Judge: David Sotelo, Case: 21STCV24398, Date: 2022-08-23 Tentative Ruling
Case Number: 21STCV24398 Hearing Date: August 23, 2022 Dept: 40
MOVING PARTIES: Defendant Turner
Aecom-Hunt NFL JV; and
Stadco LA, LLC.
Plaintiff DC Traffic Control—a company in the business of
providing traffic control services in connection with construction projects—sues
Defendants GW Civil Contractors, Inc. (subcontractor that hired DC Traffic),
Andre Jerome Gueno and Richard Weldon (DC Traffic’s directors), Turner
Aecom-Hunt NFL JV (general contractor that hired GW Civil), and Stadco LA, LLC
(owner of the Stadium Project to which remaining parties were attached), on the
grounds that DC Traffic provided traffic services for GW Civil during the
Stadium Project owned by Stadco LA, only for GW Civil to fail to compensate DC
Traffic with $174,654 for services rendered, and for the remaining Defendants
to profit thereby.
On July 7, 2022, Turner Aecom and Stadco LA brought
identical and apparently unopposed Demurrers against the three causes of action
faced by both Defendants ((2) Common Count—Quantum Meruit, (3) Common Count—Services
Provided, (4) Unjust Enrichment) on the grounds that as pleaded, the Complaint affirmatively
pleads these claims outside their proper statute of limitations.
The Court (1) SUSTAINS, With Leave to Amend, the Turner
Aecom Demurrer to the Complaint’s Second through Fourth Causes of Action
because the claims are affirmatively pleaded outside of their statute of
limitations, (2) SUSTAINS, With Leave to Amend, the Stadco LA Demurrer
on the same grounds, and (3) CONTINUES the OSC re Default Judgment against Defendants
GW Civil and Gueno for lack of a complete Default Judgment packet from DC
Traffic.
Plaintiff DC Traffic Control is a company in the business of
providing traffic control services in connection with construction projects.
Defendant Stadco LA, LLC is a limited liability company that
owned a project relating to the construction of the new Los Angeles Stadium at Hollywood
Park (“SoFi Stadium Project”). Stadco LA awarded the construction contract for
the SoFi Stadium Project to Turner Aecom as Prime Contractor (general
contractor). In turn, Turner Aecom retained the services of GW Civil
Contractors as a subcontractor to perform a portion of the labor, services, and
equipment for the SoFi Stadium Project.
In February 2018, GW Civil Contractors hired DC Traffic to
provide certain labor, services, and equipment for the project, including
traffic control services, during portions of the construction of the So-Fi
Stadium Project. The agreement between GW Civil Contractors and DC Traffic was
memorialized in a written Subcontract. (Attached to the Complaint as Exhibit
A.) The officers, directors and shareholders of GW Civil Contractors were, at
all relevant times, Andre Jerome Gueno and Richard Weldon. DC Traffic
communicated with Weldon in entering the contract.
DC Traffic performed all services relating to the So-Fi
Stadium Project that it was required to perform and completed its work on
November 30, 2018 when GW Civil finished its operations on the project. During
and after performing its services, DC Traffic submitted requests for payment as
provided under the terms of the Subcontract. GW Civil had previously failed to
make progress payments for the months of March and April 2018. At the time of
the completion of GW Civil’s (and thus DC Traffic’s) work, GW Civil had failed
to make payment in the sum of $174,654 to DC Traffic, which sum remains due,
owing and unpaid.
Based on these facts, DC Traffic brought this action on July
1, 2021, alleging:
(1) Breach of Written Contract [i.e., the Subcontract] in
the amount of $174,654 against subcontractor GW Civil, its directors Gueno and
Weldon, and Does 1-10;
(2) Common Count—Quantum Meruit in the amount of $174,654 against
all Defendants [i.e., GW Civil, Gueno, Weldon, general contractor Turner Aecom,
and SoFi Stadium Project owner Stadco LA] and Does 5-20, based on the DC
Traffic labor contribution to the SoFi Stadium Project;
(3) Common Count—Work Labor and Services Rendered in the
amount of $174,654 against all Defendants and Does 10-20, based on the DC
Traffic labor contribution to the SoFi Stadium Project; and
(4) Unjust Enrichment in the amount of $174,654 against all
Defendants and Does 10-20 based on DC Traffic’s labor contribution in the
amount of $174,654 to the SoFi Stadium Project, as hired by GW Civil.
The Complaint and Summons were served on Stadco LA on
September 7, 2021, on Welcon on December 7, 2021, on Gueno on December 28,
2021, and on GW Civil on December 28, 2021. Turner Aecom has not been served in
this action.
