This case was last updated from Los Angeles County Superior Courts on 01/03/2023 at 21:54:40 (UTC).

CONSTRUCTURE, INC., A CALIFORNIA CORPORATION VS ASI BUILDERS INC., A CALIFORNIA CORPORATION, ET AL.

Case Summary

On 03/01/2022 CONSTRUCTURE, INC , A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against ASI BUILDERS INC , A CALIFORNIA CORPORATION,. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are DEIRDRE HILL, WENDY CHANG and DAVID J. COWAN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0156

  • Filing Date:

    03/01/2022

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DEIRDRE HILL

WENDY CHANG

DAVID J. COWAN

 

Party Details

Cross Defendant and Plaintiff

CONSTRUCTURE INC. A CALIFORNIA CORPORATION

Defendants and Cross Plaintiffs

8521 S LLC A CALIFORNIA LIMITED LIABILITY COMPANY

ASI BUILDERS INC. A CALIFORNIA CORPORATION

SVILIK ALAN JAMES

SVILIK ISABELLA

SVILIK VICTOR

THE WESTERN SURETY COMPANY A SOUTH DAKOTA CORPORATION

UMPQUA BANK AN OREGON CORPORATION

HARCO NATIONAL INSURANCE COMPANY

Cross Defendants, Cross Plaintiffs and Defendants

ASI BUILDERS INC. A CALIFORNIA CORPORATION

THE WESTERN SURETY COMPANY A SOUTH DAKOTA CORPORATION

CONSTRUCTURE INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

BECERRA THERESA C.

Defendant Attorneys

PAGAN JOHN MICHAEL

MIKHAEL-FARD DANIELLA

 

Court Documents

Complaint

3/1/2022: Complaint

Notice - NOTICE OF COURT'S RULING DENYING MOTION TO DEEM CASES RELATED

12/5/2022: Notice - NOTICE OF COURT'S RULING DENYING MOTION TO DEEM CASES RELATED

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER PLAINTIFF AND DEFENDANT JOINT MOTIO...)

12/1/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER PLAINTIFF AND DEFENDANT JOINT MOTIO...)

Opposition - OPPOSITION TO COMPEL APPOINTMENT OF A JUDICIAL REFEREE FILED BY WESTERN SURETY COMPANY

11/29/2022: Opposition - OPPOSITION TO COMPEL APPOINTMENT OF A JUDICIAL REFEREE FILED BY WESTERN SURETY COMPANY

Minute Order - MINUTE ORDER (COURT ORDER)

11/18/2022: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/18/2022

11/18/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/18/2022

Stipulation and Order - STIPULATION AND [PROPOSED] ORDER TO CONTINUE HEARING REGARDING APPORTIONMENT OF REFEREE'S FEES AND ALL RELATED DEADLINES

11/9/2022: Stipulation and Order - STIPULATION AND [PROPOSED] ORDER TO CONTINUE HEARING REGARDING APPORTIONMENT OF REFEREE'S FEES AND ALL RELATED DEADLINES

Answer - VERIFIED ANSWER BY CROSS- DEFENDANT CONSTRUCTURE, INC. TO CROSS-COMPLAINT FILED BY INTERPLEADER CROSS- COMPLAINANT WESTERN SURETY COMPANY

10/27/2022: Answer - VERIFIED ANSWER BY CROSS- DEFENDANT CONSTRUCTURE, INC. TO CROSS-COMPLAINT FILED BY INTERPLEADER CROSS- COMPLAINANT WESTERN SURETY COMPANY

Proof of Service (not Summons and Complaint) - PROOF OF SERVICE

10/20/2022: Proof of Service (not Summons and Complaint) - PROOF OF SERVICE

Answer

10/20/2022: Answer

Proof of Service by Mail - PROOF OF SERVICE

10/20/2022: Proof of Service by Mail - PROOF OF SERVICE

Motion re: - PLAINTIFFS AND DEFENDANTS JOINT NOTICE OF MOTION AND MOTION TO RELATE CASES; MEMORANDUM OF POINTS AND AUTHORITIES

10/3/2022: Motion re: - PLAINTIFFS AND DEFENDANTS JOINT NOTICE OF MOTION AND MOTION TO RELATE CASES; MEMORANDUM OF POINTS AND AUTHORITIES

Request for Judicial Notice

10/3/2022: Request for Judicial Notice

Proof of Service (not Summons and Complaint)

10/3/2022: Proof of Service (not Summons and Complaint)

Notice - SECOND AMENDED NOTICE OF RELATED CASE

8/31/2022: Notice - SECOND AMENDED NOTICE OF RELATED CASE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NOTICE OF RELATED CASES) OF 09/02/2022

