This case was last updated from Los Angeles County Superior Courts on 10/24/2021 at 02:59:56 (UTC).

TRI-TECH RESTORATION & CONSTRUCTION CO., INC., A CALIFORNIA CORPORATION VS ELLIOT TISHBI, ET AL.

Case Summary

On 03/10/2020 TRI-TECH RESTORATION CONSTRUCTION CO , INC , A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against ELLIOT TISHBI. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2368

  • Filing Date:

    03/10/2020

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

TRI-TECH RESTORATION & CONSTRUCTION CO. INC. A CALIFORNIA CORPORATION

Defendants

TISHBI ELLIOT

ELLIOT TISHBI AS TRUSTEE OF THE E & E TISHBI TRUST CREATED ON JANUARY 5 2012

Attorney/Law Firm Details

Plaintiff Attorney

BATES JAMES

Defendant Attorney

JEONG CHAN YONG

 

Court Documents

Complaint - Complaint

3/10/2020: Complaint - Complaint

Request for Dismissal - Request for Dismissal

9/29/2021: Request for Dismissal - Request for Dismissal

Proof of Personal Service - Proof of Personal Service

8/13/2020: Proof of Personal Service - Proof of Personal Service

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

8/25/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Opposition (name extension) - Opposition To Demurrer To Complaint; Memorandum Of Points And Authorities; Declaration Of James W. Bates

1/13/2021: Opposition (name extension) - Opposition To Demurrer To Complaint; Memorandum Of Points And Authorities; Declaration Of James W. Bates

Reply (name extension) - Reply IN SUPPORT OF DEMURRER

1/20/2021: Reply (name extension) - Reply IN SUPPORT OF DEMURRER

Notice (name extension) - Notice of order

2/25/2021: Notice (name extension) - Notice of order

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

3/2/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Declaration (name extension) - Declaration of Chan Yong Jeong, Esq.

3/26/2021: Declaration (name extension) - Declaration of Chan Yong Jeong, Esq.

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

4/28/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 04/28/2021

4/28/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 04/28/2021

Answer - Answer

5/27/2021: Answer - Answer

Substitution of Attorney - Substitution of Attorney

8/4/2021: Substitution of Attorney - Substitution of Attorney

Substitution of Attorney - Substitution of Attorney

8/5/2021: Substitution of Attorney - Substitution of Attorney

Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

9/1/2021: Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

Notice of Settlement - Notice of Settlement

9/1/2021: Notice of Settlement - Notice of Settlement

Summons - Summons on Complaint

3/10/2020: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

3/10/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

8 More Documents Available

 

Docket Entries

  • 10/08/2021
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 12/08/2021 at 09:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 10/08/2021

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  • 09/29/2021
  • DocketOn the Complaint filed by Tri-Tech Restoration & Construction Co., Inc., a California corporation on 03/10/2020, entered Request for Dismissal with prejudice filed by Tri-Tech Restoration & Construction Co., Inc., a California corporation as to the entire action

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  • 09/01/2021
  • DocketUpdated -- Notice of Settlement: Status Date changed from 09/01/2021 to 09/01/2021; As To Parties: removed

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  • 09/01/2021
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 12/08/2021 at 09:30 AM in Spring Street Courthouse at Department 25

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  • 09/01/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: Clerk

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  • 09/01/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/14/2023 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/01/2021

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  • 09/01/2021
  • DocketNon-Jury Trial scheduled for 09/07/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/01/2021

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  • 08/05/2021
  • DocketSubstitution of Attorney; Filed by: Elliot Tishbi (Defendant)

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  • 08/05/2021
  • DocketAddress for Chan Yong Jeong (Attorney) null

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  • 08/04/2021
  • DocketSubstitution of Attorney; Filed by: Elliot Tishbi (Defendant)

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18 More Docket Entries
  • 08/25/2020
  • DocketUpdated -- Demurrer - without Motion to Strike: As To Parties: removed

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  • 08/13/2020
  • DocketProof of Personal Service; Filed by: Tri-Tech Restoration & Construction Co., Inc., a California corporation (Plaintiff); As to: Elliot Tishbi (Defendant); Elliot Tishbi, as Trustee of the E & E Tishbi Trust Created On January 5, 2012 (Defendant); Service Date: 08/01/2020; Service Cost: 180.00; Service Cost Waived: No

