On 09/02/2020 CURTOM - DUNSMUIR, A JOINT VENTURE filed a Contract - Other Contract lawsuit against JONATHAN MARTINEZ CONSTRUCTION, INC , A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TIMOTHY PATRICK DILLON. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
TIMOTHY PATRICK DILLON
CURTOM - DUNSMUIR A JOINT VENTURE
JONATHAN MARTINEZ CONSTRUCTION INC. A CALIFORNIA CORPORATION
JONATHAN MARTINEZ CONSTRUCTION INC.
ANDRADE SEAN A
1/28/2021: Unknown - AMENDED CROSS-COMPLAINT (1ST)
2/18/2021: Request for Judicial Notice
2/18/2021: Demurrer - with Motion to Strike (CCP 430.10)
3/9/2021: Opposition - OPPOSITION CROSS-COMPLAINANTS OPPOSITION TO CURTOMDUNSMUIRS DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; C.C.P. SECTION 473 DECLARATION OF ANDRE Y. BATES IN SUPPORT THEREOF
3/10/2021: Reply - REPLY TO OPPOSITION TO DEMURRER AND MOTION TO STRIKE THE FIRST AMENDED CROSS-COMPLAINT
3/18/2021: Notice of Ruling
3/26/2021: Notice of Case Reassignment and Order for Plaintiff to Give Notice
1/4/2021: Declaration - DECLARATION IN SUPPORT OF MOTION TO STRIKE CROSS-COMPLAINT
1/5/2021: Motion to Strike (not initial pleading)
12/2/2020: Summons - SUMMONS ON COMPLAINT (1ST)
10/14/2020: Proof of Personal Service
10/14/2020: Proof of Service by Substituted Service
10/9/2020: Summons - SUMMONS ON COMPLAINT
10/9/2020: Amended Complaint - AMENDED COMPLAINT (1ST)
9/23/2020: Notice - NOTICE OF CASE MANAGEMENT CONFERENCE
9/2/2020: Notice of Case Assignment - Unlimited Civil Case
Hearing04/18/2022 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing04/04/2022 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketAnswer; Filed by Curtom - Dunsmuir, A Joint Venture (Cross-Defendant)Read MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
DocketNotice of Ruling; Filed by Curtom - Dunsmuir, A Joint Venture (Cross-Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 73, Timothy Patrick Dillon, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) ((Res ID4195)) - HeldRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (Cesar Rodriguez, CSR#13269); Filed by Jonathan Martinez Construction, Inc. (Defendant); Jonathan Martinez (Defendant)Read MoreRead Less
DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10) (Res...)); Filed by ClerkRead MoreRead Less
DocketReply (to Opposition to Demurrer and Motion to Strike the First Amended Cross-Complaint); Filed by Curtom - Dunsmuir, A Joint Venture (Cross-Defendant)Read MoreRead Less
DocketOpposition (CROSS-COMPLAINANTS? OPPOSITION TO CURTOMDUNSMUIR?S DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; C.C.P. SECTION 473 DECLARATION OF ANDRE Y. BATES IN SUPPORT THEREOF); Filed by Jonathan Martinez Construction, Inc. (Cross-Complainant); Jonathan Martinez (Cross-Complainant)Read MoreRead Less
DocketSummons (on Complaint); Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketAmended Complaint ( (1st)); Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketNotice (of Case Management Conference); Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Curtom - Dunsmuir, A Joint Venture (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: 20STCV33550 Hearing Date: March 17, 2021 Dept: 73
Rafael Ongkeko, Judge presiding
CURTOM-DUNSMUIR v. JONATHAN MARTINEZ, et al. (20STCV33550)
Counsel for Plaintiff/Cross-Defendant/moving party Curtom-Dunsmuir: Francis Lanak, Natasha Buchanan (Lanak & Hanna)
Counsel for Defendants/Cross-Complainants/opposing parties Jonathan Martinez Construction, Inc. and Jonathan Martinez: Sean Andrade, Henry Gonzalez, Andre Bates (Andrade Gonzalez, LLP)
Demurrer and Motion to Strike re First Amended Cross-Complaint (filed 2/18/21)
The demurrer as to JMC is sustained in its entirety without leave to amend.
