This case was last updated from Los Angeles County Superior Courts on 10/27/2020 at 04:31:50 (UTC).

BROADWAY AIR CONDITIONING HEATING AND SHEET METAL INC VS 161

Case Summary

On 03/12/2018 BROADWAY AIR CONDITIONING HEATING AND SHEET METAL INC filed a Contract - Debt Collection lawsuit against 161. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER, ALAN S. ROSENFIELD and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7658

  • Filing Date:

    03/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA P. JESSNER

ALAN S. ROSENFIELD

YOLANDA OROZCO

 

Party Details

Plaintiffs, Petitioners, Cross Defendants and Not Classified By Court

BROADWAY AIR CONDITIONING HEATING AND

1617 VIEWMOUNT DRIVE LLC. A

ROES 1-50

MENEKSHE AYHAN M. ESQ.

COPPELSON AARON

1617 VIEWMONT DR1 LLC A CALIFORNIA

1617 VIEWMONT DR LLC A CALIFORNIA

Defendants, Respondents and Not Classified By Court

DOES 1-10

BC DESIGN & DEVELOPMENT INC.

1617 VIEWPONT DR. LLC

1617 VIEWPOINT DR1 LLC

1617 VIEWMONT DR1 LLC A CALIFORNIA

1617 VIEWMONT DR LLC A CALIFORNIA

BOSWELL CONSTRUCTION INC. A CALIFORNIA CORPORATION

Defendants and Respondents

DOES 1-10

BC DESIGN & DEVELOPMENT INC.

1617 VIEWPONT DR. LLC

1617 VIEWPOINT DR1 LLC

Defendants, Cross Plaintiffs and Not Classified By Court

1617 VIEWMONT DR1 LLC A CALIFORNIA

1617 VIEWMONT DR LLC A CALIFORNIA

1617 VIEWMON DR. LLC ESA 1617 VIEWPOINT DR. A CA LIMITED LIABILITY COMPANY AND AS 1617 VIEWPOINT DR1 LLC A CA LIMITED LIABILITY COMPANY

1617 VIEWMONT DR. LLC ESA 1617 VIEWPOINT DR. A CA LIMITED LIABILITY COMPANY AND AS 1617 VIEWPOINT DR1 LLC A CA LIMITED LIABILITY COMPANY

BOSWELL CONSTRUCTION INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Defendant, Plaintiff, Cross Defendant and Cross Plaintiff Attorneys

ZUIDERWEG GORDON JAMES

LOMBARDO VINCENT J.

LOMBARDO VINCENT JOSEPH

Attorney at Lombardo & Safford

865 Via De La Paz #220

Pacific Plsds, CA 90272

ANDERSON BRADLEY R.

MALLEN THERESA L.

PARKS SCOTT G.

MENEKSHE AYHAN M. ESQ.

PARKS SCOTT GREGORY ESQ.

Attorney at Menekshe Law Firm

27720 Jefferson Ave Ste 310

Temecula, CA 92590

STRONG DAVID LEE

Plaintiff and Petitioner Attorney

LOMBARDO VINCENT J.

Defendant, Respondent, Cross Defendant and Cross Plaintiff Attorneys

THE MOUZIS LAW FIRM

ABDULAZIZ & GROSSBART LAW OFFICES OF

RUDMAN BRUCE DAVID

Attorney at Abdulaziz Grossbart & Rudman

6454 Coldwater Canyon Ave.

North Hollywood, CA 91606-1187

MOUZIS GERALD WILLIAM

Attorney at The Mouzis Law Firm, A Professional Corp

17671 Irvine Blvd Ste 207

Tustin, CA 92780

ZUIDERWEG GORDON JAMES

KIRKNER DONNA ELIZABETH

DARLING JOHN

Defendant and Respondent Attorneys

THE MOUZIS LAW FIRM

ABDULAZIZ & GROSSBART LAW OFFICES OF

Defendant, Cross Plaintiff and Cross Defendant Attorneys

MOUZIS GERALD WILLIAM

Attorney at The Mouzis Law Firm, A Professional Corp

17671 Irvine Blvd Ste 207

Tustin, CA 92780

ZUIDERWEG GORDON JAMES

KIRKNER DONNA ELIZABETH

 

Court Documents

Reply - REPLY TO OPPOSITION TO MOTION TO COMPEL

10/6/2020: Reply - REPLY TO OPPOSITION TO MOTION TO COMPEL

Opposition - OPPOSITION BOSWELL CONSTRUCTION, INC.S OPPOSITION TO THE DEMURRER OF 1617 VIEWMONT DR., LLC TO BOSWELLS FIRST AMENDED CROSS- COMPLAINT

