Judge Mark E. Windham, Case 21CHLC40891 2022-12-07 Tentative Ruling

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SoCal Lien Solutions, LLC v. SES Builders Inc., et al.
(1 of 2)
DEMURRER; MOTION TO STRIKE

(CCP §§ 430.10, et seq.; 435, et seq.)

Defendants Nik F. Nikoukar and Sarvenaz Angha

Defendants Nik F. Nikoukar and Sarvenaz Angha’s Demurrer to the Second Amended Complaint is OVERRULED.

Plaintiff SoCal Lien Solutions, LLC (“Plaintiff’) filed this action on November 29, 2021. On February 15, 2022, Plaintiff filed a First Amended Complaint against Defendants SES Builders, Inc. (“Defendant SES”), Eliram Eliran Susan (“Defendant Susan”), Nik F. Nikoukar (“Defendant Nikoukar”), and Sarvenaz Angha (“Defendant Angha”). On July 14, 2022, the Court sustained Defendants SES, Nioukar, and Angha’s Demurrers to the First Amended Complaint with 20 days leave to amend. (Minute Order, 07/14/22.)

Plaintiff filed a Second Amended Complaint solely against Defendants SES, Nioukar, and Angha on August 8, 2022. The Second Amended Complaint alleges causes of action for quasi-contract and quantum meruit against Moving Defendants.

Defendants Nikoukar and Angha (“Moving Defendants”) filed the instant Demurrer to the Second Amended Complaint on September 29, 2022. Plaintiff filed an opposition on October 27, 2022 and Moving Defendants replied on November 3, 2022.

The Demurrer is not accompanied by a proper meet and confer declaration as required by Code of Civil Procedure section 430.41. On August 30, 2022, Moving Defendants filed both a declaration in support of automatic extension and a meet and confer declaration. The declaration in support of automatic extension states that the parties were unable to meet and confer but the meet and confer declaration states that the parties did meet and confer. (Decl. for Automatic Extension, filed 08/30/22, ¶2a; Meet and Confer Decl., filed 08/30/22, ¶2.) Moving Defendants must clarify whether a proper meet and confer effort took place.

The Demurrer is also accompanied by a Request for Judicial Notice of the following:

(2) The Court’s ruling on the Defendant SES’ Demurrer to the First Amended Complaint; and

(3) Statement of Information for ASG, Inc., which shows Arturo Solis aka Arturo Solis Godines is its CEO.

The request is granted pursuant to Cal. Evidence Code section 452, subdivisions (c) and (d).

This action concerns scaffolding services allegedly provided to Defendants. Plaintiff alleges that it is an assignee of ASG Scaffolding (“ASG”), a sole proprietorship of Arturo Solis Godines, and that at all times the scaffolding services relevant to this action were provided by a licensed California contractor. (SAC, p. 1:21-24 and Exh. A; ¶7.) ASG began providing scaffolding services from April 16, 2019 through December 16, 2019. (Id. at ¶7.) ASG was incorporated on December 16, 2019 and continued to provide scaffolding services through September 16, 2020. (Ibid.) ASG, when it was the sole proprietorship, was issued scaffolding specialty license number 946421 on April 28, 2010. (Id. at ¶8.) ASG, incorporated, was issued scaffolding specialty license number 1061204 on December 10, 2019. (Id. at ¶9 and Exh. B.) Therefore, Plaintiff’s assignor was a duly licensed contract at all relevant times. (Id. at ¶10 and Exh. C.)

Plaintiff’s assignor, and its predecessor, provided equipment, labor, materials, and services for works of improvement to a property owned by Defendants Nikakour and Angha from April 16, 2019, through September 16, 2020, as requested by Defendant SES. (Id. at ¶11.) Despite Plaintiff’s assignor’s performance, Defendants have failed to pay the sum due and owing in the amount of $17,340.00. (Id. at ¶12 and Exh. D.)

Defendants Nikoukar and Angha demur to the Second Amended Complaint for failure to allege facts sufficient to state a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Specifically, they argue that the Court ordered Plaintiff to amend the First Amended Complaint to clarify which entity provided the scaffolding services at issue, but that the Second Amended Complaint fails to do so. The Court previously ruled on Moving Defendants’ Demurrer to the First Amended Complaint that Plaintiff had sufficiently alleged facts to support the elements of the breach of quasi-contract and quantum meruit causes of action. (Minute Order, 07/14/22, pp. 7-10.) However, the Court sustained the Demurrer to the First Amended Complaint with leave to amend for Plaintiff to clarify which entity allegedly performed work on the scaffolding project. (Id. at p. 10.)

