On 05/13/2013 ZALE DESIGN STUDIO filed a Contract - Other Contract lawsuit against MARK LEEVAN. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judges overseeing this case are LAWRENCE CHO, RICHARD A. STONE and CRAIG D. KARLAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Santa Monica Courthouse
Los Angeles, California
RICHARD A. STONE
CRAIG D. KARLAN
ZALE DESIGN STUDIO
GOODMAN MORTON R.
MRS. ISABEL RUIZ
ANTON'S DECORATOR WORKROOM
GOODMAN CAROL G.
A.P. SMILEY & SONS INC.
FRANK'S DESIGN INC.
COLLINS COLLINS MUIR & STEWART LLP
KRUEGER WESLEY A.
LERMA ARACELI M.
GREER RANDALL E.
Court documents are not available for this case.
Notice (OF SETTING FINAL STATUS CONFERENCE AND JURY TRIAL DATE ) Filed by Attorney for DefendantRead MoreRead Less
Brief Filed by Attorney for DefendantRead MoreRead Less
CCP 170.6 Application Filed Filed by Atty for Defendant and Cross-ComplRead MoreRead Less
Answer to First Amended Complaint Filed by Attorney for PlaintiffRead MoreRead Less
Notice of Ruling Filed by Atty for Defendant and Cross-ComplRead MoreRead Less
Declaration (OF KACIE AKAU REGARDING EX PARTE NOTICE ON EX PARTE FOR ORDER TO CONTINUE TRIAL DATE; ) Filed by Atty for Defendant and Cross-ComplRead MoreRead Less
Ex-Parte Application (TO CONTINUE TRIAL DATE; ) Filed by Atty for Defendant and Cross-ComplRead MoreRead Less
Ord-Appt Apprv Rptr as Rptr protem (NANCY BRINK #6501 ) Filed by Attorney for PlaintiffRead MoreRead Less
Miscellaneous-Other (OFFER OF PROOF IN RESPONSE TO OOBJ TO DECL OF WESLEY A. KRUEGER ) Filed by Atty for Plaintiff and Cross-DeftRead MoreRead Less
Reply (TO OPPOSITION ) Filed by Attorney for PlaintiffRead MoreRead Less
Ntc and Acknowledgement of Receipt Filed by Atty for Defendant and Cross-ComplRead MoreRead Less
Demurrer Filed by Atty for Plaintiff and Cross-DeftRead MoreRead Less
Proof-Service/Summons Filed by Atty for Defendant and Cross-ComplRead MoreRead Less
Cross-complaint filed Filed by Attorney for DefendantRead MoreRead Less
Summons Filed Filed by Attorney for Cross-ComplainantRead MoreRead Less
Notice (OF PROOF OF SERVICE OF SUMMONS & CROSS-COMPLAINT ) Filed by Attorney for DefendantRead MoreRead Less
Answer ( DEFT MARK LEEVAN ) Filed by Attorney for DefendantRead MoreRead Less
Proof-Service/Summons Filed by Attorney for PlaintiffRead MoreRead Less
Complaint FiledRead MoreRead Less
Request for Dismissal-Partial (WITH PREJUDICE, CAUSES OF ACTION NOS. 2, 5, 7, AS TO CROSS-DEFT. ZALE DESIGN STUDIO, LLC ) Filed by Atty for Defendant and Cross-ComplRead MoreRead Less
Case Number: SC120709 Hearing Date: June 22, 2020 Dept: N
Defendant/Cross-Complainant Mark Leevan’s Motion for Judgment on the Pleadings is DENIED.
Defendant/Cross-Complainant Mark Leevan to give notice.
Request for Judicial Notice
Defendant requests judicial notice of two Certification of Records received from the California Contractors State License Board. Defendant’s request is GRANTED pursuant to Evidence Code section 452, subdivision (c).
Motion for Judgment on the Pleadings
A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant.” (Rolfe v. Cal. Transp. Comm’n (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi, supra, 218 Cal.App.4th at p. 1013.)
