This case was last updated from Los Angeles County Superior Courts on 07/03/2019 at 01:25:08 (UTC).

JEFFREY THOMAS ET AL VS MIA D BOYKIN ET AL

Case Summary

On 02/22/2018 JEFFREY THOMAS filed a Contract - Other Contract lawsuit against MIA D BOYKIN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ROBERT B. BROADBELT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5428

  • Filing Date:

    02/22/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ROBERT B. BROADBELT

 

Party Details

Plaintiffs and Petitioners

THOMAS JEFFREY

FORTIS DEVELOPMENT LLC

Defendants and Respondents

EDWARD W. BOYKIN CONSTRUCTION COMPANY

BOYKIN MIA D.

DOES 1 TO 500

E.W. BOYKIN CONSTRUCTION INC

BOYKIN AN INDIVIDUAL MIA D.

HUNTER RAMOND

PARTK LAND PROJECTS

PARK LANE PROJECTS INC.

O'HARA DAMIAN JOSEPH

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CORNELIUS ALEXANDRE IAN ESQ.

CORNELIUS ALEXANDRE IAN

SAAD SUMMER

Defendant Attorneys

SILVER GERALD NEIL

SILVER GERALD N.

STEWART BRIAN K.

 

Court Documents

NOTICE OF FURTHER CASE MANAGEMENT CONFERENCE, RELATED CASES AND STRIKING OF DEFENDANTS? DEMAND FOR BILL OF PARTICULARS

8/24/2018: NOTICE OF FURTHER CASE MANAGEMENT CONFERENCE, RELATED CASES AND STRIKING OF DEFENDANTS? DEMAND FOR BILL OF PARTICULARS

Declaration

11/30/2018: Declaration

Proof of Service (not Summons and Complaint)

12/6/2018: Proof of Service (not Summons and Complaint)

Reply

12/6/2018: Reply

Motion for Order

12/13/2018: Motion for Order

Minute Order

1/25/2019: Minute Order

Case Management Statement

5/29/2019: Case Management Statement

Minute Order

6/3/2019: Minute Order

DECLARATION OF LOVEON FOX IN SUPPORT OF FORTIS DEVELOPMENT LLC'S APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT AGAINST MIA D. BOYKIN AND EDWARD W. BOYKIN CONSTRUCTION COMPANY

6/20/2018: DECLARATION OF LOVEON FOX IN SUPPORT OF FORTIS DEVELOPMENT LLC'S APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT AGAINST MIA D. BOYKIN AND EDWARD W. BOYKIN CONSTRUCTION COMPANY

PLAINTIFF'S OBJECTION TO: DEFENDANTS' FIRSTAPPEARANE AND DELARA TION OF GERALD N. SILVER, RE; MEET AND CONFER WITH PLAINTIFF'S COUNSEL CONCERNING DEFENDANT'S INTENTION TO DEMURRER TO FIRST AMENDED COM

7/9/2018: PLAINTIFF'S OBJECTION TO: DEFENDANTS' FIRSTAPPEARANE AND DELARA TION OF GERALD N. SILVER, RE; MEET AND CONFER WITH PLAINTIFF'S COUNSEL CONCERNING DEFENDANT'S INTENTION TO DEMURRER TO FIRST AMENDED COM

Minute Order

7/10/2018: Minute Order

DEFENDANT MIA D. BOYKIN'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT; MEMORANDUM OF POINTS AND AUTHORITIES

7/20/2018: DEFENDANT MIA D. BOYKIN'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT; MEMORANDUM OF POINTS AND AUTHORITIES

PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DECLARATIONS OF MIA D. BOYKIN AND GERALD N. SILVER IN SUPPORT OF OPPOSITION TO PLAINTIFFS' APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT

7/25/2018: PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DECLARATIONS OF MIA D. BOYKIN AND GERALD N. SILVER IN SUPPORT OF OPPOSITION TO PLAINTIFFS' APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT

DECLARATION OF JEFFREY THOMAS IN SUPPORT OF REPLY IN SUPPORT OF PLAINTIFF'S APPLICATION FOR WRIT OF ATTACHMENT

7/25/2018: DECLARATION OF JEFFREY THOMAS IN SUPPORT OF REPLY IN SUPPORT OF PLAINTIFF'S APPLICATION FOR WRIT OF ATTACHMENT

