Judge: Mark C. Kim, Case: 22LBCV00120, Date: 2022-09-20 Tentative Ruling

Case Number: 22LBCV00120    Hearing Date: September 20, 2022    Dept: S27

1.     Background Facts

Plaintiff, Ziming He filed this action against Defendant, Shawn Khan for breach of contract and common counts.  The judicial council form complaint is short on factual allegations, and the nature of the parties’ relationship is not clear from a review of the complaint.  Plaintiff filed his complaint on 3/22/22.  Defendant filed an answer and cross-complaint on 4/20/22. 

2.     Motion for Leave to File Supplemental Complaint

a.     Parties’ Positions

Plaintiff seeks leave to file a supplemental complaint.  He contends a cause of action for foreclosure of mechanic’s lien is necessary, as Plaintiff recorded a mechanic’s lien on 6/23/22 and served Defendant with the lien on 6/11/22. 

Defendant opposes the motion.  He argues the mechanic’s lien was not timely recorded, and therefore a cause of action to foreclose on any such lien is fatally defective and the defect could not be cured.

Plaintiff, in reply, contends the lien was timely recorded and the action is proper. 

b.     Law Governing Leave to Amend

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.  (CCP §§473 and 576.)  Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted.  Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.  However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.  (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.) 

c.     Analysis

As an initial note, Plaintiff brings this motion pursuant to the Federal Rules of Civil Procedure.  This is state court, not federal court.  Therefore, the California Code of Civil Procedure applies to the action, not the Federal Rules of Civil Procedure.  CCP §473(a) permits the filing of an amended complaint as detailed above, and the Court will analyze the motion under the applicable California standard.

Turning to the merits of the motion, Civil Code §8412 governs the timing of recording a mechanic’s lien, and it provides:

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 the following times:

(a) Ninety days after completion of the work of improvement.

(b) Sixty days after the owner records a notice of completion or cessation.

Defendant cites Howard S. Wright Constr. Co. v. BBIC Inv’rs, LLC (2006) 136 Cal.App.4^th 228, 243 to stand for the position that when an owner anticipatorily breaches the parties’ contract by stating that no further payments will be made, the 90 days commences running at that time.  Defendant argues Plaintiff admitted, in his complaint and declaration, that the termination took place on 3/11/22.  The lien, however, was not recorded until 6/23/22, more than 90 days later.  Howard Wright, however, was decided based on Civil Code §3115, which was repealed; notably, the issue in the case was whether the lien was recorded prematurely, not whether it was recorded too late.

Plaintiff argues, in opposition to the motion, that Civil Code §3092 governs, and makes clear that the time period commences running after 60 continuous days of work cessation.  §3092, however, was also repealed in 2012. 

Both parties rely on previously repealed statutes and/or case law construing those statutes.  The Court finds the currently operative section, §8412, requires one of two events to occur before the 90 days commences running: either the work is completed, or the owner records a notice of completion or cessation.  Neither of those events is alleged to have occurred in this case, and therefore there is no evidence that the 90 days has run. 

The motion for leave is granted.  The Court asks Plaintiff, in compliance with the Code of Civil Procedure, to file a First Amended Complaint, rather than a supplemental complaint.  The FAC must be one document that includes all causes of action pled by Plaintiff against Defendant.  Plaintiff must do so within twenty days.  Defendant must file a responsive pleading within the statutory time thereafter. 

Plaintiff is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.