Judge: Ashfaq G. Chowdhury, Case: 23GDCV00580, Date: 2023-11-09 Tentative Ruling

Case Number: 23GDCV00580    Hearing Date: November 9, 2023    Dept: E

Case Name: RECONSTRUCTION EXPERTS, INC., a Colorado corporation v. THE EXCELSIOR AT THE AMERICANA AT BRAND HOMEOWNERS’ ASSOCIATIONS, a California nonprofit mutual benefit corporation; et al.

Hearing Date: 11/03/2023 – 10:00am
Case No.  23GDCV00580
Trial Date:   UNSET

TENTATIVE RULING ON MOTION TO EXPUNGE LIS PENDENS 

RELIEF REQUESTED 

Defendants, The Excelsior at the Americana at Brand Homeowners’ Association (Excelsior or Association) and the Member Defendants, will and hereby move to expunge the lis pendens and the mechanic’s lien fraudulently recorded against the Member Defendants’ properties and the property of the Association.

Moving Parties

Defendants(Movants), The Excelsior at the Americana at Brand Homeowners’ Association (Excelsior or Association) and the Member Defendants

In the notice of motion, Movants list the Member Defendants as follows:

462 Caruso Holdings; AEC Capital, LLC, a California Limited Liability Company; Agnes Desfour-Canadas, an individual; Aida Gharakhani, as Trustee of the Gharakhani Family Trust, dated December 18, 2018; -Albert Hembarsoonian, an individual; Alicia Fermanian, as Trustee of the JA Fermanian Family Trust, dated January 18, 2018; Alireza Safavizadeh, an individual; Alvart Hembarsoonian, an individual; Anahid Nishanian, an individual; Andrew Walding, as Trustee of the Andrew and Guadalupe Walding Living Trust, dated May 29, 2020; Ani Ovsepyan, an individual; Anita Weinstein, as Trustee of the Everett David Weinstein and Anita Watson Weinstein Family Trust of 1982; Anna Lytvynenko, an individual; Anooshirvan Bozorgmehr, an individual; Ara Asatrian, an individual; Arsen Grigoryan, an individual; Arshavir Kouladjian, as Trustee of the Sebouh A. Kouladjian Revocable Trust, dated November 18, 2008; Artur Arkelakyan, an individual; Astghik Aleksanyan, an individual; Benjamin Siruno Jr., as Trustee of the Eustacia A. Sabio Trust 2007; Betty Minnick, as Trustee of the John and Betty Minnick Family Trust, dated October 5, 1988; Bijesh Thakker, an individual; Caruso Penthouse LLC, a California limited liability company; Christopher J. Toomey, as Trustee of the Christopher J Toomey Trust, dated February 2, 1993; Constantine Marantidis, an individual; Damien Moreau, an individual; Debra M. Ohanian, an individual; Debra M. Ohanian, as Trustee of the Debra M. Ohanian 2014 trust dated September 29, 2014; Derenik Stepanyan, an individual; Desert Sunshine Asset MGT LLC, a Nevada Limited Liability Company, as Trustee of the Volcanic Property Title Holding Trust; Dina Grigoryan, an individual; Eduard Galstyan, an individual; Emily Chow, an individual; Evelina Zograbian, as Trustee of the Bekian Zograbian Family Trust dated December 21, 2016; Farideh F. Ara, as Trustee of the Mike Ara and Farideh F. Ara Family Trust, dated December 9, 2020; Fay Ann Chu, as Trustee of the Fay Ann Chu Revocable Living Trust; Fujitsu Limited Inc. of the British Virgin Islands, a business entity of unknown form; Gayane Azizyan, an individual; Gayane Hakobyan, an individual; Gayane Khachatryan, an individual; Geling Yan, as Trustee of the Walker Family Revocable Trust of March 2, 2004; Gigi G. Ying, an individual; Gladis Z. Leon, as Trustee of the Gladis Z. Leon Trust, dated November 2, 2012; Grigorii Airapetian, an individual; Guadalupe Walding, as Trustee of the Andrew and Guadalupe Walding Living Trust, dated May 29, 2020; Hakop Hakopian, an individual; Hripsime Hakobyan, an individual; Ingrid E. Freire, an individual; Ivy Hsiao-Ming Sun, as Trustee of the Ivy Sun Separate Property Trust dated November 14, 2002; Jack Bekian, as Trustee of the Bekian Zograbian Family Trust, dated December 21, 2016; Jack H. Karapetian, an individual; Jake Fermanian, as Trustee of the JA Fermanian Family Trust, dated January 18, 2018; James E. Kalagher, an individual; Jeanette Zakari, as Trustee of the Survivor's Trust, Created Under the Victor and Jeanette Zakari Declaration Trust, dated June 16, 1989; Jennifer C. Lee, an individual; Jesslyn O. Gosal, an individual; Jin Chen Wang, as Trustee of the Jin-Chen Wang Revocable Trust, dated January 19, 1998; John Minnick, as Trustee of the John and Betty Minnick Family Trust, dated October 15, 1998; Jong Won Choi, an individual; Joseph Pying Hwa Shiue, as Trustee of the Livia Yin & Joseph Shiue Living Trust; Julie Ilic, as Trustee of the Milisav Ilic and Julie Abigail Ilic Living Trust, dated August 20, 2020; Kamal M. Murad, an individual; Karan H. Tolani, an individual; Karine S. Abdalian, an individual; Katherine Chen, an individual; Katherine Sun, an individual; Kenrick Kalopsis, an individual; Kristine Klarka, an individual; Kumaraswamy Jayaraj, an individual; Kuo Yu Kuan, an individual; Kurt Brian Gillmann, an individual; Lawrence A. Walker, as Trustee of the Walker Family Revocable Trust of March 2, 2004; Livia Li Ping Yin, as Trustee of the Livia Yin & Joseph Shiue Living Trust; Louis M. Kwong, as Trustee of the Louise M. Kwong Living Trust, dated April 8, 2021; Louis W. Siu, an individual; Lu Chow, an individual; Margarita Kazarian, an individual; Maria I. Ramin, an individual; Mariliese Gines, an individual; Marilyn Maldonado, as Trustee of the Marilyn Maldonado Qualifies Personal Residence Trust, dated March 19, 2018; Mark G. Ying, an individual; Maryam A. Abdulrahim, an individual; May W. Chung, an individual; Meher Der Ohanssian, an individual; Melody Safavizadeh, an individual; Michael Kim, as Trustee of the Dong and Rosa Kim 2002 Revocable Trust; Michelle L. Marquez, as Trustee of the Michelle Lapid Marquez Living Trust, U/A, dated October 28, 2015; Mike Ara, as Trustee of the Mike Ara and Farideh F. Ara Family Trust, dated December 9, 2020; Milisav Ilic, as Trustee of the Milisav Ilic and Julie Abigail Ilic Living Trust, dated August 20, 2020; Nabil A. Karabetian, as Trustee of the Karabetian Family Trust, Dated September 26, 2008; Nabil Karabetian; Najah Jabur, an individual; Natalie D. Wang, an individual; Neesha H. Tolani, an individual; NKJ Investments; NoHo KH Properties, LLC, a California Limited Liability Company; Normal L. Lamug, as Trustee of the Normal L. Lamug Trust 2007; Patrick Aghanian, an individual; Pierre Saint Blancat, an individual; Radha Sen, an individual; Raj Dhingra, as Trustee of the Raj Dhingra and Julieta Dhingra 1980 Trust, dated December 18, 1980; Razzak Jabur, an individual; Ronald D. Cosme, an individual; Ronny Eliahu, an individual; Rosa Kim, as Trustee of the Dong and Rosa Kim 2002 Revocable Trust; Rosalina Herman, an individual; Rosalina R. Cosme, an individual; Ruben B. Abdalian, an individual; Ruben R. Karapetian, an individual; Rudolf A. Thaddeus, an individual; Ryan E. Siu, an individual; Samir Stephanos, as Trustee of the Samir Stephanos Family Trust, dated November 2, 2012; Sangita Thakker, an individual; Sebouh Kouladjian, as Trustee of the Sebouh A. Kouladjian Revocable Trust, dated November 18, 2008; Serena Bae, an individual; Shahan Kalenderian, an individual; Shilpa Sharma, an individual; Sixto M. Ramin, an individual; Sona Avagyan, an individual; Souren Pirjanian, an individual; Sueni Fnu, an individual; Sung Won Choi, an individual; Susan B. Federman, an individual; Susan Lee, an individual; Sussana Airapetian, an individual; Taell Kim, an individual; Trey G. Ho, an individual; Vahan Sudzhyan, an individual; Valeria Katz, as Trustee of the Katz Revocable Trust, dated December 19, 2012; Vanand Mehdikhanian, an individual; Victoria J. Tsoong, as Trustee of the Victoria J. Tsoong Trust, dated August 6, 2004; Victoria Papazian, an individual; Vikas K. Pabby, an individual; Well Venture Holdings Limited, a business entity of unknown form; Wendy Gosal, an individual; Young C. Bae, an individual.