DECLARATION OF ALEXANDRE I. CORNELIUS, ESQ. RE DEFENDANTS' LATE SERIVCE AND DELAYED RECIEPT OF OPPOSITION TO APPLICATION FOR RIGHT TO ATTACH ORDER

7/26/2018: DECLARATION OF ALEXANDRE I. CORNELIUS, ESQ. RE DEFENDANTS' LATE SERIVCE AND DELAYED RECIEPT OF OPPOSITION TO APPLICATION FOR RIGHT TO ATTACH ORDER

Minute Order

8/23/2018: Minute Order

NOTICE OF UNAVAILABILITY

8/31/2018: NOTICE OF UNAVAILABILITY

Declaration

11/26/2018: Declaration

117 More Documents Available

 

Docket Entries

  • 06/12/2019
  • Notice of Ruling; Filed by Fortis Development LLC (Plaintiff); Jeffrey Thomas (Plaintiff)

    Read MoreRead Less
  • 06/05/2019
  • Notice of Change of Firm Name; Filed by Fortis Development LLC (Plaintiff); Jeffrey Thomas (Plaintiff)

    Read MoreRead Less
  • 06/03/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 06/03/2019
  • Minute Order ( (Case Management Conference;)); Filed by Clerk

    Read MoreRead Less
  • 05/29/2019
  • Substitution of Attorney; Filed by Fortis Development LLC (Plaintiff)

    Read MoreRead Less
  • 05/29/2019
  • Substitution of Attorney; Filed by Jeffrey Thomas (Plaintiff)

    Read MoreRead Less
  • 05/29/2019
  • Case Management Statement; Filed by E.W. Boykin Construction Inc (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Case Management Conference - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 05/14/2019
  • Demurrer - with Motion to Strike (CCP 430.10); Filed by E.W. Boykin Construction Inc (Defendant)

    Read MoreRead Less
  • 04/16/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Motion for Leave to Amend (Complaint)

    Read MoreRead Less
180 More Docket Entries
  • 04/19/2018
  • Complaint (1st); Filed by Fortis Development LLC (Plaintiff); Jeffrey Thomas (Plaintiff)

    Read MoreRead Less
  • 04/19/2018
  • First Amended Complaint; Filed by Fortis Development LLC (Plaintiff); Jeffrey Thomas (Plaintiff)

    Read MoreRead Less
  • 04/19/2018
  • FIRST AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT; 2. NEGLIGENCE; 3. BREACH OF WARRANTY (EXPRESS AND IMPLIED); ETC.

    Read MoreRead Less
  • 03/05/2018
  • OSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 03/05/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 03/05/2018
  • ORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 03/05/2018
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 02/22/2018
  • Complaint; Filed by Fortis Development LLC (Plaintiff); Jeffrey Thomas (Plaintiff)

    Read MoreRead Less
  • 02/22/2018
  • SUMMONS

    Read MoreRead Less
  • 02/22/2018
  • COMPLAINT FOR: 1. BREACH OF CONTRACT; ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC695428    Hearing Date: March 30, 2021    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

jeffrey thomas , et al.;

Plaintiffs,

vs.

mia d. boykin , et al.,

Defendants.

Case No.:

BC695428 c/w BC709790

Hearing Date:

March 30, 2021

Time:

10:00 a.m.

[Tentative] Order RE:

(1) general and special demurrers to Third amended complaint;

(2) motion to strike the entire third amended complaint

MOVING PARTIES: Defendants Mia D. Boykin and E.W. Boykin Construction, Inc.

RESPONDING PARTIES: Plaintiffs Jeffrey Thomas and Fortis Development, LLC

  1. General and Special Demurrers to Third Amended Complaint;

  2. Motion to Strike the Entire Third Amended Complaint

The court considered the moving and opposition papers filed in connection with the demurrer and the motion to strike.

