Motion For Summary Judgment

Motion

Cal. Super. - 2nd Dist.December 15, 2017

Electronically FILED by Superia Court of California, County of Los Angeles on 03/20/2020 01:39 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk 1 || RICHARD COBERLY SBN: 242093 5 LAW OFFICE OF RICHARD COBERLY 969 S. Village Oaks Dr., Suite 105 3 Covina, California 91724 Telephone: (626) 339-9484 4 || Facsimile: (626) 608-2998 5 Email: richardcoberly@yahoo.com 6 Attorneys for Cross Complainants Ruth and Michael Miniaci 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 10 COUNTY OF LOS ANGELES - CENTRAL DISTRICT ie ISAM MAAYTAH CORPORATION, 12 || INC. a California Corporation dba ) Case No.: BC686478 CABINET INSTALLATION MASTERS ) 13 ) NOTICE OF MOTION AND Plaintiff ) MOTION FOR SUMMARY 4 ) JUDGMENT OR IN THE 15 ) ALTERNATIVE SUMMARY MICHAEL MINIACI, an individual; ) ADJUDICATION 16 || RUTH MINIACI, an individual; and ) 17 DOES 1 through 50, inclusive, ) CRS# 155383293103 ) Date: June 8, 2020 18 Defendants ) Time: 8:30am ) Dept: 48 19 ||" RUTH MINIACL an individual and ) 50 || MICHAEL MINIACL an individual. ~~) Assigned for all purposes to the ) honorable Elizabeth A. White 2] Cross Complainant, ) ab = ) Initial Filing: May 17,2017 22 ) SAC: November 17, 2017 23 ISAM MAAYTAH CORPORATION, : Trial Date: January 25, 2021 INC., individually and dba CABINET 24 || INSTALLATION MASTERS, ) Js || AMERICAN CONTRACTORS ) 25 || INDEMNITY COMPANY: ROE CO., 26 ROE CORP., ROE PARTNERSHIP, ) AND DOES 1 through 10, inclusive, : 27 8 Cross Defendants ) ) MINIACTI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 1 ro S OC 0 NN NN Wn se Ww RN N N N N N N N N N e e e m e m ee e e e e e m ee 0 9 O O Un BRE W N = O O N D nn BE W N TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on June 8, 2020 at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department 48 of the above-entitled Court, located at 111 N. Hill St. Los Angeles CA 90012, Defendants Ruth and Michael Miniaci will, and hereby do, move this Court for a summary judgment and/or summary adjudication. This motion will be made on the grounds that the causes of action listed in Plaintiffs” Third Amended Complaint cannot be factually or legally sustained. As Plaintiffs have not and will not be able to provide triable issues of facts to support their causes of action. This motion is further based upon this Notice, the attached Memorandum of Points and Authorities, the Declarations of Ruth Miniaci, Bill O’Brallahan, Robb Castro, Richard Coberly, Esq., and upon the records and files in this action and upon such further evidence and argument as may be presented prior to or at the time of hearing on the motion. py RTCHARD COBERLY ATTORNEY FOR DEFENDANTS/ CROSS-COMPLAINANTS MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 2 ro SS OO 0 NN a n n Bs WwW Be p e d p k p e t e d b e d b e d e d e e © NN O N Wn BR W N 19 II. IL. TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES 2. CHALLENGES TO THE LEGITIMACY OF THE ALLEGED CADE TIR PRE RT) oi iin 17 ASTER Fenn ow oh Srey Fu Ef seo Bd § FW a. CIM admits that the alleged contract does not meet the requirements of Business and Professions Code (hereinafter “BP” § 7159)........ i. Resolution of the CSLB Complaint.............cccceviiiinneinininnne, b. CIM Drafted an Alleged Contract, but the Completion of the Contract was Delegated to Chak Nery, a Knowingly Unlicensed CONNECTION rst treetops shri tat ane mens ond) wns sills, os cpm eral o 3. PERFORMANCE AND CIM’S SELF-TERMINATION OF THE ALLEGED CIRCE ICAL «vss viasuiiionsiums wa doiieinind vo iis 3 ion 74 PAA wy EERE 1 b. OTHER PERFORMANCE ISSUES. ...iiu0nessauessssvonmonssosmonsssins 4. MECHANICS LIEN & LIS PENDENB.. is onsiaissonmniisssesnsmvni os nse 5. THERE IS NO INTERFERENCE WITH CONTRACT OR BUSINESS ADVANTAGE HERE. ..... cote sonmssvnnssscssemnunssnsvmnennasscumesnnsssvonmans B. PROCEDURAL FACTS occ. so cosmmumss ss sommunnns ss asmmanivn iss uaesongs s vassvansss oe MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION wn = 2 ro NO ce 9 ARGUMENTS IV. PLAINTIFFS’ FIRST, SECOND AND THIRD CAUSES OF ACTION FAIL BECAUSE OF PLAINTIFFS’ NON-COMPLIANCE WITH BUSINESS AND PROFESBICNES CME TUOW ici. i. i mniinns ons aprons s smamssesins s SE BSURERS RE RORY AN 6 A. PLAINTIFFS’ WAIVED THEIR RIGHTS TO NOT HAVE THE CSLB FINDINGS USED AB RES JUDECATA... cxs0asiiss in nnmiantsssisniassssnsavssesssn ass 8 V. ~~ PLAINTIFFS’ FIRST AND SECOND CAUSE OF ACTION FAIL BECAUSE THE LABOR WAS PERFORMED BY AN UNLICENSED SUBCONTRACTOR IN VIOLATION CF THE LAW. cc coniniisimassmssnes shamsismms 50 asbi Bhbismeis 1A 9 VI. PLAINTIFFS’ FAILURE TO OBTAIN PROPER PERMITS AND SELF TERMINATION NEGATE THEIR FIRST CAUSE OF ACTION FOR BREACH ERNE] lil tod ns Pere wd ie rp Rt AiR tb A Serio R aS Branca 10 A. PLAINTIFFS WERE DUTY BOUND TO OBTAIN THE PROPER PERMITS, AND THEIR DECISIONS TO NOT OBTAIN THE PROPER PERMITS AND IGNORE THE EXISITING PERMITS PROVIDED GROUNDS FOR RECISSION DUE TO ILLEGALITY OF CONTRACT.......ccccooiviiiiiniianne 11 B. PLAINTIFFS ACTIONS OF NOT OBTAINING PROPER PERMITS, NOT CORRECTING THE WORK THEY HAD DONE, AND SELF-TERMINATING CONSTITUTED BREACHES OF CONTRACT ..0u 1 csasmonmvesrmmmsnns sss ssmosngyes 13 VII. PLAINTIFFS’ FOURTH CAUSE OF ACTION FAILS BECAUSE THEY IMPROPERLY FILED THEIR MECHANIC'S LIEN IN THIS CASE.................. 16 A. PLAINTIFFS’ FOURTH CAUSE OF ACTION FAILS BECAUSE THE WORK ON THE CONTRACT WAS NOT COMPLETED BEFORE PLAINTIFF FILED A MECHANIC'S LIEN cassmssws iii sssnmssnss suasosnnnes snesnsases sessmonrvs sn smesnmes senses 16 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION No 2 S S NO ee NN O N Wn a 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VIII. IX. XI. XII. XIII. XIV. B. PLAINTIFFS” FOURTH CAUSE OF ACTION WAS FILED MORE THAN 90 DAYS AFTER THE COMPLETION OF THE WORK OF IMPROVEMENT...... 16 THE LIS PENDENS BASED UPON THE MECHANIC'S LIEN MUST BE ER UII Vc ccs tient ha ses 4 BE 5 SE Ene Pia SE Be RSE Ra 17 DEFENDANTS ARE ENTITLED TO ATTORNEY'S FEES FOR SUCCESSFULLY EXPUNGING THE MECHANIC'S LIEN AND LIS PENDENS. 