Judge: Latrice A. G. Byrdsong, Case: 23STLC02858, Date: 2023-12-12 Tentative Ruling
Case Number: 23STLC02858 Hearing Date: January 24, 2024 Dept: 25
Hearing Date: Wednesday, January 24, 2024
Case Name: CONSOLIDATED
ELECTRICAL DISTRIBUTORS INC., a Delaware corporation, dba GREENTECH RENEWABLES
v. MICHAEL DAMIAN SILVA, an individual; and DOES 1-10, inclusive.
Case No.: 23STLC02858
Motion: Demurrer to Plaintiff’s Complaint
Moving Party: Defendant
Michael Damian Silva
Responding Party: Plaintiff Consolidated Electrical
Distributors
Notice: OK
Tentative Ruling: Defendant Michael Damian Silva’s Demurrer to Plaintiff’s Complaint
is OVERRULED.
Defendant
is ordered to file an answer within 20 days of the Court’s ruling.
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed as of November 28, 2023 [ ] Late [ ] None
REPLY: None filed as of December 05,
2023 [ ] Late [X] None
BACKGROUND
A. Factual
Plaintiff
Consolidated Electrical Distributors Inc. (“Plaintiff”) alleges that Defendant
Michael Damian Silva (“Defendant”) entered into a contract with Pacific Energy
Network LLC dba Modern Pro Solutions Construction (“Pacific Energy Network”) in
which Pacific Energy Network would serve as the direct contractor for
improvement made on Defendant’s real property. Pacific Energy Network ordered
and received materials from Plaintiff, which were used in the improvements
towards Defendant’s Property. Thereafter, Pacific Energy Network failed to pay
Plaintiff the principal amount of $10,818.58, plus interest for the materials
used during construction.
B. Procedural
On May 01, 2023, Plaintiff filed a cause of action against the
Defendant for foreclosure on a mechanics lien.
On June 05, 2023, Defendant filed the instant Demurrer to Plaintiff’s
Complaint. Plaintiff replies in opposition.
On December 11, 2023, the Court on its own motion continued the
hearing to January 24, 2024.
No reply has been filed.
MOVING PARTY
POSITION
Defendant prays
for the Court to sustain its demurrer and dismiss Plaintiff’s complaint without
leave to amend. Defendant alleges: 1) that Plaintiff’s complaint does not
allege specific facts that establish a valid claim against Defendant; 2) that
based on Plaintiff’s complaint, Defendant cannot determine to whom the
Plaintiff’s allegation is directed; and 3) that there are insufficient facts to
prove and establish liability of Defendant to Plaintiff for commission or
omission of acts.
OPPOSITION
In
opposition, Plaintiffs prays the court overrules the demurrer because Plaintiff
states sufficient facts to state a cause of action against the Defendant, the
complaint unambiguously specifies to whom the Plaintiff’s allegations are
directed and Plaintiff has alleged sufficient facts to establish liability of
the Defendant to the Plaintiff for the mechanic’s lien.
REPLY
No reply
has been filed.
ANALYSIS
I. Legal
Standard
“The primary function of a pleading is to give the other
party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise
properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 240.) As a general matter, 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
pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v.
Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the
court assumes the truth of the complaint’s properly pleaded or implied factual
allegations. (Id.) The only issue a demurrer is concerned with is
whether the complaint, as it stands, states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to
amend must be allowed where there is a reasonable possibility of successful
amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is
on the plaintiff to show the court that a pleading can be amended successfully.
(Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128.)
However, “[i]f there is any reasonable possibility that the plaintiff can state
a good cause of action, it is error to sustain a demurrer without leave to
amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
II. Discussion
A. Meet and Confer Requirement
The
demurring party must meet and confer in person or by telephone with the party
who filed the pleading to resolve the objections to be raised in the demurrer.
(CCP § 430.41(a).)
Here,
Defendant does not provide the Court with a declaration indicating that the
parties met and conferred to resolve the objections raised in the demurrer.
However, the Court notes that not satisfying the “meet and confer” requirements
is not sufficient grounds to overrule or sustain a demurrer. (Code Civ. Proc. §
430.41(a)(4).) Thus, the Court now moves to the merits of the demurrer.
B.
Cause of Action -Mechanic’s Lien
Plaintiff
brings a cause of action for foreclosure on a merchant’s lien under California
Civil Code.
To have a
valid mechanic’s lien claim, the claimant must have a right as a person that
provides work authorized for a work of improvement as defined under Civil Code section
8400. (Civ. Code, § 8400.) The claim must be a written statement, signed and verified
by the claimant containing the following:
(1) A
statement of the claimant’s demand after deducting all just credits and offsets;
(2) The
name of the owner or reputed owner, if known;
(3) A
general statement of the kind of work furnished by the claimant;
(4) The
name of the person by whom the claimant was employed or to whom the claimant
furnished work;
(5) A
description of the site sufficient for identification;
(6) The
claimant's address;
(7) A proof
of service affidavit completed and signed by the person serving a copy of the
claim of mechanics lien pursuant to subdivision (c). The affidavit shall show
the date, place, and manner of service, and facts showing that the service was
made in accordance with this section. The affidavit shall show the name and
address of the owner or reputed owner upon whom the copy of the claim of
mechanics lien was served pursuant to paragraphs (1) or (2) of subdivision (c),
and the title or capacity in which the person or entity was served.