Background

Plaintiffs Jeffrey Thomas (“Thomas”) and Fortis Development, LLC (“Fortis”) (“Plaintiffs”) filed this action on February 22, 2018, against defendants Mia D. Boykin (“Boykin”), Edward W. Boykin Construction Company (“Boykin Company”), and E.W. Boykin Construction, Inc. (“Boykin Inc.”). The operative Third Amended Complaint (“TAC”) was filed on September 26, 2019, asserting causes of action for (1) breach of contract, (2) negligence, (3) breach of warranty (express and implied), (4) breach of implied covenant of good faith and fair dealing, (5) unjust enrichment, (6) money had and received (7) fraud, (8) conversion, (9) constructive trust, (10) breach of fiduciary duty, (11) breach of contract, (12) breach of guaranty, (13) open book account, (14) account stated, (15) goods sold and delivered, (16) work, labor and material rendered, and (17) disgorgement.

In the TAC, Plaintiffs allege the following. Defendants were hired as subcontractors responsible for erecting the wooden framing for a residential construction project at 8408 Hillside Avenue, Los Angeles, CA 90069 (the “Project”) pursuant to a Subcontractor Agreement (the “Subcontract”) dated February 15, 2017. (TAC, ¶¶ 12, 15, Ex. A.) Thomas was the owner of the Project, and Fortis was the general contractor on the Project. (TAC, ¶¶ 13-14.) The Subcontract was entered into by Boykin Company as the “Subcontractor” and Fortis as the “General Contractor” or “Contractor.” (TAC, Ex. A, p. 1, ¶ 1.A.1, 2, and signature page.) Plaintiff alleges that plaintiff Thomas was a third-party beneficiary of the Subcontract because it was made expressly for the benefit of Thomas and Fortis. (TAC, ¶ 16.)

Defendants failed to complete their work in a timely or workmanlike manner. (TAC, ¶ 17.) The Subcontract included a provision which created an express trust over all funds paid to defendants for so long as any of defendants’ laborers or suppliers remained unpaid (the “Trust Provision”). (TAC, ¶ 19.) Defendants violated the Trust Provision by failing to pay the lumber supplier who furnished the wood material to or for defendants in the performance of the scope of Defendants’ work. (TAC, ¶ 20.)

Plaintiffs have made a total of $359,876 in payments to defendants under the Subcontract. (TAC, ¶ 21.) However, defendants paid themselves first instead of their lumber supplier from those funds. (TAC, ¶ 21.) Plaintiffs received a Notice of Mechanic’s Lien filed against the Project by the lumber supplier, Ganahl Lumber Company, Inc. (“Ganahl”). (TAC, ¶ 22, Ex. B.) Plaintiffs made several demands to defendants to pay Ganahl and, on August 2, 2017, Boykin represented to Plaintiffs’ project manager that she had made arrangements with Ganahl to pay off the amount owed, but she failed to do so. (TAC, ¶ 24.)

Boykin and Boykin Inc. (collectively, “Defendants”) now demur to each cause of action on the grounds that each cause of action fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e), that each cause of action is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f), and that each cause of action contains a defect or misjoinder of parties pursuant to Code of Civil Procedure section 430.10, subdivision (d). Defendants also move to strike the entirety of the TAC. Plaintiffs oppose the demurrer and motion to strike.

REQUEST FOR JUDICIAL NOTICE

The court grants Plaintiffs’ request for judicial notice, filed August 4, 2020, as to Exhibit 1.

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing that defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10(f).) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437, subd. (a).)

DEMURRER

  1. Uncertainty

The court overrules the special demurrer on the basis of uncertainty. (Code Civ. Proc., § 420.10, subd. (f).) The court finds that the TAC is neither ambiguous nor unintelligible.

  1. Misjoinder

Defendants argue that Boykin Inc. is not a proper party because Boykin Inc. is not a party to, and has no connection to, the Subcontract or the Project. Misjoinder of defendants occurs where there is no common question of law or fact as to the misjoined defendant. (Code Civ. Proc., § 379.) “[A] defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose existence of the matter relied on; such objection must be taken by plea or answer.” (Harboring Villas Homeowners Assn. v. Superior Court (1998) 63 Cal.App.4th 426, 429.)