17 PLAINTIFFS’ FIFTH CAUSE OF ACTION FOR ACCELLERATED PAYMENT FAILS BECAUSE A GOOD FAITH DISPUTE HAS EXISTED BETWEEN THE PARTIES SINCE AT LEAST SEPTEMBER 23, 2016... ...cccocnicamomsess sn ssmanss sons 18 PLAINTIFFS’ SIXTH AND SEVENTH CAUSES OF ACTION FAIL BECAUSE THERE IS NO PROOF THAT DEFENDANTS HAD KNOWLEDGE OF ANY OF THE CONTRACTS BETWEEN PLAINTIFFS AND THE PERSONS NAMED IN FEE CEINIPLAIN Lv 5xoimms «5 enemmiat i nis sss noes ss 1a gamtions Su sesamin vs ranyxae: 19 PLAINTIFFS’ SIXTH CAUSE OF ACTION FOR INTENTIONAL INTERFERENCE WITH A CONTRACT FAILS BECAUSE DEFENDANTS CANNOT INTERFERE WITH THEIR OWN CONTRACT .........ccovviiiiinin 20 PLAINTIFFS’ SIXTH AND SEVENTH CAUSES OF ACTION FAIL BECAUSE REPORTS TO THE CITY OF DIAMOND BAR AND THE CONTRACTOR'S STATE LICENSE BOARD WHICH WERE ACTED UPON DO NOT CONSTITUTE INTERFERENCE. . .covsccorssasnsonsovesrosmeonnsspranmores s orsumens s svpeys 20 REC E E NII ctosmsionsitcr sami essen Ss SR Ry try £4 SR r+ Foes 4] Sa eabepas 21 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION Oo 0 NN O N nn Bs W N r o r o r o N o r o N - DN rN r o - -_- -_- p t p b h t = f d -_- o d =- ] ~ AN wn += Ww t o bt => Oo c o ~ ND wn += [9 8] 3S ] -_- oS TABLE OF AUTHORITIES CASES ACCO Engineered Systems, Inc. v. Contractors' State License Bd. (2018) 30 Cal. RPE SUN GOL DIE ciis i 5 immmimiosin nn summons #5 65 Soe 5.5 ase 8 A 4 RS 11 ACCO Engineered Systems, Inc. v. Contractors' State License Bd., supra....... 14 Arya Group, Inc. v. Cher (2000) 77 Cal. App. 4th 610, 611............ccovevenen... 8 Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal. App.4th 945,961... 20 Asdourian v. Araj (1985) 38 Cal. 3d 276, 280........ccc...covvcenesnrnommonnes sommes 7 Bailey-Sperber, Inc. v. Yosemite Ins. Co. (1976), 64 Cal. App. 3d 725, 729- Ili Fa eats A FES SPR 4 SR Saree 4 En FY Ut SE me oR 14 Barrows v. Knight (1880) 55 Cal. 155, 156-157.....cvueuiniriiiieiiiiieeeeeeenn, 17 Barry v. Contractors State License Bd. (1948), 85 Cal. App. 2d 600, 604............ 11 Contractors’ State License Board v. Superior Court of Los Angeles County (1960) ERT Cal. APP. 20 S87, BBL... conomve srs urvsmenmes yanssimsiss swansea i sme 1 IASESOIY 8 Fairlane Estates, Inc. v. Carrico Constr. Co. (1964), 228 Cal. App. 2d 65, 68. ...... 9 Hall wv. Coyle (1952) 38 Cal. 20 S43, SAB. ..ocince ec invinnens sss namin ss somomusn 13 onimosns 8 Hersant v. Department of Social Services (1997) 57 Cal. App. 4th 997. 1000; 67 abl. RPI. Zed SBN, BUN. cov 130 mma sw nw snainon so VARESE BY ERR RENEE SS ESR 1 Hinerfeld-Ward, Inc. v. Lipian (2010) 188 Cal. App. 4th 86, 92-95.................. 21 Howard S. Wright Construction Co. v. BBIC Investors, LLC (2006) 136 Cal. App. BE Ns Frcs ohn eed a A 0 5 hd le RSA ct Be 16 Hydrotech Systems, Ltd. v. Oasis Waterpark (1991), 52 Cal. 3d 988, 998........... 9 Hydrotech Systems, Ltd. v. Oasis Waterpark Supra..............ccceeevievenennennnnnnn. 10 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION iv NO 0 NN NN B R A W N 0 N D N N N N N = em ee e m ee e m e m e a em 0 Nd O N Un BA W N = O O OO N N N R E L ND = O Korech v. Hornwood (1997) 58 Cal. App. 4th 1412; 1420-1422...........cevevnnnn.. 18 Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126..... 19 Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1137..... 20 Pacific Gas & Electric Co. v. Bear Stearns & Co. SUPTa..........ccevvnenenennnnnnnn. 20 Powell v. Berg (1950), 99 Cal. App. 2d 353, 358-355... conevcses npmenesnssnsmmnsonsns 10 Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, Sautter v. Contractors' State License Bd. (1954), 124 Cal. App. 2d 149, 155......... 12 Terminix Co. v. Contractors’ State License Board of Dep't of Professional & Vocational Standards (1948) 84 Cal. App. 2d 167, 175-176.........ccoevvivienennnn.n. 14 West Coast Home Improv. Co. v. Contractors’ State License Board (1945), 72 Cal. APP. 8 IBT 5 TMi so simon x § 5 usinrssnid 4 435 bauisbonssn 5 5» RAMIRHES #5 6 Mommas 3 6 SRSAHESE BH 553 9 Wilson v. Steele (1989) 211 Cal. App. 3d 1053, 1059; Fairlane Estates, Inc. v. CAPO COMME, EMAIL coon co im imi £5. miniiciicn 5 mip pin § 8 mito § arin 10 WSS Industrial Construction, Inc. v. Great West Contractors, Inc. (2008) 162 Cal. APD. A 581,594. Loose eee eee eee eee eee eee eee eee eters 8 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION Vv NO 00 9 O N wn BA W N RD N N N N N R N ) em e e ee e m e m ee e e e m © NN A N nn BA W I N - W I N = O STATUTES Business and Professions Cade § 7028......cc..c..vommounmeisommainis is sonmonne s sss sans 9,10 Business and Professions Cade § TOR. cucu s ch ssonmmmns s is mnnssnnss ss snmsoion ds 5 buss 10 Business and Professions Code § TOD. ...omvmirss os msm i 43s anmsisie 3 § asia i £5 sss 12 Business and Professions Code 8 THOT, cvuiunes i summon s 5 somisosbions i sows session 14 Business and Professions Code § THO. . co..oves nis cumonns i osm omnes ss vimanas 5. so ons 11 Business and Professions Code § TLE i imueieissismmsemis iss snows is shme s «s amas 14 Business and Professions Code § 7114... .ooiivvenss smssivos ss nsmsiosss ss swsisias ss swe 10 Business and Professions Code § 7114(a).........couvviviirineiiiineiiieniiieeneennens 9 Business and Professions Cate § TLS... . cocci sussmmsins 55 sanimon ss» wissen so 3 aki 9,10 Business and Professions Cole § T1589... souwsvnes sss somossn sins sawammar ss xusmainssns sass 2,378 Business and Professions Code § 7159 (c), (4), (6), (d), (1), (e), (5), (6), (A), FB), (0 00), EAE Yvon a risen sirimni ME sburs on v sB srs fm estas 1, 7 Business and Professions Code § 7159(C)....ovviiriiiiiiniiiiiiiiiii eee 7 Business and Professions Code § T15MAM1 «cc csc snsmmons 53 sammains is anima spa abs 1 Business and Professions Code § 7159(€)(5)...uuviriiiiiiiiiiiiiiiiieeiiiieieenns 7 Business and Professions Code § 7159(e)(6)(A)B)(C)(1)(i1)(ii1).uvveveeeeinnnnnnn. 7 Business nd Professions Code § TISME):. iv. covannsinssssmnnisss ams oss soma mes vs 7 Business and Professions Code §7068.1, subd. (a), (€)”.....cvvviiiiiiiiniiinniinnn. 