Judge Margaret L. Oldendorf, Case Number: 21GDCV00687, Date: 2023-08-21 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 21GDCV00687, Date: 2023-08-21 Tentative Ruling

After a trial date had been set (but later vacated), a cross-defendant filed a cross-complaint bringing in new parties. This was done without obtaining leave of court pursuant to Code Civ. Proc. §428.50(c). The newly added cross-defendants demur to the pleading on this and other grounds. The Cross-Defendant responded by filing an amended cross-complaint. The demurrers are sustained. LTH may not file an amended Cross-Complaint unless it first obtains leave of Court.

Code Civ. Proc. §430.10(e) authorizes the filing of a demurrer on the basis that a complaint fails to state a cause of action. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.

Code Civ. Proc. §430.10(f) authorizes a demurrer upon the ground of uncertainty. Demurrers for uncertainty are generally disfavored; and are only sustained when a pleading is so incomprehensible a defendant cannot reasonably respond. A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.

Code Civ. Proc. §436(b) permits the court to strike any pleading not drawn in conformity with the law. Code Civ. Proc. §428.50(c) requires leave of court for a permissive cross-complaint to be filed any time after a trial date has been set.

In the main action, SoCal alleges that it is an assignee of LTH Design Construction pursuant to Civ. Code §954. At ¶2 the complaint, SoCal alleges that the real property that is the subject of the action is located at 676 W. Glenoaks Blvd. in Glendale. Two causes of action are alleged. In the Open Book Account cause of action, SoCal alleges that its assignor entered into a financial transaction based on labor, goods, and services provided to Defendant Solution West; that SoCal’s assignor kept an account of the credits and debits; and that Solution West now owes SoCal $85,250.14. In the Services Rendered cause of action, SoCal alleges that its assignor furnished labor, services, equipment, and materials for the work of improvement at the subject property.

2. Solution West Management Inc. v. CNA Surety; Levon Halulyan; Vardan Halulyan; LTH Design and Construction Company; and Moes 1 to 10[1]

In the Cross-Complaint filed by Solution West, it alleges that it entered into “Home Improvement” contracts with LTH in March 2019 and January 2020. Specifically, Solution West requested that LTH provide certain works of improvement to the subject property located at 6767 W. Glenoaks. The contracts are attached to the Cross-Complaint as Exhibit A. Solution West alleges that it paid a total of $138,000 for the work, and that LTH materially breached the agreements by failing to: finish patching, install doors, doorknobs, and closet doors and shelves, remove door jams in all units, repair staircase, paint interior and exterior of the building, fix corners, finish patio, stucco, and place caps in the garage. (See Exhibit C, which is a copy of a letter to LTH outlining these same complaints.) Solution West alleges it was forced to hire a third party to finish the work in order for it to pass inspection, and had to pay $28,950. (Exhibit E.)

The Solution West Cross-Complaint alleges LTH violated Bus. & Prof. Code §7031 by accepting payments when it was not a licensed contractor. It also alleges that LTH wrongfully filed a mechanic’s lien in violation of Civ. Code §8400, because by the time the lien was filed the main contractor had abandoned the project and was no longer performing work.

3. Levon Halulyan dba LTH Design & Construction v. Ruben Arias, individually and dba Home Repair Service; Elizabeth Crandall, individually and dba Home Repair Service

LTH alleges that in July through September 2020, Home Repair Service damaged certain works of improvement provided by LTH at the property at 676 W. Glenoaks pursuant to its agreement with Solution West. LTH alleges as a result that it is entitled to treble damages in an amount not to exceed $10,000, costs of suit, and attorney fees pursuant to Code Civ. Proc. §1029.8.

No specific cause of action is alleged. LTH’s is captioned as a “Complaint for Damages.”

The main action was filed May 17, 2021. The Solution West Cross-Complaint was filed June 16, 2021.

At a status conference on November 17, 2021, the court (Judge Rosen, Dept. E in Glendale) set a trial date for June 20, 2022.

On May 23, 2022, LTH (without having answered) filed a motion for judgment on the pleadings as to the Solution West Cross-Complaint.

On June 9, 2022, Judge Rosen conducted a final status conference, and admonished the parties for not being ready for trial, not following the local rules, and not informing the court prior to the conference that they were not ready. The final status conference and trial dates were continued.

On July 14, 2022, Judge Rosen conducted the continued final status conference. After noting that the parties did comply with their obligations to file pretrial documents, he nevertheless vacated the trial date.

On May 3, 2023, the Court held a status conference, setting an order to show cause why cross-defendants Arias and Crandall should not be dismissed. LTH responded by serving Arias and Crandall with its cross-complaint; but it never obtained leave of court to file it.

Arias and Crandall have each filed demurrers. Each demurrer raises the same arguments:

1. the LTH cross-complaint fails to state facts sufficient to constitute any cause of action;

Accepting the allegations as true for purposes of demurrer, even if broadly construed, the LTH Cross-Complaint does not allege facts sufficient to constitute any cause of action. Further, while demurrers for uncertainty are generally disfavored, they will be sustained when it cannot be determined from the pleading what is being alleged. That is the case here. Assuming that Arias and Crandall dba Home Repair Service damaged works of improvement at 676 Glenoaks, the facts do not show how this would cause harm to LTH.

The LTH Cross-Complaint is permissive; it is alleged against persons not already a party to the action. Code Civ. Proc. §418.10(b). As such, it could have been filed anytime before the court set a trial date (Code Civ. Proc. §428.50(b)). Otherwise, leave of court was required (Code Civ. Proc. §428.50(c)). Here, as noted above, LTH was brought in by way of the Solution West Cross-Complaint in June 2021. Trial was originally set for June 2022. LTH waited until September 2022 to file its answer and cross-complaint. And then, it waited 8 months to serve the pleading on Arias and Crandall.

Arias and Crandall are correct that a permissive cross-complaint cannot be filed without leave of court if a trial date has already been set. Even when trial dates are later vacated, Code Civ. Proc. §428.50(c) still applies. Loney v. Superior Court (1984) 160 Cal.App.3d 719.

In response to the demurrers, LTH filed a First Amended Cross-Complaint -- again without leave of court.

The demurrers are sustained. LTH may not file a Second Amended Cross-Complaint unless it first obtains leave of Court.

[1] Cross-Defendant CNA Surety has been dismissed. The Remaining Cross-Defendants are jointly referred to as “LTH.”