This case was last updated from Los Angeles County Superior Courts on 12/27/2021 at 08:13:24 (UTC).

MKP CONSTRUCTION, INC. VS SAFE UTILITY EXPOSURE, INC., ET AL.

Case Summary

On 08/14/2020 MKP CONSTRUCTION, INC filed a Contract - Other Contract lawsuit against SAFE UTILITY EXPOSURE, INC ,. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0450

  • Filing Date:

    08/14/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Cross Defendant and Plaintiff

MKP CONSTRUCTION INC.

Cross Defendants, Cross Plaintiffs and Defendants

WESCO INSURANCE COMPANY INC.

SAFE UTILITY EXPOSURE INC.

OHIO CASUALTY INSURANCE COMPANY A OHIO CORPORATION

MKP CONSTRUCTION INC.

MALCOLM BRUCE DBA SUBSURFACE

DEVELOPERS SURETY AND INDEMNITY COMPANY A CALIFORNIA CORPORATION

GOLDEN STATE WATER COMPANY A PUBLIC UTILITY COMPANY

Attorney/Law Firm Details

Defendant Attorneys

DAK WILLIAM ROBERT

LEWIS JOHN

Cross Defendant Attorney

HUGHES DAVID L

 

Court Documents

Answer

12/21/2021: Answer

Case Management Statement

12/22/2021: Case Management Statement

Answer

11/24/2021: Answer

Cross-Complaint

11/4/2021: Cross-Complaint

Summons - SUMMONS ON COMPLAINT (1ST)

11/4/2021: Summons - SUMMONS ON COMPLAINT (1ST)

Notice of Entry of Dismissal and Proof of Service

10/12/2021: Notice of Entry of Dismissal and Proof of Service

Request for Dismissal - REQUEST FOR DISMISSAL WITHOUT PREJUDICE AS TO DEVELOPERS SURETY AND INDEMNITY COMPANY, A CALIFORNIA CORPORATION, FROM CROSS COMPLAINT FILED BY SAFE UTILITY EXPOSURE, INC., ON 4

10/12/2021: Request for Dismissal - REQUEST FOR DISMISSAL WITHOUT PREJUDICE AS TO DEVELOPERS SURETY AND INDEMNITY COMPANY, A CALIFORNIA CORPORATION, FROM CROSS COMPLAINT FILED BY SAFE UTILITY EXPOSURE, INC., ON 4

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (CASE MANAGEMENT CONFERENCE) OF 09/24/2021

9/24/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (CASE MANAGEMENT CONFERENCE) OF 09/24/2021

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

9/24/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice - NOTICE NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

9/13/2021: Notice - NOTICE NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

Substitution of Attorney

9/22/2021: Substitution of Attorney

Case Management Statement

8/12/2021: Case Management Statement

Request for Entry of Default / Judgment

7/6/2021: Request for Entry of Default / Judgment

Proof of Personal Service

7/2/2021: Proof of Personal Service

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

6/17/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Answer

6/21/2021: Answer

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

3/15/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice - NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

3/16/2021: Notice - NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

33 More Documents Available

 

Docket Entries

  • 01/07/2022
  • Hearing01/07/2022 at 1:30 PM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Case Management Conference

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  • 01/07/2022
  • Hearing01/07/2022 at 1:30 PM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Trial Setting Conference

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  • 01/07/2022
  • Hearing01/07/2022 at 1:30 PM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Order to Show Cause Re: regarding answer/responsive pleading/default as to cross defendant Developers Surety and Indemnity Company

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  • 12/22/2021
  • DocketCase Management Statement; Filed by Ohio Casualty Insurance Company, a Ohio Corporation (Cross-Complainant)

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  • 12/21/2021
  • DocketAnswer; Filed by MKP Construction, Inc. (Cross-Defendant)

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  • 11/24/2021
  • DocketAnswer; Filed by WESCO Insurance Company, Inc. (Cross-Defendant); Safe Utility Exposure, Inc. (Cross-Defendant)

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  • 11/04/2021
  • DocketSummons On Cross-Complaint; Filed by Ohio Casualty Insurance Company, a Ohio Corporation (Cross-Defendant)

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  • 11/04/2021
  • DocketCross-Complaint; Filed by Ohio Casualty Insurance Company, a Ohio Corporation (Cross-Defendant)

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  • 10/12/2021
  • DocketRequest for Dismissal (Without Prejudice as to Developers Surety and Indemnity Company, a California Corporation, from Cross Complaint filed by Safe Utility Exposure, Inc., on 4/21/21); Filed by Safe Utility Exposure, Inc. (Cross-Complainant)

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  • 10/12/2021
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by Safe Utility Exposure, Inc. (Cross-Complainant)

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34 More Docket Entries
  • 11/12/2020
  • DocketMemorandum of Points & Authorities (Defendants Notice of Motion and Motion to Strike All or Portions of Plaintiff's Complaint); Filed by Safe Utility Exposure, Inc. (Defendant); Amy Rachel Miller (Defendant); WESCO Insurance Company, Inc. (Defendant)