14 Civil Code § 168I(D)(2)(5) cu unenennnaiiiiiiiiie eee eee, 12 CREE BT ck oom on cores B85 ST ho nls BB ST ie in hs Fn 18 Civil Colle § BID: .cousrs id mmisman sda» sismuis ws s suisse ss 1 wSmssie sy § somal ss swiamanies 18 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION \% S S OO RX 9 S N Un Bs W N = p b No No r o r o [N O] [W S] r o r o N o - pt -_- - pa k p- = - o o R Y AN wn ES N Ww r o -_ > O o o ~ aN wn 4 Ww No La | RP ERPCIC RPE yet oy opel oa SO AB 16 Cl L008 8 S000 lemon Eaten s Fed osu Ub Se ns wk a Lh RRs 18 CIVIL COE § BILL co nmmmiinns as damn 43 wrists i § 5 ARMMSIRERS £5 SSRRESAR LA 5 $5 ERRA 18 Civil Cold § BBODRY cox. » sunivnins sn arivmmsions i 3 § 5 sisinnioss 4 45 5sisss § 45 hissisaiod #3 4590s 18 Code of Civil Procedure (“CUP™ § 405,201, « sussmmsss vs mosses rs sammmonmr ss somone 17 Cade pECIVI]L PIOBEITES § BOB BD... coiiuminniss 55 simmons 3 kimmaains 5 suse 55 5 smn 17 Code of Civil Procedure § SDS. I8. .. os commer ii suum i515 svamens ds 5 assis 1 dio 18 Code-of Ciwil Procedinre § S370) cmc sy asimsnusin us nonwmsisian iss siusossion s5 5 aswaision £4 1s xs 1 PICRARIRS FBI Loc i 5 vhoosmins Fassel ve dalisiniisn sirname oh Fens bd pitied 14 7 BOPEIVTEDONEE TRIE Fis i imarmsionsis sn 5s whabscinsin 45 i 5.1. mio mck 15 4 Bnd osm 6 A 33 7 LEGAL REFERENCE Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847, original italics, internal Citations OMIttEd. .......voeneiee ieee ee ee ee e eee eeaaans 13 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION vii S S © 0 NN O N nn A W N BP = e t md e d e k e t e d e d e d pe S S OO NN n n B A W ND po [ [S e] r o r o [5 ] to ~ AN Wn + wo ro - 9 oo MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The Miniacis bring this Motion for Summary Judgment and/or Summary Adjudication for the proper purpose of eliminating issues from trial by obtaining a judgment on the Plaintiffs” Complaint before trial. Each and every cause of action pled by Plaintiffs fails. THE contract does not meet statutory standards and is thus void. The work was done by an unlicensed subcontractor and is thus void for illegality. The alleged contract was subject to rescission throughout its life because Plaintiffs intentionally sought an improper permit. Plaintiffs never completed the contract, but rather abandoned it, causing the Mniacis to have replacement work done and more replacement work is required. Despite these defects, the Plaintifs have also improperly filed a Mechanic’s Lien and Lis Pendens when the work was not completed, and the prior work which had been completed was well over 90 days old.. The Plaintiffs seek accelerated payment, despite knowing of a good faith dispute since September of 2016. Plaintiffs then attempt to claim an interference with contract and/or economic advantage, but cannot maintain such an action by law. Il. SUMMARY JUDGMENT “Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Code of Civil Procedure § 437¢(c); Hersant v. Department of Social Services (1997) 57 Cal. App. 4th 997, 1000; 67 Cal. Rptr. 2d 483, 484. In analyzing a Motion for Summary Judgment or in the alternative a Motion for Summary Adjudication; a “court accepts as undisputed fact only those portions of the moving party's evidence that are uncontradicted by the opposing party. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn therefrom are accepted as true.” Hersant v. Department of Social Services (1997) 57 Cal. App. 4th 997, 1000; 67 Cal. Rptr. 2d 483, 484. MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 1 S S NO 0 NN O N Nn Bs W N -- N o N o - p t -_ -_- - -_- p k f t - _ p i l oS \O o o ~ aD wn += “2 ro - 22 IHI.LFACTS A. GENERAL The facts relevant to this motion stem from the Second Amended Complaint (hereinafter “SAC™) dated November 17, 2017. The SAC allege 1) Breach of Contract; 2) Quantum Meruit; 3) Mutual, Open, and Current Account for Money Due; 4) Mechanic’s Lien Forclosure; 5) Prompt Payment Statute; 6) Intentional Interference With Contract; and 7) Negligent Interference With Prospective Economic Relations. (UF 1.) Every allegation in the SAC can be adjudicated as there are no material issues of fact to legally support their allegations. 1. THE DOCUMENTS WITHIN THE ALLEGED CONTRACT On July 25, 2016 the parties signed a 7 page document drafted by CIM, which was presented as a contract. (UF 2) On August 3, 2016 the parties entered into a pair of written change orders. One change order was to include the installation of 2 bay windows (UF3) while the other was to install a new HVAC system in the home (UF 4). 2. CHALLENGES TO THE LEGITIMACY OF THE ALLEGED CONTRACT a. CIM admits that the alleged contract does not meet the requirements of Business and Professions Code (hereinafter “BP” § 7159) When one looks for the language required by BP § 7159 (¢). (4), (6), (d). (1), (e), (5), (6). (A). (B), (C), (i), (ii), & (iii) in this alleged contract, the language is conspicuously absent. (UF 5.) Isam Maytaah on behalf of CIM, and his counsel both admitted that the alleged contract does not meet the requirements of these sections of BP § 7159. (UF 6). i. Resolution of the CSLB Complaint While the findings of the CSLB are non-judicial and require an independent finding of fact within the Courts; Plaintiffs have admitted fault in such a way that they appear to be waiving this basic protection of their own interest. The Miniacis’ complained to the CSLB on February 21, 2017 in the hopes of enforcing compliance to MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 2 S vO °° NN N n Ee W N = J t ro ro no ro r o No No ro ro -_- _ - -- -_- - - - oo ~ AN wn + 2 [S S] pon d oS NO o o ~ AN wn += [5 ] ro finalize the contract. (UF 7). The CSLB sent an investigator to the home and issued a citation to Plaintiffs on July 30, 2018. (UF 8). Plaintiff appealed the citation on August 01, 2018, but ultimately pled to violations of BP § 7159 on June 28, 2019 (UF 9); then paid Defendants $18,536.09. (UF 10). b. CIM Drafted an Alleged Contract, but the Completion of the Contract was Delegated to Chak Nery, a Knowingly Unlicensed Contractor The alleged contract was between Cabinet Installation Masters and the Miniacis. Chak Nery did not have a valid CSLB license at any time relevant to these proceedings. (UF 11). Isam Maaytah as the person most knowledgeable for Cabinet Installation Masters admitted that Chak Nery did not have a license when hired. (UF 12). Chak Nery was sent by cabinet Installation Masters on August 4, 2016 to perform work on the home renovations. (UF 13). Plaintiff's work notes indicate that Chak Nery performed much of the work on this project. (UF 14). While on the project Chak Nery ordered materials under the name “Nery’s Construction” based in El Monte California. (UF 15). Chak Nery installed the windows and sliding glass doors in the house. (UF 16). When Chak Nery and/or one of the workmen damaged the attic window in the library, he charged $800 to replace that window and its twin in the front room. (UF 17). 