9/2/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NOTICE OF RELATED CASES) OF 09/02/2022

Minute Order - MINUTE ORDER (COURT ORDER RE: NOTICE OF RELATED CASES)

9/2/2022: Minute Order - MINUTE ORDER (COURT ORDER RE: NOTICE OF RELATED CASES)

Notice - NOTICE OF ORDER ON STIPULATION CONTINUING HEARINGS FROM SEPTEMBER 15, 2022 TO SEPTEMBER 27, 2022

9/12/2022: Notice - NOTICE OF ORDER ON STIPULATION CONTINUING HEARINGS FROM SEPTEMBER 15, 2022 TO SEPTEMBER 27, 2022

55 More Documents Available

 

Docket Entries

  • 03/08/2023
  • Hearing03/08/2023 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing - Other determination of apportionment of referee's fees; referral to Dept. 1; and possible stay of remainder of the case

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  • 02/02/2023
  • Hearing02/02/2023 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Case Management Conference

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  • 02/02/2023
  • Hearing02/02/2023 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Order to Show Cause Re: Failure to File Proof Of Service; Failure to Prosecute Case; Failure to File Request for Entry of Default

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  • 12/05/2022
  • DocketNotice of Court's Ruling Denying Motion to Deem Cases Related; Filed by: CONSTRUCTURE, INC., a California corporation (Plaintiff); As to: ASI BUILDERS INC., a California corporation (Defendant); THE WESTERN SURETY COMPANY, a South Dakota Corporation (Defendant)

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  • 12/01/2022
  • DocketMinute Order (Hearing on Motion - Other Plaintiff and Defendant Joint Motio...)

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  • 12/01/2022
  • DocketHearing on Motion - Other Plaintiff and Defendant Joint Motion to Deem Matters Related scheduled for 12/01/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 1 updated: Result Date to 12/01/2022; Result Type to Held

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  • 11/29/2022
  • DocketOpposition to Compel Appointment of a Judicial Referee Filed by Western Surety Company; Filed by: THE WESTERN SURETY COMPANY, a South Dakota Corporation (Cross-Complainant)

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  • 11/18/2022
  • DocketMinute Order (Court Order)

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  • 11/18/2022
  • DocketCertificate of Mailing for (Court Order) of 11/18/2022; Filed by: Clerk

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  • 11/18/2022
  • DocketOn the Court's own motion, Case Management Conference scheduled for 12/05/2022 at 10:00 AM in Torrance Courthouse at Department M Not Held - Advanced and Continued - by Court was rescheduled to 02/02/2023 08:30 AM

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97 More Docket Entries
  • 03/18/2022
  • DocketNotice of Lis Pendens; Filed by: CONSTRUCTURE, INC., a California corporation (Plaintiff)

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  • 03/07/2022
  • DocketCase Management Conference scheduled for 06/29/2022 at 08:30 AM in Torrance Courthouse at Department M

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  • 03/07/2022
  • DocketOrder to Show Cause Re: Failure to File Proof Of Service; Failure to Prosecute Case; Failure to File Request for Entry of Default scheduled for 06/29/2022 at 08:30 AM in Torrance Courthouse at Department M

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  • 03/07/2022
  • DocketNotice of Case Management Conference; Filed by: Clerk

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  • 03/07/2022
  • DocketOrder to Show Cause (Hearing); Filed by: Clerk

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  • 03/07/2022
  • DocketCase assigned to Hon. Deirdre Hill in Department M Torrance Courthouse

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  • 03/01/2022
  • DocketComplaint; Filed by: CONSTRUCTURE, INC., a California corporation (Plaintiff); As to: ASI BUILDERS INC., a California corporation (Defendant); 8521 S, LLC, a California limited liability company (Defendant); UMPQUA BANK, an Oregon corporation (Defendant) et al.

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  • 03/01/2022
  • DocketSummons on Complaint; Issued and Filed by: CONSTRUCTURE, INC., a California corporation (Plaintiff); As to: ASI BUILDERS INC., a California corporation (Defendant); 8521 S, LLC, a California limited liability company (Defendant); UMPQUA BANK, an Oregon corporation (Defendant) et al.

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  • 03/01/2022
  • DocketCivil Case Cover Sheet; Filed by: CONSTRUCTURE, INC., a California corporation (Plaintiff); As to: ASI BUILDERS INC., a California corporation (Defendant); 8521 S, LLC, a California limited liability company (Defendant); UMPQUA BANK, an Oregon corporation (Defendant) et al.