On January 19, 2022, GW director Weldon (1) filed an Answer
to the DC Traffic Complaint and (2) filed a Cross-Complaint, alleging (1)
Implied Equitable Indemnity, (2) Equitable Indemnity, (3) Contribution, (4)
Comparative Apportionment [of Liability], and (5) Declaratory Relief against GW
Civil and fellow GW Civil director Andre Gueno.
On February 7, 2022, DC Traffic secured Entry of Default on
the Complaint against Gueno. Shortly thereafter, on February 10, 2022, DC
Traffic secured Entry of Default on the Complaint against GW Civil.
On March 31, 2022, service of the Cross-Complaint and
Summons was effected on GW Civil and Gueno.
On July 7, 2022, Turner Aecom, as represented by Troutman
Pepper Hamilton Sander LLP, brought a Demurrer against the Complaint’s Second
through Fourth Causes of Action—the only claims against Turner Aecom—on the
grounds that these claims are barred under their respective two-year statute of
limitations, as pleaded in the Complaint.
On the same day, Stadco LA, also represented by Troutman
Pepper Hamilton Sander LLP, brought a Demurrer against the Complaint’s Second
through Fourth Causes of Action on the same grounds.
On July 14, 2022, the Court held a series of Order to Show
Cause hearings in this action, at which time the Court, of its motion,
continued hearing on the Turner Aecom and Stadco LA Demurrers to August 23,
2022.
DC Traffic failed to file an Opposition or First Amended Complaint
in response to the Turner Aecom and Stadco LA Demurrer by the statutorily
permissible date of Wednesday, August 10, 2022 (nine court days before the
August 23, 2022 hearing).
On August 12, 2022, Turner Aecom and Stadco LA filed a joint
Notice of Non-Opposition to Demurrers.
The Demurrers are now before the Court and remain unopposed
by DC Traffic.
The Court TAKES Judicial Notice of the action’s Complaint
and California Emergency Rule 9, enacted on April 6, 2020, as separately
requested by Turner Aecom and Stadco LA. (Evid. Code, §§ 452, subds. (d), (h),
453.)
Complaint, Second to Fourth Causes of Action [(2) Common
Count—Quantum Meruit, (3) Common Count—Services Provided, (4) Unjust
Enrichment]: SUSTAINED, With Leave.
Legal Standard: A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) “To survive
a [general] demurrer, the complaint need only allege facts sufficient to state
a cause of action; each evidentiary fact that might eventually form part of the
plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High
School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the
cause of action, the demurrer admits the truth of all material facts properly
pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
966-67.) A demurrer, however, “does not admit contentions, deductions or
conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d
695, 713.)
Analysis: On demur, Turner Aecom argues that the
Complaint, as pleaded, makes allegations that on their face show the statute of
limitations has run on the Complaint’s Second through Fourth Causes of Action
because the statute of limitations on these claims is two years pursuant to
Code of Civil Procedure section 339 and, based on the allegations of the
Complaint, DC Traffic completed its work on November 30, 2018, being owed
$174,654 by GW Civil on that date, making the latest possible date of discovery
November 2020. (Turner Aecom Demurrer, 6:7-23.) Turner Aecom also argues that
California COVID-19 Emergency Rule 9—which tolled the statute of limitations on
claims by 178 days from April 6, 2020 to October 1, 2020—would not ameliorate
this pleading deficiency. (Turner Aecom Demurrer, 6:24-7:14.) The Court agrees.
Unless a complaint affirmatively discloses on its face that
the statute of limitations has run, the general demurrer on these grounds must
be overruled. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz
& McCort (2001) 91 Cal.App.4th 875, 881 [“It must appear clearly and
affirmatively that, upon the face of the complaint, the right of action is
necessarily barred”].) Instead, “[t]he proper remedy ‘is to ascertain the
factual basis of the contention through discovery and, if necessary, file a
motion for summary judgment ….’¿ [Citation.]” (Roman v. County of Los
Angeles (2000) 85 Cal.App.4th 316, 325.) Generally, a “statute of
limitations begins to run when the plaintiff suspects or should suspect that
her injury was caused by wrongdoing, that someone has done something wrong to
her’” (the “discovery rule”). (Bernson v. Browning–Ferris Industries
(1994) 7 Cal.4th 926, 932.) “[A] cause of action accrues at ‘the time when the
cause of action is complete with all of its elements.’” (Fox v. Ethicon
Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-07.) However, if the
complaint alleges wrongful conduct commencing at a time now barred by the
statute of limitations, but continuing until a date not barred, the last over
act supporting the tort controls the trigger date for the statute of
limitations. (See Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 786
[holding that the statute of limitations on continuing tort cause of action
does not begin to run until commission of last overt act].)