3. PERFORMANCE AND CIM’S SELF-TERMINATION OF THE ALLEGED CONTRACT On June 30, 2016, Plaintiff obtained a permit (PR16-1579) for a small percentage of the work in the contract as said permit did not include the windows, the HVAC, or many items within the contract. (UF 18). The Alleged Contract included work around the entire house. (UF 19). a. ISSUES RELATED TO THE PERMITS On December 12, 2016 when Plaintiffs were seeking to have the City of Diamond Bar (hereinafter “the CITY”) approve the work Plaintiffs had performed. During the December 12, 2016 inspection it became apparent to Ruth Miniaci that only some of the work performed was being reviewed by the City. Ruth Miniaci told the CITY’s inspector MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 3 S S © X N N n BA W N f o DN P D PN BN N B R NN P Y m e e e e m e m e m be d ee pe d ee ee d KR Nd a Wn BA W N = O OO X N O N B R E W that there was more work performed than was being reviewed. (UF 20). The CITY issued a Correction Notice on December 12, 2016 to correct issues that were in the Contract but not the permit. (UF 21.) As of December 16, 2016, the issue of the windows had not been addressed and water began to leak into the home from the poorly installed windows. (UF 22). CIM placed tape over the windows as a sealant on or around December 17, 2016. (UF 23). This resulted in the CITY inspecting the home on December 19, 2016 and issuing another correction notice. (UF 24). Plaintiff applied for a permit relating primarily to the windows that had been previously installed on or about December 19, 2019. (UF 25). Permit PR17-054 was issued on January 9, 2017 because the required documentation was received by the CITY. (UF 26). The issues with the windows were not resolved until defendants hired Gecko Construction of obtain a permit, install the windows and obtain approval of the work from the CITY, which they did. (UF 27). The Miniacis complained to the CSLB on February 21, 2017 in the hopes of enforcing compliance to finalize the contract. (UF 28). The alleged contract was not cancelled at this time. On February 27, 2017, Plaintiffs obtained an HVAC permit to satisfy the CITY s correction notice of December 19, 2016. (UF 29). Nonetheless, permits PR16-1579 and PR17-04 expired (UF 30). The CITY had also sent a new correction notice, on April 11, 2017, that the HVAC portion of the contract was finished. (UF 31). Plaintiff was aware of the lapsed permit and sent a dishonest letter to the CITY indicating that all the work was completed and that all that remained was to arrange a walk through with the CITY. (UF 32). On May 11, 2017, the CITY issued a second correction notice regarding the windows (UF 33). On May 24, 2017, CIM drafted a letter terminating their permits with the CITY so that they would not have to “take responsibility for someone else’s work. (UF 34). Therefore, it is factually undisputed that Plaintiff quit the project before it was completed. (UF 35). 1 /1/ MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 4 OO 0 NN O N Wn bs W N P Y m t mt e t e t me d ee k ee d e k e d ee S Oo Le NN O N Wn B A W NN = O r o b o ro r o No rN ro ~ ND wn A “2 ro be m ro oo b. OTHER PERFORMANCE ISSUES By September of 2016, there were conflicts between CIM and the Miniacis over billing matters and work that needed to be corrected. Defendants complained via text on September 23, 2016 that the windows were improperly installed. (UF 36). Ruth Miniaci made it clear that she was not paying further until items listed on her check were completed. (UF 37). The second legitimate complaint that Defendants made was via email on October 17, 2016 regarding the poor installation of the kitchen cabinets. (UF 38). Despite claiming in their complaint that they had made timely requests for payments, Plaintiffs refused to answer any interrogatories regarding said requests, as they were “unlikely to result in admissible information” (UF 39). No replacement work has been done on the cabinets to date. (UF 40). Current photographs show issues which still exist regarding the cabinets. (UF 41). Plaintiff provided no claims for payment which were more recent than October of 2016. (UF 42). Gecko construction has recommended the replacement of all cabinets installed by cabinet Installation Masters. (UF 43). 4. MECHANIC'S LIEN & LIS PENDENS Plaintiffs recorded this Mechanic’s Lien on May 16, 2017. (UD 44). Isam Maaytah admitted the work was not completed when the letter to the city was drafted terminating Cabinet Installation Masters’ permits. (UF 45). This fact is affirmed by the fact that Plaintiff's counsel admitted in her letter to the bond company that the work was not completed. (UF 46). Plaintiff kept a log of when all of their work was completed. Within this log there is no indication that anything was done after October 14, 2016 on the initial contract. In fact all entries after October 14, 2016 deal exclusively with HVAC installation, which was paid for in full on August 3, 2016. (UF 47). Plaintiff last requested payments in September and October of 2016 while being aware of the Miniacis’ complaints regarding the work. (UF 48). Furthermore, Plaintiffs objected to any special interrogatories on the MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 5 - ro © OO ® N O wn Bs WwW B D = r m em p d md be d e d pe d ed pe S S © X N O N Wn Bs W N = issue of what work was unpaid to justify a Mechanic's Lien, considering such interrogatories “unlikely to result in admissible evidence.” (UF 49). CIM has no legal interest in the ownership or possession of Subject Property other than the Mechanic's Lien itself. (UF 50). The Miniacis’ through their counsel were provided with a warning letter that if this issue required a motion to resolve that Defendants would seek attorney’s fees. (UF 51). Plaintiffs have not willingly relinquished their Mechanic's Lien so by operation of law, Defendants are entitled to attorney's fees. (UF 52). 