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  • 03/01/2022
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: *******0156 Hearing Date: December 1, 2022 Dept: 1

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Constructure, Inc.,

Plaintiff,

vs.

ASI Builders, Inc., 8521 S, LLC, Harco National Insurance Company, The Western Surety Company, and Does 1-100,

Defendants.

)

)

)

)

)

)

)

)

)

)

*******0156

[TENTATIVE] ORDER ON MOTION TO RELATE CASES

Constructure, Inc. v. ASI Builders, Inc., et al. (*******0156); William Doyle v. Constructure, Inc., et al. (22STCV23052); Associated Ready Mixed Concrete, Inc. v. 8521 S, LLC, et al. (22STCV10429); A&A Ready Mixed Concrete, Inc. v. 8521 S, LLC, et al. (22STCV10478); Fleming & Sons Concrete Pumping, Inc. v. Constructure Inc., et al. (22STLC01774)

On April 13, 2022, Constructure, Inc. filed a Notice of Related Case indicating civil cases *******0156, 22STCV10478, 22STCV10429, and 22STLC01774 are related. On June 16, 2022, Constructure, Inc. filed a Notice of Related Case indicating civil cases *******0156, 22STCV10478, 22STCV10429, and 22STLC01774 are related to Orange County Superior Court civil cases 30-2022-01251834-CU-BC-CJC (Associated Ready Mixed Concrete, Inc. v. Constructure, Inc., et al.) and 30-2022-01251811-CU-BC-CJ (A&A Ready Mixed Concrete, Inc. v. Constructure, Inc., et al.). On July 19, 2022, Constructure filed a Notice of Related Case indicating civil case 22STCV03423 and 22AHCV00189 are also related to the foregoing cases. On July 18, 2022, 8521 S, LLC filed a Notice of Related Case indicating civil cases *******0156, 22STCV10478, 22STCV10429, and 22STLC01774 are related. On August 31, 2022, Constructure filed a Notice of Related Case indicating case 22STCV23052 is related to cases 22STCV10478, 22STCV10429, 22STLC01774, and *******0156. On September 2, 2022, Judge Wendy Chang concluded 22STCV03423, *******0156, 22STLC01774, 22STCV10429, 22STCV10478, 22AHCV00189, 30-2022-01251834-CU-BC-CJC and 30-2022- 01251811-CU-BC-CJC are not related. On September 14, 2022, Judge Deirdre Hill declined to relate cases 22STCV03423 and 22AHCV00189 to the cases that were not related by Judge Chang.

On October 3, 2022, Constructure and ASI Builders Inc. filed a Motion to Relate Cases in Department 1, seeking an order relating cases *******0156, 22STCV23052, 22STCV10429, 22STCV10478, and 22STLC01774. (CRC 3.300(h)(1)(D) (authorizing the Supervising Judge of the Civil Division to relate cases upon motion after relation is denied under 3.300(h)(1)(A)-(C).) No Opposition has been filed. The Court GRANTS the Joint Request for Judicial Notice of the September 14, 2022 minute order in *******0156 as well as the Complaints and Amendments to Complaints filed in cases 22STCV10478, 22STCV10429, 22STLC01774, and 22STCV23052.

Cases are related when they (1) involve the same parties and are based on the same or similar claims, (2) arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact, (3) involve claims against, title to, possession of, or damages to the same property, or (4) are likely for other reasons to require substantial duplication of judicial resources if heard by different judges. (CRC 3.300(a).)

In order of filing, the cases sought to be related are:

Constructure, Inc. v. ASI Builders, Inc., et al. (*******0156) – initiated on March 1, 2022 when Constructure, Inc. filed a Complaint against ASI Builders Inc., 8521 S LLC, Umpqua Bank, Victor Svilik, Alan James Svilik, Isabella Svilik, The Western Surety Company, and Does 1-100 statin causes of action for breach of contract, foreclosure of mechanic's lien, recovery on contractor's license bond, violation of Bus. & Prof. Code sec. 7108.5, and common counts for account stated, open book account, and quantum meruit. On June 6, 2020, Constructure allegedly "bid on a construction contract" for a project at Sepulveda Square Apartments at 8521 S. Sepulveda Blvd., Los Angeles, CA 90045. In September 2020, ASI and Constructure "entered into a subcontract agreement" for Constructure to provide construction work on the project for $2,220,000.00. However, ASI allegedly paid only $1,779,345.32, "leaving a balance of $440,654.68" on the subcontract. Constructure alleges it performed "additional work [that] became necessary and/or was requested by ASI," but alleges its "written change orders remain pending or have been denied" by ASI. Constructure alleges the "unpaid balance on these Change Orders was $755,526.15." Constructure also alleges Western Surety issued "a certain contractor's bond" to ASI and seeks recovery against the contractor’s license bond for ASI's failure "to pay all sums due to Constructure" under the subcontract.

