Judge: Ronald F. Frank, Case: 22TRCV00896, Date: 2024-08-14 Tentative Ruling



Case Number: 22TRCV00896    Hearing Date: August 14, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 August 14, 2024 

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CASE NUMBER:                   22TRCV00896

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CASE NAME:                        Sajid Ali; Suneetha Ali v. Ashok Sreepathi, et al.

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MOVING PARTY:                Plaintiffs, Sajid Ali and Suneetha Ali

 

RESPONDING PARTY:       Defendants, Ashok Sreepathi and Suresh Sripathi

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TRIAL DATE:                       September 30, 2024

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MOTION:¿                              (1) Plaintiffs’ Motion for Summary Adjudication as to the 4th cause of action under B&P Code section 7031.

                                               

Tentative Rulings:                  (1) The Court’s Tentative Ruling is to GRANT, but the Court seeks oral argument on several points.  Is it a material fact as to whether Defendants were joint venturers or not, if the undisputed evidence shows they performed work on the subject property that required a contractor’s license but neither were licensed after Suresh’s license was suspended in 2019?   If there a triable issue as to the amount of money paid to Suresh between 2017 and 2019, while Suresh was licensed?  If there is a triable issue as to whether the individuals who defendants paid for work on the subject property were or were not employees of Defendants, does that affect whether they were required to be licensed themselves?  If a contactor’s license was revoked during the course of a construction project, does the disgorgement rule of Section 7031 still apply to payments made before the suspension/revocation of her or his license?

 

 

             

I. BACKGROUND¿¿ 

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A.    Factual¿¿ 

 

On October 7, 2022, Plaintiffs, Sajid Ali and Suneetha Ali (collectively, “Plaintiffs”) filed a complaint against Defendants, Ashok Sreepathi, Suresh Sripathi, and DOES 1 through 10. The complaint alleges causes of action for: (1) Breach of Contract; (2) Intentional Misrepresentation; (3) Breach of Fiduciary duty; and (4) Disgorgement of all Sums paid to unlicensed contractors.

 

Now, Plaintiffs seek summary adjudication as to their Fourth Cause of Action for Disgorgement of all Sums Paid to Unlicensed Contractors.

 

B.    Procedural

 

On May 28, 2024, Plaintiffs filed a Motion for Summary Adjudication. On July 29, 2024, Defendant, Suresh Sripathi filed an opposition brief. That same day, Defendant, Ashok Sreepathi filed an opposition brief. On August 9, 2024, Plaintiffs filed a reply brief.

 

II. REQUEST FOR JUDICIAL NOTICE

 

            Filed concurrently with the moving papers, Plaintiffs also filed a request for judicial notice, seeking this Court judicially notice the following:

1.     RJN EXHIBIT 1: Deed to real property recorded on October 23, 2014 in the office of the Los Angeles County Recorder as Instrument No. 20141122733 describing Lots 55 and 56 of Tract No. 9384, in the City of Los Angeles, County of Los Angeles, State of California, as per Map recorded in Book 149 Page 45 to 47 of Maps, in the office of the County Recorder of Los Angeles County. Identified as Los Angeles County Assessor’s Parcel Nos: 4113-013-020 and 4113-013-021.

2.     RJN EXHIBIT 2: Official Certified Record from California Contractor’s License Board dated July 3, 2023 - No Record of Licensing for Ashok Sreepathi.

3.     RJN EXHIBIT 3: Official Certified Record from California Contractor’s License Board dated July 3, 2023 - No Record of Licensing for Suresh Sripathi after November 30, 2019 (suspended March 27, 2019).

4.     RJN EXHIBIT 4: Judgment entered December 12, 2018 in the matter of Lifetime Investments, LLC. v. Suresh Sripathi and Ashok Sreepathi, LASC Case No. PC057929.

5.     RJN EXHIBIT 5: Non-Dischargeable Judgment entered August 20, 2004 in the matter of In re: Ashok Sreepathi, Debtor, United States Bankruptcy Court Case No. SV-0089994-AG/Adv. Case Nos. SV 01-01263 & SV 01-01264

 

Subsequently, on August 9, 2024, Plaintiffs filed a notice of Errata contending their original filing contained the following errors: (1) Plaintiffs’ Request for Judicial Notice inadvertently referenced Plaintiff’s First Cause of Action in the Complaint. The Request for Judicial Notice is in Support of Plaintiff’s Motion for Summary Adjudication of Issues as to their Fourth Cause of Action; and (2) Plaintiffs’ Evidence in Support of Motion for Summary Adjudication of Issues at Page 85 of 251 (Check No. 2404 payable to “Cornerstone Special Inspect”) was inadvertently included in the filing and should be ignored. Keeping the above in mind, this Court GRANTS the request and takes judicial notice of the above, including the notice of errata.