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  • 11/12/2020
  • DocketDemurrer - with Motion to Strike (CCP 430.10) (To MKP Construction, Inc.'s Complaint); Filed by Safe Utility Exposure, Inc. (Defendant); Amy Rachel Miller (Defendant); WESCO Insurance Company, Inc. (Defendant)

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  • 09/22/2020
  • DocketProof of Personal Service; Filed by MKP Construction, Inc. (Plaintiff)

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  • 09/22/2020
  • DocketProof of Personal Service; Filed by MKP Construction, Inc. (Plaintiff)

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  • 09/22/2020
  • DocketProof of Personal Service; Filed by MKP Construction, Inc. (Plaintiff)

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  • 08/25/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/14/2020
  • DocketComplaint; Filed by MKP Construction, Inc. (Plaintiff)

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  • 08/14/2020
  • DocketSummons (on Complaint); Filed by MKP Construction, Inc. (Plaintiff)

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  • 08/14/2020
  • DocketCivil Case Cover Sheet; Filed by MKP Construction, Inc. (Plaintiff)

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  • 08/14/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******0450 Hearing Date: March 2, 2022 Dept: C

MKP CONSTRUCTION, INC. v. SAFE UTILITY EXPOSURE, INC.

CASE NO.: *******0450

HEARING: 03/02/22

#4

TENTATIVE ORDER

Cross-Defendant/Cross-Complainant THE OHIO CASUALTY INSURANCE COMPANY’s unopposed Motion for an Order Discharging, Cancelling, and Exonerating its Bond Number 253265C is GRANTED.

Moving Party to give Notice.

No Opposition filed as of February 28, 2022.

The Court finds that Cross-Defendant/Cross-Complainant THE OHIO CASUALTY INSURANCE COMPANY for and by itself and by Assumption of Liability Rider for DEVELOPERS SURETY AND INDEMPNITY COMPANY (collectively “Ohio”) is a mere stakeholder with no interest in the amount interpled, and that it is entitled to an order discharging it from liability and dismissing it form this action. (CCP 386.5)

Also, Ohio’s unopposed request for payment of attorney’s fees and costs from the interpled funds is GRANTED in the reasonable amount of $5,848.00. (CCP 386.6.) Cross-Defendant/Cross-Complainant THE OHIO CASUALTY INSURANCE COMPANY is DISMISSED with prejudice from this action. The clerk of Court is instructed to tender a check made payable to THE OHIO CASUALTY INSURANCE COMPANY in the amount of $5,848.00 to be paid out of the proceeds deposited with the Court.



Case Number: *******0450    Hearing Date: February 18, 2021    Dept: C

MKP CONSTRUCTION, INC. v. SAFE UTILITY EXPOSURE, INC.

CASE NO.:  *******0450

HEARING:  02/18/21

#5

TENTATIVE ORDER

I. Defendants SAFE UTILITY EXPOSURE, INC.; AMY RACHEL MILLER; and WESCO INSURANCE COMPANY, INC.’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend as to Defendant AMY RACHEL MILLER only, and OVERRULED as to Defendants SAFE UTILITY EXPOSURE, INC. and WESCO INSURANCE COMPANY, INC.

II. Defendants SAFE UTILITY EXPOSURE, INC.; AMY RACHEL MILLER; and WESCO INSURANCE COMPANY, INC.’s Motion to Strike Portions of Plaintiff’s Complaint is DENIED.

Opposing Party to give notice.

This action for breach of contract was filed by Plaintiff MKP CONSTRUCTION, INC. on August 14, 2020. Plaintiff’s Complaint asserts the following causes of action: (1) Breach of Contract; (2) Negligence; (3) Fraud; and (4) Contractors State License Board.

Defendants SAFE UTILITY EXPOSURE, INC.; AMY RACHEL MILLER; and WESCO INSURANCE COMPANY, INC. (collectively “Defendants”) demur as follows: to the first, second, and third causes of action against Defendant MILLER on the basis of misjoinder; and to the first through fourth causes of action pursuant to CCP ;430.10(e) and (f).

As to the Entire Complaint – Uncertainty

Defendants argue that Plaintiff’s claims are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) 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.” (Ibid.) Here, it is clear from Defendants’ other arguments that they understands what Plaintiff is at least attempting to allege, and there is no true uncertainty. The demurrer is not sustained on the basis of uncertainty.

Alter Ego – As to Defendant AMY RACHEL MILLER only

Defendants argue that their demurrer is properly sustained as to Defendant MILLER on the basis that Plaintiff has failed to sufficiently allege alter ego liability.

Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations. [Citations.]” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) “In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” (Id.) Among the factors to be considered in applying the doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other. (Id., at 538-539.) Other factors include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. (Id., at 539.) No one characteristic governs. The courts must look at the totality of the circumstances to determine whether the doctrine should be applied. Alter ego is an extreme remedy which is sparingly used. (Id.)

The Complaint is devoid of any factual allegations to suggest that MILLER is the alter ego of the corporate defendant. Plaintiff’s boilerplate allegations of alter ego against MILLER are inadequate. Mere recitations of law are inadequate. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415. [“To recover on an alter ego theory, a plaintiff need not use the words, ‘alter ego,’ but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated is treated as the sole actor” ].)