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  • 03/11/2020
  • DocketNon-Jury Trial scheduled for 09/07/2021 at 08:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 03/11/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/14/2023 at 08:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 03/11/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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  • 03/10/2020
  • DocketComplaint; Filed by: Tri-Tech Restoration & Construction Co., Inc., a California corporation (Plaintiff); As to: Elliot Tishbi (Defendant); Elliot Tishbi, as Trustee of the E & E Tishbi Trust Created On January 5, 2012 (Defendant)

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  • 03/10/2020
  • DocketSummons on Complaint; Issued and Filed by: Tri-Tech Restoration & Construction Co., Inc., a California corporation (Plaintiff); As to: Elliot Tishbi (Defendant); Elliot Tishbi, as Trustee of the E & E Tishbi Trust Created On January 5, 2012 (Defendant)

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  • 03/10/2020
  • DocketCivil Case Cover Sheet; Filed by: Tri-Tech Restoration & Construction Co., Inc., a California corporation (Plaintiff); As to: Elliot Tishbi (Defendant); Elliot Tishbi, as Trustee of the E & E Tishbi Trust Created On January 5, 2012 (Defendant)

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  • 03/10/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/10/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 20STLC02368    Hearing Date: April 28, 2021    Dept: 25

PROCEEDINGS DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY:   Defendant Elliot Tishbi

RESP. PARTY: Plaintiff Tri-Tech Restoration & Construction Co., Inc.  

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Elliot Tishbi’s Demurrer to Plaintiff’s Complaint is OVERRULED.   

SERVICE

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 13, 2021 [   ] Late [   ] None

REPLY: Filed on January 20, 2021 [   ] Late [   ] None

ANALYSIS:

I. Background

On March 10, 2020, Plaintiff Tri-Tech Restoration & Construction Co., Inc. (“Plaintiff”) filed an action for breach of written contract and common counts against Defendants Elliot Tishbi, personally and as trustee of the E&E Tishbi Trust (“Defendant”).

Defendant filed the instant Demurrer to the Complaint (the “Demurrer”) on August 25, 2020. On January 13, 2021, Plaintiff filed an opposition and on January 20, Defendant filed a reply brief.

At the initial March 2 hearing, the Court noted that Defendant’s counsel submitted a declaration stating he was informed Defendant’s previous attorney, Hasttie Sanjar, had met and conferred with Plaintiff’s counsel. (3/2/21 Minute Order.) In opposition, Plaintiff argued he never met and conferred with Sanjar or with anyone regarding the Complaint. (Id.) Defendant’s counsel admitted he did not have first-hand knowledge of the meet and confer process in the reply papers and stated Plaintiff’s counsel was “mak[ing] a big deal” out of the alleged failure to meet and confer in a case that only involves $4,500.00. (Id.)

The Court noted that although a determination that a meet and confer process is insufficient to sustain or overrule a demurrer, parties are not free to wholly ignore the requirement. (Id.) To do so would encourage parties to seek judicial intervention before attempting to resolve the issues among themselves, thus undermining the purpose of Section 430.41, subdivision (a). (Id.) The hearing was continued and Defendant’s counsel was ordered to file a meet and confer declaration attesting to his efforts. (Id.)

Defendant’s counsel filed the requested declaration on March 26, 2021.

II. Legal Standard

 

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

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 complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 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.” (Code Civ. Proc., § 430.41, subd. (a).) 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).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

 

III. Discussion

 

A. Meet and Confer

 

Defendant’s counsel’s supplemental declaration demonstrates the parties met and conferred telephonically on March 25, 2021 but could not reach an agreement. (3/26/21 Jeong Decl., ¶ 3.) Thus, the meet and confer requirement is now satisfied.

 

B. First Cause of Action -Breach of Contract

Defendant demurs to the entire Complaint on the basis that the contract upon which the action is based is void and unenforceable. (Dem., p. 3:2-12.) A general demurrer lies where the terms of an alleged contract are illegal and void. (Beck v. American Health Group, Int’l, Inc. (1989) 211 Cal.App.3d 1555, 1563, superseded by statute on other grounds.)

The Complaint alleges (1) that the parties executed an Authorization for Work and Home Improvement Contract (the “Contract”) on December 7, 2018 for property located at 16560 Chattanooga Pl., Pacific Palisades, CA 90272, (2) that Plaintiff performed construction services as required by the Contract except those services which Plaintiff was prevented or excused from performing, (3) that Defendant breached the Contract by failing to pay Plaintiff for its services, and (4) that Plaintiff was damaged as a result of Defendant’s breach. (Compl., ¶ 6-10.) The Complaint attaches a copy of the Contract, which includes the following provisions:

“The Contract is a ‘fixed price’ contract for the performance of the work identified in the Scope of Work. The balance of the estimate is for informational purposes and for use by [Defendant’s] insurance company and is not incorporated into this Contract.”