8/11/2020: Opposition - OPPOSITION BOSWELL CONSTRUCTION, INC.S OPPOSITION TO THE DEMURRER OF 1617 VIEWMONT DR., LLC TO BOSWELLS FIRST AMENDED CROSS- COMPLAINT

Minute Order - MINUTE ORDER (COURT ORDER)

8/21/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Declaration - DECLARATION RE COMPLIANCE WITH MEET AND CONFER REQUIREMENT

5/4/2020: Declaration - DECLARATION RE COMPLIANCE WITH MEET AND CONFER REQUIREMENT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/05/2020

5/5/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/05/2020

Proof of Service by Mail

1/14/2020: Proof of Service by Mail

Memorandum of Points & Authorities

11/1/2019: Memorandum of Points & Authorities

Notice of Ruling

10/2/2019: Notice of Ruling

Substitution of Attorney

9/17/2019: Substitution of Attorney

Minute Order - MINUTE ORDER (COURT ORDER)

8/26/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Appearance Case Review Re Dismissal of Doe/Roe Defendants) of 11/06/2018

11/6/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Appearance Case Review Re Dismissal of Doe/Roe Defendants) of 11/06/2018

BROADWAY AIR CONDITIONING, HEATING AND SHEET METAL,INC'S NOTICE OF CHANGE OF HANDLING ATTORNEY

9/5/2018: BROADWAY AIR CONDITIONING, HEATING AND SHEET METAL,INC'S NOTICE OF CHANGE OF HANDLING ATTORNEY

CASE MANAGEMENT ORDER

7/5/2018: CASE MANAGEMENT ORDER

Proof of Service -

6/27/2018: Proof of Service -

DEMAND FOR JURY TRIAL OF BROADWAY AIR CONDITIONING, HEATING AND SHEET METAL, INC.

6/26/2018: DEMAND FOR JURY TRIAL OF BROADWAY AIR CONDITIONING, HEATING AND SHEET METAL, INC.

VERIFIED ANSWER OF 1617 VIEWMONT DR., LLC, TO COMPLAINT

5/11/2018: VERIFIED ANSWER OF 1617 VIEWMONT DR., LLC, TO COMPLAINT

SUMMONS -

3/12/2018: SUMMONS -

COMPLAINT 1. FOR MONEY DUE ON CONTRACT 2. TO FORECLOSE MECHANIC'S LIEN; ETC

3/12/2018: COMPLAINT 1. FOR MONEY DUE ON CONTRACT 2. TO FORECLOSE MECHANIC'S LIEN; ETC

106 More Documents Available

 

Docket Entries

  • 08/09/2021
  • Hearing08/09/2021 at 10:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 07/30/2021
  • Hearing07/30/2021 at 09:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/09/2020
  • Hearing12/09/2020 at 14:00 PM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

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  • 10/20/2020
  • Docketat 4:32 PM in Department 31, Yolanda Orozco, Presiding; Court Order

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  • 10/20/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 10/16/2020
  • Docketat 10:00 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to Compel Further Discovery Responses (to Supplemental Interrogatory) - Held - Motion Granted

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  • 10/16/2020
  • Docketat 10:00 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to Compel Further Discovery Responses (to Production of Documents) - Not Held - Vacated by Court

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  • 10/16/2020
  • Docketat 3:00 PM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to Compel Further Discovery Responses (to Production of Documents) - Not Held - Advanced and Continued - by Court

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  • 10/16/2020
  • Docketat 3:00 PM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to Compel Further Discovery Responses (to Supplemental Interrogatory) - Not Held - Advanced and Continued - by Court

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  • 10/16/2020
  • Docketat 2:00 PM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to Compel Further Discovery Responses (to Supplemental Interrogatory) - Not Held - Advanced and Continued - by Court

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177 More Docket Entries
  • 05/04/2018
  • DocketAMENDMENT TO COMPLAINT

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  • 05/04/2018
  • DocketOrd, Change/Amend/Correct Name; Filed by Plaintiff/Petitioner

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  • 05/04/2018
  • DocketOrd, Change/Amend/Correct Name; Filed by Plaintiff/Petitioner

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  • 03/20/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/20/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/20/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 03/20/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 03/12/2018
  • DocketSUMMONS

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  • 03/12/2018
  • DocketCOMPLAINT 1. FOR MONEY DUE ON CONTRACT 2. TO FORECLOSE MECHANIC'S LIEN; ETC

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  • 03/12/2018
  • DocketComplaint; Filed by null

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Tentative Rulings

Case Number: BC697658    Hearing Date: October 16, 2020    Dept: 31

BOSWELL CONSTRUCTION'S MOTION TO COMPEL DISCOVERY IS GRANTED.