The Court notes that the attorney for Excelsior and Member Defendants filed several proofs of service stating that on certain dates the following documents were served, “1. Notice of Joinder in Demurrer to the First Amended Complaint. 2. Notice of Joinder in Motion to Expunge Lis Pendens.” However, in these proofs of service, the proofs of service don’t indicate which Defendant(s) the notice of joinders apply to.

The Court notes that the attorney for Excelsior and Member Defendants filed a document titled “Notice of Joinder in Motion to Expunge Lis Pendens.” This document said that the following Defendants join the motion to expunge lis pendens to be heard on November 3, 2023 as though they are named as Member Defendants. The Defendants listed that are joining the motion to expunge are : 1. Lusine Malkhasyan, an individual 2. Khachik Tahmazyan, an individual 3. Rostam Jamshidi, an individual 4. Shahla Jamshidi, an individual 5. Elang LLC, a California Limited Liability Company 6. Herair Mouradian, an individual 7. Sirvart Mouradian, an individual 8. Domen Development Limited, a business entity of unknown form 9. Kristine Clark, erroneously served as Kristine Klarka. It is unclear if this notice of joinder was served on Plaintiff. The proofs of service filed with the Court list that notices of joinder to the demurrer and notice of joinder to the motion to expunge were served, but the proofs of service don’t indicate who the notices pertain to in the proofs of service.

The Court notes that the attorney for Excelsior and Member Defendants filed a document titled “Notice of Joinder in Motion to Expunge Lis Pendens.” Elina Tokarieva is listed as joining the motion to expunge the lis pendens as though she is a Member Defendant. However, it is unclear if this notice of joinder was served on Plaintiff because the proofs of service filed with the Court don’t indicate who the notices in the proofs of service pertain to.

Responding Party: Plaintiff, Reconstruction Experts, Inc., a Colorado corporation (Plaintiff or RE)

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok

Moving Papers: Notice; Memorandum; Proposed Order; Declaration of Blefari; Declaration of Branscombe; Proof of Service; Notice of Lodgment; Request for Judicial Notice

Opposition Papers: Opposition; Decl. Joy; Decl. Early; Notice of Lodgment; Proposed Order; Objection to Branscombe Declaration; Decl. Vlahos; Decl. Jenkins; Decl. Carrillo; Decl. Kay; Decl. Solis; Decl. Barclay; Request for Judicial Notice; Proof of Service by Electronic Transmission

Reply Papers: Reply; Proof of Service

BACKGROUND
The initial Complaint was filed on 03/23/2023.

A First Amended Complaint (FAC) was filed on 05/18/2023 alleging seven causes of action: (1) Breach of Contract, (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Rescission; (4) Quantum Meruit; (5) Unjust Enrichment; (6) Foreclosure on Mechanics Lien; and (7) Declaratory Relief.

Plaintiff, Reconstruction Experts, Inc., alleges that Defendant Excelsior at the Americana at Brand Homeowners’ Association (Excelsior) is the homeowners’ association for the real property at interest, Excelsior Property. Plaintiff alleges that all other defendants in this action are “Excelsior Owners,” and alleges the Excelsior Owners in ¶4 of the FAC.

Plaintiff alleges that it entered into an agreement with Excelsior wherein it was to perform certain repair work for the agreed price of $15,233,707.56, subject to increase for extra work. Plaintiff alleges that it performed extra work at Excelsior’s direction and incurred additional costs beyond the original contract price. Plaintiff alleges that these items increased the contract amount by at least $7,196,205.97.

The first, through fifth causes of action are alleged only against Excelsior.

The sixth cause of action is alleged against Excelsior and Excelsior Owners.

The seventh cause of action is alleged against Excelsior.

Several Cross-Complaints have been filed in this action. Further, several requests for dismissal appear to have been granted in this file.

LEGAL STANDARD MOTION TO EXPUNGE

“A lis pendens—also called a notice of pendency of action—is a document filed with a county recorder that provides constructive notice of a pending lawsuit affecting the real property described in the notice.” (Shoker v. Super. Ct. (2022) 81 Cal.App.5th 271, 275, citing Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.) 

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” (CCP § 405.30.) 

“A court shall order a notice of lis pendens expunged if it determines (1) that the pleading on which the notice is based does not contain a real property claim (§ 405.31); (2) that the claimant has not established, by a preponderance of the evidence, the probable validity of a real property claim (§ 405.32); or (3) that adequate relief can be secured by an undertaking. (§ 405.33.)” (Shoker, supra, 81 Cal.App.5th at 277.)

“Claimant” means a party to an action who asserts a real property claim and records a notice of the pendency of the action. (CCP §405.1.)

“Probable validity”, with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim. (CCP §405.3.)

“Real property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility. (CCP §405.4.)

“Unlike other motions, the burden is on the party opposing the motion to expunge—i.e., the claimant-plaintiff—to establish the probable validity of the underlying claim.⁵ (Code Civ. Proc., § 405.30.) The claimant-plaintiff must establish the probable validity of the claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.)” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.) “That is, the plaintiff must “at least establish a prima facie case. If the defendant makes an appearance, the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”” (Id.) 

Further, under  CCP §405.35:

Subject to the provisions of Sections 405.31 and 405.32, at any time after a notice of pendency of action has been recorded, and regardless of whether a motion to expunge has been filed, the court may, upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintaining the notice in the record title. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the person moves to require an undertaking. The court may permit evidence to be received in the form of oral testimony and may make any orders it deems just to provide for discovery by any affected party. An undertaking required pursuant to this section shall be of such nature and in such amount as the court may determine to be just. In its order requiring an undertaking, the court shall set a return date for the claimant to show compliance and if the claimant fails to show compliance on the return date, the court shall order the notice of pendency of action expunged without further notice or hearing.

Recovery on an undertaking required pursuant to this section may be had in an amount not to exceed the undertaking, pursuant to Section 996.440, upon a showing (a) that the claimant did not prevail on the real property claim and (b) that the person seeking recovery suffered damages as a result of the maintenance of the notice. In assessing these damages, the court shall not consider the claimant’s intent or the presence or absence of probable cause.

(CCP §405.34.)

TENTATIVE RULING

Movants’ motion is confusing to read.  Plaintiff’s Opposition is also confusing.  That said, it does appear that the burden here is on Plaintiff.

“Unlike other motions, the burden is on the party opposing the motion to expunge—i.e., the claimant-plaintiff—to establish the probable validity of the underlying claim.⁵ (Code Civ. Proc., § 405.30.)

The claimant-plaintiff must establish the probable validity of the claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.)” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.) “That is, the plaintiff must “at least establish a prima facie case. If the defendant makes an appearance, the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”” (Id.) 

“A court shall order a notice of lis pendens expunged if it determines (1) that the pleading on which the notice is based does not contain a real property claim (§ 405.31); (2) that the claimant has not established, by a preponderance of the evidence, the probable validity of a real property claim (§ 405.32); or (3) that adequate relief can be secured by an undertaking. (§ 405.33.)” (Shoker v. Super. Ct. (2022) 81 Cal.App.5th 271, 277.)

A motion for expungement of lis pendens “should be granted only when the lienholders fail to make a threshold showing of the probable validity of the lien.”  (Manela v. Stone (2021) 66 Cal.App.3d 383, 387 [cleaned up].)  “[T]he question presented is not the ultimate merit of the contractor’s claim, but whether the contractor should be entitled to retain the security of the mechanic’s lien . . . pending resolution of the matter.” (Cal. Sierra Construction, Inc. v. Comerica Bank (2012) Cal.App.4th 841, 850.)   

The Court, having reviewed the briefs and the thousands of pages submitted in support and in opposition by both sides, concludes that Plaintiff has carried its burden here and has established by a preponderance of the evidence the probable validity of it succeeding on a claim.  (Civil Code §§ 405.3, 405.32.)

As an initial point, the Court observes that this is a unique type of motion.  Neither demurrer nor motion for summary judgment, this motion appears to require the Court to make credibility determinations regarding the various declarations and expert opinions filed by the parties. 

The parties did not appear to request an evidentiary hearing with the opportunity to cross examine the various witnesses who have submitted declarations.  As a practical matter, such a hearing would, in the Court’s estimation, likely take as long as the trial in this matter. 

The situation on this motion appears to be analogous to the situation a court would find itself in in determining whether to enter a preliminary injunction: the court has to determine whether the party seeking the preliminary injunction has shown a likelihood of success on the merits.  (See King v. Meese (1987) 43 Cal.3d 1217, 1226.)

Granted, the situation here is different, as the statutory framework does not appear to require the Court to weigh the likelihood of success against any comparative harm suffered by the party against whom the injunction is entered.  (Id.)

Plaintiff’s FAC alleges Excelsior breached the Contract, by among other things:

(a) failing to pay RE for the labor, services, equipment, and materials RE furnished to the Project; (b) delaying RE's performance of work on the Project; (c) changing specifications for the Contract; (d) failing to timely provide information required for RE's performance of the Contract, including design and engineering documents; ( e) directing RE to perform additional work without providing time extensions or issuing change orders; (f) failing to administer the Project in accordance with the reasonable standard of care for a like-situated owner of real property; (g) failing to timely consider and approve RE's requests for additional payment and additional time to perform extra work at Excelsior' s request; and (h) unjustifiably terminating the Contract and directing RE to cease labor on the Project on March 24, 2023.

