Judge Mark E. Windham, Case Number: 24STLC02554, Date: 2024-09-11 Tentative Ruling

Judge: Mark E. Windham, Case: 24STLC02554, Date: 2024-09-11 Tentative Ruling

Case Number: 24STLC02554 Hearing Date: September 11, 2024 Dept: 26

Delta Elevator Co., Inc. v. Tulum Wellness, LLC, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants Greenleaf RB, LLC and Behrokh Tabibian aka Ben Tabibian’s Demurrer to the First Amended Complaint is OVERRULED. MOVING DEFENDANTS ARE TO FILE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On April 8, 2024, Plaintiff Delta Elevator Company, Inc. (“Plaintiff”) filed the instant action against Defendants Tulum Wellness, LLC, Greenleaf RB, LLC (“Defendant Greenleaf”) and Behrokh Tabibian aka Ben Tabibian (“Defendant Tabibian”). The First Amended Complaint alleging (1) breach of contract; and (2) enforcement of mechanic’s lien, was filed on June 3, 2024.

Defendants Greenleaf and Tabibian filed the instant Demurrer to the First Amended Complaint on July 29, 2024. Plaintiff filed an opposition on August 26, 2024 and Cross-Defendant replied with evidentiary objections on August 29, 2024.

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Zadeh Decl., ¶¶3-6.) Moving Defendants demur on the grounds that the First Amended Complaint fails to allege facts sufficient to state a cause of action and is uncertain. (Citing Code Civ. Proc., § 430.10, subds. (e), (f).) Special demurrers, however, are not permitted in the limited jurisdiction court. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not consider the demurrer for uncertainty.

Evidentiary Objections

Plaintiff’s evidentiary objections are ruled on as follows.

· Objections to the declaration of Mansour Jafarian, nos. 1-6 are sustained.

· Objections to portions of the Demurrer, nos. 7-12 are overruled.

Allegations in the First Amended Complaint

The First Amended Complaint alleges the following facts: Plaintiff was an elevator installer and Defendant Greenleaf was an entity formed by Defendant Tabibian. (FAC, ¶¶1-2.) Defendant Greenleaf was the owner of certain real property located at 10742 Riverside Dr, North Hollywood, California (“the Property”). (Id. at ¶3.) Moving Defendants entered into a contract with Plaintiff to “furnish and install one hydro passenger elevator at the Property.” (Id. at ¶4 and Exh. I.) Plaintiff partially fulfilled its obligations and issued an invoice of December 27, 2019, charging Moving Defendants for services and materials totaling $31,392.00. (Id. at ¶7 and Exh. III.) Moving Defendants did not settle the invoice but made consistent assurances they would do so by February 2021, and again by June 2021. (Ibid.) However, Moving Defendants did not do so such that there was a payment conflict as of June 2021. (Ibid.) Despite Plaintiff’s repeated demands, no portion of the contract price has been remitted. (Id. at ¶8.) The amount of $31,392.00, plus interest of ten percent per annum is owed to Plaintiff. (Ibid.) Defendant Greenleaf sold the Property to Defendant Tulum in May 2022. (Id. at ¶9.) Plaintiff filed a mechanic’s lien against the Property in December 2023. (Id. at ¶9 and Exh. IV) Notice of the mechanic’s lien was served on Defendant Tulum on December 22, 2023 and recorded on January 23, 2024. (Id. at ¶¶10-11 and Exh. V.) No notice of completion or cessation has been recorded with respect to the contract to date. (Id. at ¶12.)

1st Cause of Action for Breach of Contract

A cause of action for breach of contract must allege “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) Defendant Greenleaf argues it is not a party to, nor in privity with any party to, the contract. In support, it points to the first page of the contract attached to the First Amended Complaint, which names the parties as Plaintiff and Defendant Tabibian. (FAC, Exh. I, p. 1.) In opposition, however, Plaintiff argues that the contract was signed by Defendant Tabibian on behalf of Defendant Greenleaf. (Id. at Exh. I, p. 4.) In the signature block to the contract Defendant Greenleaf is listed as the contractor and it appears Defendant Tabibian signed on Defendant Greenleaf’s behalf. (Ibid.) This comports with the allegation in the First Amended Complaint that Defendant Greenleaf is a party to the contract.

Moving Defendants also argue that the first cause of action is barred by the statute of limitations, which expired four years after work was completed and payment was due, on December 27, 2019. (Citing Code Civ. Proc., § 337.) However, the First Amended Complaint does not allege with that work was completed, or that payment was due, on that date. Plaintiff alleges that an invoice for partial work was sent to Moving Defendants on December 27, 2019. (FAC, ¶7 and Exh. III.) It goes on to allege that Moving Defendants made promises to pay by February 2021, and then by June 2021. (Ibid.) To sustain a demurrer based on a statute of limitations defense “[i]t must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 400.) The statute of limitations on a breach of contract cause of action runs from the date of breach. (Piedmont Capital Management, L.L.C. v. McElfish (2023) 94 Cal.App.5th 961, 964.) Moving Defendants have not shown that the date of breach is clearly alleged to have occurred more than four years prior to the filing of this action.

Therefore, the Demurrer to the first cause of action is overruled.

2nd Cause of Action for Enforcement of Mechanic’s Lien

Moving Defendants first demur to the second cause of action on the grounds that before recording a mechanics lien, a subcontractor must serve a 20-day preliminary notice upon the owner, the contractor, and the construction lender. (Citing Kim v. JF Enterprises (1996) 42 Cal.App.4th 849, 854.) Certain exceptions to the 20-day preliminary notice rule exist for “(1) ‘one under direct contract with the owner’, or (2) one performing actual labor for wages.” (Ibid.)

Moving Defendants contend that Plaintiff is a subcontractor subject to the preliminary notice requirement because it signed under the line “acceptance of subcontract.” (See FAC, Exh. I, p. 4.) However, “The rationale for excepting those under direct contract with the owner from serving a preliminary notice is that ‘the owner is generally apprised of potential lien claims by those with whom he deals directly, whereas it is difficult for him to learn of potential liens by those not under direct contract. [Citation.]’ (Truestone, Inc. v. Simi West Industrial Park II, supra, 163 Cal.App.3d at p. 722, 209 Cal.Rptr. 757.)” (Id. at 855.) Here, Plaintiff alleges, and the attached contract demonstrates, that Plaintiff directly contracted with Moving Defendants such that they were apprised of potential lien claims. Plaintiff is not required to allege compliance with the preliminary notice requirement.

Finally, Moving Defendants demur on the basis that Plaintiff did not file and record the mechanic’s lien within 90 days’ completion of the work of improvement. Again, Moving Defendants mischaracterize the First Amended Complaint, which does not allege that the work was completed by Defendant 27, 2019. Plaintiff specifically alleges that the work was only partially completed and that the entire project remains unfinished. (FAC, ¶25.) The Demurrer to the second cause of action, therefore, is also overruled.

Conclusion

Court clerk to give notice.