The demurrer is overruled as to Jonathan Martinez, individually, on the first and second causes of action. For the third cause of action: To the extent that Cross-Complainants wish to pursue a promissory fraud claim, the demurrer is sustained with leave to amend. To the extent Cross-Complainants are satisfied with the court’s converting the promissory fraud claim to a promissory estoppel claim, the demurrer is overruled.
The motion to strike is granted with leave to amend. Alternatively, to the extent that Martinez does not wish to further pursue a promissory fraud claim, the motion to strike punitive damages only (not disgorgement) is granted without leave to amend.
See last page for instructions/order below re leave to amend and red-line version.
DEADLINE: APRIL 2, 2021.
On September 2, 2020 Plaintiff Curtom-Dunsmuir filed this action against Defendants Jonathan Martinez Construction, Inc. (“JMC”) and Jonathan Martinez. The operative first amended complaint alleges causes of action for:
C/A 1: Breach of Contract (against both JMC and Martinez)
C/A 2: Declaratory Relief (against JMC)
C/A 3: Disgorgement under Bus. & Prof. Code 7031 (against JMC)
C/A 4: Declaratory Relief (against JMC)
C/A 5: Injunctive Relief (against both JMC and Martinez)
Plaintiff’s allegations stem from a subcontractor written agreement between Plaintiff and JMC. Plaintiff alleges that JMC breached that agreement by failing to provide work, labor, and services in a timely manner, failure to complete work in accordance with accepted trade standards, failing to pay subcontractors and suppliers, failing to provide a payment and performance bond and performing defective and deficient work. Plaintiff alleges alter ego allegations against Martinez to hold Martinez personally liable for JMC’s liabilities. Indeed, Plaintiff’s breach of contract claim is against both JMC and Martinez.
On November 30, 2020 JMC and Martinez filed a cross-complaint against Plaintiff arising from the same contracting agreement. On January 28, 2021 JMC and Martinez filed the operative first amended cross-complaint alleging:
C/A 1: Breach of Contract
C/A 2: Breach of Oral Contract
C/A 3: Promissory Fraud
Cross-Complainants’ main allegations, which serve as the basis for their claims are:
3. Although JMC is named in the Subcontract, the parties were aware that the California contractor’s license was in Mr. Martinez’s name and that all the work was going to be performed under his license. This fact was also made known to the performance bonding companies and trade unions associated with the project. Moreover, it is Mr. Martinez’s contractor’s license that is identified on the Subcontract and Curtom made payments under the Subcontract directly to Mr. Martinez, not JMC.
4. During the course of the construction, Curtom regularly made progress payments directly to Mr. Martinez. Sometime in 2020, however, Curtom began requesting that Cross-Complainants perform work on change-orders to the project with a promise of future payment. Again, Cross-Complainants satisfactorily performed their obligations as required under the change-orders.
5. In or about February 2021, however, Curtom abruptly terminated the Subcontract, in part, under the subterfuge that JMC did not hold a valid California contractor’s license despite the fact that work was being performed under Mr. Martinez’s contractor’s license and Curtom had previously made payments under the Subcontract directly to Mr. Martinez. JMC also used this excuse as a pretext to hold pack payments owed for work completed under the change-orders.
(FAXC, Summary of Action, ¶¶ 3-5).
On February 18, 2021 Curtom filed a demurrer to the FAXC on the grounds that (1) JMC is barred from recovering under the cross-complaint as an unlicensed contractor and (2) Martinez, not being a party to the subcontractor’s agreement, may not allege the claims. Curtom also filed a motion to strike. On March 9, 2021 Cross-Complainants filed an opposition. On March 10, 2021, Curtom filed a reply.