On May 17, 2022, Constructure voluntarily dismissed without prejudice its claims against Umpqua Bank and the Svilik defendants.

On May 20, 2022, Constructure filed a First Amended Complaint naming additional defendant Harco National Insurance Company and stating a new cause of action for recovery on mechanic's lien release bond. On December 2, 2021, Constructure allegedly "recorded a verified mechanic's lien on the Project for $1,189,594.88." But in February 2022, 8521 S LLC, the owner of the Project, "recorded a Release of Lien Bond in the amount of $1,784,392.32" with "HARCO as surety." Constructure seeks to recover against the release bond "as a source of recovery . . . on its claim of lien for work it performed on the Project."

On June 23, 2022, ASI Builders filed a Cross-Complaint against Constructure and Roes 1-100 stating causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, and unjust enrichment. ASI alleges it "agreed to pay Constructure $2,220,000.00 for the Work" specified for the project. However, Constructure allegedly "abandoned the Project and failed to complete the Work in a satisfactory manner," only "perform[ing] about 95% of the Work" and claiming over $700,000.00 "in unsubstantiated and unapproved Change Orders." In November 2021, ASI alleges it served a "Notice to Perform" providing Constructure "one (1) day" to "increase [its] supply of materials and number of men to maintain progress . . . or correct any defects, failures or complaints." In December 2021, ASI's "principal, Victor Svilik," reached out to "Constructure's representatives” to state that "Constructure's right to perform any further work was terminated" for failure to comply with the Notice to Perform. ASI alleges Constructure breached the subcontract when it "failed to manage the Project efficiently and abandoned [it] prior to the completion of the Work."

On September 20, 2022, Western Surety Company filed a Cross-Complaint for interpleader of $15,000 in disputed funds related to its surety bond.

This case is assigned to Department M of the Torrance courthouse with a Case Management Conference set for February 2, 2023.

Fleming & Sons Concrete Pumping, Inc. v. Constructure Inc., et al. (22STLC01774) – initiated on March 17, 2022 when Fleming & Sons Concrete Pumping, Inc. filed a Complaint against Constructure, 8521 S LLC, and Does 1-10 stating causes of action for breach of contract, foreclosure on mechanic's lien, and common counts for open book account, account stated, and value of services rendered (“work furnished”). The Complaint alleges Fleming contracted with Constructure to work on a construction project at Sepulveda Square Apartments "[c]ommencing on or about November 14, 2020." However, Constructure "fail[ed] and refus[ed] to pay [Fleming] for all of the Work provided," specifically concrete pumping services.

On April 18, 2022, Fleming filed a First Amended Complaint omitting 8521 S LLC, omitting a cause of action for foreclosure on mechanic’s lien, and naming additional defendant Harco National Insurance Company, and stating a new cause of action for recovery on mechanic's lien release bond. Fleming seeks to recover against a "Bond for Release of Mechanic's Lien" issued by Harco in favor of 8521 S LLC in January 2022 "with respect to [Fleming's] Mechanic's Lien."

This case is assigned to Department 25 of the Spring Street courthouse with a bench trial set to begin on September 14, 2023.

Associated Ready Mixed Concrete, Inc. v. 8521 S, LLC, et al. (22STCV10429) – initiated on March 25, 2022 when Associated Ready Mixed Concrete, Inc. (“ARMC”) filed a Complaint against 8521 S LLC, ASI Builders, Inc., Umpqua Bank, and Does 1-100 stating causes of action for foreclosure on mechanic's lien and recovery against mechanic's lien release bond. In January 2021, ARMC allegedly provided concrete to Constructure for use on the project. However, Constructure allegedly failed to pay ARMC for the concrete (and pay “a processing fee”). ARMC alleges Constructure owes $29,088.84. In January 2022, ARMC allegedly recorded a mechanic's lien against the Property in that amount. However, an unidentified surety "issued a Mechanic's Lien Release Bond" which is "conditioned for the payment in full of [ARMC's] claims." ARMC seeks to recover against that release bond.

On May 24, 2022, ARMC filed an Amendment to Complaint identifying Harco National Insurance Company as Doe 91.

On June 29, 2022, Harco National Insurance Company and ASI Builders each filed an Answer to the Complaint.