“Under the alter ego doctrine, . . . where a corporation is used by an individual or individuals, or by another corporation, to perpetrate fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, a court may disregard the corporate entity and treat the corporation’s acts as if they were done by the persons actually controlling the corporation….” (Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1106.) Factors for the court to consider in applying the doctrine include the commingling of funds and other assets, identical equitable ownership in the two entities, disregard of corporate formalities, identical directors and officers, and use of one as a mere shell or conduit for the affairs of the other. (Id. at p. 1108.)

On January 25, 2019, the court issued an order sustaining Defendants’ special demurrer to Plaintiff’s First Amended Complaint on the basis of misjoinder of parties as to Boykin Inc. (Order, filed January 25, 2019, p. 4:21-22.) The court explained: “Although [Plaintiffs’] allegations [in Plaintiff’s First Amended Complaint] are sufficient to allege alter ego liability as to Boykin, it [sic] is not sufficient to allege alter ego liability as to Boykin Inc. There are no allegations [in Plaintiffs’ First Amended Complaint] pertaining to Boykin Inc. using the Boykin Company as a shell, or that Boykin Inc. has not observed its own corporate formalities, or that it would be inequitable not to hold Boykin Inc. liable for the acts of the Boykin Company or Boykin.” (Order, filed January 25, 2019, p. 4:16-20.)

Here, Plaintiffs argue that they have made sufficient alter ego allegations in the TAC as to Boykin Inc. Plaintiffs point to paragraph 10 of the TAC, in which Plaintiffs allege, in relevant part: “Plaintiffs are further informed and believe that Boykin Inc. has used the assets of Mia D. Boykin and [Boykin Company] as its own and vice versa. Boykin Inc. has used [Boykin Company] as its shell. Boykin Inc. has not observed its own corporate formalities, and it would be inequitable not to hold Boykin Inc. liable for the acts of Mia D. Boykin and [Boykin Company.]” (TAC, ¶ 10.) Plaintiffs also point to paragraphs 33, 35, 36, and 37 of the TAC, which set forth Plaintiffs’ allegations that each defendant commingled each other’s funds, and that the assets of Boykin Inc. were used to pay the obligations of Boykin and Boykin Company.

The court finds that Boykin Inc. has been properly joined as an alleged alter ego of Boykin Company, and the court overrules Defendants’ special demurrer on the basis of misjoinder of parties as to Boykin Inc. (Code Civ. Proc., § 430.10, subd. (d).)

  1. First Cause of Action – Breach of Contract

Defendants contend that the first cause of action for breach of contract fails as to Boykin Inc. because Boykin Inc. is not a party to the Subcontract.

To assert alter ego liability for a breach of contract, there are a few procedural vehicles available to the party asserting alter ego liability: “The first option is to sue the alter ego directly in an action for breach of contract . . . . Another is to first obtain a judgment for breach of contract against the signatories to the contract, followed by a motion to amend the judgment to add the alter egos as defendants. [Citations.] Still another is, after obtaining a judgment against the signatories, to institute an independent action against the alter egos . . . . [Citation.] These different procedural vehicles, however, are identical in substance: in all three, the proof of alter ego is the same.” (MSY Trading Inc. v. Saleen Automotive, Inc. (2020) 51 Cal.App.5th 395, 402-403 (emphasis in original).) “An alter ego defendant has no separate primary liability to the plaintiff. Rather, plaintiff’s claim against the alter ego defendant is identical with that claimed by plaintiff against the already-named defendant. [¶] A claim against a defendant, based on the alter ego theory, is not itself a claim for substantive relief, e.g., breach of contract or to set aside a fraudulent conveyance, but rather, procedural, i.e., to disregard the corporate entity as a distinct defendant and to hold the alter ego individuals liable on the obligations of the corporation where the corporate form is being used by the individuals to escape personal liability, sanction a fraud, or promote injustice. [Citations.]” (Hennessey’s Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1358-1359.)

As discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company. Plaintiffs are suing the alter ego, Boykin Inc., which Plaintiffs allege to be an alter ego of Boykin Company, directly in an action for breach of the Subcontract, to which Boykin Company is a signatory and party.