Curtom argues that the court should not consider Cross-Complainants’ late opposition. In the opposition, Cross-Complainant’s attorney’s declaration explains that the late filing was a result of his inadvertence and mistake. Counsel’s office failed to calendar the hearing and related response dates. Upon learning of the error when Curtom filed a notice of non-opposition, counsel asked Cross-Defendant if it would consider continuing the hearing. The court, however, did not have any open hearings until June and Cross-Defendant wished to have the motions heard sooner. Counsel promptly filed and served an opposition as soon as possible. The court finds that counsel’s explanation for filing a late opposition constitutes attorney inadvertence and mistake under CCP §473. The court shall consider the opposition, particularly given that Curtom was able to file a reply, mitigating somewhat any prejudice caused by the untimely filing. Should Curtom claim an inability to file a more comprehensive reply due to the shortened reply time, the court may consider the request at the hearing.
The moving request for judicial notice is granted.
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, 720-721.) “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. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)
Curtom argues that all of JMC’s claims are barred by Business and Professions Code § 7031, subdivision (a):
(a) Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that they were a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person, except that this prohibition shall not apply to contractors who are each individually licensed under this chapter but who fail to comply with Section 7029.
Bus. & Prof. Code, § 7031(a). Subdivision e, which provides the exception to this general rule, states:
(e) The judicial doctrine of substantial compliance shall not apply under this section where the person who engaged in the business or acted in the capacity of a contractor has never been a duly licensed contractor in this state. However, notwithstanding subdivision (b) of Section 143, the court may determine that there has been substantial compliance with licensure requirements under this section if it is shown at an evidentiary hearing that the person who engaged in the business or acted in the capacity of a contractor (1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure.
(Bus. & Prof. Code, § 7031(e)). Courts have interpreted this section strictly to absolutely bar recovery from an unlicensed contractor. For example, in Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, the court analyzed the legislative intent and purpose of the statute and held: “The purpose of the licensing law is to protect the public from incompetence and dishonesty in those who provide building and construction services.” Id. at 995. “Section 7031 advances this purpose by withholding judicial aid from those who seek compensation for unlicensed contract work. The obvious statutory intent is to discourage persons who have failed to comply with the licensing law from offering or providing their unlicensed services for pay.” Id. “Because of the strength and clarity of this policy, it is well settled that section 7031 applies despite injustice to the unlicensed contractor. ” Id. “Section 7031 represents a legislative determination that the importance of deterring unlicensed persons from engaging in the contracting business outweighs any harshness between the parties, Id. Accordingly, there is no “exceptional circumstances” exception to the statute—the literal application of section 7031 only allows some relief under subdivision e; no other exceptions exist. Id. The court, therefore, held that section 7031 barred a claim for fraud by a subcontractor against a contractor who was aware that the subcontractor was unlicensed. Id. at 997.
Here, JMC alleges that it is an unlicensed contractor. There are no allegations that JMC substantially complied with any licensing requirements under subdivision (e). JMC’s only arguments are that because Curtom had knowledge that JMC was unlicensed, Curtom waived this statutory defense. Notably, JMC has not cited one case in which a court has allowed a waiver defense to section 7031 based on the other party’s knowledge that the subcontractor was unlicensed. To the contrary, as courts have held, however, equitable defenses do not apply to section 7031.
In Alatriste v. Cesar's Exterior Designs, Inc. (2010) 183 Cal.App.4th 656, the court found that after reviewing the legislative intent of section 7031, “the Legislature specifically intended to permit full recovery even if the hiring party had actual knowledge the contractor was unlicensed.” (Id. at 667). In so holding, the Alatriste court provided the following historical context:
The California Supreme Court has long given a broad, literal interpretation to section 7031(a)'s shield provision. (Citation omitted). The court has held that section 7031(a) applies even when the person for whom the work was performed knew Citation omitted). Additionally, unlicensed contractors are presumed to have knowledge of the law's requirements and a contractor cannot circumvent section 7031(a) by alleging the beneficiary's false promise to pay despite the contractor's lack of licensure. (Citation omitted). . . . Because of the strength and clarity of this policy [citation],’ the bar of section 7031(a) applies ‘[r]egardless of the equities.’