 

Further, Defendant Suresh Sripathi also filed a request for judicial notice of the following:

 

1.     Exhibit A. Description Articles incorporation of TCGE, Inc. filed on 01/22/1997

2.     Exhibit B. Grant Deed recorded on October 11, 2018.

3.     Exhibit C. Answer of Defendant Suresh Sripathi to Complaint filed on November 17, 2022 ; and

4.     Exhibit D. Complaint of Plaintiffs filed on October 7, 2022.

 

The Court also grants this request and takes judicial notice of the above.

 

Lastly, Defendant Ashok Sreepathi filed a request for judicial notice seeking this Court judicially notice the same as Defendant, Suresh Sripathi. This Court also GRANTS this request.  

 

III. EVIDENTIARY OBJECTIONS

 

Suresh Sripathi’s objections to Declaration of Sandeep Kommareddy

Overrule: 1-7

Sustain: none.

 

Suresh Sripathi’s objections to Declaration of Joseph R. Brown

Overrule: 3, 5-7

Sustain: 1, 2, 4, 8-10

 

Suresh Sripathi’s objections to Declaration of Sanjid Ali  

Overrule: 1-10, 14-33

Sustain: 11, 12-13

 

Ashok Sreepathi’s objections to Declaration of Joseph R. Brown

Overrule: 3, 5-7

Sustain: 1, 2, 4, 8-10

 

Ashok Sreepathi’s objections to Declaration of Sandeep Kommareddy

Overrule: 1-7

Sustain: none.

 

Ashok Sreepathi’s objections to Declaration of Sanjid Ali 

Overrule: 1-10, 14-33

Sustain: 11, 12-13

 

Plaintiffs’ objections to Declaration of Suresh Sripathi

Overrule: 1-7

Sustain: none.

 

Plaintiffs’ objections to Declaration of Ashok Sreepathi

Overrule: 1-32.

Sustain: none.

 

IV. ANALYSIS¿ 

 

A.    Legal Standard

 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿ 

 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.¿¿¿ 

 

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

 

B.    Discussion

 

Plaintiffs have brought this motion seeking a Court order granting summary adjudication in their favor and against Defendants for its fourth cause of action for violation of Business & Professions Code section 7031. Business and Professions Code § 7031(b) “allows any person who utilizes the services of an unlicensed contractor to bring an action for disgorgement of all compensation paid for the performance of any act or contract, regardless whether there was any fault in the contractor’s work…”  (Eisenberg Village of Los Angeles Jewish Home for the Aging v. Suffolk Construction Company, Inc. (2020) 53 Cal.App.5th 1201, 1203.)  The Court in Eisenberg held that the one-year statute of limitations applied to claims for disgorgement under §¿7301(b), and that a 7301(b) claim accrued upon the completion or cessation of performance of the contract at issue. (Ibid.) 

 

Plaintiffs assert that in 2014, they contemplated a joint venture with Defendant Ashok and Sreepathi to: (1) to develop real property located at 7126 and 7130 West 85th Street, in the Westchester area of Los Angeles, California (“Subject Property”); and (2) to construct four (4) detached single family homes on the Subject Property. (Complaint, ¶ 9.) On January 7, 2017, Plaintiffs note that they separately entered into a written contract with Defendant Suresh and Ashok for the construction of one of the four single family residences on the Subject Property, which was intended as Plaintiff’s personal residence. (Complaint, ¶ 12.) Plaintiffs clarify that the Sreepathis are married and that Sukshma is sisters with Suneetha. (Complaint, ¶10.) Plaintiffs contend that the contract price for the construction of Plaintiff’s home by Defendants was $425,000. (Complaint, ¶ 12, Exhibit A “Construction Contract”.) However, Plaintiffs allege that as of the date of the filing of their complaint, the construction of Plaintiffs’ home and the development of the subject property remains incomplete. (Complaint, ¶ 13.) Plaintiffs note that Defendants have refused to complete Plaintiffs’ home or the development of the subject property unless Plaintiffs give them more money. (Complaint, ¶ 13.) Further, Plaintiffs assert that they recently discovered that Defendants are not licensed contractors, and recently discovered facts which lead them to believe that Defendants have diverted funds provided to them by Plaintiffs for development/construction of the subject property and Plaintiffs’ home, and used Plaintiffs’ money to fund other projects in which Defendants have financial interest. (Complaint, ¶ 14.)