(FAC ¶13.)

The Plaintiff has provided copious evidence in support of its claims in numerous declarations and hundreds of exhibits provided in opposition to the current motion.

As noted above, it is not, in the Court’s view, the Court’s obligation to make a final determination as to the ultimate merits here.  The Court must determine whether Plaintiff has made a threshold showing of the probable validity of the lien.  (Manela, 66 Cal.App.3d at 387.) 

Having considered the briefs and the supporting papers, the Court is unclear as to Movants’ argument as to how Plaintiff has not made this threshold showing.  To reach such a conclusion would, it seems, require the Court to determine that Plaintiff’s various witnesses and experts are not credible. 

The Movant makes much of the argument that the Plaintiff cannot point to change orders to support its claims of additional work done for which it was owed funds and/or which cause delay in the construction process.  The Court is unpersuaded by this argument. 

The Movants’ argument suggests that Plaintiff conducted huge amounts of work—such as the tear down of walls in 120 units—on a whim, and not at the request of the Movant.  Is the Movant arguing that Plaintiff simply did the extra work at issue on its own accord?  The argument is hard to understand. 

The Court is persuaded at this stage that Plaintiff has made a sufficient showing that it performed work and that Movant failed to sign written change orders in a timely manner.    (See Wagner v. Glendale Adventist Med. Center (1989) 216 Cal.App.3d 1379, 1388.)

The Court is further persuaded that Plaintiff has made a sufficient showing at this stage that it did extra work at Movant’s direction, and to expunge the lien at this stage could result in denial of the reasonable value of the extra work to Plaintiff.  (Civ. Code §§ 8430(a), 8600.)

The Court is further unpersuaded by Movant’s liquidated-damages argument.  Again, this argument appears to require the Court to determine that the vast majority of Plaintiff’s witnesses are not credible.  Whether the Movant is in fact entitled to liquidated damages, as the Court understands it, will hinge on whether delays were caused by changes to the work ordered by Movant, or by excusable undisclosed circumstances, etc.  As the Court understands this exercise, the Court is not making ultimate credibility determinations or final merits determinations at this stage, but determining whether Plaintiff has made a sufficient threshold showing.

Rather than coherent argument, the Movant turns repeatedly to overheated rhetoric that aids no one, generating more heat than light:

“It is clear that Reconstruction Experts recorded its mechanics’ lien as leverage to force the Association to ‘agree’ to its ridiculous change orders and to extort money from the Association.  Reconstruction Experts already kept homeowners out of their homes and without their personal belongings for 10 months instead of 10 weeks.

Reconstruction Experts is nothing but a bully misusing the mechanics’ lien laws to strong-arm the Association and its members.  Reconstruction Experts had no need to name any or all of the members---Reconstruction Experts only did so to scare and intimidate them,  Reconstruction Experts’ intimidation tactics need to be stopped, and its mechanics’ lien and lis pendens should be expunged.

The court should see through this sham lien and expunge it in total and without amendment.  Any other action rewards Reconstruction Experts for its fraudulent activity and misuse of the courts.”

(Mot. To Expunge Lis Pendens at 15.)

This type of rhetoric—accusing another party of “extort[ion]” and “strong-arm” tactics, name-calling, etc.—is utterly unhelpful and ineffective, and suggests that rhetoric is being deployed in place of detailed and well-supported legal argument.   

Plaintiff’s detailed legal argument in opposition, supported by numerous detailed and specific declarations, with supporting exhibits, makes Movant’s suggestion that Plaintiff is engaged in any kind of “sham” or “extort[ion]” utterly lacking in credibility.  There is nothing about the Plaintiff’s case, in the Court’s view, that would suggest to any reasonable observer that it is a “fraudulent activity  and misuse of the courts.”  Those are grave accusations to level against opposing counsel, and counsel for Movant should be prepared to address those accusations at the hearing.

In any event, the Court is satisfied, after a thorough review of the vast universe of materials presented on this motion, that the Plaintiff has met its burden in opposing the motion.

Request for Judicial Notice

Movants request judicial notice under Evidence Code §452(c) and (d) lodged pursuant to the Notice of Lodgment concurrently filed with the motion to expunge the lis pendens of :

Exhibit 34 - Mechanic's Lien Recorded and included as Exhibit 2 to the First Amended Complaint

Exhibit 35 - Reconstruction Experts' Case Management Statement dated September 1, 2023.

Here, the court is not entirely clear as to why Movants’ want Exhibit 35 judicially noticed. Movants only state they want Exhibits 34 and Exhibit 35 noticed  because they are records of this state.

Evid. Code 452(c) and (d) state, “Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

Plaintiff in Opposition requests judicial notice of:

1. A copy of RE's Mechanic's Lien ("Lien"), recorded at the Los Angeles County Recorder's Office on May 17, 2023 as Document Number 20230322236. A true and correct copy of the Lien is enclosed as Exhibit 46 to the concurrently filed Notice of Lodgment.

2. The First Amended Complaint ("F AC") filed by RE on May 18, 2023, in the County of Los Angeles Superior Court, Case No. 23GDCV00580. A true and correct copy of the F AC is enclosed as Exhibit 4 7 to the concurrently filed Notice of Lodgment.

3. The Lis Pendens noticing Pendency of Action, recorded in the Los Angeles County Recorder's Office on May 22, 2023. A true and correct copy of the Lis Pendens is enclosed as Exhibit 48 to the concurrently filed Notice of Lodgment.

4. A signed Temporary Certificate of Occupancy for Phase One and Two approved by the City of Glendale Building and Safety Department on March 13, 2023. A true and correct copy of the Temporary Certificate of Occupancy is enclosed as Exhibit 45 to the concurrently filed Notice of Lodgment.

5. A Notice of Correction signed by a City of Glendale Inspector, dated June 29, 2022. A true and correct copy of this Notice of Correction is enclosed as Exhibit 43 to the concurrently filed Notice of Lodgment.

6. A Notice of Correction signed by a City of Glendale Inspector, dated July 13, 2022. A true and correct copy of this Notice of Correction is enclosed as Exhibit 55 to the concurrently filed Notice of Lodgment.

7. A signed Variance granted by the City of Glendale, dated October 24, 2022, identified as Building Modification Request (BMOD) No. 2212478. A true and correct copy of the Variance is enclosed as Exhibit 44 to the concurrently filed Notice of Lodgment.

8. A Certified Copy of the Conditions, Covenants, and Restrictions ("CC&Rs") for the property described therein, recorded on August 6, 2008. A true and correct copy of the CC&Rs is enclosed as Exhibit 50 to the concurrently filed Notice of Lodgment.

9. An Exemplar Grant Deed ("Deed") notarized and signed on August 25, 2015, recorded on August 25, 2015 in the Los Angeles County Recorder's Office. A true and correct copy of the Deed is enclosed as Exhibit 66 to the concurrently filed Notice of Lodgment. This publicly recorded Grant Deed for one of the condominium units at the Project property, in accordance with the CC&Rs, provides the respective unit owner owns "[a]n undivided one-one hundredth (1/lO0TH) fee simple interest as tenant in common in and to the common area[.]" For judicial efficiency RE is only attaching and requesting judicial notice of one exemplar Grant Deed, but can make others available for Court reference.

10. The Certified License History for Reconstruction Experts, Inc., certified by the Contractors State License Board for the State of California, on September 21, 2023. A true and correct copy of the Certified License History is enclosed as Exhibit 49 to the concurrently filed Notice of Lodgment.

11. A City of Glendale Structural Repair Permit issued on August 30, 2022. A true and correct copy of the Structural Repair Permit is enclosed as Exhibit 60 to the concurrently filed Notice of Lodgment.

12. The Condominium Plan for Excelsior at the Americana at Brand, Lot 10 of Tract No. 68602, recorded in the Los Angeles County Recorder's Office as Document No. 20081965478 on November 6, 2008 ("Condominium Plan"). A true and correct copy of the Condominium Plan is enclosed as Exhibit 87 to the concurrently filed Notice of Lodgment.

Under Evid. Code §453, “The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid Code. §453.)

Since there were no objections by any parties to the requests for judicial notice, the Court GRANTS Movants’ and Plaintiff’s requests for judicial notice but does not admit the truth of the matters therein.

Objections

Plaintiff submitted objections to the Declaration of Branscombe in support of Defendants’ motion to expunge lis pendens. The Court overrules these objections.  The Court has considered the Branscombe Declaration in reaching its determination.

SANCTIONS

The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust. (CCP §405.38.)

The Court will take up the issue of sanctions at the hearing.

 Case Name: RECONSTRUCTION EXPERTS, INC., a Colorado
corporation v. THE EXCELSIOR AT THE AMERICANA AT BRAND HOMEOWNERS’
ASSOCIATIONS, a California nonprofit mutual benefit corporation; et al.