5. THERE IS NO INTERFERENCE WITH CONTRACT OR BUSINESS ADVANTAGE HERE Paragraphs 32 and 42 of the Plaintiffs’ Complaint name numerous persons with whom Defendants allegedly had interfered with a contract or economic relationship. (UF 53). Defendants asked in their Requests for Admissions that Plaintiffs identify how the Defendants knew of these parties and the response was that the Plaintiffs were not aware of Defendants knowing these parties. (UF 54). At various times Plaintiffs have tried to use the reports of the Defendants to the CSLB, the Reports of the Defendants to the CITY and the paying $800 to Chak Nery for him to replace windows he broke as interferences with Contract and/or economic relationship. The reasons these allegations are untrue are explored in argument below. B. PROCEDURAL FACTS This case was initially filed on May 17, 2017. On or around December 15, 2017 the case was transferred from Pomona to this Department. (Exhibit 51). Trial was rescheduled due to new counsel, and trial in this matter is set for trial on January 25, 2021. ARGUMENTS IV.PLAINTIFFS’ FIRST, SECOND AND THIRD CAUSES OF ACTION FAIL BECAUSE OF PLAINTIFFS’ NON-COMPLIANCE WITH BUSINESS AND PROFESSIONS CODE 7159 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 6 - ro SS OO 00 uN O N wn Bs Ww o o ~ AN wn + wo No - oS Oo o o ~J AN wn += [9 S] r o bd There are numerous reasons why that alleged contract should be invalidated. The first argument is that Business and Professions (“BP”) § 7159 applies to all contracts for home improvement. The language required by BP § 7159 (¢), (4), (6), (d), (1), (e), (5), (6), (A), (B), (C), (1), (11), & (iii) is conspicuously absent from the alleged contract in this case. (UF 5) BP § 7159(c) requires many provisions to be included in a written contract for home improvement. Provisions (c)(4) which requires the contractor to include language regarding unconditional release related to any potential liens, and (¢)(5) requires language informing the consumer that they have the right to require the contractor to have a performance and payment bond are both absent from this contract. BP § 7159(d)(1) requires that change orders to home improvement contracts include the name, business address and license number of the contractor. Plaintiff herein does not use the name “Isam Maaytah Corporation” which is the actual entity licensed by the Contractor's State Licensing Board (“CSLB™). In the change orders related to this contract, only the dba Cabinet Installation Masters is referenced. BP § 7159(e)(5) mandates notice be present in a home improvement contract which notifies the consumer of how to reach the CSLB. BP § 7159(e)(6)(A)(B)(C)(i)(ii)(iii) together require a notice in at least 12-point font be present which provides for a “THREE DAY RIGHT TO CANCEL. The Contract does not have the notices which are required by BP § 7159(e). Not only does a review of these documents show clearly that these items are missing, but also Isam Maytaah on behalf of CIM, and his counsel both admitted that the alleged contract does not meet the requirements of these sections of BP § 7159. Due to the violations of BP § 7159, this alleged contract and its change orders are rendered void as a matter of law. "Generally a contract made in violation of a regulatory statute is void." Asdourian v. Araj (1985) 38 Cal. 3d 276, 280. Asdourian employed the doctrine of substantial compliance, but as noted above. the Legislature abrogated that by amending MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 7 2 SS OO 0 NN O N Wn Bb 11 12 13 14 15 16 17 18 19 20 21 27 23 24 235 26 27 28 the statute. WSS Industrial Construction, Inc. v. Great West Contractors, Inc. (2008) 162 Cal. App. 4th 581, 594. While courts have created exceptions to prevent unjust enrichment of sophisticated homeowners represented by counsel or an architect, Arya Group, Inc. v. Cher (2000) 77 Cal. App. 4th 610, 611 and Hinerfeld-Ward, Inc. v. Lipian (2010) 188 Cal. App. 4th 86, 92-95. These exceptions rarely apply, and the recovery is limited as follows: (a) these cases have permitted recovery by a contractor on a theory of quantum meruit, but not under contract law; and (b) the special circumstances present in those cases are not present in this case, so they are not applicable here. A. PLAINTIFFS’ WAIVED THEIR RIGHTS TO NOT HAVE THE CSLB FINDINGS USED AS RES JUDICATA As this Court is aware, the decisions of the CSLB are not judicial and do not bind this Court to make the same decisions. Contractors’ State License Board v. Superior Court of Los Angeles County (1960) 187 Cal. App. 2d 557, 561. Courts must independently analyze the facts if they are to support the conclusion of the CSLB. Id at 561-562. Case law is silent as to what happens as here, where the contractor waives such protections by making an admission. Where one, by virtue of their own conduct, clarifies an issue for the court, such a statement is a waiver of res judicata. Hall v. Coyle (1952) 38 Cal. 2d 543, 546. In this case, the Miniacis’ complained to the CSLB on February 21, 2017 in the hopes of enforcing compliance to finalize the contract. (UF 7). The CSLB sent an investigator to the home and issued a citation to Plaintiffs on July 30, 2018. (UF 8). Plaintiff appealed the citation on August 01, 2018, but ultimately pled to violations of BP § 7159 on June 28, 2019 (UF 9); then paid Defendants $18,536.09. (UF 10). These facts would normally be subject to the limitations imposed by Contractors’ State License Board v. Superior Court of Los Angeles County (1960) 187 Cal. App. 2d 557, 561. As it was the contractor himself admitting that he violated BP § 7159, his counsel referencing the CSLB and him agreeing, it seems any such limitations have been waived and Mr. Maaytah is stuck with his admission. MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 8 P k S S OC 0 N N n n A W N A N Wn BA W N = OO 0 N N N Nn E W N N N c o V. PLAINTIFFS’ FIRST AND SECOND CAUSE OF ACTION FAIL BECAUSE THE LABOR WAS PERFORMED BY AN UNLICENSED SUBCONTRACTOR IN VIOLATION OF THE LAW There are numerous reasons why that alleged contract should be invalidated. Another reason is that BP § 7028 states in relevant part that: “(a) . . . it is a misdemeanor for a person to engage in the business of, or act in the capacity of, a contractor . . . This includes situations “where a licensed contractor joins with one or more unlicensed contractors to do construction work for another, contract is unenforceable by contractor and is illegal.” Fairlane Estates, Inc. v. Carrico Constr. Co. (1964), 228 Cal. App. 2d 65, 68. These concepts are both bolstered and clarified by the language of BP § 7114(a) which reads: “Aiding or abetting an unlicensed person to evade the provisions of this chapter or combining or conspiring with an unlicensed