[¶]

Contract Price: The contract price will be the value of contractor’s services as established on the estimate which is signed by [Defendant] and/or [Defendant’s] Insurance Company for work performed under this contract and is $_______. This estimate may not be known until after the emergency work has been commenced and substantially performed. Because of the nature of emergency services, the estimate may be revised as additional matters are discovered which require mitigation and/or remediation. The estimate referenced in the preceding paragraph, when executed by [Defendant] and/or approved by [Defendant’s] Insurance Company shall become part of this Contract and shall represent the Contract Price. The estimate may be amended from time-to-time and such amendments will be approved in writing by [Defendant] and/or [Defendant’s] Insurance Company.”

(Id., Exh. 1.)

First, Defendant argues the contract is illegal and void because it did not specify a contract price as required by Business and Professions Code section 7159, subdivision (a)(1). (Dem, pp. 4:8-5:5.) Section 7159 requires that home improvement contracts include the contract price. (Bus. & Prof. Code, § 7159, subd. (d)(5).) Defendant also argues that the Contract fails to provide the approximate start date and completion date as required by Section 7159, subdivisions (d)(10) and (11). (Id. at p. 5:9-13.) Plaintiff’s opposition entirely fails to address Defendant’s argument on this basis. Substantively, Plaintiff only argues that the invoices attached to the Complaint, when added up, total an outstanding balance of $4,556.06. (Oppo., p. 8:1-3.)

Notwithstanding Plaintiff’s failure to address Defendant’s argument, the Court notes that failure to comply with Section 7159 does not necessarily void a contract. Section 7159, subdivision (a)(5) provides that failure to comply with that section is subject to discipline, but does not expressly state contracts are automatically void for violating the Section.

In Asourdian v. Araj (1985) 38 Cal.3d 276, 292-93, the Supreme Court considered whether failure to comply with the home improvement contract requirements set forth in Section 7159 voided a contract. In Asourdian, the parties entered into several contracts. (Id. at p. 281.) The contracts in question were not in writing and the parties disputed whether an agreement had been reached regarding a contract price. (Id.) The Court held that although the penalties provided in Section 7159 are not exclusive, there was no indication that the Legislature intended that all contracts that violated Section 7159 would automatically be void. (Id. at p. 292.) Contracts that violate section 7159 do not “involve the kind of illegality which automatically renders an agreement void”, such as contracts that are immoral in character, inherently inequitable, or those designed to further a crime or obstruct justice. (Id. at p. 293.) Rather, such contracts were only voidable depending on the factual context and the public policies involved. (Id.) In upholding the enforceability of the contracts, the Supreme Court found that the contacts in question were made with a sophisticated homeowner, not an unsophisticated homeowner or tenant, that the parties were friends who had previous business dealings, that the plaintiff fully performed according to the oral agreements, that the defendants accepted the benefits of the oral agreements, and that permitting defendants to retain the value of the benefits provided would amount to unjust enrichment. (Id. at pp. 292-93.)

Similarly, the instant Contract does not involve matter that is immoral, inherently inequitable, or designed to further a crime or obstruct justice. (Compl., Exh. A.) Thus, failure to specify the price on the Contract does not necessarily and automatically make the instant Contract illegal and void on its face. Defendant has not cited any authority demonstrating otherwise. The remaining factors discussed in Asourdian would require the Court to consider evidence to determine whether the Contract should be voided which is not permissible at the demurrer stage.

Defendant next argues the Contract is void for failure to specify a description of the goods and materials used, including the “brand name, model number, or similar designation” as required by Section 7162. (Dem., p. 6-8.) Again, Defendant points to no authority demonstrating failure to do so automatically voids a home improvement contract.

Defendant further argues that the Complaint is uncertain as to the damages sought. (Dem., pp. 5:21-6:2.) The Court disagrees. The prayer expressly states Plaintiff seeks damages of $4,556.06, which is the total of the invoices attached to the Complaint. (Compl., p. 5:19-24, Exh. 2.) Further, the attachments to the Contract, including a detailed breakdown of the services provided, a summary of the services provided, a recap by room, and a recap by category all state the total price for Plaintiff’s services amounted to $4,556.06. (Compl., Exh. 1.)