The court finds that the first cause of action for breach of contract states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the first cause of action for breach of contract.

  1. Second Cause of Action – Negligence

In support of the second cause of action for negligence, Plaintiffs allege that Defendants owed a duty of due care to proceed on the Project as a reasonable subcontractor would proceed in constructing a project of this size and nature using high quality workmanship, skills, materials and labor, and to perform such duties timely and in a manner that does not give rise to liability on the part of Plaintiffs to third-party suppliers. (TAC, ¶ 45.) Plaintiffs allege that Defendants breached that duty of care when they failed to proceed with the work on the Project in an acceptable and reasonable fashion and when they failed to properly manage subcontract payments. (TAC, ¶ 46.)

Defendants contend that Plaintiffs have failed to allege a duty of care as to Boykin Inc. because Plaintiff’s cause of action for negligence is based on Boykin’s alleged breach of the Subcontract, and Boykin Inc. was not a party to the Subcontract. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company, which is a signatory and party to the Subcontract.

The court finds that the second cause of action for negligence states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the second cause of action for negligence.

  1. Third Cause of Action – Breach of Warranty (Express and Implied)

Defendants contend that the third cause of action for breach of warranty fails as to Boykin Inc. because Boykin Inc. was not a party to the Subcontract. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company, which is a signatory and party to the Subcontract.

The court finds that the third cause of action for breach of warranty states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the third cause of action for breach of warranty.

  1. Fourth Cause of Action – Breach of the Implied Covenant of Good Faith and Fair Dealing

Defendants contend that the fourth cause of action for breach of the implied covenant of good faith and fair dealing fails as to Boykin Inc. because Boykin Inc. was not a party to the Subcontract. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company, which is a signatory and party to the Subcontract.

The court finds that the fourth cause of action for breach of the implied covenant of good faith and fair dealing states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the fourth cause of action for breach of the implied covenant of good faith and fair dealing.

  1. Fifth Cause of Action – Unjust Enrichment

Defendants contend that the fifth cause of action for unjust enrichment fails as to Boykin Inc. because Boykin Inc. was not a party to the Subcontract. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company, which is a signatory and party to the Subcontract.

The court finds that the fifth cause of action for unjust enrichment states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the fifth cause of action for unjust enrichment.

  1. Sixth Cause of Action – Money Had and Received

Defendants contend that the sixth cause of action for money had and received fails because Plaintiffs only allege that Defendants should have paid Ganahl. The court disagrees.

A cause of action for money had and received is stated if it is alleged that the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff. (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) Here, the court finds that Plaintiffs have alleged the certain sum for which Defendants are indebted to Plaintiffs. Plaintiffs allege that that (1) $359,876 was paid to Defendants for the use and benefit of Plaintiffs, (2) that a portion of the amounts paid under the Subcontract, $159,098.75, should have been paid by Defendants to their suppliers pursuant to Paragraph 4.F of the Subcontract, (3) Defendants failed to pay the $159,098.75, and (4) Defendants must return the $159,098.75 to Plaintiffs. (TAC, ¶¶ 59-60.)

Defendants also contend that the sixth cause of action for money had and received fails as to Boykin Inc. because Boykin Inc. was not a party to the Subcontract. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company, which is a signatory and party to the Subcontract.

The court finds that the sixth cause of action for money had and received states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the sixth cause of action for money had and received.

  1. Seventh Cause of Action – Fraud

In support of the seventh cause of action for fraud, Plaintiffs allege that, in an effort to induce Plaintiffs to enter into the Subcontract, Defendants made false promises with no intention of honoring those promises, in particular, the promise to make certain payments pursuant to Paragraph 4.F of the Subcontract, and the promise to complete the Project by the agreed-upon date. (TAC, ¶ 62.)

Defendants contend that the cause of action for fraud fails because Plaintiffs failed to plead the essential elements of fraud with the required particularity showing “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The court finds that the fraud cause of action has been sufficiently alleged, and that the misrepresentations have been alleged with sufficient particularity. Plaintiffs allege that Defendants represented that they would perform under the Subcontract, that Defendants did not intend to perform because they did not have the resources necessary to complete the Project, that Plaintiffs relied on the representations, and that Plaintiffs suffered damages as a result. (TAC, ¶¶ 62-65.)