person, or allowing one’s license to be used by an unlicensed person, or acting as agent or partner or associate, or otherwise, of an unlicensed person with the intent to evade the provisions of this chapter constitutes a cause for disciplinary action.” BP § 7118 provides further clarification; “Entering into a contract with a contractor while such contractor is not licensed as provided in this chapter constitutes a cause for disciplinary action.” This has been interpreted to include subcontractors, salesmen and representatives. Hydrotech Systems, Ltd. v. Oasis Waterpark (1991), 52 Cal. 3d 988, 998"; West Coast Home Improv. Co. v. Contractors’ State License Board (1945), 72 Cal. App. 2d 287, 294. These provisions are triggered because the majority of the work performed by Plaintiff was actually performed by Chak Nery despite the fact that the alleged Contract was between Cabinet Installation Masters and the Miniacis. Chak Nery did not have a valid CSLB license at any time relevant to these proceedings. (UF 11). Isam Maaytah as ! Hydrotech considered a violation of BP § 7118, and determined that because the Contractor knowingly hired an unlicensed subcontractor, the contractor was also acting as an unlicensed contractor pursuant to BP § 7031. MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 9 OO 0 9 O N n w BA LW OO 00 NN O&O Wn B W NN --= OO the person most knowledgeable for Cabinet Installation Masters admitted that Chak Nery did not have a license when hired. (UF 12). What we know is that, Chak Nery was sent by CIM on August 4, 2016 to perform work on the home renovations. (UF 13). Plaintiff’s work notes indicate that Chak Nery performed much of the work on this project. (UF 14). While on the project, Chak Nery ordered materials under the name “Nery’s Construction” based in El Monte, California. (UF 15). The importance of this fact is that by law: [a] Person is employee rather than contractor where he or she does not represent himself or herself as contractor and renders services involved as employee with wages as sole compensation. Powell v. Berg (1950), 99 Cal. App. 2d 353, 354-355. In the present case, by accepting goods as Nery construction, Mr. Nery was acting as a subcontractor, not an employee. Chak Nery installed the windows and sliding glass doors in the house. (UF 16). When Chak Nery and/or one of the workmen damaged the attic window in the library, be charged $800 to replace that window and its twin in the front room. (UF 17). Again, by accepting compensation in his name, rather than for Plaintiffs, Chak Nery was acting as a subcontractor, not an employee per Powell v. Berg supra. By hiring Mr. Nery as a subcontractor, and not an employee, Plaintiffs violated BP §§ 7028, 7114, 7118; and ultimately 7031, which prevents Plaintiffs from even seeking damages for common counts such as Quantum Meruit or Mutual, Open and Current Account for Money Due, as BP § 7031 bars “any action” from being maintained by an unlicensed contractor. Wilson v. Steele (1989) 211 Cal. App. 3d 1053, 1059; Fairlane Estates, Inc. v. Carrico Constr. Co. supra; and Hydrotech Systems, Ltd. v. Oasis Waterpark supra. VL. PLAINTIFFS’ FAILURE TO OBTAIN PROPER PERMITS AND SELF TERMINATION NEGATE THEIR FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT Plaintiffs simultaneously provide a third means for cancelling the alleged contract, and demonstrate a breach of contract. As both arguments require identical facts, MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 10 8) OO 0 NN ON Wn Br Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There are numerous reasons why that alleged contract should be invalidated. The first argument is that Business and Professions (“BP”) § 7159 applies to all contracts for home improvement. The language required by BP § 7159 (c), (4), (6), (d), (1), (e), (5), (6), (A). (B), (C), (1), (ii), & (iii) is conspicuously absent from the alleged contract in this case. (UF 5) BP § 7159(c) requires many provisions to be included in a written contract for home improvement. Provisions (c)(4) which requires the contractor to include language regarding unconditional release related to any potential liens, and (c)(5) requires language informing the consumer that they have the right to require the contractor to have a performance and payment bond are both absent from this contract. BP § 7159(d)(1) requires that change orders to home improvement contracts include the name, business address and license number of the contractor. Plaintiff herein does not use the name “Isam Maaytah Corporation” which is the actual entity licensed by the Contractor's State Licensing Board (“CSLB™). In the change orders related to this contract, only the dba Cabinet Installation Masters is referenced. BP § 7159(e)(5) mandates notice be present in a home improvement contract which notifies the consumer of how to reach the CSLB. BP § 7159(e)(6)(A)(B)(C)(i)(ii)(iii) together require a notice in at least 12-point font be present which provides for a “THREE DAY RIGHT TO CANCEL. The Contract does not have the notices which are required by BP § 7159(e). Not only does a review of these documents show clearly that these items are missing, but also Isam Maytaah on behalf of CIM, and his counsel both admitted that the alleged contract does not meet the requirements of these sections of BP § 7159. Due to the violations of BP § 7159, this alleged contract and its change orders are rendered void as a matter of law. "Generally a contract made in violation of a regulatory statute is void." Asdourian v. Araj (1985) 38 Cal. 3d 276, 280. Asdourian employed the doctrine of substantial compliance, but as noted above, the Legislature abrogated that by amending MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 7 © OO NN O N wn A W N No rN t o b o ro ro t o NS ] rN _ - - - - - - - - - o o ~J AN wn ES N wl No -_- oo O c o ~~ [o wh SH w o No - the statute. WSS Industrial Construction, Inc. v. Great West Contractors, Inc. (2008) 162 Cal. App. 4th 581, 594. While courts have created exceptions to prevent unjust enrichment of sophisticated homeowners represented by counsel or an architect, Arya Group, Inc. v. Cher (2000) 77 Cal. App. 4th 610, 611 and Hinerfeld-Ward, Inc. v. Lipian (2010) 188 Cal. App. 4th 86, 92-95. These exceptions rarely apply, and the recovery is limited as follows: (a) these cases have permitted recovery by a contractor on a theory of quantum meruit, but not under contract law; and (b) the special circumstances present in those cases are not present in this case, so they are not applicable here. A. PLAINTIFFS’ WAIVED THEIR RIGHTS TO NOT HAVE THE CSLB FINDINGS USED AS RES JUDICATA As this Court is aware, the decisions of the CSLB are not judicial and do not bind this Court to make the same decisions. Contractors’ State License Board v. Superior Court of Los Angeles County (1960) 187 Cal. App. 2d 557. 