Here, the Complaint pleads that work on the SoFi Stadium
Project was completed by GW Civil, and thus, by DC Traffic, as of November 30,
2018. (Complaint, ¶ 15.) The Complaint also alleges that GW Civil owed DC
Traffic $174,654 for services rendered as of November 30, 2018, including for
nonpayment in March and April 2018. (Complaint, ¶ 15.) The Complaint last
pleads that DC Traffic has made multiple demands for payment on unspecified and
unclear parties but does not allege when such requests took place. (Complaint,
¶ 16.)
Thus, in its totality, the Complaint alleges that, as of
November 30, 2018, DC Traffic was aware that GW Civil owed DC Traffic $174,654
for services rendered and that GW Civil was not being forthcoming with payment.
Code of Civil Procedure section 339 governs the statute of limitations for
breach of contract claims and other claims covering contracts not founded upon
an instrument in writing. (See Code Civ. Proc., § 339.) The Second through
Fourth Causes of Action pleaded in the Complaint (i.e., Common Count—Quantum
Meruit, Common Count—Services Rendered, and Unjust Enrichment) are all tied to
the Subcontract between GW Civil and DC Traffic because the services performed
by DC Traffic entitling it to $174,654 were performed pursuant to the
Subcontract. (See Complaint, ¶¶ 14-16, 19-21, Ex. A.) These three claims are
thus subject to a two-year statute of limitations as actions either based on
the Subcontract with GW Civil or on an unwritten contract to provide services
for all the Defendants the SoFi Stadium Project at a rate consistent with the
Subcontract. DC Traffic’s final date of discovery for its nonpayment of
$174,654 injury, as pleaded in the Complaint, is November 30, 2018. (Complaint,
¶ 15.) This date provides a statute of limitations expiring on the Second
through Fourth Causes of Action no later than November 30, 2020. DC Traffic,
however, filed its Complaint on July 1, 2021. Even accounting for the
additional 178 days of statute of limitations tolling provided by California
COVID-19 Emergency Rule 9, 178 days from November 30, 2020 was Thursday, May
27, 2021, i.e., a little over a month before DC Traffic filed this action on
July 1, 2021.
Under these circumstances, the Court finds that the
Complaint affirmative on its face pleads Common Count—Quantum Meruit, Common
Count—Services Rendered, and Unjust Enrichment claims that are beyond their
statute of limitations, expiring no later than Monday, May 27, 2021, where DC
Traffic filed the Complaint in this action on July 1, 2021.
The Court thus SUSTAINS Turner Aecom’s Demurrer, With Leave
to Amend.
Complaint, Second to Fourth Causes of Action [(2) Common
Count—Quantum Meruit, (3) Common Count—Services Provided, (4) Unjust
Enrichment]: SUSTAINED, With Leave.
Analysis: The Stadco LA Demurrer is based on the same
grounds as the Turner Aecom Demurrer. (Compare Stadco LA Demurrer, 6:7-23,
6:24-7:14, with Turner Aecom Demurrer, 6:7-23, 6:24-7:14.) The Court thus
adopts its reasoning related to the Turner Aecom discussion ante to SUSTAIN the
Stadco LA Demurrer on the same grounds, With Leave to Amend.
The Order to Show Cause, Submission of Default Judgments Re Defendants
GW Civil Contractors, Inc. and Andre J. Gueno is CONTINUED because Plaintiff DC
Traffic has failed to file with the Court a complete Default Judgment packet,
including (as needed):
1.
Civil form CIV-100, Request for Court Judgment;
2.
Civil form CIV-110, Request for Dismissal [Doe
Defendants];
3.
Civil form JUD-100, Proposed Order; and
4.
Support Declaration(s), Attorney’s Fees Declaration,
Interest Declaration.
Defendant Turner Aecom-Hunt NFL JV’s Demurrer is SUSTAINED,
With Leave to Amend, as to the Complaint’s Second through Fourth Causes of
Action because, as pleaded, the Complaint alleges Common Count—Quantum
Meruit, Common Count—Services Provided, and Unjust Enrichment claims that are
affirmatively outside of their common statute of limitations.
Stadco LA, LLC’s Demurrer to Traffic Control’s
Complaint is SUSTAINED, With Leave to Amend, on the same grounds.
The Order to Show Cause, Submission of Default Judgments Re
Defendants GW Civil Contractors, Inc. and Andre J. Gueno is CONTINUED because
Plaintiff DC Traffic has failed to file a complete Default Judgment packet with
the Court.