On July 7, 2022, ARMC voluntarily dismissed its claims against 8521 S LLC and Umpqua Bank without prejudice.

On August 1, 2022, ASI Builders filed a Cross-Complaint against ARMC, Constructure, and Roes 1-100 stating causes of action for contribution and express and implied contractual indemnity. ASI alleges ARMC provided concrete to Constructure in January 2021, but that Constructure subsequently abandoned the project. ASI’s subcontract with Constructure allegedly included a clause whereby Constructure agreed to indemnify ASI and the owner of the property for claims "arising either directly or indirectly on account off bodily injuries, death, or damage to property resulting from the willful or negligent acts or omissions of [Constructure], [its] employees, agents, or representatives

On September 9, 2022, ARMC dismissed its claims against ASI without prejudice.

On September 19, 2022, ASI Builders voluntarily dismissed its cross-claims against ARMC without prejudice.

On October 4, 2022, Constructure filed an Answer to the Cross-Complaint.

This case is assigned to Department 45 of the Stanley Mosk courthouse with a Status Conference set for January 10, 2023.

A&A Ready Mixed Concrete, Inc. v. 8521 S, LLC, et al. (22STCV10478) – initiated on March 25, 2022 when A & A Ready Mixed Concrete, Inc. (“A&A”) filed a Complaint against 8521 S LLC, ASI Builders, Inc., Umpqua Bank, and Does 1-100 stating causes of action for foreclosure on mechanic's lien and recovery against mechanic's lien release bond. In June 2021, A&A allegedly provided concrete to Constructure, but Constructure failed to pay for the materials. A&A alleges Constructure owes $136,848.94. In January 2022, A&A allegedly recorded a mechanic's lien against the Property in that amount. However, an unidentified surety "issued a Mechanic's Lien Release Bond" which is "conditioned for the payment in full” of A&A’s claims. A&A seeks to recover against that release bond.

On June 28, 2022, A&A voluntarily dismissed its claims against 8521 S LLC and Umpqua Bank without prejudice.

On August 1, 2022, ASI Builders filed a Cross-Complaint against A&A, Constructure, and Roes 1-100 stating causes of action for contribution and express and implied contractual indemnity. ASI alleges A&A provided concrete to Constructure in June 2021, but that Constructure subsequently abandoned the project. ASI’s subcontract with Constructure allegedly included an indemnity clause which ASI contends is applicable to A&A’s claims.

On September 9, 2022, ASI Builders voluntarily dismissed its cross-claims against A&A without prejudice. A&A concurrently dismissed its claims against ASI without prejudice.

On October 4, 2022, Constructure filed an Answer to the Cross-Complaint.

This case is assigned to Department 73 of the Stanley Mosk courthouse with a Case Management Conference set for January 4, 2023.

William Doyle v. Constructure, Inc., et al. (22STCV23052) – initiated on July 15, 2022 when William Doyle (dba Collection Network) filed a Complaint against Constructure, Inc., Benjamin J. Bohannan, 8521 S LLC, and Does 1-20 stating causes of action for breach of written contract, personal guaranty, foreclosure on mechanic's lien, and common counts for account stated, open book account, and reasonable value of services. The Complaint alleges Constructure obtained a line of credit from PDQ Enterprises, Inc. (dba PDQ Rentals) in 2017 in order to "rent equipment on credit," accumulating a debt to PDQ of $27,907.23. The Complaint alleges Bohannan personally guaranteed "payment of all charges made by" Constructure. Doyle is the alleged successor in interest of PDQ.

On September 28, 2022, Doyle filed a First Amended Complaint naming additional defendant Harco National Insurance Company and stating additional causes of action for recovery on surety bond and quantum meruit.

On November 10, 2022, Harco National Insurance Company filed an Answer.

On November 14, 2022, 8521 S LLC filed an Answer.

On November 15, 2022, Constructure and Bohannan each filed an Answer.

This case is assigned to Department 58 of the Stanley Mosk courthouse with a Case Management Conference set for February 22, 2023.

Constructure and ASI Builders request that Department 1 relate five cases: *******0156, 22STCV23052, 22STCV10429, 22STCV10478, and 22STLC01774. Moving parties argue the cases are related because they arise from “the work that was done on the Project, which was managed by both [Constructure], as the lead subcontractor, and [ASI Builders], as the project manager” and require determination of a common issue of law or fact, namely “whether there [are] outstanding amounts owed from the work done on the Project.” (CRC 3.300(a)(2).) The Motion to Relate is unopposed.

