Judge: Mark E. Windham, Case: 22STLC06371, Date: 2023-02-21 Tentative Ruling
Case Number: 22STLC06371 Hearing Date: February 21, 2023 Dept: 26
JMNBM Corp. v. Con’struc’ture, Inc., et al.
(CCP § 430.10, et seq.)
TENTATIVE RULING:
Defendant Aragon (Toluca/Colton) Properties Corporation’s Demurrer
to the Eighth Cause of Action of the Complaint is SUSTAINED WITH LEAVE TO
AMEND.
PLAINTIFF IS TO FILE AND SERVE THE FIRST AMENDED COMPLAINT
WITHIN 20 DAYS OF THIS ORDER.
ANALYSIS:
On September 28,
2022, Plaintiff JMNBM Corporation dba Blue Pacific Pools Southern
California (“Plaintiff”) filed the Complaint in this
action against Defendants Con’struc’ture, Inc., Aragon (Toluca/Colton)
Properties Corporation (erroneously sued Aragon Properties Corporation)
(“Defendant Aragon”), and SureTec Insurance Company.
On January 24, 2023, Defendant Aragon filed the
instant Demurrer to the Complaint. Plaintiff filed an
opposition on February 7, 2023.
Discussion
The Complaint alleges that Defendant
Aragon is the owner of the real property located at 1319 Colton Street, Los
Angeles, California, which was the site of a construction project to install a
pool. (Compl., ¶¶4, 10.) Plaintiff timely recorded a verified claim of
Mechanic’s Lien and Defendant Aragon has not filed a notice of completion. (Id.
at ¶43 and Exh. 4.) $21,250.00 remains due and owning on the Mechanic’s Lien. (Id.
at ¶47.) The Complaint also alleges that Defendant Aragon obtained a Mechanic’s
Lien Release Bond (“the Bond”) but did not provide notice that the Bond was
recorded. (Id at ¶¶61-62.)
Defendant Aragon demurs to
the eighth cause of action of the Complaint, for foreclosure of Mechinic’s
Lien, for failure to allege sufficient facts. (Code Civ. Proc., § 430.10, subd.
(e).) The Demurrer is accompanied by a meet and confer declaration as
required by Code of Civil Procedure section 430.41. (Demurrer, Hermann Decl., ¶¶4-9
and Exhs. 2-3.)
The meet and confer effort demonstrates that Plaintiff
concedes the Complaint must be amended to state a cause of action; a copy of
the proposed First Amended Complaint is attached to the opposition. (Motion,
Manning Decl., Exh. 1.) The amendment clarifies that there are two properties
at issue in this action: the Colton Street project and another project at 1618
W. Court Street, Los Angeles, California. (Id. at Exh. 1, ¶4.) The
mechanic’s lien was allegedly only recorded and bonded out on the Colton Street
project, while the Court Street project is subject to a mechanic’s lien for
which there is no release bond. (Id. at p. 3:21-24.) Therefore, the
Complaint, in alleging facts solely regarding the Colton Street project, fails
to allege the existence of mechanic’s lien to support the eighth cause of
action.
Conclusion
Defendant Aragon (Toluca/Colton) Properties Corporation’s
Demurrer to the Eighth Cause of Action of the Complaint is SUSTAINED WITH LEAVE
TO AMEND.
PLAINTIFF IS TO FILE AND SERVE THE FIRST AMENDED COMPLAINT
WITHIN 20 DAYS OF THIS ORDER.
Moving party to give notice.