In reply, Defendant argues that Plaintiff did not comply with certain supervisory requirements imposed on licensees by the California State License Board. (Reply, p. 3:20-3:20.) Because Plaintiff failed to comply with these requirements, Defendant argues, the construction services were not performed under Plaintiff’s license and thus Plaintiff is entitled to nothing under applicable law. (Id.) Not only is this improperly raised for the first time in reply, but this argument would require the Court to weigh and consider evidence which, as previously noted, is improper at the demurrer stage.

The Court finds Plaintiff’s factual allegations and attached Contract are sufficient to allege a breach of contract cause of action.

B. Second and Third Causes of Action – Common Counts 

Thus, the Court does not address the second and third causes of action.

IV. Conclusion & Order

 

For the foregoing reasons, Defendant Elliot Tishbi’s Demurrer to Plaintiff’s Complaint is OVERRULED.  

Moving party is ordered to give notice.

Case Number: 20STLC02368    Hearing Date: April 27, 2021    Dept: 25

PROCEEDINGS: DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY: Defendant Elliot Tishbi

RESP. PARTY: Plaintiff Tri-Tech Restoration & Construction Co., Inc.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Elliot Tishbi’s Demurrer to Plaintiff’s Complaint is OVERRULED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 13, 2021 [ ] Late [ ] None

REPLY: Filed on January 20, 2021 [ ] Late [ ] None

ANALYSIS:

I. Background

On March 10, 2020, Plaintiff Tri-Tech Restoration & Construction Co., Inc. (“Plaintiff”) filed an action for breach of written contract and common counts against Defendants Elliot Tishbi, personally and as trustee of the E&E Tishbi Trust (“Defendant”).

Defendant filed the instant Demurrer to the Complaint (the “Demurrer”) on August 25, 2020. On January 13, 2021, Plaintiff filed an opposition and on January 20, Defendant filed a reply brief.

At the initial March 2 hearing, the Court noted that Defendant’s counsel submitted a declaration stating he was informed Defendant’s previous attorney, Hasttie Sanjar, had met and conferred with Plaintiff’s counsel. (3/2/21 Minute Order.) In opposition, Plaintiff argued he never met and conferred with Sanjar or with anyone regarding the Complaint. (Id.) Defendant’s counsel admitted he did not have first-hand knowledge of the meet and confer process in the reply papers and stated Plaintiff’s counsel was “mak[ing] a big deal” out of the alleged failure to meet and confer in a case that only involves $4,500.00. (Id.)

The Court noted that although a determination that a meet and confer process is insufficient to sustain or overrule a demurrer, parties are not free to wholly ignore the requirement. (Id.) To do so would encourage parties to seek judicial intervention before attempting to resolve the issues among themselves, thus undermining the purpose of Section 430.41, subdivision (a). (Id.) The hearing was continued and Defendant’s counsel was ordered to file a meet and confer declaration attesting to his efforts. (Id.)

Defendant’s counsel filed the requested declaration on March 26, 2021.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

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 complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 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.” (Code Civ. Proc., § 430.41, subd. (a).) 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).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

III. Discussion

A. Meet and Confer

Defendant’s counsel’s supplemental declaration demonstrates the parties met and conferred telephonically on March 25, 2021 but could not reach an agreement. (3/26/21 Jeong Decl., ¶ 3.) Thus, the meet and confer requirement is now satisfied.

B. First Cause of Action -Breach of Contract

Defendant demurs to the entire Complaint on the basis that the contract upon which the action is based is void and unenforceable. (Dem., p. 3:2-12.) A general demurrer lies where the terms of an alleged contract are illegal and void. (Beck v. American Health Group, Int’l, Inc. (1989) 211 Cal.App.3d 1555, 1563, superseded by statute on other grounds.)

The Complaint alleges (1) that the parties executed an Authorization for Work and Home Improvement Contract (the “Contract”) on December 7, 2018 for property located at 16560 Chattanooga Pl., Pacific Palisades, CA 90272, (2) that Plaintiff performed construction services as required by the Contract except those services which Plaintiff was prevented or excused from performing, (3) that Defendant breached the Contract by failing to pay Plaintiff for its services, and (4) that Plaintiff was damaged as a result of Defendant’s breach. (Compl., ¶ 6-10.) The Complaint attaches a copy of the Contract, which includes the following provisions:

“The Contract is a ‘fixed price’ contract for the performance of the work identified in the Scope of Work. The balance of the estimate is for informational purposes and for use by [Defendant’s] insurance company and is not incorporated into this Contract.”