The Court finds the cases are not related. Initially, the cases do not arise from substantially identical events or transactions requiring determination of common factual and legal issues. (CRC 3.300(a)(2). All five cases generally concern work performed at, or materials provided for, the same construction project by or at request of Constructure and ASI. But the cases arise from substantially different events and transactions. In earliest-filed case *******0156, Constructure seeks compensation for work performed for the Project while ASI seeks relief for Constructure’s abandonment of the Project. Constructure alleges it performed the agreed-upon work and further necessary and/or requested work, but was not paid for its services. ASI claims Constructure completed “95%” of the work, but breached the subcontract by failing to complete the Project even after service of a “Notice to Perform.”

By contrast, the latter four cases involve claims against Constructure for failing to pay for materials or work related to the Project. In cases 22STCV10429 and 22STCV10478, ARMC and A&A seek payment for ready-mixed concrete provided to Constructure for use at the Project in January and June 2021, respectively. In both cases, ASI seeks indemnification and/or contribution from Constructure under the subcontract for the Project. In 22STCV23052, Doyle seeks to recover on a debt that Constructure accumulated renting equipment from Doyle’s predecessor in interest, PDQ, and seeks to recover on a bond issued by Harco. In 22STLC01774, Fleming seeks relief against Constructure for failing to pay for services provided and seeks to recover against a mechanic’s lien release bond issued by Harco.

The events and transactions at issue are not “substantially identical.” (CRC 3.300(a)(2).) One case arises from a subcontract between Constructure and ASI for work on the Project, while two of the cases concern separate contracts by Constructure to purchase ready-mixed concrete from distinct entities, and the last two cases concern Constructure’s debts for concrete pumping services and rental of construction equipment from PDQ. Moreover, the cases do not involve the “same parties” and the “same or similar claims.” (CRC 3.300(a)(1).) While Constructure and Harco are parties to all five cases, the cases otherwise involve a variety of different parties. Each case involves a different plaintiff, and moving party ASI is not a party to cases 22STCV23052 and 22STLC01774.

Though the cases present claims to recovery under mechanic’s lien release bonds issued by Harco National Insurance Company, and could present overlapping questions of law concerning interpretation of the bonds, moving parties did not argue or establish any similarities between the bonds. Moreover, the issue of recovery under each mechanic’s lien release bond will depend on the factual circumstances specific to each plaintiff that initially filed the mechanic’s lien. Hence, relating the cases may counterproductively blur the distinction between distinct claims.

The cases do not involve “claims against, title to, possession of, or damages to the same property.” (CRC 3.300(a)(3).) None of the cases involve title or possession of the real property where the Project took place—rather, the cases largely concern damages for unpaid materials or services provided in connection with the Project and collection against mechanic’s lien release bonds. Though ASI’s Cross-Complaint in case *******0156 asserts Constructure negligently abandoned the Project, which could be construed as a claim for damages to the property, none of the other four cases involve claims of “damages to the same property.”

Finally, Constructure and ASI argue relating the cases “is likely to result in economies in that discovery can be coordinated, thus avoiding duplication of effort, and many pretrial motions and legal issues are likely to be common to all cases.” (Motion, p. 5.) However, Constructure and ASI fail to identify any common anticipated “pretrial motions” or “legal issues.” Moving parties simply argue the cases center on “the work that was done on the Project” and “whether there [are] outstanding amounts owed from the work done on the Project.” (Motion, p. 11.) But as discussed above, case *******0156 concerns whether Constructure is owed for work on the Project, while the remaining cases concern whether other entities are owed for work and materials provided to Constructure for the Project. Moreover, the parties are free and able to coordinate discovery as appropriate between the cases.

Thus, the Motion to Relate is DENIED.

Moving parties to give notice.



Case Number: *******0156 Hearing Date: September 27, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

CONSTRUCTURE, INC.,

Plaintiff,

Case No.:

*******0156

vs.

[Tentative] RULING

ASI BUILDERS INC., et al.,

Defendants.

Hearing Date: September 27, 2022

Moving Parties: Defendant and cross-complainant ASI Builders Inc.

Responding Party: Plaintiff and cross-defendant Constructure, Inc.

Motion to Compel Judicial Reference and to Stay the Action Pending Judicial Reference

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. The case is transferred to Dept. 1 to appoint a referee.

BACKGROUND

On March 1, 2022, Constructure, Inc. filed a verified complaint against ASI Builders Inc., 8521 S, LLC, Umpqua Bank, Victor Svilik, Alan James Svilik, Isabella Svilik, and The Western Surety Company for (1) foreclosure of mechanic’s lien, (2) breach of contract, (3) account stated, (4) open book account, (5) violation of Bus. and Prof. Code 7108.5, (6) recovery on contractor’s license bond, and (7) quantum meruit.