Case No: 23GDCV00580

Hearing Date: 11/03/2023 – 10:00am

Trial Date: UNSET

[2 TENTATIVE RULINGS ON 2
DEMURRERS]

DEMURRER 1

RELIEF REQUESTED

Member Defendants demur generally and specially
to the sixth cause of action of the unverified FAC for failure to state
sufficient facts and uncertainty. Demurrer is made pursuant to CCP §430.10(e)
and (f).

PROCEDURAL

Moving Party

Member Defendants.

Member
Defendants are listed in the memorandum, but they are not listed in the notice
of motion. The Member Defendants are listed as:

-462
Caruso Holdings

-AEC
Capital, LLC, a California Limited Liability Company

-Agnes
Desfour-Canadas, an individual

-Aida
Gharakhani, as Trustee of the Gharakhani Family Trust, dated December 18, 2018

-Albert
Hembarsoonian, an individual

-Alicia
Fermanian, as Trustee of the JA Fermanian Family Trust, dated January 18, 2018

-Alireza
Safavizadeh, an individual

-Alvart
Hembarsoonian, an individual;

-Anahid
Nishanian, an individual

-Andrew
Walding, as Trustee of the Andrew and Guadalupe Walding Living Trust, dated May
29,

2020

-Ani
Ovsepyan, an individual

-Anita
Weinstein, as Trustee of the Everett David Weinstein and Anita Watson Weinstein
Family

Trust
of 1982

-Anna
Lytvynenko, an individual

-Anooshirvan
Bozorgmehr, an individual

-Ara
Asatrian, an individual

-Arsen
Grigoryan, an individual

-Arshavir
Kouladjian, as Trustee of the Sebouh A. Kouladjian Revocable Trust, dated
November

18,
2008

-Artur
Arkelakyan, an individual

-Astghik
Aleksanyan, an individual

-Benjamin
Siruno Jr., as Trustee of the Eustacia A. Sabio Trust 2007

-Betty
Minnick, as Trustee of the John and Betty Minnick Family Trust, dated October
5, 1988

-Bijesh
Thakker, an individual

-Caruso
Penthouse LLC, a California limited liability company

-Christopher
J. Toomey, as Trustee of the Christopher J Toomey Trust, dated February 2, 1993

-Constantine
Marantidis, an individual

-Damien
Moreau, an individual

-Debra
M. Ohanian, an individual

-Debra
M. Ohanian, as Trustee of the Debra M. Ohanian 2014 trust dated September 29,
2014

-Derenik
Stepanyan, an individual

-Desert
Sunshine Asset MGT LLC, a Nevada Limited Liability Company, as Trustee of the

Volcanic
Property Title Holding Trust

-Dina
Grigoryan, an individual

-Eduard
Galstyan, an individual

-Emily
Chow, an individual

-Evelina
Zograbian, as Trustee of the Bekian Zograbian Family Trust dated December 21,
2016

-Farideh
F. Ara, as Trustee of the Mike Ara and Farideh F. Ara Family Trust, dated
December 9,

2020

-Fay
Ann Chu, as Trustee of the Fay Ann Chu Revocable Living Trust

-Fujitsu
Limited Inc. of the British Virgin Islands, a business entity of unknown form

-Gayane
Azizyan, an individual

-Gayane
Hakobyan, an individual

-Gayane
Khachatryan, an individual

-Geling
Yan, as Trustee of the Walker Family Revocable Trust of March 2, 2004

-Gigi
G. Ying, an individual

-Gladis
Z. Leon, as Trustee of the Gladis Z. Leon Trust, dated November 2, 2012

-Grigorii
Airapetian, an individual

-Guadalupe
Walding, as Trustee of the Andrew and Guadalupe Walding Living Trust, dated May

29,
2020

-Hakop
Hakopian, an individual

-Hripsime
Hakobyan, an individual

-Ingrid
E. Freire, an individual

-Ivy
Hsiao-Ming Sun, as Trustee of the Ivy Sun Separate Property Trust dated
November 14,

2002

-Jack
Bekian, as Trustee of the Bekian Zograbian Family Trust, dated December 21,
2016

-Jack
H. Karapetian, an individual

-Jake
Fermanian, as Trustee of the JA Fermanian Family Trust, dated January 18, 2018

-James
E. Kalagher, an individual

-Jeanette
Zakari, as Trustee of the Survivor's Trust, Created Under the Victor and
Jeanette

Zakari
Declaration Trust, dated June 16, 1989

-Jennifer
C. Lee, an individual

-Jesslyn
O. Gosal, an individual

-Jin
Chen Wang, as Trustee of the Jin-Chen Wang Revocable Trust, dated January 19,
1998

-John
Minnick, as Trustee of the John and Betty Minnick Family Trust, dated October
15, 1998

-Jong
Won Choi, an individual

-Joseph
Pying Hwa Shiue, as Trustee of the Livia Yin & Joseph Shiue Living Trust

-Julie
Ilic, as Trustee of the Milisav Ilic and Julie Abigail Ilic Living Trust, dated
August 20, 2020

-Kamal
M. Murad, an individual

-Karan
H. Tolani, an individual

-Karine
S. Abdalian, an individual

-Katherine
Chen, an individual

-Katherine
Sun, an individual

-Kenrick
Kalopsis, an individual

-Kristine
Klarka, an individual

-Kumaraswamy
Jayaraj, an individual

-Kuo
Yu Kuan, an individual

-Kurt
Brian Gillmann, an individual

-Lawrence
A. Walker, as Trustee of the Walker Family Revocable Trust of March 2, 2004

-Livia
Li Ping Yin, as Trustee of the Livia Yin & Joseph Shiue Living Trust

-Louis
M. Kwong, as Trustee of the Louise M. Kwong Living Trust, dated April 8, 2021

-Louis
W. Siu, an individual

-Lu
Chow, an individual

-Margarita
Kazarian, an individual

-Maria
I. Ramin, an individual

-Mariliese
Gines, an individual

-Marilyn
Maldonado, as Trustee of the Marilyn Maldonado Qualifies Personal Residence
Trust,

dated
March 19, 2018

-Mark
G. Ying, an individual

-Maryam
A. Abdulrahim, an individual

-May
W. Chung, an individual

-Meher
Der Ohanssian, an individual

-Melody
Safavizadeh, an individual

-Michael
Kim, as Trustee of the Dong and Rosa Kim 2002 Revocable Trust

-Michelle
L. Marquez, as Trustee of the Michelle Lapid Marquez Living Trust, U/A, dated

October
28, 2015

-Mike
Ara, as Trustee of the Mike Ara and Farideh F. Ara Family Trust, dated December
9, 2020

-Milisav
Ilic, as Trustee of the Milisav Ilic and Julie Abigail Ilic Living Trust, dated
August 20,

2020

-Nabil
A. Karabetian, as Trustee of the Karabetian Family Trust, Dated September 26,
2008;

-Nabil
Karabetian

-Najah
Jabur, an individual

-Natalie
D. Wang, an individual

-Neesha
H. Tolani, an individual

-NKJ
Investments

-NoHo
KH Properties, LLC, a California Limited Liability Company

-Normal
L. Lamug, as Trustee of the Normal L. Lamug Trust 2007

-Patrick
Aghanian, an individual

-Pierre
Saint Blancat, an individual

-Radha
Sen, an individual

-Raj
Dhingra, as Trustee of the Raj Dhingra and Julieta Dhingra 1980 Trust, dated
December 18,

1980

-Razzak
Jabur, an individual

-Ronald
D. Cosme, an individual

-Ronny
Eliahu, an individual

-Rosa
Kim, as Trustee of the Dong and Rosa Kim 2002 Revocable Trust

-Rosalina
Herman, an individual

-Rosalina
R. Cosme, an individual

-Ruben
B. Abdalian, an individual

-Ruben
R. Karapetian, an individual

-Rudolf
A. Thaddeus, an individual

-Ryan
E. Siu, an individual

-Samir
Stephanos, as Trustee of the Samir Stephanos Family Trust, dated November 2,
2012

-Sangita
Thakker, an individual

-Sebouh
Kouladjian, as Trustee of the Sebouh A. Kouladjian Revocable Trust, dated
November

18,
2008

-Serena
Bae, an individual

-Shahan
Kalenderian, an individual

-Shilpa
Sharma, an individual

-Sixto
M. Ramin, an individual

-Sona
Avagyan, an individual

-Souren
Pirjanian, an individual

-Sueni
Fnu, an individual

-Sung
Won Choi, an individual

-Susan
B. Federman, an individual

-Susan
Lee, an individual

-Sussana
Airapetian, an individual

-Taell
Kim, an individual

-Trey
G. Ho, an individual

-Vahan
Sudzhyan, an individual

-Valeria
Katz, as Trustee of the Katz Revocable Trust, dated December 19, 2012

-Vanand
Mehdikhanian, an individual

-Victoria
J. Tsoong, as Trustee of the Victoria J. Tsoong Trust, dated August 6, 2004

-Victoria
Papazian, an individual

-Vikas
K. Pabby, an individual

-Well
Venture Holdings Limited, a business entity of unknown form

-Wendy
Gosal, an individual

-Young
C. Bae, an individual

The
Court notes that the attorney for Excelsior and Member Defendants filed several
proofs of service stating that on certain dates the following documents were
served, “1. Notice of Joinder in Demurrer to the First Amended Complaint. 2.
Notice of Joinder in Motion to Expunge Lis Pendens.” However, in these proofs
of service, the proofs of service don’t indicate which Defendant(s) the notice
of joinders apply to.

