Case Number: BC472830 Hearing Date: May 16, 2014 Dept: 34

Moving Party: Plaintiff Diane Spalding, successor trustee of the Grace Joyce Matthews Living Trust dated April 24, 1992 (“plaintiff”)

Resp. Party: None

Plaintiff’s request for entry of default judgment against Jorge A. Carroll is GRANTED, assuming that plaintiff submits a proper CIV-100 form.

BACKGROUND:

Plaintiff commenced this action in November 2011 against defendants McNamara and Haile Housing LLC (“settling defendants”) for quiet title. In January 2012, McNamara and Haile Housing LLC filed a cross-complaint against plaintiff, Jorge A. Carroll (“Carroll”) and Roes for declaratory relief, equitable lien, indemnity, constructive trust, breach of contract, and fraud. Plaintiff did not bring her complaint against Carroll.

Settling defendants alleged in their cross-complaint that in June 2011 Carroll sold the subject property to McNamara. (Cross-Compl., ¶ 9.) At that time, Haile made a purchase money loan to McNamara in the amount of $220,000.00. (Id., ¶ 10.) Settling defendants made repairs to and rehabilitated the subject property. (Id., ¶ 14.) At that time, plaintiff visited the property and represented that she was the owner, causing settling defendants to suspend work. (Ibid.) Plaintiff did not contact settling defendants or provide any documents showing ownership, and settling defendants believe they have valid title to the property. (Ibid.) Spalding did not attempt to stop the work or further communicate with settling defendants. (Id., ¶ 15.) Settling defendants spent at least $100,000.00 to repair the property. (Id., ¶ 16.)

Default was entered against Carroll as to the cross-complaint on 7/9/12.

Mediation was held between plaintiff and the settling defendants in January 2013, which ended in a full agreement. In the settlement agreement, the settling defendants assigned the claims in the cross-complaint to plaintiff.

On 3/26/13, plaintiff dismissed the complaint with prejudice, and the settling defendants dismissed the cross-complaint as to plaintiff only. Therefore, the only remaining action is settling defendants’ cross-complaint against Carroll and other unidentified defendants.

On 7/29/13, the Court denied plaintiff’s first request for default judgment against Carroll. The Court found that plaintiff had not sued the party against whom judgment was sought, and that she must first file and serve a noticed motion seeking leave to file a supplemental complaint naming Carroll and alleging the assignment of claim, must serve Carroll with the motion and have the motion granted, must serve Carroll with summons and supplemental complaint, and must obtain default. (See Minute Order, 7/29/13.)

On 9/23/13, the Court vacated its order of 7/29/13. In its 9/23/13 ruling, the Court ordered plaintiff to file a noticed motion pursuant to Code of Civil Procedure section 368.5 requesting to continue the cross-complaint in plaintiff’s name and serve the motion on the settling defendants. (Order, 9/23/13.) Such a motion was to be filed by 10/23/13. (Ibid.) No such motion has been filed as of 4/9/14. On 12/20/13, the Court signed a stipulation allowing plaintiff to be substituted into the action as the cross-complainant.

On 12/16/13, the Court again denied plaintiff’s request for entry of default judgment against Carroll. The Court noted that the unnamed defendants still had not been dismissed from the cross-complaint. The Court found that plaintiff had still not established that the cross-complainants had any remaining indemnity claim against Carroll and had not provided admissible evidence to support her default judgment request.

ANALYSIS:

Plaintiff submits a request for default judgment on CIV-100, supporting declaration, and a proposed form of judgment. (See Cal. Rules of Court, rule 3.1800(a)(6).) However, the CIV-100 form is deficient because it lacks any information as to the amount of damages sought. (See CIV-100, ¶ 2.)

With the instant request, plaintiff finally seeks dismissal of all cross-defendants except Carroll.

In its 9/23/13 order, the Court ordered plaintiff to file a noticed motion pursuant to CCP section 368.5 requesting to continue the cross-complaint in plaintiff’s name. Such a motion was to be filed by 10/23/13. No such motion was filed as of that date. On 12/10/13, plaintiff’s counsel, Charles Urtuzuastegui, filed a declaration stating that, in lieu of the ordered motion, the parties would be filing a stipulation that plaintiff may be substituted into the matter and continue the cross-complaint in her name. (Urtuzuastegui Decl., ¶ 6.) This stipulation was entered on 12/20/13.

Plaintiff now provides evidence of the purported fraud committed by Carroll. McNamara declares that on 6/27/11, he purchased the property from Carroll, who held himself out as the successor trustee of the Trust. (McNamara Decl., ¶¶ 2-4, Exh. A.) Spalding declares that Carroll has never been a successor trustee of the Trust. (Spalding Decl., ¶ 3.)

“The duty to indemnify may arise, and indemnity may be allowed in those fact situations where in equity and good conscience the burden of the judgment should be shifted from the shoulders of the person seeking indemnity to the one from whom indemnity is sought. The right depends upon the principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him. Thus the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case.” (Herrero v. Atkinson (1964) 227 C.A.2d 69, 74.) Here, it was the insurance company, and not the settling defendants, that paid the damages. Pursuant to the agreement, plaintiff is to be paid $230,750.00 on behalf of the settling defendants. (McNamara Decl., Exh. B, p. 2.) This sum is to be paid on behalf of the settling defendants by an insurance company, Old Republic National Title Insurance Company. (Ibid.) Old Republic provided title insurance for the transaction between McNamara and Carroll. (Id., ¶ 4.) Plaintiff provides a declaration from Vicki Perkowitz, a Vice President / Counsel for Old Republic. (Perkowitz Decl., ¶ 1.) Perkowitz declares that, as a result of the assignment of the cross-complaint to plaintiff, Old Republic does not have any rights of subrogation, or otherwise, against Carroll for the amounts it paid in the settlement. (Id., ¶ 3.)

Accordingly, so long as plaintiff submits a proper CIV-100 form, her request for entry of default judgment against Jorge A. Carroll will be GRANTED.