Defendant argues that Plaintiff/Cross-Defendant Linda Zale (“Plaintiff”) cannot pursue her claims against Defendant because the contract, attached to the Second Amended Complaint (“SAC”), required Plaintiff to have a contractor’s license to engage in certain work, but she lacked any such license. Plaintiff has presented two Certification of Records received from the California Contractors State License Board, both dated July 30, 2019, which state there are no records that Linda Zale or Zale Design Studio were licensed as California contractors between February 18, 2011, to July 30, 2019. (Req. for Judicial Notice, Exh. A, B.)
Notably, Plaintiff does not state in the SAC that she was a licensed contractor, and the contract attached to the SAC includes no requirement that Plaintiff be a licensed contractor to perform the requested work. Defendant first cites to certain portions of the contract which describe the requested work of “Construction Supervision” to include reviewing contractor bids with clients, engaging in consultation meetings, observing work and subcontractors, and attending jobsite meetings. (SAC, Exh. A, p. 2.) Defendant also cites to the portion of the contract which required Defendant to make payment to Plaintiff prior to installation of materials, provided that Plaintiff procured the tangible materials. (Ibid.) Defendant also notes Plaintiff alleges she furnished services and goods, including interior design services and related tangible goods, for improvement on the property. (SAC ¶ 17.)
A contractor is defined in Business and Professions Code section 7026, which provides that contractor “is synonymous with ‘builder,’” and “a contractor is any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building ... or other structure.” The work described in the SAC and the attached contract does not readily appear to fall under the sort of work described in this statute, as it was not building and construction work or a building or any similar structure.
Plaintiff points to Business and Professions Code sections 7045 and 7052 as demonstrating that she is exempt from licensing requirements. Business and Professions Code section 7045 makes exempt any work for “the sale of installation of any finished products, materials, or articles of merchandise that do not become a fixed part of the structure, nor shall it apply to a material supplier or manufacturer furnishing finished products, materials, or articles of merchandise who does not install or contract for the installation of those items.” Business and Professions Code section 7052 makes exempt “any person who only furnishes materials or supplies without fabricating them into, or consuming them in the performance of, the work of the contractor.”
The work described in the SAC is for interior design services and goods for Defendant’s residence (SAC ¶ 3), and the work described in the contract was for reviewing bids, attending meetings, observing work and procuring materials (SAC, Exh. A, p. 2). The work could fall within the purview of Business and Professions Code sections 7045 and 7052 such that Plaintiff may not have been required to have a contractor’s license. Thus, the face of the SAC does not compel the conclusion that a contractor’s license was required. To be sure, the nature of the work performed may have been that of a contractor, but the Court lacks a sufficient basis to conclude that a license was required solely based on the SAC and the attached contract.
Again, the question whether the work performed was that of a contractor, such that a license was required, is one of fact which cannot be determined based on the face of the complaint. Defendant relies on the recording of a mechanic’s lien, as well as Plaintiff’s claim for foreclosure of mechanic’s lien and the allegations contained therein (SAC ¶¶ 14-25), as an admission that Plaintiff was engaged in work for which she was required to have a contractors’ license. First, Plaintiff has withdrawn this claim and the related mechanic’s lien.
Second, Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035 (Banis), on which Defendant relies, is distinguishable, as the contract at issue in that action related to work on the structure of the building, specifically providing drawings for electrical, plumbing and ceiling plans, and coordinating work with architects and engineers. (Id. at p. 1046.) Such is not the case here, as the work performed by Plaintiff does not appear to have related to fixtures and the structure; rather, Plaintiff focused on the design aesthetics of Defendant’s residence.
Finally, the Court notes Defendant asserts this same argument in his pending motion for summary adjudication against Plaintiff; the argument is better considered in the context of that motion where the Court may consider evidence in support of, and in opposition to, the argument Plaintiff was required to have a contractors’ license. As such, Defendant/Cross-Complainant Mark Leevan’s Motion for Judgment on the Pleadings is DENIED.
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