As discussed in the ruling on Defendant SES Builders, Inc.’s Demurrer to the Second Amended Complaint, Plaintiff has now adequately alleged which entities performed work on the scaffolding project such that sufficient facts are alleged to support the causes of action against Defendants. Therefore, the Court finds that the Second Amended Complaint alleges facts sufficient to state the causes of action against Defendant Nikoukar and Angha.

Defendants Nik F. Nikoukar and Sarvenaz Angha’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendant SES Builders, Inc.’s Demurrer to the Second Amended Complaint is OVERRULED.

Plaintiff filed a Second Amended Complaint solely against Defendants SES, Nioukar, and Angha on August 8, 2022. The Second Amended Complaint alleges causes of action for open book account and services rendered against Defendant SES.

Defendant SES filed the instant Demurrer to the Second Amended Complaint on September 29, 2022. Plaintiff filed an opposition on October 27, 2022 and Defendant SES replied on November 3, 2022.

The Demurrer is not accompanied by a proper meet and confer declaration as required by Code of Civil Procedure section 430.41. On August 30, 2022, Defendant SES filed both a declaration in support of automatic extension and a meet and confer declaration. The declaration in support of automatic extension states that the parties were unable to meet and confer but the meet and confer declaration states that the parties did meet and confer. (Decl. for Automatic Extension, filed 08/30/22, ¶2a; Meet and Confer Decl., filed 08/30/22, ¶2.) Defendant SES must clarify whether a proper meet and confer effort took place.

The Demurrer is also accompanied by a Request for Judicial Notice of the following:

(2) The Court’s ruling on the Defendant SES’ Demurrer to the First Amended Complaint; and

(3) Statement of Information for ASG, Inc., which shows Arturo Solis aka Arturo Solis Godines is its CEO.

The request is granted pursuant to Cal. Evidence Code section 452, subdivisions (c) and (d).

Defendant SES demurs to the Second Amended Complaint for failure to allege facts sufficient to state a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Specifically, Defendant SES argues that the Court ordered Plaintiff to amend the First Amended Complaint to clarify which entity provided the scaffolding services at issue, but that the Second Amended Complaint fails to do so.

The relevant timeline of events as alleged in the Second Amended Complaint is as follows:

· Prior to April 16, 2019 – ASG Scaffolding and Defendant SES enter into the scaffolding services agreement

· April 16, 2019 to December 16, 2019 – ASG Scaffolding performs scaffolding services

· August 28, 2019 – ASG Scaffolding is incorporated into ASG Scaffolding, Inc.

· December 16, 2019 to September 16, 2020 – ASG Scaffolding, Inc. performs scaffolding services

· November 16, 2021 – claims pertaining to the scaffolding services are assigned to Plaintiff

The Court previously noted that the invoice for the project dated September 23, 2020 only includes the license number for ASG, Inc. (SAC, Exh. D.) However, Plaintiff has now clarified that ASG Scaffolding, a sole proprietorship (“ASG Scaffolding”), and ASG Scaffolding, Inc. (“ASG Scaffolding, Inc.”) both worked on the project but at different times. ASG Scaffolding worked on the project from April 16, 2019 through December 16, 2019. Thereafter, ASG Scaffolding, Inc. became the successor to ASG Scaffolding on the project and worked on it through September 16, 2020.

The remaining question is of which entity Plaintiff is an assignee under the assignment, which is attached to the Second Amended Complaint as Exhibit A. Defendant SES argues that Plaintiff cannot be an assignee of ASG Scaffolding, Inc. because the assignment does not identify the assignor as having any incorporated status. Plaintiff argues in opposition that ASG Scaffolding, Inc. was intended to be the assignor based on its succession to the scaffolding project. The Second Amended Complaint specifically alleges that ASG Scaffolding, Inc. is the assignor. (See SAC, ¶11.)

Which entity assigned rights under the scaffolding project to Plaintiff is a question of fact that should not be determined on demurrer. This question requires interpretation of the assignment itself given the facts alleged in the Complaint, which is inappropriate on demurrer. On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 127.)

Based on the foregoing, the Court finds that the Second Amended Complaint alleges facts sufficient to state the causes of action therein.

Defendant SES Builders, Inc.’s Demurrer to the Second Amended Complaint is OVERRULED.