Relevant Background

On March 12, 2018, Plaintiff Broadway Air Conditioning Heating and Sheet Metal, Inc. (“Broadway Air Conditioning”) filed the instant action (the “Broadway Action”) against 1617 Viewmont Dr., LLC (erroneously sued as 1617 Viewpoint Dr., LLC) (hereinafter referred to as “1617 Viewmont”); 1617 Viewmont Dr1, LLC (erroneously sued as 1617 Viewpoint Dr1, LLC); BC Design & Development, Inc. (“BC Design”); and Does 1 through 10. The Complaint asserts causes of action for:

  1. Money Due on Contract;

  2. Foreclose Mechanic’s Lien;

  3. Open Book Account;

  4. Reasonable Value of Labor and Materials Furnished; and

  5. Breach of Implied Covenant of Good Faith and Faith Dealing.

    On March 24, 2020, Boswell Construction, Inc. (“Boswell”) filed a Cross-Complaint against 1617 Viewmont. The Cross-Complaint asserts causes of action for:

  1. Fraud – Intentional Misrepresentation;

  2. Fraud – Negligent Misrepresentation; and

  3. Breach of Written Contract.

    Boswell now seeks to compel 1617 Viewmont’s responses to the Supplemental Interrogatory propounded on February 10, 2020.

Legal Standard

For a motion to compel initial discovery responses, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. § 2030.290(a).) 

Discussion

Boswell seeks to compel 1617 Viewmont’s responses to the Supplemental Interrogatory propounded on February 10, 2020.

Boswell asserts that on February 10, 2020, it propounded a “supplemental interrogatory” as authorized by Code of Civil Procedure section 2030.070. (Kirkner Decl. ¶ 20.) Boswell contends that the response to the supplemental interrogatory was due within 30 days of the date it was propounded and Viewmont has neither requested an extension nor provided a supplemental response to any interrogatory. (Kirkner Decl. ¶ 21.)

1617 Viewmont asserts that it inadvertently failed to respond to Boswell’s supplemental interrogatory and does not oppose the motion to the extent that it seeks to compel that response. 1617 Viewmont only opposes the instant motion to the extent it is a motion to compel further responses in regard to Boswell’s Special Interrogatories (Set One).

In reply, Boswell argues that it is not seeking to compel further responses to the first set of special interrogatories but responses to the supplemental interrogatory propounded on February 10, 2020.

The Court finds that Boswell properly served its Supplemental Interrogatory, the time to respond has expired, and 1617 Viewmont has failed to provide a timely response.

Based on the foregoing, Boswell’s motion to compel responses to the Supplemental Interrogatory is GRANTED.

Conclusion

Boswell’s motion to compel responses to the Supplemental Interrogatory is GRANTED.

Moving party to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Case Number: BC697658    Hearing Date: August 26, 2020    Dept: 31

DEMURRER OVERRULED IN PART, SUSTAINED IN PART.

Relevant Background

On March 12, 2018, Plaintiff Broadway Air Conditioning Heating and Sheet Metal, Inc. (“Broadway Air Conditioning”) filed the instant action (the “Broadway Action”) against 1617 Viewmont Dr., LLC (erroneously sued as 1617 Viewpoint Dr., LLC) (hereinafter referred to as “1617 Viewmont”); 1617 Viewmont Dr1, LLC (erroneously sued as 1617 Viewpoint Dr1, LLC); BC Design & Development, Inc. (“BC Design”); and Does 1 through 10. The Complaint asserts causes of action for: 

  1. Money Due on Contract;

  2. Foreclose Mechanic’s Lien;

  3. Open Book Account;

  4. Reasonable Value of Labor and Materials Furnished; and

  5. Breach of Implied Covenant of Good Faith and Faith Dealing.

On March 24, 2020, Cross-Defendant Boswell Construction, Inc. filed a Cross-Complaint against 1617 Viewmont. The Cross-Complaint asserts causes of action for: 

  1. Fraud – Intentional Misrepresentation;

  2. Fraud – Negligent Misrepresentation; and

  3. Breach of Written Contract.

Defendant 1617 Viewmont (hereinafter referred to as “Defendant”) demurs to the entirety of the Cross-Complaint filed by Boswell Construction, Inc. (hereinafter referred to as “Cross-Complainant”).