The
Court notes that Excelsior and Member Defendants’ counsel also filed a document
titled “Notice of Joinder in Demurrer to First Amended Complaint” wherein it was
indicated that Elina Tokarieva joins the demurrer as though they are named as a
Member Defendant. However, it is unclear if this notice of joinder was served
on Plaintiff because the proofs of service filed with the Court don’t indicate
who the notices in the proofs of service pertain to.

Responding Party: Plaintiff,
Reconstruction Experts, Inc.

Moving Papers: Notice; Memorandum; Levine
Declaration; Proof of Service

Opposition Papers: Opposition; Request for
Judicial Notice; Proof of Service

Reply Papers: Reply; Proof of Service

Proof of Service Timely Filed (CRC Rule
3.1300(c)): Ok

16/21 Court Days Lapsed (CCP 1005(b)):Ok

Proper Address (CCP §1013, §1013a, §1013b): Ok

Meet and Confer

A
party filing a demurrer “shall meet and confer in person or by telephone with
the party who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer.” 
(Code Civ. Proc., §430.41, subd. (a).) 
“The parties shall meet and confer at least five days before the date
the responsive pleading is due. If the parties are not able to meet and confer
at least five days prior to the date the responsive pleading is due, the
demurring party shall be granted an automatic 30-day extension of time within
which to file a responsive pleading, by filing and serving, on or before the
date on which a demurrer would be due, a declaration stating under penalty of
perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.”  (Code Civ. Proc., §430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Here, Member Defendants’ counsel alleged he met and
conferred. (Levine Decl. ¶3.)

BACKGROUND

The initial Complaint
was filed on 03/23/2023.

A
First Amended Complaint (FAC) was filed on 05/18/2023 alleging seven causes of
action: (1) Breach of Contract, (2) Breach of the Covenant of Good Faith and
Fair Dealing; (3) Rescission; (4) Quantum Meruit; (5) Unjust Enrichment; (6)
Foreclosure on Mechanics Lien; and (7) Declaratory Relief.

Plaintiff,
Reconstruction Experts, Inc., alleges that Defendant Excelsior at the Americana
at Brand Homeowners’ Association (Excelsior) is the homeowners’ association for
the real property at interest, Excelsior Property. Plaintiff alleges that all
other defendants in this action are “Excelsior Owners,” and alleges the
Excelsior Owners in ¶4 of the FAC. [Note – it appears as if the Movants to this demurrer refer to
the Excelsior Owners as the Member Defendants.]

Plaintiff
alleges that it entered into an agreement with Excelsior wherein it was to
perform certain repair work for the agreed price of $15,233,707.56, subject to
increase for extra work. Plaintiff alleges that it performed extra work at
Excelsior’s direction and incurred additional costs beyond the original
contract price. Plaintiff alleges that these items increased the contract
amount by at least $7,196,205.97.

The
first, through fifth causes of action are alleged only against Excelsior.

The
sixth cause of action is alleged against Excelsior and Excelsior Owners.

The
seventh cause of action is alleged against Excelsior.

Several
Cross-Complaints have been filed in this action. Further, several requests for
dismissal appear to have been granted in this file.

For
the reasons set out below, the Member Defendants’ demurrer is DENIED in its
entirety.

LEGAL STANDARDS FOR DEMURRERS

Demurrer – Sufficiency

A demurrer for
sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.)  When considering demurrers,
courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of
Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law ….”  (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.) 
In a demurrer proceeding, the defects must be apparent on the face of
the pleading or via proper judicial notice. 
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.)  A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed.  (Code Civ. Proc., §§ 430.30,
430.70.)  The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action. (Hahn, supra, 147
Cal.App.4th at 747.) 

The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts.  (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.) 
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.) 

On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.”  (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.)  Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.” 
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.)  “Generally it is an abuse of
discretion to sustain a demurrer without leave to amend if there is any
reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.)



Demurrer – Uncertainty

A special demurrer for uncertainty, CCP section 430.10(f), is disfavored
and will only be sustained where the pleading is so bad that defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against
him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS

Sixth Cause of Action – Foreclosure of Mechanic’s Lien

Member
Defendants’ (Movants) demurrer is confusingly. As a preliminary matter, Movants
don’t even attempt to explain what the elements are for a cause of action for
foreclosure of mechanic’s lien. Therefore, that alone makes it difficult to
determine if Plaintiff alleged sufficient facts to constitute the cause of
action because Movants don’t provide legal authority as to what elements must
be alleged. Instead, Movants cite various sections of the Civil Code and argue
how Plaintiff did not allege what is contained in the portions of the Civil
Code cited by Movants. Not only is it difficult to determine if the code
sections that Movants cited are relevant, but Movants don’t cite any authority
that the portions of the Civil Code it cited must be alleged at the pleading
stage to withstand a demurrer.

As an example Member Defendants’ obfuscatory tactics, the
Court will quote below what Member Defendants cited:

“Civil Code §8400 provides:

A person that provides work authorized for
a work of improvement, including, but not limited to, the following persons,
has a lien right under this chapter:

(a) Direct contractor;

(b) Subcontractor.

(c) Material supplier.

 (d)
Equipment lessor.

(e) Laborer.

 (f)
Design professional. (California Civil Code §8400, emphasis added).

Civil Code §8410 provides:

A claimant may enforce a lien only if the
claimant has given preliminary notice to the extent required by Chapter 2
(commencing with Section 8200) and made proof of notice. California Civil Code
§8410).

Civil Code §8200 provides:

(a) Except as otherwise provided by
statute, before recording a lien claim, giving a stop payment notice, or
asserting a claim against a payment bond, a claimant shall give preliminary
notice to the following persons:

(1) the owner or reputed owner;

. . .

(c) Compliance with this section is a
necessary prerequisite to the validity of a lien claim or stop payment noticed
under this title.

(e) Notwithstanding the foregoing
subdivisions:

(2) A claimant with a direct contractual
relationship with an owner or reputed owner is required to give preliminary
notice only to the construction lender or reputed construction lender, if any.”

(Dem. p. 6.)

After citing what
the Court quoted above from Movants’ demurrer on page 6, Movants conclude that
“These statutes require that Reconstruction Experts either have a direct
contract with the Member Defendants OR have provided the Member Defendants with
a Preliminary Notice. The Complaint as plead fails to allege that there was a
contract between Reconstruction Experts and any of the Member Defendants. The
Complaint as plead fails to allege that there was a Preliminary Notice sent to
any of the Member Defendants. This is because there is no direct contract
between Reconstruction Experts and there was no Preliminary Notice sent to any
of the Member Defendants.” (Dem. p. 6-7.)

How the Movants came
to their conclusion, the Court is not entirely certain. Further, Movants cite
no authority that those things must be alleged at the pleading stage.
Additionally, Movants cite several other sections of the Civil Code and make
arguments about what must be alleged; however, the Court is unable to decipher
these arguments.

TENTATIVE RULING
DEMURRER 1

Member Defendants’
demurrer to the sixth cause of action is OVERRULED. Member Defendants’
arguments in sustaining the demurrer were difficult to decipher, and Member
Defendants regularly stated conclusions as to what must be alleged while
providing no legal authority.

On eCourt, this
demurrer is titled as a “Demurrer – with Motion to Strike.” The Court notes
that no motion to strike was filed.

Request for Judicial
Notice

Plaintiff
requested judicial notice of the following, attached at like-numbered exhibits
:

1. The Excelsior
at the Americana at Brand Homeowners' Association publicly recorded Declaration
of Establishment of Conditions, Covenants and Restrictions for the condominium
property of the project at issue in the above-captioned action ("CC&R")
which, among other things, provides at Section 1.1.10, "the undivided
interest in the Common Area hereby established and which shall be conveyed with
each respective Unit shall be an undivided one-one hundredth (11100th)
fractional fee interest, with the ownership thereof held as a tenant in common
with the other Owners of Units in the Project."

2. Publicly
recorded Grant Deed for one of the condominium units at the project property
which, in accordance with the CC&Rs, provides the respective unit owner
owns "[a]n undivided one-one hundredth (1/100TH) fee simple interest as
tenant in common in and to the common area[.]" For judicial efficiency RE
is only attaching and requesting judicial notice of one exemplar Grant Deed,
but can make others available for Court reference.

Since the Reply
did not object to these requests, the Court GRANTS Plaintiff’s requests for
judicial notice but does not admit the truth of the matters therein.

DEMURRER 2

RELIEF REQUESTED

Defendant (Movant), The
Excelsior at the Americana at Brand Homeowners’ Association (Excelsior) will
and hereby demur generally and specially to the unverified FAC. Defendant demurs
pursuant to CCP §430.10(e) and (f) on grounds that the first, second, third,
fourth, fifth, sixth, and seventh causes of action fail to state sufficient
facts to constitute an action and on grounds of uncertainty.

