Kirby v. Toplean CA3

Filed 6/6/22 Kirby v. Toplean CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

WILLIAM W. KIRBY, C093453

Plaintiff and Respondent, (Super. Ct. No. S-CV- 0043355) v.

PETE TOPLEAN,

Defendant and Appellant.

Defendant Pete Toplean appeals from the trial court’s denial of his motion to set aside a default judgment. He raises various claims, none of which has merit. Consequently, we affirm the judgment.

1

FACTS AND PROCEEDINGS Factual Background The following factual recitation summarizes the facts as described by plaintiff’s first amended complaint. In 2015, defendant built a home in Auburn as an owner-builder without a contractor’s license. Once construction was finished, defendant changed his mind and decided to sell the home. Plaintiff purchased the property. In 2016, plaintiff transferred title to the property into a trust. Plaintiff subsequently noticed numerous cracks beginning to form in the large columns supporting the roof. The rear patio also had sunk more than six inches in the corner. In May 2019, plaintiff gave defendant written notice pursuant to Civil Code section 910, which defendant did not answer. Plaintiff believed that defendant was aware of the issues before selling the property, but he made material misrepresentations and omissions regarding the extent of the defects. Procedural History Plaintiff filed a complaint on July 29, 2019. Defendant did not answer, and on September 19 plaintiff filed a request for entry of default. On February 10, 2020, plaintiff amended the complaint to specify the amount of alleged damages. On March 2, plaintiff filed proof that defendant was served with the amended complaint and summons. Defendant did not answer the amended complaint, and plaintiff filed a new request for entry of default on May 15 and again on May 18. On July 14, 2020, defendant first appeared in the case at a case management conference, and the court granted defendant a continuance to September 1 to allow him to file a motion to set aside the default. Defendant did not file anything by that date, and on September 1 the trial court approved plaintiff’s request for entry of default judgment and awarded damages of $182,916 plus postjudgment interest.