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Discussion

First Cause of Action for Fraud – Intentional Misrepresentation & Second Cause of Action for Fraud – Negligent Misrepresentation

To plead a cause of action for fraudulent misrepresentation, a plaintiff must plead: (1) a false representation, (2) knowledge of falsity (scienter), (3) intent to defraud (i.e., to induce reliance), (4) justifiable reliance, and (5) resulting damage. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.) The necessary elements of negligent misrepresentation are: (1) misrepresentation of a past or existing material fact; (2) without reasonable ground for believing it to be true; (3) intent to defraud; (4) ignorance of the truth and justifiable reliance; and (5) resulting damage. (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154.)  

“The law is well established that actionable misrepresentations must pertain to past or existing material facts. [Citation] Statements or predictions regarding future events are deemed to be mere opinions which are not actionable. [Citation]” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469-1470.) However, “[a] statement of what the defendant or some third person intends to do relates to an existing state of mind, and is a representation of fact. [Citation.]” (Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 203.) 

Fraud causes of actions must be pled with specificity in order to give notice to the defendant and to furnish him or her with definite charges. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216, superseded by amendments to the Unfair Competition Law contained in Proposition 64 on unrelated grounds.) “(a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citations.]” (Ibid.)  

This particularity “necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645.) However, “[l]ess specificity is required when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,’ [Citations]; ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party . . . .’ (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217.) 

Defendant demurs to the first cause of action fraud – intentional misrepresentation arguing that the Cross-Complaint fails to allege intentional misrepresentation with particularity, fails to allege an actionable misrepresentation, and fails to allege justifiable reliance. As to the second cause of action for fraud – negligent misrepresentation, Defendant demurs arguing that Cross-Complainant, as with its first cause of action, fails to allege actionable statements and justifiable reliance. 

Defendant first asserts that Cross-Complainant fails to allege the how, when, and by what means the alleged representations were tendered. 

Defendant contends that moreover, the statements regarding the templates for two future building projects (Cross-Complaint ¶ 14) are not statements of fact or present fact. Defendant argues that those statement are opinions or predictions of future events and as such, are not actionable statements which support a cause of action for intentional misrepresentation. 

Defendant finally asserts that the Cross-Complaint fails to allege justifiable reliance on the alleged statements in paragraph 14. Defendant contends that neither Defendant nor Coppelson, identified in paragraph 5, are alleged to have any special expertise in construction. Defendant argues that on the other hand, Cross-Complainant is alleged in paragraph 2 to be “a contractor licensed by the State of California to act as a general contractor.” Defendant asserts that any statements by a layperson to a professional cannot possibly    be the basis for fraud because the professional could not have justifiably relied on a layperson’s statements in regard to the templates for construction. Defendant contends that according to paragraph 21, the subject contract was not entered into until April 28, 2015, approximately four months after the alleged statements, giving Cross-Complainant months to verify the statements and view the property to which they were related. 

In opposition, Cross-Complainant argues that it has sufficiently alleged its cause of action for fraud – intentional misrepresentation. 

The Court finds that Cross-Complainant has sufficiently alleged its causes of action for intentional misrepresentation and negligent misrepresentation. Contrary to Defendant’s arguments otherwise, the Cross-Complaint sufficiently alleges when the alleged representations were tendered, “in late November or early December 2014” (Cross-Complaint ¶ 14); how and by what means, orally (Cross-Complaint ¶ 14); and by whom they were tendered, Coppelson. (Cross-Complaint ¶ 14.) While Defendant would prefer more specificity, more specificity is not required, and any ambiguities may be clarified during discovery. The Cross-Complaint, as it stands, is sufficient to give Defendant notice and furnish it with definite charges.  

As to the misrepresentation alleged, the Court is unpersuaded by Defendant’s argument that Coppelson’s oral representation to Boswell “that the properties were to serve as a template for houses to be constructed at 326 Bundy Drive, Los Angeles ("Bundy Project") and at 1814 Marcheeta Place, Los Angeles, CA ("Marcheeta Project")” is a mere opinion or prediction of future events. The statement that the properties were to serve as a template for the houses to be constructed is not a statement about the future, but is rather a statement of Defendant’s intentions at that time. Accordingly, the statement relates to an existing state of mind and is an actionable representation of fact sufficient to withstand demurrer. (Cicone, supra, 183 Cal.App.3d at 203.)

Finally, the Cross-Complaint sufficiently alleges justifiable reliance, as the Cross-Complaint alleges that “several of Coppelson’s family members, including his father, are real estate developers and, as such, Coppelson is knowledgeable regarding real estate development.” (Cross-Complaint ¶ 11.) Accordingly, contrary to Defendant’s arguments, the statements were not made “by a layperson to a professional,” but appear to be statements from one professional to another. Whether or not Coppelson is actually knowledgeable regarding real estate development is a determination that cannot be made on demurrer.