The demurrer to the first through third causes of action as to Defendant AMY RACHEL MILLER is SUSTAINED with 30 days leave to amend.

First Cause of Action – Breach of Contract

Whether it is written, oral, or implied, the elements of a cause of action for breach of contract are as follows: (1) the existence of a contract; (2) a plaintiff’s performance or excused non-performance; (3) a defendant’s breach; and (4) resulting damage to a plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) “If an action is based on a breach of written contract, the terms must be set forth verbatim in the body of the complaint or a copy of the contract must be attached and incorporated by reference.” (Id. at 459.) Alternatively, if the claim is based on a written contract then “a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co., (2002) 29 Cal.4th 189, 198-199.)

The relevant facts, as alleged, are as follows: “On or about September 13, 2018 Plaintiff MKP entered in a written contract with non-party Golden State Water Company…for a pipeline relocation project in Barstow, California. Plaintiff MKP and Defendant S.U.E. had previously entered into an agreement…in which Defendant S.U.E. would act as a subcontractor on the project in performing the boring portion of the work. An unsigned copy of this contract is attached hereto as Exhibit ‘A’.” (Complaint ¶24.) The contract terms as stated in Exhibit A are as follows: “[t]he…work to be done in a workmanlike manner by SUE’s employees for the above quotes price as directed by the customer. All contract amounts are due and payable in Orange County in 30 days with no retention held.” (Complaint ¶24, Ex. A.) “Pursuant to the contract, Plaintiff MKP agreed to pay, and Defendant S.U.E. agreed to accept compensation for strict performance of its work subject to additions and deductions for changes in the work as might be agreed upon subject to the terms and conditions of the project.” (Complaint ¶25.) “After multiple delays and corrections relating to the work performed by Defendant S.U.E., Defendant S.U.E. ultimately abandoned the project, leaving the project unfinished.” (Complaint ¶26.) “Plaintiff MKP has duly performed its work pursuant to the contract.” (Complaint ¶27.) “On or about February 14, 2019 Defendant S.U.E. breached the contract by Defendants…by not having completed the work called for in the contract and by failing to continue to work diligently on the work called for in the said written agreement. Defendant S.U.E. further breached the contract by having demanded and accepted payments not called for in the contract and by demanding and accepting payments for work not completed. Defendant S.U.E. has further breached the said written agreement by providing poor quality workmanship.” (Complaint ¶28.) “Plaintiff has been damaged in the sum of at least $500,000.00….” (Complaint ¶30.)

The demurrer to the first cause of action is OVERRULED. The contract is attached to the Complaint, and its terms have been sufficiently incorporated by reference. There is no ambiguity or confusion as to what the agreement attached as Exhibit A states. Moreover, specificity is not required to adequately allege a claim for breach of contract.

Second Cause of Action – Negligence

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Johnson v. Prasad (2014 224 Cal.App.4th 74, 78.) “A party may plead negligence…in general terms.” (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1469.)

The demurrer to the second cause of action is OVERRULED. Plaintiff has alleged sufficient facts to maintain a claim for negligence. (See Complaint ¶¶33-37.) As with breach of contract, it is not necessary to plead negligence with specificity.

Third Cause of Action – Fraud

Whether intentional or negligent in nature, fraud actions are subject to strict requirements of particularity in pleading. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Despite Defendants’ arguments to the contrary, the Court finds that Plaintiff has adequately alleged a claim for fraud for purposes of surviving demurrer. Plaintiff sufficiently alleges that “Defendant S.U.E. served a 20-Day Preliminary Notice on GOLDEN on April 24, 2019…. [¶] Defendant S.U.E. knew, at the time it filed the 20-day Preliminary Notice, that it was worthless as a 20-Day Preliminary Notice only covers work rendered within 20 days before it was served. Defendant S.U.E. served this anyway in preparation to filing its Stop Payment Notice, which Defendant S.U.E. knew would result in GOLDEN refusing to pay Plaintiff MKP monies owed to Plaintiff MKP.” (Complaint ¶¶39-40.) These allegations are sufficient at this stage in the litigation. The demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action – Contractor’s License Bond

In order to state a claim for recovery on a contractor’s license bond, a plaintiff must allege a predicate violation of the Contractor’s License Law by the contractor.

Here, Plaintiff has sufficiently alleged that “Defendant S.U.E. failed to comply with the provisions of the Division of the Business and Professions Code Division III, Chapter IX, in that Defendant S.U.E. and failed to perform its contractual obligations in direct violation of the provisions of Business and Professions Code ;;7108, 7116 and 7120.” (Complaint ¶46.) The demurrer to the fourth cause of action is OVERRULED.

Motion to Strike

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP ;436.)

The basis for punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that Defendants’ conduct was oppressive, fraudulent, or malicious. (Smith v. Superior Court (1992) Cal.App.4th 1033, 1041-1042.) Defendants move to strike punitive damages, arguing that the facts of this action do not support a prayer for punitive damages. The motion to strike punitive damages is DENIED given the Court’s ruling above.



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