PROCEDURAL

Moving Party: Defendant, The Excelsior at the Americana at Brand Homeowners’
Association (Excelsior)

Responding Party: Plaintiff,
Reconstruction Experts, Inc.

Moving Papers: Notice;
Memorandum; Levine Declaration; Proof of Service

Opposition Papers: Opposition;
Proof of Service; Request for Judicial Notice

Reply Papers: Reply;
Proof of Service

Proof of Service
Timely Filed (CRC Rule 3.1300(c)): Ok

16/21 Court Days Lapsed (CCP 1005(b)): Ok

Proper Address (CCP §1013, §1013a, §1013b): Ok

Meet and Confer

A
party filing a demurrer “shall meet and confer in person or by telephone with
the party who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer.” 
(Code Civ. Proc., §430.41, subd. (a).) 
“The parties shall meet and confer at least five days before the date
the responsive pleading is due. If the parties are not able to meet and confer
at least five days prior to the date the responsive pleading is due, the
demurring party shall be granted an automatic 30-day extension of time within
which to file a responsive pleading, by filing and serving, on or before the
date on which a demurrer would be due, a declaration stating under penalty of
perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.”  (Code Civ. Proc., §430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Here, Defendant’s counsel alleged he met and
conferred. (Levine Decl. ¶3.)

BACKGROUND

The initial Complaint
was filed on 03/23/2023.

A
First Amended Complaint (FAC) was filed on 05/18/2023 alleging seven causes of
action: (1) Breach of Contract, (2) Breach of the Covenant of Good Faith and
Fair Dealing; (3) Rescission; (4) Quantum Meruit; (5) Unjust Enrichment; (6)
Foreclosure on Mechanics Lien; and (7) Declaratory Relief.

Plaintiff,
Reconstruction Experts, Inc., alleges that Defendant Excelsior at the Americana
at Brand Homeowners’ Association (Excelsior) is the homeowners’ association for
the real property at interest, Excelsior Property. Plaintiff alleges that all
other defendants in this action are “Excelsior Owners,” and alleges the
Excelsior Owners in ¶4 of the FAC.

Plaintiff
alleges that it entered into an agreement with Excelsior wherein it was to
perform certain repair work for the agreed price of $15,233,707.56, subject to
increase for extra work. Plaintiff alleges that it performed extra work at
Excelsior’s direction and incurred additional costs beyond the original
contract price. Plaintiff alleges that these items increased the contract
amount by at least $7,196,205.97.

The
first, through fifth causes of action are alleged only against Excelsior.

The
sixth cause of action is alleged against Excelsior and Excelsior Owners.

The
seventh cause of action is alleged against Excelsior.

Several
Cross-Complaints have been filed in this action. Further, several requests for
dismissal appear to have been granted in this file.

For
the reasons set out below, Excelsior’s Demurrer is denied in its entirety.

ANALYSIS

First
Cause of Action – Breach of Contract

Plaintiff’s FAC alleged
as follows:

8. RE realleges and incorporates by reference
paragraphs 1 through 7, above, as though set forth in full at this point.

9. In or around October 2018, Excelsior filed an
action in the Los Angeles County Superior Court against various construction
and development entities based on claims arising out of alleged construction
and design deficiencies relating to the original construction of the Excelsior
Property (the "Underlying Defect Action"). Excelsior settled the
Underlying Defect Action, then subsequently issued a request for proposals
soliciting various contractors to perform certain itemized repair work at the
Excelsior Property

10. On or about
May 13, 2022, Excelsior entered into a written agreement with RE, pursuant to
which RE agreed to perform certain repair work on the Excelsior Property (the
"Project") in exchange for payment by Excelsior. The agreed price for
RE's work on the Project was $15,233,707.56, subject to increase for extra
work. A true and correct copy of the written agreement is attached to this
Complaint as Exhibit "1," and incorporated by reference as though set
forth in full at this point (the "Contract").

11. RE performed
all conditions, covenants, and promises required on its part to be performed in
accordance with the terms and conditions of the Contract, or was otherwise
excused from performance.

12. RE performed
extra work at Excelsior's direction and incurred additional costs beyond the
original Contract price due to the actions and inactions of Excelsior. These
items increased the Contract amount by at least $7,196,205.97, for a revised
contract amount of no less than $22,429,913.53.

13. Excelsior
breached the Contract by, among other things: (a) failing to pay RE for the
labor, services, equipment, and materials RE furnished to the Project; (b)
delaying RE's performance of work on the Project; (c) changing specifications
for the Contract; (d) failing to timely provide information required for RE's
performance of the Contract, including design and engineering documents; ( e)
directing RE to perform additional work without providing time extensions or
issuing change orders; (f) failing to administer the Project in accordance with
the reasonable standard of care for a like-situated owner of real property; (g)
failing to timely consider and approve RE's requests for additional payment and
additional time to perform extra work at Excelsior' s request; and (h)
unjustifiably terminating the Contract and directing RE to cease labor on the
Project on March 24, 2023.

14. RE has
incurred damages due to Excelsior's breaches of the Contract, including
increased costs above those that would have been necessary had Excelsior not
breached the Contract. Based on Excelsior's failure to pay for the additional
work it ordered, RE was also forced to incur and pay costs for additional work
provided to Excelsior in an amount which is not yet fully ascertained.

15. As a direct
and proximate result of the breaches of contract described above, RE has been
damaged in a sum not yet fully ascertained and according to proof at trial, but
at least $8,953,162.40, together with interest at the maximum legal rate from
dates according to proof.

16. RE has
incurred and will continue to incur attorneys' fees and other costs as a result
of Excelsior' s breaches of the Contract, in an amount which will be shown at
trial. Pursuant to the terms of the Contract, RE is entitled to an award of
attorneys' fees and costs reasonably and necessarily incurred in prosecuting
this claim, in an amount to be determined by the Court and included in the
judgment in this action.

(FAC ¶¶8-16.)

Elements for
Breach of Contract

To state a cause of action for breach of contract, Plaintiff
must allege “(1) the existence of the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to
the plaintiff.”  (Oasis West Realty,
LLC v. Goldman (2011) 51 Cal.4th 811, 821.) 
A cause of action for breach of contract is subject to demurrer if “it
cannot be ascertained from the pleading whether the contract is written, is
oral, or is implied by conduct.”  (Code
Civ. Proc., §430.10(g).) A written contract must be pled verbatim in the body
of the complaint, be attached to the complaint, and incorporated by reference,
or be pled according to its legal effect. 
(Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.)  An allegation of an oral agreement must
“set[] forth the substance of its relative terms.”  (Gautier v. General Tel. Co. (1965)
234 Cal.App.2d 302, 305.)

Discussion – Breach of Contract

(1) The existence of the contract

Here, Plaintiff alleged this element
at ¶10 of the FAC wherein Plaintiff also referenced Exhibit 1 attached to the
FAC which is the alleged contract.

(2)Plaintiff’s performance or excuse for nonperformance

Here, Plaintiff alleged this element
at ¶11.

(3)Defendant’s breach

Here, Plaintiff alleged this element
at ¶13.



(4) Resulting Damages to Plaintiff

Here, Plaintiff alleged this element at ¶15.



Additional Arguments by Defendant

Defendant correctly cites that documents attached to the
complaint and incorporated by reference become part of the complaint and may be
considered on demurrer. However, Defendant’s attempt to turn this demurrer into
a motion for summary judgment is unavailing. The vast majority of Defendant’s
arguments as to breach of contract are based on how Defendant believes it
didn’t, and could not, breach the contract based on the express terms of the
contract. Defendant also attempts to frame the FAC as if it is based on three
allegations; however, ¶13 of the FAC indicates far more than three allegations
that the Plaintiff bases its breach of contract on. Defendant also argues that
Plaintiff had to have attached/included amendments to the contract, Change
Orders, or Construction Change Directives, among many other things. Defendant
provides no legal support for this conclusion. For purposes of the pleading
stage, Defendant’s arguments are unavailing.

TENTATIVE RULING FIRST CAUSE OF ACTION

Defendant’s demurrer to the first cause of action is
OVERRULED.

Second Cause of
Action – Breach of the Covenant of Good Faith and Fair Dealing

“The prerequisite
for any action for breach of the implied covenant of good faith and fair
dealing is the existence of a contractual relationship between the parties,
since the covenant is an implied term in the contract.” (Smith v. City and
County of San Francisco (1990) 225 Cal.App.3d 38, 49.)

A breach of the
implied covenant of good faith and fair dealing involves something beyond
breach of the contractual duty itself and it has been held that bad faith
implies unfair dealing rather than mistaken judgment. (Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.)