Based on the foregoing, Defendant’s demurrer to the first and second causes of action is OVERRULED.

Third Cause of Action for Breach of Contract

To state a claim for breach of contract, a Plaintiff must allege sufficient facts to establish: (1) a contract between the parties; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff from the breach. (See e.g. Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)  

“On a demurrer, the court must consider the sufficiency of the allegations, including any parol evidence allegations, to determine whether the contract is reasonably susceptible to the plaintiff’s alleged interpretation.” (George v. Automobile Club of So. Cal. (2011) 201 Cal.App.4th 1112, 1128.) A pleader’s legal characterization of a contract is not controlling, particularly when the contract is attached to the pleading. (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1314, citing Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) However, courts will defer to plaintiffs’ reasonable interpretations. (Performance Plastering v. Richmond American Homes of Cal., Inc. (2007) 153 Cal.App.4th 659, 672.) The intent of the parties is a factual question to be resolved outside the demurrer stage. (Duran v. Duran (1983) 150 Cal.App.3d 176, 181 [whether the parties intended their communications to be a binding settlement agreement or an agreement to further negotiate after a formal draft was prepared is a factual question].)

Defendant demurs to the third cause of action for breach of contract arguing that Cross-Complainant fails to allege a breach of any term of the contract. Defendant asserts that paragraph 39 summarily and vaguely alleges that Cross-Defendants breached the subject contract by “hiring a new architect whose plans greatly increased the cost of, and the time required to build, the Project . . .” Defendant contends that the subject contract is attached as Exhibit A to the Cross-Complaint and Cross-Complainant does not specify which part or paragraph is supposedly violated or breached by the hiring of a new architect. Defendant argues that a review of the attached April 28, 2018 contract does not reveal a prohibition on hiring a new architect.

In opposition, Cross-Complainant argues that it has sufficiently alleged its cause of action for breach of contract. Cross-Complainant asserts that Defendant provides no legal authority for the proposition that Cross-Complainant is required to allege the part of the contract that was breached. Cross-Complainant contends that nevertheless, it can easily do so, referring to paragraph 21 of the Cross-Complaint. Cross-Complainant argues that paragraph 21 alleges that the parties entered into the contract for the Marcheeta Project based on the 16-page set of plans Cross-Defendants provided to Boswell for the purpose of preparing its estimate of the cost and the time required to construct the Marcheeta Project. Cross-Complainant asserts that the Article 1, Contract Documents, of the contract attached as Exhibit A to the Cross-Complaint, states that the contract documents consist of several documents, including “Exhibit C List of Plans.” Cross-Complainant contends that Cross-Defendants thus breached the contract by substituting another set of plans that increased the cost and time for construction without compensating Cross-Complainant.

The Court finds that Cross-Complainant has failed to allege facts sufficient to state a cause of action for breach of contract. While courts will defer to a cross-complainant’s reasonable interpretations of a contract, Cross-Complainant’s legal characterization of the contract is not controlling, particularly when the contract is attached to the pleading. Here, Cross-Complainant has failed to allege a proper basis for its breach of contract cause of action, as it has failed to point to the provision that bars Defendant from “hiring a new architect whose plans greatly increased the cost of, and the time required to build, the Project, without compensating Cross-Complain[ant] for the extra costs incurred.” (Cross-Complaint ¶ 39.) While Cross-Complainant points to Article 1 of the contract, which states that the “contract documents represent the entire agreement of both parties and supersede any prior oral or written agreement,” Article 4 provides for the scenario in which changes are made to Articles 1 and 2 of the contract. (Cross-Complaint, Exh. A, Art. 1.) Accordingly, without further allegations regarding the circumstances surrounding the changes or nature of the changes, Cross-Complainant has failed to allege a basis for its breach contract claim.

Based on the foregoing, Defendant’s demurrer to the third cause of action for breach of contract is SUSTAINED with leave to amend.

Conclusion

Defendant’s demurrer to the first and second causes of action is OVERRULED. Defendant’s demurrer to the third cause of action is SUSTAINED with 20 days’ leave to amend.

Moving party to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Case Number: BC697658    Hearing Date: December 05, 2019    Dept: 31

DEMURRER IS OVERRULED; MOTION TO STRIKE IS DENIED.

Background

On March 12, 2018, Plaintiff Broadway Air Conditioning Heating and Sheet Metal, Inc. (“Broadway”) filed a complaint against Defendant 1617 Viewpoint Dr., LLC and 1617 Viewpoint DR1, LLC.

On May 11, 2018, Defendant 1617 Viewmont Dr., LLC (“1617”) [erroneously sued as 1617 Viewpoint Dr., LLC and 1617 Viewpoint DR1, LLC] filed an answer to the complaint, as well as, a cross-complaint.

