This case was last updated from Los Angeles County Superior Courts on 09/23/2020 at 00:55:56 (UTC).

BMPP CANOGA PARK, INC. DBA FRONTIER WINDOWS & DOORS, A CALIFORNIA CORPORATION VS DAVID R. EUREDJIAN, ET AL.

Case Summary

On 04/18/2019 BMPP CANOGA PARK, INC DBA FRONTIER WINDOWS DOORS, A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against DAVID R EUREDJIAN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDY RHODES. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4272

  • Filing Date:

    04/18/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

RANDY RHODES

 

Party Details

Plaintiffs

BMPP CANOGA PARK INC. DBA FRONTIER WINDOWS & DOORS A CALIFORNIA CORPORATION

BMPP CANOGA PARK INC. DBA FRONTIER WINDOWS & DOORS

Defendants

EUREDJIAN DAVID R.

TERZYAN ELLEN

Attorney/Law Firm Details

Plaintiff Attorney

MICHAEL ETHAN OHAD

Defendant Attorney

FOSTER RICHARD MARTIN

 

Court Documents

Minute Order - Minute Order (Trial Setting Conference)

9/21/2020: Minute Order - Minute Order (Trial Setting Conference)

Amended Complaint - Amended Complaint

12/20/2019: Amended Complaint - Amended Complaint

Notice (name extension) - Notice Resetting of Demurrers and Motion to Strike

8/6/2019: Notice (name extension) - Notice Resetting of Demurrers and Motion to Strike

Notice (name extension) - Notice Trial Setting Conference

8/6/2019: Notice (name extension) - Notice Trial Setting Conference

Minute Order - Minute Order (Court Order)

8/1/2019: Minute Order - Minute Order (Court Order)

Certificate of Mailing for - Certificate of Mailing for (Court Order) of 08/01/2019

8/1/2019: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 08/01/2019

Minute Order - Minute Order (Court Order Transferring a Non-Collection Hub Case)

7/25/2019: Minute Order - Minute Order (Court Order Transferring a Non-Collection Hub Case)

Certificate of Mailing for - Certificate of Mailing for (Court Order Transferring a Non-Collection Hub Case) of 07/25/2019

7/25/2019: Certificate of Mailing for - Certificate of Mailing for (Court Order Transferring a Non-Collection Hub Case) of 07/25/2019

Reply (name extension) - Reply In Support of Defendants David R. Euredjian and Ellen Terezyan's Motion to Strike Portions of Complaint of Plaintiff BMPP Canoga Park, Inc.

7/19/2019: Reply (name extension) - Reply In Support of Defendants David R. Euredjian and Ellen Terezyan's Motion to Strike Portions of Complaint of Plaintiff BMPP Canoga Park, Inc.

Request for Judicial Notice - Request for Judicial Notice

6/25/2019: Request for Judicial Notice - Request for Judicial Notice

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

6/25/2019: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Opposition (name extension) - Opposition Plaintiff BMPP Canoga Park, Inc., dba Frontier Windows & Doors's Opposition to Defendants' Motion to Strike Portions of the Complaint

7/15/2019: Opposition (name extension) - Opposition Plaintiff BMPP Canoga Park, Inc., dba Frontier Windows & Doors's Opposition to Defendants' Motion to Strike Portions of the Complaint

Opposition (name extension) - Plaintiff BMPP Canoga Park, Inc., dba Frontier Windoes & Doors's Opposition to Defendants' Demurrer to Complaint

7/15/2019: Opposition (name extension) - Plaintiff BMPP Canoga Park, Inc., dba Frontier Windoes & Doors's Opposition to Defendants' Demurrer to Complaint

Objection (name extension) - Plaintiff's BMPP Canoga Park, Inc., dba Frontier Windows & Door's Objections to Defendants' David R. Euredjian and Ellen Terezyan's

7/15/2019: Objection (name extension) - Plaintiff's BMPP Canoga Park, Inc., dba Frontier Windows & Door's Objections to Defendants' David R. Euredjian and Ellen Terezyan's

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

4/18/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

Summons - Summons on Complaint

4/18/2019: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

4/18/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Order to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740) - Order to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740)

4/18/2019: Order to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740) - Order to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740)

27 More Documents Available

 

Docket Entries

  • 07/12/2021
  • Hearing07/12/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 09/21/2020
  • DocketNon-Jury Trial scheduled for 07/12/2021 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 09/21/2020
  • DocketMinute Order (Trial Setting Conference)