(Id. at 665–666). Based on this history, the court held that equitable defenses such as unclean hands, estoppel, unjust enrichment, etc., were not viable under section 7031. (Id. at 668; see also Lewis & Queen v. N.M. Ball Sons
Here, therefore, it matters not whether or not Curtom knew that JMC was unlicensed at the time of contracting. Whatever inequities to JMC for performing work, even with Curtom’s knowledge, are irrelevant to the section 7031 analysis. Section 7031 provides a strict bar to recovery, whether legal or equitable, even one procured by fraud, by an unlicensed contractor. The FAXC admits that JMC was not licensed at the time JMC provided services. Section 7031, therefore, absolutely bars JMC’s claims against Curtom. The demurrer is sustained on all causes of action against JMC without leave to amend.
Cross-Defendant argues that Martinez, who is licensed, may not allege any claims against Curtom because the subcontractor’s contract was between Curtom and JMC—not Martinez. Martinez argues that Martinez was a party to the contract and Curtom’s performance evidenced that fact—i.e., by paying Martinez individually (checks written to Martinez) and not JMC for services rendered. Cross-Defendant argues that the parol evidence rule applies to bar Martinez from claiming to be a party to the subcontractor contract.
At the pleading stage, the court agrees with Martinez. As alleged, whether or not Martinez, individually, was a party to the subcontractor’s contract is a question of fact, particularly given allegations of Curtom’s subsequent conduct in paying Martinez, individually, not JMC, and other indicia of de facto knowledge and what was happening on the ground (literally), with other interested parties, as Martinez alleges. Further, whether or not independent collateral agreements exist or modifications exist after the subcontractor agreement is also question of fact for discovery/trial to uncover. At the pleadings stage, Martinez alleges that he was a party to the contract. The court also notes that Curtom-Dunsmuir’s own first amended complaint alleges a breach of contract claim against Martinez, individually, via an alter ego claim. In other words, Cross-Defendant wishes to hold Martinez personally liable for a contract to which Cross-Defendant now contends that Martinez should not be able to enforce. As for the cases that Cross-Defendant cites (Opp v. St. Paul Fire & Marine Ins. Co. (2007) 154 Cal.App.4th 71 and WSS Industrial Construction, Inc. v. Great West Contractors, Inc. (2008) 162 Cal.App.4th 581), those cases were not decided on demurrer, but at the summary judgment/verdict stage—after the evidence was considered. The demurrer as against Martinez is overruled on this ground.
The essential elements for a claim of breach of oral contract are the same as a written contract, namely “(1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman, supra, 224 Cal.App.4th at 1186.) For oral contracts, a party must allege that a promise was definite enough to “determine the scope of the duty and the limits of performance.” (Ladas v. Cal. State Auto. Assn. (1994) 19 Cal. App. 4th 761, 770).
For Cross-Complainants’ breach of an oral contract claim, Cross-Complainant alleges that after signing the subcontract, Curtom began requesting that Cross-Complainants perform work on change-orders with the oral promise of future payment. Cross-Defendant argues that the subcontractor’s contract includes a provision that expressly contemplates change orders and contains an integration clause. Again, Cross-Defendant argues that the parol evidence rule, therefore, bars Cross-Complainants’ breach of oral contract claim. As the court found above, whether or not these oral agreements constitute a collateral, independent subsequent agreement to the subcontract versus being merely part of the original contract are questions of fact. Cross-Complainants have alleged the existence of an oral contract that is separate and distinct from the subcontractor’s contract. The demurrer is, therefore, overruled as to this cause of action.