 

Plaintiffs argue that according to Business & Professions Code § 7026, a contractor is “‘any person, who undertakes to ... construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building ... structure, project, development or improvement, or to do any part thereof, ... whether or not the performance of [such] work ... involves the addition to or fabrication into any [such] structure, project, development or improvement ... of any material or article of merchandise.’”  Here, the Construction Contract signed by the parties on January 7, 2017 indicates that the Defendants indicated a willingness to build Plaintiff a single-family residence as part of a four building structure. (Plaintiffs’ Exhibit B.) As such, the work the parties have agreed upon indicate that Defendants were acting as contractors. Plaintiffs contend that Ashok and Suresh formed a single business enterprise, as a joint venture to perform work on the subject property. Further, in order to qualify for licensing as a joint venture, Plaintiffs argue that both Ashok and Suresh would have been required to hold “a current, active license in good standing” pursuant to Business & Professions Code section 7029.  Plaintiffs have provided evidence that at the time, Suresh and Ashok entered into the construction contract, only Suresh was licensed as a contractor (Plaintiffs’  SUMF No. 32.)   Plaintiff argues that Suresh’s license was ultimately suspended in 2019 as a consequence of Ashok’s and Suresh’s allegedly fraudulent conduct on a separate construction project, and that the State Board has not reinstated Suresh’s license. (Plaintiffs’ SUMF Nos. 17-19.)

 

In both of the Defendants’ oppositions, they argue that Ashok was acting as a “Developer” as a member of the Joint Venture as is confirmed by the Joint Venture Agreement.  (Plaintiffs’ Exhibit A.) However, this Joint Venture agreement was dated from 2014, while the Contractor Agreement from 2017 appears to be a completely different document that is not integrated into the Joint Venture Agreement. The Court does note, however, that the Contractor Agreement introduces the Defendants by stating: “Suresh Sripathi and Ashok Sreepathi, developer (collectively the “Contractor”)…” (Plaintiffs’ Exhibit B, ¶ 1.) But it is not clear how a developer role affects this motion, i.e., if Ashok was a developer and also was a contactor, is not this motion still well taken?   The rest of the Contractor Agreement references the Defendants as “Contractors” and explains their work in the context of them being contractors. Plaintiffs attach Exhibit E, showing that Ashok’s license was revoked for a violation of Business and Professions Code section 7110 and 7116.  However, Plaintiffs’ Exhibit F showing a list of lawsuits involving Ashok’s company does not per se, on its own, indicate any violation in the case at bar.

 

Based on the above, the Court finds that Plaintiffs’ evidence tends to show that they have carried their initial burden in showing that the Defendants held themselves out as contractors for the purpose of doing business on the subject property, and that they did so after January of 2017 without a license.

 

            Next, Plaintiffs contend that Suresh’s failure to maintain worker’s compensation insurance resulted in the automatic suspension of his license in January of 2017. Pursuant to Business and Professions Code section 7125.2, a contractor is to maintain workers’ compensation insurance for his employees. For evidence, Plaintiffs have attached an invoice from the Defendants (Plaintiffs’ Exhibit C), which shows that evidences work done by numerous other persons who Plaintiffs claim are Defendants’ employees and Exhibit D, payment of checks from Defendants to individuals. As noted by Plaintiffs, Labor Code section 3351 defines an employee as every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed. Plaintiffs’ evidence shows the invoice of Defendants paying individuals as well as checks made out by Defendants to some of those individuals.   This evidence appears to show that Defendants employed individuals to work on the subject property.

 

            In opposition, Suresh argues that she did not have employees and was therefore exempt from the requirement to have workers compensation insurance. From 2017 through March 1, 2019, Suresh contends that he did not have any employees, and that all persons working at the subject property were hired solely by Ashok and were not Defendants’ employees.   The Court seeks argument from Defendants as to whether this matters, i.e., whether it is a material fact requiring a trial as to whether the individuals paid for the work on the property were or were not employees of Defendants, if Defendants were working on the subject property and performing work themselves that required a contractor’s license?

 

Having reviewed the evidence presented by Plaintiffs, including the invoices and receipts filed demonstrating the type of work performed and the amounts charged, and the checks made out to individuals by Defendants, the Court finds that Plaintiffs have met their burden of producing sufficient evidence to show that that the work performed by Defendants constituted that of a “contractor” and required a contractor’s license for purposes of California Business & Professions Code § 7031.

 

 

 

IV. CONCLUSION

 

            Based on the foregoing, and depending on Defendants’ answers to the questions raised by the Court, this Court tentatively finds that Plaintiffs have demonstrated that no triable issue of fact exists as to their fourth cause of action, and summary adjudication is GRANTED.

 

            Plaintiffs are ordered to provide notice.