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  • 09/21/2020
  • DocketTrial Setting Conference scheduled for 09/21/2020 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 09/21/2020; Result Type to Held

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  • 03/30/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 03/30/2020
  • DocketReset - Court Unavailable, Trial Setting Conference scheduled for 04/27/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Rescheduled by Court was rescheduled to 09/21/2020 10:30 AM

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  • 03/16/2020
  • DocketRequest FOR STATEMENT OF WITNESSES AND EVIDENCE; Filed by: David R. Euredjian (Defendant); Ellen Terzyan (Defendant)

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  • 12/30/2019
  • DocketUpdated -- Amended Complaint 1st: Name Extension: 1st; As To Parties changed from Ellen Terzyan (Defendant), David R. Euredjian (Defendant) to David R. Euredjian (Defendant), Ellen Terzyan (Defendant)

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  • 12/30/2019
  • DocketUpdated -- BMPP CANOGA PARK, INC. (Plaintiff): Organization Name changed from BMPP CANOGA PARK, INC. dba FRONTIER WINDOWS & DOORS, a California corporation to BMPP CANOGA PARK, INC.

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  • 12/20/2019
  • DocketAmended Complaint; Filed by: BMPP CANOGA PARK, INC. dba FRONTIER WINDOWS & DOORS, a California corporation (Plaintiff); As to: David R. Euredjian (Defendant); Ellen Terzyan (Defendant)

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47 More Docket Entries
  • 05/17/2019
  • DocketProof of Personal Service; Filed by: BMPP CANOGA PARK, INC. dba FRONTIER WINDOWS & DOORS, a California corporation (Plaintiff); As to: David R. Euredjian (Defendant); Service Date: 05/10/2019; Service Cost: 50.00; Service Cost Waived: No

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  • 04/19/2019
  • DocketCivil Case Cover Sheet; Filed by: BMPP CANOGA PARK, INC. dba FRONTIER WINDOWS & DOORS, a California corporation (Plaintiff)

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  • 04/19/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 scheduled for 04/23/2020 at 08:30 AM in Chatsworth Courthouse at Department F43

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  • 04/19/2019
  • DocketCase assigned to Hon. Randy Rhodes in Department F43 Chatsworth Courthouse

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  • 04/18/2019
  • DocketComplaint; Filed by: BMPP CANOGA PARK, INC. dba FRONTIER WINDOWS & DOORS, a California corporation (Plaintiff); As to: David R. Euredjian (Defendant); Ellen Terzyan (Defendant)

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  • 04/18/2019
  • DocketSummons on Complaint; Issued and Filed by: BMPP CANOGA PARK, INC. dba FRONTIER WINDOWS & DOORS, a California corporation (Plaintiff); As to: David R. Euredjian (Defendant); Ellen Terzyan (Defendant)

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  • 04/18/2019
  • DocketCivil Case Cover Sheet; Filed by: BMPP CANOGA PARK, INC. dba FRONTIER WINDOWS & DOORS, a California corporation (Plaintiff); As to: David R. Euredjian (Defendant); Ellen Terzyan (Defendant)

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  • 04/18/2019
  • DocketOrder to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740); Filed by: Clerk

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  • 04/18/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 04/18/2019
  • DocketThe case is placed in special status of: Collections Case (CCP 3.740)

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Tentative Rulings

Case Number: 19CHLC14272    Hearing Date: December 04, 2019    Dept: 94

BMPP Canoga Park, Inc. v. Euredjian et al.

DEMURRER; MOTION TO STRIKE

(Code Civ. Proc., §§ 430.31, et seq., 435-436)

TENTATIVE RULING:

Defendants David R. Euredjian and Ellen Terzyan’s Demurrer to the Complaint is sustained with 20 days’ leave to amend as to the first and second causes of action and overruled as to the remaining causes of action. Defendants’ requests for judicial notice are denied.

Defendants David R. Euredjian and Ellen Terzyan’s Motion to Strike Portions of the Complaint is granted without leave to amend as to the request for attorney’s fees.

ANALYSIS:

Plaintiff BMPP Canoga Park, Inc. dba Frontier Windows and Doors (“Plaintiff”) filed the instant action for breach of contract, breach of covenant of good faith and fair dealing and common counts against Defendants David R. Euredjian and Ellen Terzyan (“Defendants”) on April 18, 2019. Defendants filed the instant Demurrer and Motion to Strike on July 25, 2019. Plaintiff filed its oppositions on July 15, 2019 and Defendants replied on July 19, 2019.