“Thus, allegations
which assert such a claim must show that the conduct of the defendant, whether
or not it also constitutes a breach of a consensual contract term, demonstrates
a failure or refusal to discharge contractual responsibilities, prompted not by
an honest mistake, bad judgment or negligence but rather by a conscious and
deliberate act, which unfairly frustrates the agreed common purposes and
disappoints the reasonable expectations of the other party thereby depriving
that party of the benefits of the agreement. Just what conduct will meet these
criteria must be determined on a case-by-case basis and will depend on the
contractual purposes and reasonably justified expectations of the parties.” (Careau
& Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d
1371, 1395.)

“If the
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 superfluous as no additional claim is actually stated. Thus,
absent those limited cases where a breach of a consensual contract term is not
claimed or alleged, the only justification for asserting a separate cause of
action for breach of the implied covenant is to obtain a tort recovery.” (Careau
& Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d
1371, 1395.)

Defendant argues
that Plaintiff’s cause of action here does not allege anything more than a mere
breach of contract, relying on the same alleged acts, and simply seeks the same
damages or other relief already claimed in a contract cause of action.

In Opposition,
Plaintiff argues that Plaintiff is permitted to simultaneously assert breach of
contract and breach of implied covenant causes of action when it is alleged the
defendant exercised a right under the contract in bad faith to frustrate the
contact’s benefits. Further, Plaintiff cites Mendoza v. Continental Sales Co.,
supra,140 Cal.App.4th at 1402 for the proposition that allowance of alternative
pleading is allowed in California.

The FAC alleged as
follows:

17. RE realleges
and incorporates by reference paragraphs 1 through 16, above, as though set
forth in full at this point.

18. The laws of
the State of California imply a covenant of good faith and fair dealing into
the Contract. The covenant of good faith and fair dealing required Excelsior to
act with fairness and good faith toward RE, and to not interfere with, impair,
or hinder the ability of RE to enjoy the benefits of the contractual
relationship. The covenant further required that Excelsior refrain from causing
injury or damage to RE.

19. The acts of
Excelsior, as set forth above, constitute a breach of the covenant of good
faith and fair dealing implied within the Contract. This breach was at least a
substantial factor in causing damages and injuries to RE.

20. As a direct
and proximate result of these breaches of the covenant of good faith and fair
dealing, RE sustained damages in an amount according to proof at trial, but at
least $8,953,162.40.

TENTATIVE RULING
SECOND CAUSE OF ACTION

 “Thus, allegations which assert such a claim
must show that the conduct of the defendant, whether or not it also constitutes
a breach of a consensual contract term, demonstrates a failure or refusal to
discharge contractual responsibilities, prompted not by an honest mistake, bad
judgment or negligence but rather by a conscious and deliberate act, which
unfairly frustrates the agreed common purposes and disappoints the reasonable
expectations of the other party thereby depriving that party of the benefits of
the agreement. Just what conduct will meet these criteria must be determined on
a case-by-case basis and will depend on the contractual purposes and reasonably
justified expectations of the parties.” (Careau & Co. v. Security
Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

The Court is
satisfied that the Plaintiff has sufficiently pleaded this cause of action at
this stage.

The Court
OVERRULES Defendant’s demurrer.

Third Cause of
Action – Rescission

Plaintiff alleges
as follows:

21. RE realleges and incorporates by reference
paragraphs 1 through 20, above, as though set forth in full at this point.

22. At the time RE entered into the Contract, it
reasonably understood its scope of work to include only the plumbing,
mechanical, and podium deck waterproofing work required by the scope of work of
the Contract.

23. Excelsior contends the scope of work of the
Contract required RE to perform additional work beyond the work identified in
the Contract. The value of this additional work is at least $7,196,205.97, and
includes, without limitation: fireproofing, structural repair, structural
design, waterproofing design, and ceiling insulation work.

24. The Contract therefore fails to reflect the true
intent and agreement of the parties, as it does not accurately reflect a mutual
agreement as to the scope of work to be performed pursuant to the Contract.

25. The above-described failure of the Contract to
reflect the true intent and agreement of the parties resulted from a unilateral
mistake on the part of Excelsior. In the alternative, the above-described
failure resulted from a mutual mistake on the part of both Excelsior and RE,
and from causes beyond RE's control.

26. This misunderstanding or lack of agreement as to
material terms of the Contract constitutes a "mistake" within the
meaning of California Civil Code section 1689, subdivision (b )(1) and entitles
RE to rescind the Contract.

27. As a separate and additional ground for
rescission, Excelsior also failed or refused to extend the completion deadlines
required by the Contract to allow sufficient time for RE to perform the extra
work ordered by Excelsior. Based on this failure to extend the completion
deadlines, RE is informed and believes Excelsior intends to withhold up to the
entire amount of the remaining Contract balance from payment to RE due to
Excelsior's liquidated damages claims.

28. RE is further informed and believes Excelsior does
not intend to pay RE for the extra work it directed RE to perform beyond the
work required by the Contract. This extra work totals at least $7,196,205.97.

29. Excelsior' s actions in requiring continued
performance by RE with no corresponding consideration paid to RE by Excelsior
constitutes a failure of consideration, or otherwise renders the consideration
void within the meaning of California Civil Code section 1689, subdivisions
(b)(2)-(4).

30. As a result of Excelsior' s mistake and/or the
failure of consideration described above, RE has been deprived of the benefit
of its bargain, and has suffered substantial harm and injury. RE intends
service of the summons and complaint in this action to serve as notice of
rescission of the Contract, and hereby offers to restore the consideration
furnished by Excelsior under the Contract, on the condition that Excelsior
restore to RE the consideration furnished by RE.

31. RE requests an order from this Court rescinding
the Contract based upon mistake and/or failure of consideration, and restoring
the status quo ante prior to the execution of the Contract.

(FAC ¶¶21-31.)

TENTATIVE RULING
THIRD CAUSE OF ACTION

Defendant’s
demurrer is confusingly written. In no clear manner does Defendant indicate
what elements must be alleged to state a cause of action for rescission.
Therefore, it is unclear how the arguments Defendant provides support the
argument that a demurrer should be sustained. Further, Defendant appears to be
making arguments that are outside the scope of demurrer. Plaintiff’s Opposition
is equally unhelpful as it does not say what elements must be alleged and how
it alleged the elements of rescission. However, since Defendant is the Movant,
and Movant’s arguments are borderline incomprehensible and unhelpful in
determining what must be alleged to state a cause of action, Defendant’s
demurrer is OVERRULED.

Fourth Cause of
Action – Quantum Meruit

Defendant states,
“It is well settled that there is no equitable basis for an implied-in-law
promise to pay reasonable value when the parties have an actual agreement
covering compensation. Hedging Concepts, Inc. v. First All. Mortg. Co.,
41 Cal. App. 4th 1410, 1419 (1996).” (Dem. p. 9.) After stating this, Defendant
then concludes that “In other words, quantum meruit may not contradict the
express language of the Contract. In the present matter, there is an express
agreement to pay a fixed sum that is not subject to change without a written
amendment. Any additional payment must be authorized and signed by Excelsior in
the form of either a Change Order or a Construction Change Directive.
(Contract, P15, ¶1)” (Dem. p. 9-10.)

The Court is
unclear how Defendant arrived at its conclusion based on the citation Defendant
provided in Hedging Concepts.

TENTATIVE RULING
FOURTH CAUSE OF ACTION

Defendant’s
demurrer to the fourth cause of action for quantum meruit is OVERRULED. “The
requisite elements of quantum meruit are (1)
the plaintiff acted pursuant to
“an explicit or implicit request for
the services” by the defendant, and (2) the services conferred a benefit on
the defendant.” (Port Medical Wellness, Inc. v. Connecticut General
Life Insurance Company (2018) 24 Cal.App.5th 153, 180 citing Day v. Alta
Bates Medical Center (2002) 98 Cal.App.4th 243, 249, 119 Cal.Rptr.2d
606.)

Here, Plaintiff
alleged those elements in ¶¶32-37 of the FAC.

Reply cites Klein
v. Chevron which states: “Although a plaintiff may plead inconsistent
claims that allege both the existence of an enforceable agreement and the
absence of an enforceable agreement, that is not what occurred here. Instead,
plaintiffs' breach of contract claim pleaded the existence of an enforceable
agreement and their unjust enrichment claim did not deny the existence or
enforceability of that agreement. Plaintiffs are therefore precluded from
asserting a quasi-contract claim under the theory of unjust enrichment.” (Klein
v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389-1390.)

Here, although
Defendant’s citation appears to stand for the proposition that Plaintiff cannot
allege an unjust enrichment claim, this citation does not reference quantum
meruit. Since Plaintiff’s FAC alleged a cause of action for quantum meruit,
Defendant’s demurrer to the fourth cause of action for quantum meruit is
OVERRULED.

Fifth Cause of
Action – Unjust Enrichment

Plaintiff’s FAC
alleges as follows:

38. RE realleges and incorporates by reference
paragraphs 1 through 3 7, above, as though set forth in full at this point.

39. RE furnished labor, services, materials, and
equipment to the Project at the special request of Excelsior and/or Does 1-250.
RE enriched and conferred benefits upon Excelsior and/or Does 1-250 by
furnishing such labor, services, materials, and equipment. RE did not intend or
expect to confer those benefits gratuitously or officiously.