561. Courts must independently analyze the facts if they are to support the conclusion of the CSLB. Id at 561-562. Case law is silent as to what happens as here, where the contractor waives such protections by making an admission. Where one, by virtue of their own conduct, clarifies an issue for the court, such a statement is a waiver of res judicata. Hall v. Coyle (1952) 38 Cal. 2d 543, 546. In this case, the Miniacis’ complained to the CSLB on February 21, 2017 in the hopes of enforcing compliance to finalize the contract. (UF 7). The CSLB sent an investigator to the home and issued a citation to Plaintiffs on July 30, 2018. (UF 8). Plaintiff appealed the citation on August 01, 2018, but ultimately pled to violations of BP § 7159 on June 28, 2019 (UF 9); then paid Defendants $18,536.09. (UF 10). These facts would normally be subject to the limitations imposed by Contractors’ State License Board v. Superior Court of Los Angeles County (1960) 187 Cal. App. 2d 557, 561. As it was the contractor himself admitting that he violated BP § 7159, his counsel referencing the CSLB and him agreeing, it seems any such limitations have been waived and Mr. Maaytah is stuck with his admission. MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 8 = Ww W SS © 0 9 O N Wn 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. PLAINTIFFS’ FIRST AND SECOND CAUSE OF ACTION FAIL BECAUSE THE LABOR WAS PERFORMED BY AN UNLICENSED SUBCONTRACTOR IN VIOLATION OF THE LAW There are numerous reasons why that alleged contract should be invalidated. Another reason is that BP § 7028 states in relevant part that: “(a) . . . it is a misdemeanor for a person to engage in the business of, or act in the capacity of, a contractor . . . This includes situations “where a licensed contractor joins with one or more unlicensed contractors to do construction work for another, contract is unenforceable by contractor and is illegal.” Fairlane Estates, Inc. v. Carrico Constr. Co. (1964), 228 Cal. App. 2d 65. 68. These concepts are both bolstered and clarified by the language of BP § 7114(a) which reads: “Aiding or abetting an unlicensed person to evade the provisions of this chapter or combining or conspiring with an unlicensed person, or allowing one’s license to be used by an unlicensed person, or acting as agent or partner or associate, or otherwise, of an unlicensed person with the intent to evade the provisions of this chapter constitutes a cause for disciplinary action.” BP § 7118 provides further clarification; “Entering into a contract with a contractor while such contractor is not licensed as provided in this chapter constitutes a cause for disciplinary action.” This has been interpreted to include subcontractors, salesmen and representatives. Hydrotech Systems, Ltd. v. Oasis Waterpark (1991), 52 Cal. 3d 988, 998": West Coast Home Improv. Co. v. Contractors’ State License Board (1945), 72 Cal. App. 2d 287, 294. These provisions are triggered because the majority of the work performed by Plaintiff was actually performed by Chak Nery despite the fact that the alleged Contract was between Cabinet Installation Masters and the Miniacis. Chak Nery did not have a valid CSLB license at any time relevant to these proceedings. (UF 11). Isam Maaytah as ! Hydrotech considered a violation of BP § 7118, and determined that because the Contractor knowingly hired an unlicensed subcontractor, the contractor was also acting as an unlicensed contractor pursuant to BP § 7031 9 . MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 9 SS OO oo NN O N n n A W N D Y m t mt m t p d e t m d fe d pe d e d pe S NO 0 NN O N Un E W N D -- J b ro ro ID 2 N N N 0 NN S N n n B W the person most knowledgeable for Cabinet Installation Masters admitted that Chak Nery did not have a license when hired. (UF 12). What we know is that, Chak Nery was sent by CIM on August 4, 2016 to perform work on the home renovations. (UF 13). Plaintiff’s work notes indicate that Chak Nery performed much of the work on this project. (UF 14). While on the project, Chak Nery ordered materials under the name “Nery’s Construction” based in El Monte, California. (UF 15). The importance of this fact is that by law: [a] Person is employee rather than contractor where he or she does not represent himself or herself as contractor and renders services involved as employee with wages as sole compensation. Powell v. Berg (1950), 99 Cal. App. 2d 353, 354-355. In the present case, by accepting goods as Nery construction, Mr. Nery was acting as a subcontractor, not an employee. Chak Nery installed the windows and sliding glass doors in the house. (UF 16). When Chak Nery and/or one of the workmen damaged the attic window in the library, be charged $800 to replace that window and its twin in the front room. (UF 17). Again, by accepting compensation in his name, rather than for Plaintiffs, Chak Nery was acting as a subcontractor, not an employee per Powell v. Berg supra. By hiring Mr. Nery as a subcontractor, and not an employee, Plaintiffs violated BP §§ 7028, 7114, 7118; and ultimately 7031, which prevents Plaintiffs from even seeking damages for common counts such as Quantum Meruit or Mutual, Open and Current Account for Money Due, as BP § 7031 bars “any action” from being maintained by an unlicensed contractor. Wilson v. Steele (1989) 211 Cal. App. 3d 1053, 1059; Fairlane Estates, Inc. v. Carrico Constr. Co. supra; and Hydrotech Systems, Ltd. v. Oasis Waterpark supra. VL. PLAINTIFFS’ FAILURE TO OBTAIN PROPER PERMITS AND SELF TERMINATION NEGATE THEIR FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT Plaintiffs simultaneously provide a third means for cancelling the alleged contract, and demonstrate a breach of contract. As both arguments require identical facts, MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 10 ro S S OO 0 NN n n Bs WW P Y B Y m = m m e m