[¶]

Contract Price: The contract price will be the value of contractor’s services as established on the estimate which is signed by [Defendant] and/or [Defendant’s] Insurance Company for work performed under this contract and is $_______. This estimate may not be known until after the emergency work has been commenced and substantially performed. Because of the nature of emergency services, the estimate may be revised as additional matters are discovered which require mitigation and/or remediation. The estimate referenced in the preceding paragraph, when executed by [Defendant] and/or approved by [Defendant’s] Insurance Company shall become part of this Contract and shall represent the Contract Price. The estimate may be amended from time-to-time and such amendments will be approved in writing by [Defendant] and/or [Defendant’s] Insurance Company.”

(Id., Exh. 1.)

First, Defendant argues the contract is illegal and void because it did not specify a contract price as required by Business and Professions Code section 7159, subdivision (a)(1). (Dem, pp. 4:8-5:5.) Section 7159 requires that home improvement contracts include the contract price. (Bus. & Prof. Code, § 7159, subd. (d)(5).) Defendant also argues that the Contract fails to provide the approximate start date and completion date as required by Section 7159, subdivisions (d)(10) and (11). (Id. at p. 5:9-13.) Plaintiff’s opposition entirely fails to address Defendant’s argument on this basis. Substantively, Plaintiff only argues that the invoices attached to the Complaint, when added up, total an outstanding balance of $4,556.06. (Oppo., p. 8:1-3.)

Notwithstanding Plaintiff’s failure to address Defendant’s argument, the Court notes that failure to comply with Section 7159 does not necessarily void a contract. Section 7159, subdivision (a)(5) provides that failure to comply with that section is subject to discipline, but does not expressly state contracts are automatically void for violating the Section.

In Asourdian v. Araj (1985) 38 Cal.3d 276, 292-93, the Supreme Court considered whether failure to comply with the home improvement contract requirements set forth in Section 7159 voided a contract. In Asourdian, the parties entered into several contracts. (Id. at p. 281.) The contracts in question were not in writing and the parties disputed whether an agreement had been reached regarding a contract price. (Id.) The Court held that although the penalties provided in Section 7159 are not exclusive, there was no indication that the Legislature intended that all contracts that violated Section 7159 would automatically be void. (Id. at p. 292.) Contracts that violate section 7159 do not “involve the kind of illegality which automatically renders an agreement void”, such as contracts that are immoral in character, inherently inequitable, or those designed to further a crime or obstruct justice. (Id. at p. 293.) Rather, such contracts were only voidable depending on the factual context and the public policies involved. (Id.) In upholding the enforceability of the contracts, the Supreme Court found that the contacts in question were made with a sophisticated homeowner, not an unsophisticated homeowner or tenant, that the parties were friends who had previous business dealings, that the plaintiff fully performed according to the oral agreements, that the defendants accepted the benefits of the oral agreements, and that permitting defendants to retain the value of the benefits provided would amount to unjust enrichment. (Id. at pp. 292-93.)

Similarly, the instant Contract does not involve matter that is immoral, inherently inequitable, or designed to further a crime or obstruct justice. (Compl., Exh. A.) Thus, failure to specify the price on the Contract does not necessarily and automatically make the instant Contract illegal and void on its face. Defendant has not cited any authority demonstrating otherwise. The remaining factors discussed in Asourdian would require the Court to consider evidence to determine whether the Contract should be voided which is not permissible at the demurrer stage.

Defendant next argues the Contract is void for failure to specify a description of the goods and materials used, including the “brand name, model number, or similar designation” as required by Section 7162. (Dem., p. 6-8.) Again, Defendant points to no authority demonstrating failure to do so automatically voids a home improvement contract.

Defendant further argues that the Complaint is uncertain as to the damages sought. (Dem., pp. 5:21-6:2.) The Court disagrees. The prayer expressly states Plaintiff seeks damages of $4,556.06, which is the total of the invoices attached to the Complaint. (Compl., p. 5:19-24, Exh. 2.) Further, the attachments to the Contract, including a detailed breakdown of the services provided, a summary of the services provided, a recap by room, and a recap by category all state the total price for Plaintiff’s services amounted to $4,556.06. (Compl., Exh. 1.)

In reply, Defendant argues that Plaintiff did not comply with certain supervisory requirements imposed on licensees by the California State License Board. (Reply, p. 3:20-3:20.) Because Plaintiff failed to comply with these requirements, Defendant argues, the construction services were not performed under Plaintiff’s license and thus Plaintiff is entitled to nothing under applicable law. (Id.) Not only is this improperly raised for the first time in reply, but this argument would require the Court to weigh and consider evidence which, as previously noted, is improper at the demurrer stage.