I. Legal Standard

A. Meet and Confer

Code of Civil Procedure section 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id., subd. (a)(3).) A similar meet and confer process and declaration are required for motions to strike. (Code Civ. Proc., § 435.5.)

B. Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) No other extrinsic evidence can be considered. (Ibid.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1228.)

C. Motion to Strike

 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) It may be an abuse of discretion to deny leave to amend after granting a motion to strike a complaint if the defect is curable. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.)

 

D. Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 225 Cal.App.4th 118, 226.)

II. Discussion

A. Meet and Confer Requirement

On October 2, 2019, the Court noted that neither the Demurrer or Motion to Strike was accompanied by a meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. Accordingly, the Court continued the hearing on the Demurrer and Motion to Strike and ordered the parties to meet and confer and Defendants to submit a declaration at least 16 days prior to the new hearing date.

On October 15, 2019, Defendants’ counsel filed a declaration detailing the parties meet and confer efforts. Defendants’ counsel declares that she met and conferred with Plaintiffs’ counsel on October 2, 2019 about the issues Defendants’ raised in their demurrer and Motion to Strike. (Khachoyan Decl., ¶¶ 5-7.) However, the parties were unable to come to a resolution. (Khachoyan Decl., ¶¶ 7, 10.) This meet and confer declaration is sufficient to satisfy the requirements of Code of Civil Procedure sections 430.41, subdivision (a)(3)(A) and 435.5, subdivision (a)(3)(A).

B. Whether The Entire Action Is Barred Because The Only Executed Document Is Between Frontier Windows & Doors, Inc., An Unlicensed Contractor

Defendant argues that, pursuant to Business and Professions code sections 7031(a) and 7117, Plaintiff is barred from bringing this action because it is an unlicensed contractor. Business and Professions Code section 7031(a) provides, “[N]o person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person.” Business and Professions Code section 7117 adds, no person may “[a]ct[] in the capacity of a contractor under any license...except...in the name of the licensee as set forth upon the license.”

Defendants argue that Plaintiff is not a licensed contractor and “perhaps” for this reason there is no contractor license number on the proposal in violation of Business and Profession Code section 7159(d)(1).

As set forth above on page 2, the Court denies Defendants’ requests for judicial notice. Defendants’ arguments incorporate improper extrinsic evidence regarding Plaintiff’s licensure as a contractor and a written proposal that was purportedly exchanged between the parties. Defendants’ demurrer to the entire Complaint is not limited to the face of the pleadings. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) As such, Defendants’ demurrer to all cause of action on the grounds that the only executed document underlying Plaintiff’s claim was entered between Defendants and Frontier Windows & Doors, Inc., which is an unlicensed contractor, fails.

Therefore, the demurrer to the entire Complaint is overruled.

C. 1st Cause of Action for Breach of Contract

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff.” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) Defendant demurs on the grounds that Plaintiff has not attached the agreement from which this cause of action arises.

The Complaint alleges that the parties entered into an agreement for window and doors installation services on April 13, 2018 with respect to the property at 14807 McCormich Street, Sherman Oaks, California. (Compl., ¶ 7.) Plaintiff further alleges that there remains due and owing the principal sum of $13,839.24 with interest and attorney’s fees. (Id. at ¶¶ 10, prayers 1-3.)

Defendants are correct in their demurrer that Plaintiff does not attach the written contract or provide sufficient details regarding the legal effect of the contract. Although, as discussed above, the Court cannot consider the “proposal” attached as Exhibit 1 to Defendants’ demurrer, the Court finds that Plaintiff’s Complaint does not set forth the terms or legal effect of the agreement between the parties, rendering its pleadings insufficient. Without such allegations, it cannot be determined whether Defendants’ failure to pay the amount that remains due and owing constitutes a breach of the agreement.

Accordingly, the demurrer to the first cause of action for breach of contract is sustained with leave to amend.