Defendants also contend that the cause of action for fraud fails as to Boykin Inc. because Plaintiffs have not alleged any representations by Boykin Inc. to Plaintiffs. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company. Plaintiffs allege that Boykin and Boykin Company made the misrepresentations to Plaintiffs.

The court finds that the seventh cause of action for fraud states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the seventh cause of action for fraud.

  1. Eighth Cause of Action – Conversion

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Money may be the subject of conversion if the claim involves a specific, identifiable sum . . . .” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 209.)

Defendants contend that the cause of action for conversion fails because Plaintiffs only allege that the money was earmarked for suppliers. Defendants also contend that the cause of action for conversion fails as to Boykin Inc. because Plaintiff’s fail to allege that Boykin Inc. received any of the money.

Plaintiffs allege that Plaintiffs paid Defendants $359,876 under the Subcontract. (TAC, ¶ 67.) Plaintiffs also allege that $159,098.75 was earmarked for suppliers and that Defendants were required to pay Ganahl that amount pursuant to Paragraph 4.F of the Subcontract, but Defendants failed to do so. (TAC, ¶ 68.) Plaintiffs allege that Defendants unlawfully took possession of the $359,876, which includes the $159,098.75, and that Plaintiffs, at all times, were the lawful owners of the money and were entitled to possession of the money.

The court finds that the eighth cause of action for conversion states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the eighth cause of action for conversion.

  1. Ninth Cause of Action – Constructive Trust

Defendants contend that the ninth cause of action for constructive trust fails as to Boykin Inc. because Boykin Inc. was not paid anything by Plaintiffs and did not receive any lumber or benefit from Ganahl to be held in trust. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company, which is a signatory and party to the Subcontract.

The court finds that the ninth cause of action for constructive trust states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the ninth cause of action for constructive trust.

  1. Tenth Cause of Action – Breach of Fiduciary Duty

Defendants contend that the tenth cause of action for breach of fiduciary duty fails as to Boykin Inc. because Boykin Inc. was not a party to the Subcontract. However, as discussed above, the court finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company, which is a signatory and party to the Subcontract.

The court finds that the tenth cause of action for breach of fiduciary duty states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the tenth cause of action for breach of fiduciary duty.

  1. Eleventh Cause of Action – Breach of Contract (Lumber Supply Contract)

Plaintiffs allege that Defendants breached the lumber supply contract entered into between Ganahl and Defendants. (TAC, ¶ 81.) Plaintiffs have standing to enforce the lumber supply contract because Ganahl transferred, assigned, and conveyed to Fortis all of Ganahl’s rights, title, and interest in the lumber supply contract and any accounts receivable due thereunder. (TAC, ¶ 85.)

Defendants argue that the breach of the lumber supply contract cause of action must fail because the lumber supply contract is not attached, and only a portion of the contract is set forth in the FAC. However, a plaintiff may plead a breach of contract by pleading it terms verbatim or by pleading its legal effect. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) Here, Plaintiff has pleaded the legal effect of the contract by alleging its essential terms. (TAC, ¶¶ 81-82.)

Defendants also contend that the cause of action for breach of contract fails as to Boykin Inc. because Boykin Inc. was not a party Lumber Supply Contract by assignment. However, Plaintiffs allege that Defendants were parties to the Lumber Supply Contract (TAC, ¶ 81), and assert the cause of action against Defendants and any of their alter egos (TAC, ¶ 85).

The court finds that the eleventh cause of action for breach of contract states facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the eleventh cause of action for breach of contract.

  1. Twelfth Cause of Action – Breach of Guaranty against Boykin

Defendants contend that the cause of action for breach of guaranty fails as to Boykin Inc. But the cause of action for breach of guaranty is not asserted against Boykin Inc. The court therefore overrules Defendants’ demurrer to the twelfth cause of action for breach of guaranty.