To plead promissory fraud, a plaintiff must please the same elements as if asserting a general fraud claim: “(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce
the promise to enter into the transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e].” (Behnke v. State Far (2011) 196 Cal.App.4th 1443, 1453).
Cross-Defendant argues that Cross-Complainants’ claims are barred by the economic loss rule.
The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise. Quite simply, the economic loss rule prevents the law of contract and the law of tort from dissolving one into the other.
In view of this rule, a party alleging fraud or deceit in connection with a contract must establish tortious conduct independent of a breach of the contract itself, that is, violation of some independent duty arising from tort law.
(Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1130).
In opposition, rather than address the economic loss rule, Cross-Complainants argue that it may allege alternative theories of recovery. The issue, however, is not whether or not Cross-Complainants may allege alternative theories. The issue is whether or not Cross-Complainants’ promissory fraud claim includes a violation of a duty under tort law—i.e., whether the “tort” or “fraud” committed goes beyond merely a breach of a term of an agreement. The basis of Cross-Complainants’ claim is that Cross-Defendant promised to pay for their services, but failed to do so—a breach of the terms of their agreement that does not arise to tortious conduct.. Such allegations lack “material affirmative misrepresentations” or “fraudulent concealment,” inducement, and reliance that normally changes a contract claim to a tort claim. The court, therefore, finds that, as alleged, the economic loss doctrine bars Cross-Complainants’ promissory fraud claim.
However, the court finds that Cross-Complainants have sufficiently pled a claim for promissory estoppel. “The elements of promissory estoppel are (1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages ‘measured by the extent of the obligation assumed and not performed.’” (Toscano v. Greene Music (2004) 124 Cal. App. 4th 685, 692). The standard on a demurrer requires a court to liberally construe allegations to determine if a party has alleged any cause of action—even if the cause of action is incorrectly named.
To the extent that Cross-Complainants wish to pursue a promissory fraud claim, the demurrer is sustained with leave to amend. To the extent Cross-Complainants are satisfied with the court’s converting the promissory fraud claim to a promissory estoppel claim, the demurrer is overruled.
Cross-Defendant moves to strike Cross-Complainants’ prayer for punitive damages and disgorgement damages. Cross-Complainants do not address the motion in its opposition. The motion is granted with leave to amend. To the extent that Cross-Complainant do not wish to further pursue a promissory fraud claim, the motion to strike punitive damages is granted without leave to amend.
Instructions/order re leave to amend and red-line version: DEADLINE: APRIL 2, 2021
Cross-complainant Martinez is granted leave either to file and serve a writing by APRIL 2, 2021 indicating no intent to amend or to file and serve a SECOND AMENDED CROSS-COMPLAINT by that date. If he elects the latter, a red-line copy of the amended pleading showing the changes from the previous pleading shall be concurrently provided to cross-defendant. If cross-defendant intends to file a pleading challenge to the amended pleading, that party must lodge directly in Dept. 73 the red-line copy of the amended pleading with its demurrer.
CROSS-DEFENDANT’S ANSWER: If the underlying pleading is not amended, the answer is ordered to be filed and served within 15 days after service of written notice thereof.
Unless waived, notice of ruling by moving party.
 JMC argues, alternatively, that even if JMC is not entitled to compensation, JMC should be entitled to reimbursement of the materials it used to provide its services. One court, however, specifically addressed this issue and held that reimbursement of materials was not recoverable under section 7031: “The White Citation omitted.) Construing section 7031(b)'s language, the White ‘all Citation omitted.) The court reasoned that this “interpretation ... is consistent with the usual meaning of the word ‘all,’ which signifies the whole number and does not admit of an exception or exclusion not specified. [Citation.] In short, ‘all compensation paid’ does not mean all compensation less reductions for offsets.” (Alatriste, supra, at pp. 672–673).
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