final Report of Compaction on 6/9/99 and the execution of the City of Diamond Bar, Supervised Grading Inspection Certificate, and Statutes of limitations Engineer’s Rough Grading Certification was the final act or service performed by Defendant in connection with the subject property. (DSS 8-10.)

Further, on 2/27/13, the appellate court affirmed Judge Oki’s grant of summary judgment against these same parties on the same issue. (RJN, Exs. C-D.) Soils and Geology performed geotechnical service in conjunction with H. Gene Hawkins.

ANALYSIS

Plaintiffs Du and Feng’s evidentiary objection is sustained.

Cross-Complainants Z. and M. Mohammadi’s evidentiary objections to RJN are overruled. Evidentiary objections to Stillman Decl. are sustained as being self-serving declarations contradicting without explanation the declarants sworn deposition testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1: Price v Wells Fargo Bank, 213 Cal.App.3d 465, Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853).

AS TO THE COMPLAINT:

The entry of a default terminates defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. (Devlin v. Kearny Mesa AMC Jeep Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.)

Upon the failure of a defendant to answer the complaint within the time allowed by law, and upon the entry of default, in the absence of fraud, the right of the defendant to participate in the litigation is terminated, and the subsequent filing of an answer or demurrer on his part is unauthorized and void, unless upon proceedings duly had, the default is first set aside. (Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal. App. 3d 257, 262-263.)

“A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.” (Brooks v. Nelson (1928) 95 Cal.App. 144, 147-148.)

A default was entered against Defendant Soils and Geology, Inc. on 11/13/09. Defendant is therefore “out of court,” and its right to participate in this litigation has been terminated.

Defendant’s reliance on Englebretson & Co., Inc. v. Harrison (1981) 125 Cal. App. 3d 436 is misplaced because there, the defaulting Defendant brought an independent action in equity to have the judgment by default set aside. The trial court left the Entry of Default intact, but found the Default Judgment based upon the amended complaint improper as it exceeded the amounts in the original complaint and the manner of service failed to give notice to the defaulting defendant of exposure to increased amounts. The actions of the trial court were affirmed by the court of appeal. Here, default was entered against this Defendant, and Defendant has not brought any motion to set aside its default.

This court is without jurisdiction to entertain Defendant’s motion.

AS TO MOHAMMADI’S CROSS-COMPLAINT:

No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following: (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property. (2) Injury to property, real or personal, arising out of any such latent deficiency. (CCP 337.15(a).) “As used in this section, “action” includes an action for indemnity brought against a person arising out of that person’s performance or furnishing of services or materials referred to in this section, EXCEPT THAT A CROSS-COMPLAINT FOR INDEMNITY MAY BE FILED pursuant to subdivision (b) of Section 428.10 in an action which has been brought within the time period set forth in subdivision (a) of this section.” (CCP 337.15(c).) “Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him. (CCP 428.10(b).)

Mohammadi’s Cross-Complaint asserts claims for indemnity, apportionment of fault, and a declaration of proportionate fault. Thus, the exception under CCP 337.15(c) controls. (Valley Circle Estates v. VTN Consolidate, Inc. (1983) 33 Cal.3d 604, 606-611 – A cross-complaint for indemnity may be filed more than 10 years after the alleged indemnitor has substantially completed his services, provided that the underlying action was itself brought within the 10-year limitation period of the statute.) Plaintiffs’ Complaint, as against Mohammadi, was timely brought within the context of CCP 337.15(a). Construction of the property was completed on or about July 2000. (Cross-Complainant’s Separate Statement (XCSS) 2.) The complaint against Mohammadi was timely filed on 9/25/09. (XCSS 4.) Therefore, the Cross-Complaint, asserting indemnity against Cross-Defendant Soils and Geology, was timely under CCP 337.15(c). Cross-Defendant Soils and Geology failed to address CCP 337.15(c) or Valley Circle Estates v. VTN Consolidate, Inc. in its Reply.

Motion is DENIED.