“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. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 229, 307.)

The Court finds Plaintiff’s factual allegations and attached Contract are sufficient to allege a breach of contract cause of action.

B. Second and Third Causes of Action – Common Counts

Defendant states he “demur[s] to the Complaint on the grounds that the Complaint fails to state a claim” (Dem., p. 1:23-24) but does not mention, let alone individually address, the second and third causes of action for open book account and services performed.

Thus, the Court does not address the second and third causes of action.

IV. Conclusion & Order

For the foregoing reasons, Defendant Elliot Tishbi’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Moving party is ordered to give notice.

Case Number: 20STLC02368    Hearing Date: March 02, 2021    Dept: 25


Case Number: 20STLC04756    Hearing Date: March 02, 2021    Dept: 25

HEARING DATE: Tue., March 2, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: State Farm Mutual Automobile Insurance Co. v. Alvarez

CASE NUMBER: 20STLC04756 COMP. FILED: 06-08-20

NOTICE: OK DISC. C/O: 11-06-21

MOTION C/O: 11-21-21

TRIAL DATE: 12-06-21

PROCEEDINGS: MOTION FOR LEAVE TO INTERVENE

MOVING PARTY: Prospective Intervenor Loya Casualty Insurance Company

RESP. PARTY: None

MOTION TO INTERVENE

(CCP § 387)

TENTATIVE RULING:

Prospective Intervenor Loya Casualty Insurance’s Motion for Leave to Intervene is GRANTED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of February 26, 2021 [ ] Late [X] None

REPLY: None filed as of February 26, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On June 8, 2020, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed an action against Defendant Cindy Argueta Alvarez (“Defendant”). Following Defendant’s failure to respond, default was entered against her on November 16, 2020.

On November 19, 2020, Prospective Intervenor Loya Casualty Insurance Company (“Loya”) filed the instant Motion for Leave to Intervene (the “Motion”). To date, no opposition has been filed.

  1. Legal Standard

Intervention is permitted when “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.” (Code Civ. Proc., § 387, subd. (d)(1)(B).) Whether the petitioner has an interest in the matter in litigation is a question of fact that must be determined by the court before leave to file is granted. (Muller v. Robinson (1959) 174 Cal.App.2d 511, 515; In re Yokohama Special Bank (1948) 86 Cal.App.2d 545.) The burden rests on the one seeking to intervene to show that this is a proper case for intervention. (Id. at 515.)

  1. Discussion

The instant action arises out of an alleged accident that occurred on or about October 6, 2019 where Defendant collided with Plaintiff’s insured’s parked and unoccupied vehicle. (Compl., ¶¶ 12-14.) Loya presents evidence that it was Defendant’s insurer at the time the alleged incident occurred. (Mot., Camacho Decl., ¶ 3, Exh. A.) Loya’s counsel explains that from July 2020 through September 2020, counsel’s office attempted to contact Defendant to obtain authorization to file an answer on her behalf. (Id. at ¶¶ 4-5.) Loya’s counsel also retained a private investigator on August 5, 2020 to attempt to locate Defendant, also without success. (Id. at ¶ 6.) The private investigator did, however, make contact with Defendant’s mother and asked her to ask Defendant to contact Loya’s counsel’s office. (Id. at ¶ 7.) As of the date of this Motion, Defendant has not contacted Loya’s counsel’s office. (Id. at ¶ 8.)

The Court finds Loya has demonstrated that unless it is allowed to intervene, both its interests and Defendant’s interests will be prejudiced. Insurance Code section 11580, subdivision (b)(2) provides that an insurance policy must contain “[a] provision that whenever judgment is secured against the insured…in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment.” Based on the foregoing, the Court finds Loya has an interest in the action and would be required to satisfy any judgment rendered against Defendant. (See also Reliance Ins. Co. v. Superior Court (2008) 84 Cal.App.4th 383, 386.) In addition, intervention will not enlarge the issues in this action, as Loya will simply assert defenses on Defendant’s behalf. (Reliance Ins. Co., supra, at 386 [citing Truck Ins. Exch. v. Superior Court (1997) 60 Cal.App.4th 342, 346).)

Thus, Loya’s unopposed Motion is GRANTED.

  1. Conclusion & Order

For the foregoing reasons, Prospective Intervenor Loya Casualty Insurance’s Motion for Leave to Intervene is GRANTED.

Moving party is ordered to give notice.

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