On July 20, 2018, Broadway filed an answer to the cross-complaint.

On September 24, 2019, the Court consolidated BC697658 and 18STCV10073.

The operative pleading in 18STCV10073 is 1617’s first amended complaint against Defendant Boswell Construction, Inc. (“Boswell”), which was filed on May 22, 2019.

Demurrer and Motion to Strike

Boswell demurs to the 3rd (fraud-intentional misrepresentation) and 4th (fraud-negligent misrepresentation) causes of action. Boswell argues 1617 (i) failed to allege sufficient facts to constitute the causes of action; (ii) did not allege the causes of action with the requisite factual specificity; and (iii) improperly seeks to bootstrap a claim for breach of contract into a tort action in violation of the economic loss rule.

Boswell moves to strike the allegations pertaining to and prayer for punitive damages. Boswell argues Plaintiff did not allege facts showing fraud, oppression, or malice.

Opposition

1617 argues it alleged sufficient facts to support the intentional and negligent misrepresentation causes of action, and the damages allegations are sufficient, and that paragraph 34 and the prayer for punitive damages are proper.

Legal Standard

Demurrer

“The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action [Citation].” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)

“‘A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [Citations]; The allegations of the pleading demurred to must be regarded as true [Citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [Citations], or the construction placed on an instrument pleaded therein [Citation], or facts impossible in law [Citation], or allegations contrary to facts of which a court may take judicial knowledge. [Citations]” (South Shore Land Co. v. Peterson (1964) 226 Cal.App.2d 725, 732.)

“The following basic principle is also applicable to general demurrers, to wit: all that is

necessary against a general demurrer is that upon a consideration of all the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary, notwithstanding the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action or defense shown, or although the plaintiff, in his complaint, or the defendant, in his answer, may demand relief to which he is not entitled under the facts alleged. [Citation]” (Id. at 732-733.)

Motion to Strike

C.C.P. §435(b) provides, as follows:

(1)

(2) Section 1005.

(3)

C.C.P. §436 provides, as follows:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a)

(b)

Discussion

Demurrer

Defendant Boswell Construction, Inc. (“Boswell” or “Defendant”) demurs to the 3rd (fraud-intentional misrepresentation) and 4th (fraud-negligent misrepresentation) causes of action in the first amended complaint of Plaintiff 1617 Viewmont Dr., LLC (“1617” or “Plaintiff”). Defendant argues Plaintiff failed to allege sufficient facts to constitute the causes of action.

Plaintiff’s request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the Statements of Information.

Fraud-Intentional Misrepresentation (3rd COA)

 

“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

“‘Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.’ [Citations] The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Citations]” (Tarmann v. State Farm Mutual Automobile Insurance Company (1991) 2 Cal.App.4th 153, 157.)

Plaintiff has alleged sufficient facts, for purposes of a demurrer, to constitute a cause of action for fraud-intentional misrepresentation against Defendant. Plaintiff alleged Jon Mut (“Mut”), Defendant’s President, made misrepresentations to Aaron Coppelson (“Coppelson”), a representative of Plaintiff, during November 2014 and prior to concluding the contract. (FAC ¶21.) Plaintiff alleged Mut made the verbal representations and had authority to speak on behalf of Defendant during the discussions. (FAC ¶21.) Plaintiff alleged Mut represented to Coppelson that the Project would take 455 calendar days or approximately 15 months to complete and the total cost of the Project would not be more than $4,104,934.02 (20% higher than the estimated figure of $3,420,778.35). (FAC ¶¶22-23.) Plaintiff alleged the representations were false – there was simply no way Defendant could have completed the Project in the promised timeframe and for the total projected estimated cost. (FAC ¶¶24-25, 27.) Plaintiff alleged Defendant had completed no more than 50% of its work on the Project when the Contract was terminated, and the total cost of the Project was nearly double the cost represented by Defendant. (FAC ¶¶24-25.) Plaintiff alleged, on information and belief, Mut made the misrepresentations, acting within the course and scope of his employment with Defendant, with the intent that Plaintiff rely on the misrepresentations and enter into an agreement appointing Defendant as the general contractor on the Project and Plaintiff reasonably relied on the misrepresentations in that Plaintiff was induced to enter into an agreement with Defendant, thereby appointing Defendant as the general contractor on the project. (FAC ¶27.) Plaintiff alleged, on information and belief, that at the time Mut made the misrepresentations he knew the misrepresentations were false when they were made, or he made the misrepresentations recklessly and without regard for their truth. (FAC ¶28.) Plaintiff alleged it was ignorant of the falsity of the misrepresentations at the time they were made and reasonably relied on the misrepresentations, believing them to be true. (FAC ¶29.) Plaintiff alleged that had it known of the truth, it would not have justifiably relied on the misrepresentations to its detriment by entering into the Contract with Defendant. Plaintiff alleged it would have contracted with a different contractor that could meet the Project deadlines and projected costs. (FAC ¶29.) Plaintiff alleged it suffered damages as a result of Defendant’s conduct. (FAC ¶¶30-33.)

