Judge Holly J. Fujie, Case Number: 23STCV12411, Date: 2023-11-01 Tentative Ruling

MOVING PARTY: Defendant Maguire Properties – 777 Tower LLC (“Defendant Maguire”)

The Court has considered the moving papers. Neither opposition nor reply papers were filed.

This is an action arising from a subcontract for painting and fabric installation to be done by Plaintiff Spectra Contract Services, Inc. (“Plaintiff Spectra”) on property owned by Defendant Maguire. Plaintiff Spectra filed a Complaint against Defendant Maguire; HNTB Corporation; Howard Building Corporation; and DOES 1 through 10, inclusive, alleging a cause of action for foreclosure of mechanics lien.

Defendant Maguire filed a demurrer to the sole cause of action in the Complaint . Defendant Maguire also filed a motion to strike portions of the Complaint. Plaintiff Spectra did not file an opposition.

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) In the demurrer context a court “may also take notice of exhibits attached to the complain[t].” (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.) “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Id.)

Defendant Maguire asserts that the Complaint fails to state facts that Plaintiff Spectra complied with the statutory requirements for enforcement of the mechanic’s lien including facts that Plaintiff Spectra served Defendant Maguire with the requisite preliminary lien notice. Defendant Maguire also asserts that the only Assessor Parcel Number (“APN”) that corresponds to the subject property where the purported contractual work was performed is 5144-009-047 as described in the mechanic’s lien.

Under California Civil Code, Section 8400, a direct contractor, subcontractor, material supplier, equipment lessor, laborer, and design professional that provides work authorized for a work of improvement is entitled to a mechanic’s lien. California Civil Code, Section 8400 et seq. Furthermore, pursuant to California Civil Code, Section 8200(a)(1), “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 owner or reputed owner.” (California Civil Code, Section 8200(a)(1); Brown Co. v. Appellate Department (1983) 148 Cal.App.3d 891, 897 [the purpose of requiring notice to the owner is to alert the owner to the possible need for protecting himself or herself; and the earlier the notice is given the more likely it is the statutory purpose will be effectuated].)

On the face of the Complaint, Plaintiff Spectra alleges that it is a painting and decorating contractor and duly licensed to do business as such in the State of California. Plaintiff Spectra further alleges that Defendant Maguire entered into a direct contract with Defendant Howard Building Corporation (“Defendant Howard”) for the construction or performance of certain tenant improvements on the subject property owned by Defendant Maguire. Plaintiff Spectra also alleges that on or about March 9, 2022, it entered into a subcontract with Defendant Howard for the painting and installation of fabric wrapped panel services on the subject property. Furthermore, Plaintiff Spectra alleges that the subject property is commonly known as 777 S. Figueroa Street, Los Angeles, CA 90017, APN 5144-009-047, 5144-0090-086, 5144-009-080, 5144-009-087, 5144-009-088, and legally described as set forth in attached Exhibit A. Moreover, Plaintiff Spectra alleges that it substantially performed the contracted services and Defendant Howard approved all the worked performed by Plaintiff Spectra. Additionally, Plaintiff Spectra alleges that it furnished labor and material for which payment remains outstanding in the sum of $89,178.90. Plaintiff Spectra alleges that it claimed a mechanic’s lien on the work of improvement and real property for the amount of the unpaid contract price. Finally, Plaintiff Spectra alleges that it recorded and served a mechanic’s lien, notice of mechanic’s lien and proof of service affidavit in the office of the County of Recorder of the County of Los Angeles, where said real property is located.

In Johnson v. Silver (1958) 161 Cal.App.2d Supp. 853, the court held that if plaintiffs were contractors or subcontractors, they were not entitled to prevail in mechanic’s lien action because “they did not plead and prove that they were contractors as required by Business and Professions Code, Section 7031.” Similarly, a complaint that alleges “the labor was performed for and the equipment furnished to the defendant through their agent and co-owner…by plaintiff, and that defendant failed to pay for the same” is not subject to attack by general demurrer even if “the allegations are insufficient to show the plaintiff entitled to a lien.” (Sibley Grading & Teaming Co. v. Crary (1935) 4 Cal.2d 375, 378.) As discussed above, Plaintiff Spectra does plead facts that it is a licensed contractor in the state of California, provided work authorized for work improvement on Defendant Maguire’s property, furnished labor and materials for such work, and was unpaid for such.

Defendant Maguire’s point is, however, well-taken in that Plaintiff Spectra does not plead any facts that it served Defendant Maguire with preliminary notice prior to recording the mechanic’s lien, which is required by law. Also, Plaintiff Spectra does plead multiple APNs for the subject property, which lends to uncertainty regarding what specific property is the subject of alleged cause of action. Therefore, the facts as pled are insufficient to support a foreclosure mechanic’s lien claim.

As a note, the court file shows that Plaintiff Spectra attempted to file an amended complaint, which was rejected because it was filed without leave after a response had been filed to the original complaint. Additionally, Plaintiff Spectra did not file an opposition to refute the arguments advanced by Defendant Maguire concerning its sole cause of action.

Therefore, the demurrer of Defendant Maguire to the sole cause of action in the Complaint is SUSTAINED with 20 days leave to amend.

Defendant Maguire filed a motion to strike portions of the Complaint. Defendant Maguire seeks to strike: Paragraph 11 regarding the excessive assessor’s parcel numbers. Because the Demurrer has been sustained, the motion to strike is MOOT.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court