On May 17, 2022, plaintiff filed a request for dismissal as to Umpqua Bank, Victor Svilik, Alan James Svilik, and Isabella Svilik.

On May 20, 2022, plaintiff filed a FAC.

On June 23, 2022, ASI Builders Inc. filed a cross-complaint for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) negligence, and (4) unjust enrichment/restitution.

LEGAL AUTHORITY

Under CCP 638 states, in relevant part: “A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties: [ ] (a) To hear and determine any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. [ ] (b) To ascertain a fact necessary to enable the court to determine an action or proceeding.”

Cal. Rules of Court, Rule 3.901 provides the procedures for an order appointing a referee under CCP 638. A party must either submit a written stipulation or motion for an order appointing a referee under CCP 638. Rule 3.901(a).) In addition, the motion for the appointment of a referee under section 638 must:

(1) Clearly state whether the scope of the requested reference includes all issues or is limited to specified issues;

(2) State whether the referee will be privately compensated;

(3) If authorization to use court facilities or court personnel is requested, describe the use requested and state the reasons that this would further the interests of justice;

(4) If the applicant is requesting or the parties have stipulated to the appointment of a particular referee, be accompanied by the proposed referee's certification as required by rule 3.904(a); and

(5) Be accompanied by a proposed order that includes the matters specified in rule 3.902.

Rule 3.901(b).)

“A general reference may be had only with the consent of the parties.” Ellsworth v. Ellsworth (1954) 42 Cal.2d 719, 722 [citing prior version of Code of Civil Procedure section 638]. “[T]he court has no power to make an unconsented-to general reference, which conclusively decides all or part of a matter, because not only is such a general reference not authorized except by explicit agreement of the parties . . . but also, the California Constitution prevents delegation of judicial power except for the performance of ‘subordinate judicial duties,’” which does not include “[d]eciding a major legal issue in a case, which probably will determine liability.” Aetna Life Insurance Co. v. Superior Court (1986) 182 Cal. App. 3d 431, 435-436.

Los Angeles County Superior Court Rules, Rule 2.24(a)(2) provides that “[t]he Supervising Judge of the Civil . . . Division [shall] appoint a referee who will hear the case for all purposes, including judgment.”

DISCUSSION

Pursuant to CCP 638, et seq., defendant and cross-complainant ASI Builders Inc. requests that the court order plaintiff and cross-defendant Constructure, Inc. to judicial reference to resolve the claims in this matter and to stay this matter pending that judicial reference proceeding.

Defendant contends that the parties have a binding judicial reference clause within the subject Subcontract Agreement. See Contract dated September 1, 2020, para. 16.

Paragraph 16 states in part: “ALTERNATIVE DISPUTE RESOLUTION. If any action or proceeding is commenced by either party to enforce any right or recover any damages in connection with any claim arising out of or related to this Agreement, all of the issues in such action, whether of fact, equity, or law, shall be heard by a reference proceeding, in the Superior Court of the State of California, for the County of Los Angeles pursuant to the provisions of [CCP 638 through 645.1. Upon the commencement of any such action or proceeding, the parties shall endeavor to agree upon a retired Superior Court Judge or Supreme Court or Court of Appeal Justice from the then current list of retired judges available to serve as referees in Los Angeles County. . . . The parties shall advance, in equal shares, the fees and expenses of the referee selected pursuant to this Section but the losing party in such action or proceeding shall, in addition to paying any judgment awarded by the referee, reimburse the other party for any and all fees and expenses previously advanced by such party for the referee.”

Defendant asserts that plaintiff made interlineations, including at para. 16: “Any legal fees, attorney fees, mediation, fees, all fees shall be paid by owner until resolution is reached prevailing party shall be entitled to full compensation for all costs spent.” Plaintiff initialed this interlineation and signed the agreement on September 11, 2020. ASI crossed out plaintiff’s interlineation, signed the contract, and sent it back to Constructure in October 2020.

Defendant contends that after such removal of the added language, Constructure did not dispute such removal and continued to work on the project until December 2021. Thus, defendant argues, Constructure accepted the changes made by ASI, citing to Civil Code 1584 (“Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal.”) and ratified the changes made by ASI by continuing to perform work on the project and accepting payments for such work.

Defendant also notes that in plaintiff’s verified FAC, at para. 11, plaintiff alleges: “By recording a claim of lien and enforcing same by commencing this action, Constructure does not intend to waive any right to alternative dispute resolution, including mediation, arbitration, and/or judicial reference, and intends to file a stipulation or move the court, within 30 days after service of the summons an complaint, for an order to stay further proceedings in the action pending the completion of the contractually-required alternative dispute resolution.”