  1. Thirteenth through Sixteenth Causes of Action – Open Book Account, Account Stated, Goods Sold and Delivered at an Agreed Price, and Work, Labor and Materials Rendered

Plaintiffs allege that Defendants became indebted to Ganahl for lumber sold and delivered to Defendants and for which payment has not been made. (TAC, ¶¶ 95-96, 100-101, 105-106, 110-111.) Plaintiffs allege that Ganahl transferred, assigned, and conveyed to Fortis all of Ganahl’s rights, title, and interest in the lumber supply contract and any accounts receivable due thereunder. (TAC, ¶ 97, 102, 107, 112.)

Defendants contend that each cause of action fails as to Boykin Inc. because Ganahl had no transactions or accounts with Boykin Inc., and never supplied Boykin Inc. with anything. However, Plaintiffs allege that Defendants were parties to the Lumber Supply Contract (TAC, ¶ 81), and assert the causes of action against Defendants and any of their alter egos (TAC, ¶ 97, 102, 107, 112).

The court finds that the thirteenth through sixteenth causes of action state facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the thirteenth through sixteenth causes of action.

  1. Seventeenth Cause of Action for Disgorgement

Defendants contend that the seventeenth cause of action for disgorgement fails because (1) Business and Professions Code section 7031 does not require disgorgement, and (2) Code of Civil Procedure section 1029.8’s provision for treble damages does not apply to Boykin or Boykin Inc. The court disagrees.

First, Business and Professions Code section 7031, subdivision (b) provides: “Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.” (See also Jeff Tracy, Inc. v. City of Pico Rivera (2015) 240 Cal.App.4th 510, 520 [finding that a disgorgement action under section 7031, subdivision (b) is permissible].)

Second, as Plaintiffs point out in their opposition, Code of Civil Procedure section 1029.8, subdivision (a), states, in relevant part, that “[a]ny unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required under . . . . Division 3 (commencing with Section 5000) . . . of the Business and Professions Code . . . shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction.” Section 7031 falls under Division 3, Chapter 9 of the Business and Professions Code.

Defendants also contend that Plaintiffs erroneously allege that Boykin and Boykin Company were not properly licensed. But, for the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (Aubry, supra, 2 Cal.4th at pp. 966-967), and Plaintiffs allege that “[n]either Mia D. Boykin, nor [Boykin Company] . . . was properly licensed at all times while performing work on the construction project, as required by law” (TAC, ¶ 32).

The court finds that the seventeenth cause of action for disgorgement state facts sufficient to constitute a cause of action as to each defendant. (Code Civ. Proc., § 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the seventeenth cause of action for disgorgement.

  1. Conclusion

For the reasons set forth above, the court overrules Defendants’ special demurrer on the ground of misjoinder, special demurrer on the ground of uncertainty, and general demurrer to each cause of action.

MOTION TO STRIKE

Defendants move to strike the entirety of the TAC on the ground that all causes of action are irrelevant, false, and improper matters. However, in support of their motion to strike, Defendants merely assert that Plaintiffs have failed to state facts sufficient to constitute any cause of action, and that Plaintiff’s allegations of Boykin Inc.’s alter ego liability fail.

As discussed above, the court overrules Defendants’ general demurrer to each cause of action and finds that each cause of action states facts sufficient to constitute a cause of action. The court also finds that Plaintiffs have adequately alleged Boykin Inc. to be an alter ego of Boykin Company. The court therefore denies Defendants’ motion to strike the entirety of the TAC.

ORDER

For the reasons set forth above, the court orders as follows.

The court overrules defendants Mia D. Boykin, Edward W. Boykin Company, and E.W. Boykin Construction, Inc.’s demurrer to each cause of action of the Third Amended Complaint.

The court denies defendants Mia D. Boykin, Edward W. Boykin Company, and E.W. Boykin Construction, Inc.’s motion to strike the entirety of the Third Amended Complaint.

The court orders defendants Mia D. Boykin, Edward W. Boykin Company, and E.W. Boykin Construction, Inc. to file and serve their answers to the Third Amended Complaint within 15 days of the date of service of this order on defendants.

The court orders Plaintiffs to give notice of this order.

IT IS SO ORDERED.

DATED: March 30, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer STEWART BRIAN K.

Latest cases represented by Lawyer SILVER GERALD NEIL