Defendant argues Plaintiff improperly seeks to bootstrap a claim for breach of contract into a tort cause of action in violation of the economic loss rule. (Demurrer, pgs. 5-6.) (See Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) However, Defendant did not establish Plaintiff’s intentional and negligent misrepresentation causes of action are barred by the economic loss rule. As discussed above, Plaintiff has alleged sufficient facts to state the intentional and negligent misrepresentation causes of action. The causes of action are based on alleged pre-contract misrepresentations. Plaintiff alleged it relied on the misrepresentations by entering into the Contract. (See Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 78 (“The most widely recognized exception [to the economic loss rule] is when the defendant's conduct constitutes a tort as well as a breach of the contract. For example, when one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort.”); County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 328 (“We believe that the California Supreme Court's decision in Robinson precludes the application of the economic loss rule to any intentional affirmative fraud action where the plaintiff can establish that the fraud exposed the plaintiff to liability.”); and Robinson Helicopter Co., Inc. at 991 (“We hold the economic loss rule does not bar Robinson's fraud and intentional misrepresentation claims because they were independent of Dana's breach of contract. [Citation] Because Dana's affirmative intentional misrepresentations of fact (i.e., the issuance of the false certificates of conformance) are dispositive fraudulent conduct related to the performance of the contract, we need not address the issue of whether Dana's intentional concealment constitutes an independent tort.”).)[1]

Defendant argues Plaintiff failed to allege when Mut made the statements attributed to him. (Demurrer, pg. 7.) However, Plaintiff alleged Mut made the misrepresentations during November 2014 and prior to concluding the Contract. (FAC ¶21.) This allegation is sufficient, for purposes of a demurrer, to support the fraud claim. The specific dates can be determined via discovery.

Defendant argues Mut’s alleged statements are nothing more than non-actionable opinions. (Demurrer, pgs. 7-8.) “The law is quite clear that expressions of opinion are not generally treated as representations of fact, and thus are not grounds for a misrepresentation cause of action. [Citation]” (Neu-Visions Sports v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 308.) However, there are exceptions to this rule, including when “one party states an opinion as a fact, or ‘when one party possesses [or holds [himself] [herself] out as possessing] superior knowledge or special information regarding the subject of a representation, and the other party is so situated that [he] [she] may reasonably rely upon such supposed superior knowledge or special information…’” (Id.) Such statements “‘will be treated as a representation of fact although if made by any other person it might be regarded as an expression of opinion.’ [Citation]” (Id.) Plaintiff alleged facts suggesting the alleged misrepresentations fall within these exceptions. Plaintiff alleged “Mut held [Defendant] out to be specially qualified and with superior knowledge about the Project than Plaintiff.” (FAC ¶26.) Plaintiff alleged it “is so situated that it may, and did, reasonably rely upon [Defendant’s] superior knowledge.” (FAC ¶26.) Plaintiff alleged, on information and belief, “that any opinion stated by…Mut was stated not as a casual expression of belief, but was stated as an existing fact or implied facts in a way that declared the matter to be true and which justified Plaintiff’s belief in the truth of such statement.” (FAC ¶26.)

Defendant argues that Mut’s statements (as to cost and time of completion), even if not opinions, could only be false if no changes were made to the design, no additional work was required, and Plaintiff did not specify more expensive fixtures and furnishings than originally contemplated. (Demurrer, pg. 8.) However, as discussed above, Plaintiff alleged sufficient facts to constitute the fraud cause of action, including that Mut represented the total cost of the Project would not be more than 20% higher than the estimated figure of $3,420,778.35, and the Project cost was nearly double the cost represented by Defendant. (FAC ¶¶23, 25.) Any discrepancies between the representations and the actual construction process go to the merits of the case and not proper for the Court to consider at the demurrer stage.