40. Excelsior and/or Does 1-250 retained the labor,
services, materials, and equipment provided at RE's expense without payment or
justification. It would be unjust for Excelsior and/or Does 1-250 to not pay RE
for the benefits conferred upon Excelsior.

41. The total and reasonable value of the benefits
conferred by RE upon Excelsior and/or Does 1-250 is not yet fully ascertained,
but is at least $8,953,162.40. Should the Court determine RE has no remedy at
law, equity should allow recovery for RE' s benefit.

(FAC ¶¶38-41.)

Arguments

Defendant argues
as follows:

There is no cause of action for unjust enrichment in
California. Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1370 (2010).
Unjust enrichment is synonymous with restitution. Durell v. Sharp Healthcare,
183 Cal. App. 4th 1350, 1370 (2010). Second, a claim for unjust enrichment is
not available if there is a contract that governs the relationship between
parties that gives rise to the unjust enrichment claim. Durell v. Sharp
Healthcare, 183 Cal. App. 4th 1350, 1370 (2010). An unjust enrichment theory is
inapplicable because Reconstruction Experts alleges the parties entered into
express contract. (FAC, ¶10). Reconstruction Experts has not alleged, in this
cause of action, that the Contract has been rescinded or is void.
Reconstruction Experts alleges Breach of Contract, and damages is an available
remedy at law for that claim. Reconstruction Experts' claim for Unjust
Enrichment is based upon identical facts as its Breach of Contract claim, and
Reconstruction Experts' alleged injury and the parties' relationship is clearly
controlled by the Contract. Thus, because Reconstruction Expert's claim for
Unjust Enrichment fails as a matter of law and this demurrer should be
sustained.

(Dem. p. 10.)

Plaintiff argues
as follows:

The Supreme Court of California has expressly stated
if “the complaint states a cause of action under any theory, regardless of the
title under which the factual basis for relief is stated, that aspect of the
complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty
Co., supra, 19 Cal.4th at 38) (emphasis added.) For over 100 years, a “common
count, by long continued practice is not subject to an attack by general
demurrer or by a special demurrer for uncertainty.” (Auckland v. Conlin (1928)
203 Cal. 776, 778.) “Whether termed unjust enrichment, quasi-contract, or
quantum meruit, the equitable remedy of restitution when unjust enrichment has
occurred ‘is an obligation (not a true contract) created by the law without
regard to the intention of the parties … .’” (Federal Deposit Ins. Corp. v.
Dintino (2008) 167 Cal.App.4th 333, 346 [internal citations omitted].)

It is also “incorrect” in a demurrer to “claim…that
unjust enrichment is not a cause of action.” (LeBrun v. CBS Television Studios,
Inc. (2021) 68 Cal.App.5th 199, 209.) This is because the “spirit behind the
law of unjust enrichment is to apply the law ‘outside of the box’ and fill in
the cracks where common civil law and statutes fail to achieve “justice.”“
(Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 939.) Finally, as with RE’s
other Causes of Action, “a plaintiff may plead inconsistent claims that allege
both the existence of an enforceable agreement and the absence of an
enforceable agreement.” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th
1342, 1389.)

Here, an action in quantum meruit is appropriate when
a party expends funds and performs services at another’s request, under
reasonable belief that requesting party will compensate him or her for those
services, and does not receive payment. (Earhart v. William Low Co. (1979) 25
Cal. 3d 503, 505, 510-15.) Additionally, the “elements of a cause of action
[based on] unjust enrichment are simply stated as ‘receipt of a benefit and
unjust retention of the benefit at the expense of another.’” (Professional Tax
Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238)
(emphasis added.) The FAC in the Fourth and Fifth Causes of Action plead
sufficient facts to allege these alternative equitable claims of recovery
against Excelsior. (FAC, ¶¶ 32-41.) Based on Excelsior’s abandonment of
Contract, RE is also entitled to alternatively seek the full reasonable value
of Project services rendered pursuant to equitable principles based on
restitution, quantum meruit, and unjust enrichment as set forth in Amelco,
Daughtry, Norman Peterson, and Opdyke. Therefore, the Demurrer fails.

(Pl. Oppo. p.
22-23.)

Defendant’s Reply
arguments are on pages 5-6 of the Reply.

TENTATIVE RULING
FIFTH CAUSE OF ACTION

When
appellate decisions are in conflict on a point, the court exercising inferior
jurisdiction must choose between the conflicting decisions. (Auto Equity
Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450,
456.)

In
California, there is no cause of action for unjust enrichment. (See Rutherford Holdings LLC v. Plaza Del Rey (2014) 223
Cal.App.4th 221, 231; Levine v. Blue Shield of California (2010) 189
Cal.App.4th 1117, 1138.) The Court notes that while Plaintiff cites cases
recognizing an unjust enrichment claim under California law, several cases like
Rutherford Holdings and Levine have confirmed that unjust
enrichment is not a cause of action in California.  “Unjust enrichment is
not a cause of action, however, or even a remedy, but rather a general
principle, underlying various legal doctrines and remedies…it is synonymous
with restitution.” (Rutherford Holdings LLC v. Plaza Del Rey (2014) 223
Cal.App.4th 221, 231; but see  Peterson
v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 [“The elements of
an unjust enrichment claim are the receipt of a benefit and the unjust
retention of the benefit at the expense of another.”].)

“Under
the law of restitution, an individual is required to make restitution if he or
she is unjustly enriched at the expense of another. A person is enriched if the
person receives a benefit at another’s expense. However, the fact that one
person benefits another is not, by itself, sufficient to require restitution.
The person receiving the benefit is required to make restitution only if the
circumstances are such that, as between the two individuals, it is unjust for
the person to retain it.” (Durell v. Sharp Healthcare (2010) 183
Cal.App.4th 1350, 1370 citing McBride v. Boughton (2004)
123 Cal.App.4th 379, 388.)

“There
are several potential bases for a cause of action seeking restitution. For
example, restitution may be awarded in lieu of breach of contract damages when
the parties had an express contract, but it was procured by fraud or is
unenforceable or ineffective for some reason.” (McBride v. Boughton (2004)
123 Cal.App.4th 379, 388.) Thus, a party to an express contract can assert a
claim for restitution based on unjust enrichment by alleging in that cause of
action that the express contract is void or was rescinded. (Rutherford
Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231 citing Lance
Camper Manufacturing Corp.v. Republic Indemnity Co. (1996) 44 Cal.App.4th
194, 203.)

Given
this, the Demurrer as to the Fifth Cause of Action is OVERRULED.

TENTATIVE RULING- SIXTH CAUSE OF ACTION- Foreclosure of Mechanic’s
Lien

Defendant’s demurrer is confusingly written with
respect to this cause of action. As a preliminary matter, Movant doesn’t even
attempt to explain what the elements are for a cause of action for foreclosure
of mechanic’s lien. Therefore, that alone makes it difficult to determine if
Plaintiff alleged sufficient facts to constitute the cause of action because
Movant doesn’t provide legal authority as to what elements must be alleged.
Instead, Movant cites various sections of the Civil Code and argues how Plaintiff
did not allege what is contained in the portions of the Civil Code cited by
Movant. Not only is it difficult to determine if the code sections that Movant
cited are relevant, but Movant doesn’t cite any authority that the portions of
the Civil Code it cited must be alleged at the pleading stage to withstand a
demurrer.

Since Defendant is the moving party, and Defendant did
not provide a convincing argument in a comprehensible manner with legal
authority for grounds to sustain the demurrer, Defendant’s demurrer to the
sixth cause of action for foreclosure of mechanic’s lien is OVERRULED.

TENTATIVE RULING SEVETH CAUSE OF ACTION
DECLARATORY RELIEF

The Court agrees with Plaintiff that a “demurrer is a
procedurally inappropriate method for disposing of a complaint for declaratory
relief." (Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134
Cal.App.4th 187, 221.)

RULING on REQUEST
FOR JUDICAL NOTICE

Plaintiff
requested judicial notice of the following, attached at like-numbered exhibits
:

1. The Excelsior at the Americana at Brand Homeowners'
Association publicly recorded Declaration of Establishment of Conditions,
Covenants and Restrictions for the condominium property of the project at issue
in the above-captioned action ("CC&R") which, among other things,
provides at Section 1.1.10, "the undivided interest in the Common Area
hereby established and which shall be conveyed with each respective Unit shall
be an undivided one-one hundredth (11100th) fractional fee interest, with the
ownership thereof held as a tenant in common with the other Owners of Units in
the Project."

2. Publicly recorded Grant Deed for one of the
condominium units at the project property which, in accordance with the CC&Rs,
provides the respective unit owner owns "[a]n undivided one-one hundredth
(1/100TH) fee simple interest as tenant in common in and to the common
area[.]" For judicial efficiency RE is only attaching and requesting
judicial notice of one exemplar Grant Deed, but can make others available for
Court reference.

Since the Reply
did not object to these requests, the Court GRANTS Plaintiff’s requests for
judicial notice but does not admit the truth of the matters therein.  These documents do not affect the Court’s
ruling on the Demurrers.