Thus, defendant argues, both parties’ claims should be resolved by binding judicial reference because the intent of the parties was memorialized in the subcontract and by plaintiff in the FAC at para. 11.

Defendant also contends that the dispute is a controversy within the scope of judicial reference provision. The FAC alleges that plaintiff was not paid based on the work done on the project as contracted for in the subcontract. The cross-complaint alleges that Constructure breached the subcontract.

In opposition, plaintiff argues that there is no written agreement to submit to judicial reference since the parties never agreed to a final version of the subcontract. Plaintiff contends that it did not consent to the further, subsequent changes in ASI’s revised subcontract.

Plaintiff also argues that the judicial reference clause is unconscionable. Plaintiff contends that there was no meaningful bargaining between the parties and ASI waited until Constructure had commenced work before it sent the further revised subcontract, in which ASI had stricken the interlineation. Plaintiff argues that it is substantively unconscionable because it includes a waiver of jury trial and there has been no showing that there will be any significant cost or time savings with a judicial reference.

Further, plaintiff asserts, the right to a jury trial cannot be waived unless authorized by statute. Plaintiff contends that the judicial reference provision does not conspicuously warn that it will result in a waiver of the party’s right to a jury trial.

Plaintiff also argues that ASI waived its right to seek to compel judicial reference because it did not request it at its earliest opportunity.

Plaintiff further argues that ordering judicial reference will not promote judicial economy and may result in inconsistent judgments.

Moreover, plaintiff argues, ASI’s arguments that plaintiff accepted or ratified ASI’s changes are without merit because ASI had already accepted and ratified Constructure’s version of the subcontract when it began work in September 2020.

Alternatively, plaintiff requests that if the court grants the motion, the court should find that there was no agreement as to whom would pay fees and order that the referee’s fees be apportioned between the parties based on their respective ability to pay.

In reply, defendant argues that plaintiff cannot claim to not be bound by the subcontract while enjoying the benefits of such subcontract. Defendant asserts that plaintiff’s conduct cashing several checks for work done pursuant to the subcontract shows both an express and implied waiver of denying the existence of the judicial reference agreement. Also, defendant reiterates that plaintiff admitted the existence of the judicial reference agreement in its verified FAC. Defendant also refutes that the judicial reference clause is unconscionable. Further, defendant asserts, the right to a jury trial can be contractually waived by an ADR clause. Moreover, defendant argues, it did not waive its right to compel judicial reference.

The court finds that a judicial reference agreement exists. Plaintiff alleges the existence of one in the verified FAC, at para. 11. There were no interlineations or edits to the provision itself except that plaintiff added a sentence at the end as to the payment of costs. As acknowledged by plaintiff, ASI crossed out the interlineation and sent the executed revised subcontract back to plaintiff. There was no further negotiations and plaintiff continued to work on the project. The agreement is as to “all issues.” Further, the court finds that the reference provision is not unconscionable.

The court also finds that defendant has substantially complied with the requirements of Cal. Rules of Court, Rule 3.901(b), although it does not appear that moving party submitted a proposed order. The motion makes clear that the scope of the requested reference is “all issues” between them arising out of the subcontract. Para. 16 also sets forth that the referee will be privately compensated. Authorization to use court facilities or court personnel is not requested in the motion. Defendant is not requesting the appointment of a particular referee.

The court notes that defendant will not be able to lodge a proposed order that includes all of those matters (e.g., the name, business address, and telephone number of the referee and, if he or she is a member of the State Bar, the referee’s State Bar number [Cal. Rules of Ct., rule 3.902(1)]) until the court appoints a referee.

Further, as stated above, Los Angeles County Superior Court Rules, Rule 2.24(a)(2) provides that “[t]he Supervising Judge of the Civil . . . Division [shall] appoint a referee who will hear the case for all purposes, including judgment.” The court therefore transfers this case to Department 1 to appoint the referee as provided in CCP 640 and Cal. Rules of Court, Rule 3.903. The court orders each party to submit to the court no later than May 10, 2021, up to three nominees (including the nominee’s name, business address, and telephone number and, if he or she is a member of the State Bar, the nominee’s State Bar number) for appointment as referee.

The court orders defendant to lodge a proposed order on Judicial Council form ADR-110 (with as much of the applicable required information filled in as defendant is able to provide before the court appoints a referee) no later than .

Defendant is ordered to give notice of ruling.



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