Defendant argues Plaintiff’s failure to specify the types and amounts of damages sought is fatal to its claim. (Demurrer, pg. 9.) Specifically, Defendant argues Plaintiff failed “to say how or why it suffered damages. For example, there is no allegation that the building was worth less than the cost of construction, that Plaintiff incurred costs due to delays within the control of [Defendant], or that the house sold for less than it would have had it been completed within the estimated time frame.” (Demurrer, pg. 9.) Defendant also argues the fraud cause of action fails because Plaintiff did not specify the amount of damages sought or the amounts and types of special damages sought. (Demurrer, pg. 9.) However, Plaintiff alleged it suffered and continues to suffer damages “in an amount to be determined at trial but in excess of the jurisdictional minimum of this court” as a result of Defendant’s conduct. (FAC ¶¶31-34.) (See Greenup v. Rodman (1986) 42 Cal.3d 822, 830 (“Each of plaintiff's causes of action, with the exception of her personal injury claim, concluded with the allegation that she suffered damage ‘in an amount that exceeds the jurisdictional requirements of this court.’ Plaintiff brought her action in the Los Angeles Superior Court, which is a court of limited jurisdiction subject to the requirement that the amount in controversy exceed $15,000. (Former § 86.) By her allegations, plaintiff thus gave sufficient notice to defendants that she claimed at least $15,000 in compensatory damages. While an award in excess of $ 15,000 would be improper, a judgment in that amount was within the jurisdiction of the court. [Citation] The compensatory award should therefore be reduced to the extent that it exceeds $15,000.”).)

Plaintiff also alleged Coppelson informed Mut, during the pre-contract discussions, that time was of the essence, Coppelson intended to sell the home soon after construction was completed, and he needed to have the home completed in time so that it was ready for the market in the lucrative spring/summer season. (FAC ¶22.) Plaintiff alleged Defendant knew or had reason to know that Plaintiff intended to list the finished home during the optimum spring/summer period for purposes of selling the finished home for sale and any delays would result in likely reduction of the sale price. Plaintiff alleged Defendant knew or should have known Plaintiff intended to sell the home to a third party during the optimum spring/summer period that would have resulted in an economic benefit to Plaintiff. (FAC ¶30.) Plaintiff alleged Defendant’s conduct prevented Plaintiff from putting the home on the market during the optimum spring/summer period and resulted in a delay in the home being sold. Plaintiff alleged that, to date, the home is yet to be sold and Plaintiff had to substantially lower the sales price of the home due to the delays in the home being placed on the market. (FAC ¶¶31-32.)

Based on the foregoing, Defendant’s demurrer to the 3rd COA is overruled.

 

Fraud-Negligent Misrepresentation (4th COA)

“Negligent misrepresentation is a species of the tort of deceit and, like fraud, requires a misrepresentation, justifiable reliance and damage. [Citation] ‘The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.’ [Citation]” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 181-182.)

Plaintiff alleged sufficient facts, for purposes of a demurrer, to constitute a cause of action for fraud-negligent misrepresentation. As set forth above, Plaintiff alleged Mut made representations and the representations were false. (FAC ¶¶35-47.) Plaintiff alleged that “even if Defendants honestly believed the representation[s were] true, Defendants had no reasonable grounds for believing the representation[s were] true when they made [them].” (FAC ¶39.) Plaintiff also alleged it justifiably relied on the misrepresentations and suffered resulting damages. (FAC ¶¶41-47.)

Based on the foregoing and the discussion above, Defendant’s demurrer to the 4th COA is overruled.

Motion to Strike

Defendant moves to strike the allegations pertaining to and prayer for punitive damages in Plaintiff’s first amended complaint.

Plaintiff alleged sufficient facts, for purposes of a demurrer, to support the prayer for punitive damages. As set forth above, Plaintiff alleged facts suggesting Defendant engaged in fraud. (See Civil Code §3294(a)-(c).)

Based on the foregoing, Defendant’s motion to strike is denied.

Conclusion

Defendant’s demurrer to the 3rd and 4th COAs in the first amended complaint is

overruled.

Defendant’s motion to strike is denied.

Moving party to give notice.


[1] The holding in Robinson Helicopter Co., Inc. is limited to “a defendant's affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff to liability for personal damages independent of the plaintiff's economic loss.” (Id. at 993.)

Case Number: BC697658    Hearing Date: November 13, 2019    Dept: 31

DEMURRER WITH MOTION TO STRIKE IS OFF-CALENDAR.

Boswell Construction, Inc.’s demurrer with motion to strike is placed OFF CALENDAR. The Court notes that while LASC Case No. 18STCV10073, 1617 Viewmount Drive, LLC v. Boswell Construction, Inc., was consolidated with the instant case, the cases were consolidated for trial only. Accordingly, all motions related only to Case No. 18STCV10073 and its pleadings must be filed in Case No. 18STCV10073. Boswell Construction, Inc. is not a party to this action. 

Moving Party to give notice.