D. 2nd Cause of Action for Breach of Covenant of Good Faith and Fair Dealing

1. Whether the 2nd Cause of Action for Breach of Covenant of Good Faith and Fair Dealing is Sufficiently Pled

The elements for breach of the implied covenant of good faith and fair dealing are: (1) existence of a contract between plaintiff and defendant; (2) plaintiff performed his contractual obligations or was excused from performing them; (3) the conditions requiring defendant’s performance had occurred; (4) the defendant unfairly interfered with the plaintiff’s right to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant’s conduct. (Merced Irr. Dist. V. County of Mariposa (E.D. Cal. 2013) 941 F.Supp.2d 1237, 1280 (discussing California law).) Allegations must demonstrate defendant’s conduct for failure or refusal to discharge contractual responsibilities was a conscious and deliberate act, not an honest mistake, bad judgment or negligence. (Ibid.)

Since a breach of the covenant of good faith and fair dealing is a cause of action for breach of contract, plaintiffs are required to set forth the terms of the contract or attach a copy of the contract where the covenant of good faith and fair dealing is implied by law. (See Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1344; Otworth v. Southern Pacific Transportation Company (1985) 166 Cal.App.3d 452, 459.)

As discussed above in section C on page 5, Plaintiff does not set forth the terms of the contract or attach a copy of the contract on which its claims are based. As above, this deficiency makes it impossible to determine from the face of the Complaint whether Defendants’ conduct was a breach of the agreement. Moreover, Plaintiff’s allegations only state that “Defendants failed to deal fairly and in good faith with Plaintiff.” (Compl. ¶ 20.) These allegations are conclusory and do not indicate whether Defendants’ conduct was a conscious and deliberate act, an honest mistake, bad judgment, or negligence.

2. Whether the 2nd Cause of Action Is Redundant of Plaintiff’s 1st Cause of Action for Breach of Written Contract

Defendants argue that Plaintiff’s allegations are redundant of its first cause of action for breach of written contract. The Court agrees.

A plaintiff’s allegations of breach of the covenant of good faith that do not go beyond a statement of a mere contract breach may be disregarded as superfluous. (Bionghi v. Metropolitan Water District (1999) 70 Cal.App.4th 1358, 1370.) To the extent Plaintiff seeks to allege the same facts under breach of contract and breach of the covenant of good faith and fair dealing, it is improper. Additionally, as discussed above in section D, part 1 on pages 5 to 6, Plaintiff’s allegations that Defendants “failed to deal fairly and in good faith” are conclusory and do not support a separate cause of action for breach of the covenant of good faith and fair dealing.

Accordingly, Defendants’ demurrer to Plaintiff’s second cause of action is sustained with leave to amend.

Remaining Three Causes of Action for Common Counts

In Defendants’ notice of demurrer, they set forth grounds for failure to state facts sufficient to support a cause of action as to each of Plaintiff’s five causes of action; however, the body of the pleading only addresses the first and second cause of action individually. Accordingly, the Court does not provide an analysis of the third to fifth causes of action beyond what was discussed above in section B on page 4.

III. Motion to Strike Portions of Complaint

Defendants also move to strike Plaintiff’s request for attorney’s fees from the Complaint.

Code of Civil Procedure section 1021 provides:

Except as attorney’s fees are specifically provided for by statute, the measure and

mode of compensation of attorneys and counselors at law is left to the agreement,

express or implied, of the parties; but parties to actions or proceedings are entitled

to their costs, as hereinafter provided.

The Complaint alleges that Plaintiff is entitled to attorney’s fees pursuant to Civil Code section 1717.5. (Compl. ¶ 32.) Civil Code section 1717.5(a) provides, “[i]f there is a written agreement between the parties signed by the person to be charged, the fees provided by this section may not be imposed unless that agreement contains a statement that the prevailing party in any action between the parties is entitled to the fees provided by this section.”

Here, Plaintiff does not allege any facts regarding the basis of attorney’s fees sought, nor does it allege that such fees are provided for in the parties’ agreement. Accordingly, Defendants’ Motion to Strike Plaintiff’s prayer for attorney’s fees and related allegations is granted because those fees are not supported by the allegations in the pleading. Given that Plaintiff relies on a purported written Agreement between the parties, it may move for leave to amend once it obtains a copy of that agreement and confirms that it contains and attorney’s fees provision.

The Motion to Strike is granted without leave to amend except that Plaintiff may move for leave to amend in the future as set forth above.

IV. Conclusion

Defendants David R. Euredjian and Ellen Terzyan’s Demurrer to the Complaint is sustained with 20 days’ leave to amend as to the first and second causes of action and overruled as to the remaining causes of action.

Defendants David R. Euredjian and Ellen Terzyan’s Motion to Strike Portions of the Complaint is granted without leave to amend as to the request for attorney’s fees.