(8) The
following statement, printed in at least 10-point boldface type. The letters of
the last sentence shall be printed in uppercase type, excepting the Internet
Web site address of the Contractors' State License Board, which shall be
printed in lowercase type:
“NOTICE OF MECHANICS LIEN
ATTENTION!
Upon the recording of the enclosed MECHANICS LIEN with the county
recorder's office of the county where the property is located, your property is
subject to the filing of a legal action seeking a court-ordered foreclosure
sale of the real property on which the lien has been recorded. That legal
action must be filed with the court no later than 90 days after the date the
mechanics lien is recorded.
The party identified in the enclosed mechanics lien may have provided
labor or materials for improvements to your property and may not have been paid
for these items. You are receiving this notice because it is a required step in
filing a mechanics lien foreclosure action against your property. The
foreclosure action will seek a sale of your property in order to pay for unpaid
labor, materials, or improvements provided to your property. This may affect
your ability to borrow against, refinance, or sell the property until the
mechanics lien is released.
BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO SPEAK WITH
YOUR CONTRACTOR IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR MORE INFORMATION ON
MECHANICS LIENS GO TO THE CONTRACTORS' STATE LICENSE BOARD WEB SITE AT
www.cslb.ca.gov.”
(Civ. Code, § 8416(a).) The
claimant may enforce the lien only if the claimant has given preliminary notice
and has submitted proof of notice. (Civ. Code, § 8410.) “A direct contractor
may not enforce a lien unless the contractor records a claim of lien after the
contractor completes the direct contract, and before the earlier of ... (a)
Ninety days after completion of the work of improvement, or (b) Sixty days after
the owner records a notice of completion or cessation. (Civ. Code §8412.)
Here,
Plaintiff’s complaint lays out the following claims: Defendant entered a
contract with Pacific Energy Network, in which Pacific Energy Network would serve
as the direct contractor for a work of improvement on Defendant’s real
property. (Complaint ¶ 11.) Pacific Energy Network ordered and received materials
from Plaintiff, which were used in the improvements of Defendant’s Property. (Id.
¶¶ 12-13.) Subsequently, Pacific Energy Network failed to pay Plaintiff the
principal of $10,818.58, plus interest for the materials used during
construction. (Id. ¶ 14.) Within 20 days after providing the materials,
Plaintiff served preliminary notice, in accordance with Civil Code § 8200. (Id.
¶ 15.) Around February 10, 2023, Plaintiff recorded its claim of lien
against the property with the Office of County Recorder of Los Angeles, after
providing notices to the owner and other relevant parties and before ninety
(90) days elapsed after the completion of the work improvement. (Id. ¶ ¶
16-17.)
In
support of his demurrer, Defendant submits his own declaration in which he declares
that he never had any connection to Plaintiff. (Michael Damain Silva Decl. ¶
3.) Defendant avers that he did not
enter into any written agreement with Plaintiff. (Id. ¶ 4.) Moreover, Defendant
states that the complaint shows his noninvolvement to the transaction made
between Plaintiff and Pacific Energy Network and that the unpaid materials
furnished by Pacific Energy Network is Pacific Energy’s responsibility and not Defendant’s.
(Id. ¶¶ 6-7.)
However,
Defendant appears to misunderstand the purpose of a demurrer. “A
demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As
such, the Court assumes the truth of the complaint’s properly pleaded or
implied factual allegations. (Id.)
In other words, the Court cannot consider Defendant’s declaration or any
other evidence. Here, the Court can only evaluate whether the complaint
sufficiently alleges a cause of action for a mechanic’s lien.
Here,
Plaintiff alleges it has a lien right as it was a materials supplier who
provided materials used during the work improvements of Defendant’s property. Plaintiff
further alleges that Defendant and Pacific Energy Network had a contract for
improvements on Defendant’s property. After the works of improvement were
completed, Plaintiff did not receive payment for the materials that were
ordered by and provided to Pacific Energy Network. Plaintiff alleges that it gave
preliminary notice under Civil Code § 8200. Plaintiff recorded its claim with
the recorder’s office after the completion of the direct contract and before
ninety (90) days had elapsed. Thus, Plaintiff has sufficiently pleaded a cause
of action for foreclosure under the Civil Code §§ 8400, 8410, 8412, and
8416(a).
Accordingly,
the Court OVERRULES Defendant’s Demurrer. Defendant is ordered to file an answer within
20 days of the Court’s ruling.
III. Conclusion
Defendant’s Demurrer to Plaintiff’s Complaint is OVERRULED.
Defendant
is ordered to file an answer within 20 days of the Court’s ruling.
Moving party is ordered to give
notice.