pe ee d f e d e d e d ee -_- O O N O X N O N Un RR W N 22 they will be presented together, then dissected into argument A for recession based on illegality of contract and argument B for breach of contract. The documents which create the alleged contract are discussed in UF 1-4. The alleged contract included work around the entire house. (UF 18). On June 30, 2016, Plaintiff obtained a permit (PR16-1579) for a small percentage of the work in the contract as said permit did not include the windows, the HVAC, or many items within the contract. (UF 19). Because the permit was woefully deficient, the alleged contract, if not invalidated for the reasons argued above, would be subject to rescission and Plaintiffs would already be in breach of contract. But, the grounds for rescission and/or cause for breach continued throughout the performance of the contract. A. PLAINTIFFS WERE DUTY BOUND TO OBTAIN THE PROPER PERMITS, AND THEIR DECISIONS TO NOT OBTAIN THE PROPER PERMITS AND IGNORE THE EXISITING PERMITS PROVIDED GROUNDS FOR RECISSION DUE TO ILLEGALITY OF CONTRACT. BP § 7110 provides the following: “Willful or deliberate disregard and violation of the building laws of the state, or of any political subdivision thereof, or of Section 8550 or 8556 of this code, or of Sections 1689.5 to 1689.15, inclusive, or Sections 1689.10 to 1689.13, inclusive, of the Civil Code, or of the safety laws or labor laws or compensation insurance laws or Unemployment Insurance Code of the state, or of the Subletting and Subcontracting Fair Practices Act (Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of the Public Contract Code), or violation by any licensee of any provision of the Health and Safety Code or Water Code, relating to the digging, boring, or drilling of water wells, or Article 2 (commencing with Section 4216) of Chapter 3.1 of Division 5 of Title 1 of the Government Code, constitutes a cause for disciplinary action.” The scope of BP § 7110 includes city permits and their clearance requirements. Barry v. Contractors State License Bd. (1948), 85 Cal. App. 2d 600, 604. Failure to inquire about and/or obtain the proper permit is a willful violation of BP § 7110. ACCO Engineered Systems, Inc. v. Contractors’ State License Bd. (2018) 30 Cal. App. 5th 80, 93-94. Here the facts reflect that Plaintiffs obtained a permit for can lights and sinks, MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 11 S S OO © NN A Un BA W N = N O N rN r o No ro rN ro rN - -_- - pt - -_- b- - - - xR aN wn += wo B o -_ oS NO , oo ~ AN Wn = Ww ro fd when the scope of the alleged contract included windows which required clearance, and HVAC unit, electrical work, and plumbing throughout the home. BP § 7090 directly addresses permits (in relevant part) as follows: “For the purpose of this section, there shall be a rebuttable presumption affecting the burden of proof that construction performed without a permit is a willful and deliberate violation.” Sautter v. Contractors’ State License Bd. (1954), 124 Cal. App. 2d 149, 155; recognized that “The statutes in the Business and Professions Code providing for discipliNery action, forfeiture of licenses, etc., appear to be penal in nature and must therefore be strictly construed.” On December 12, 2016 when Plaintiffs were seeking to have the CITY approve the work Plaintiffs had performed. During the December 12, 2016 inspection it became apparent to Ruth Miniaci that only some of the work performed was being reviewed by the CITY. Ruth Miniaci told the CITYs inspector that there was more work performed than was being reviewed. (UF 28). The CITY issued a Correction Notice on December 12, 2016 to correct issues that were in the Contract but not the permit. (UF 29.) Civil Code § 1689(b)(2)-(5) provides that a contract may be unilaterally rescinded if, among other reasons, it is unlawful for causes that do not appear in its terms and conditions, and the parties are not equally at fault, or if the consideration for the obligation of the rescinding party becomes entirely void or fails in any material respect, from any cause, before it is rendered to the rescinding party. As of December 12, 2016, the Miniacis had the legal right to rescission based upon the incomplete permit obtained on June 30, 2016. Further, the incomplete permit was not corrected immediately. As of December 16, 2016, the issue of the windows had not been addressed and water began to leak into the home from the poorly installed windows. (UF 30). CIM placed tape over the windows as a sealant on or around December 17, 2016. (UF 31). This resulted in the CITY inspecting the home on December 19, 2016 and issuing another correction notice. (UF 32). Plaintiff applied for a permit relating primarily to the windows that had been previously installed on or about December 19, 2019. (UF 33). MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 12 Z NO 0 NN O N Un Bs W N - _- 0 - - - - -_- - - oo ~ RN wn A 2 ro \O 20 Permit PR17-054 was issued on January 9, 2017 because the required documentation was received by the CITY. (UF 34). The issues with the windows were not resolved until defendants hired Gecko Construction to obtain a permit, install the windows, and obtain approval of the work from the CITY, which they did. (UF 35). The Miniaci’s complained to the CSLB on February 21, 2017 in the hopes of enforcing compliance to finalize the contract. (UF 36). The alleged contract was not cancelled at this time. On February 27, 2017, Plaintiffs obtained an HVAC permit to satisfy the CITY s correction notice of December 19, 2016. (UF 37). Nonetheless, permits PR16-1579 and PR17-04 expired (UF 38). The CITY had also sent a new correction notice, on April 11, 2017, that the HVAC portion of the contract was finished. (UF 39). Plaintiff was aware of the lapsed permit and sent a dishonest letter to the CITY indicating that all the work was completed and that all that remained was to arrange a walk through with the CITY. (UF 40). On May 11, 2017, the CITY issued a second correction notice regarding the windows (UF 41). On May 24, 2017, CIM drafted a letter terminating their permits with the CITY so that they would not have to “take responsibility for someone else’s work. (UF 42). Therefore, it is factually undisputed that Plaintiff quit the project before it was completed. (UF 43). During the lapses in permits and time periods wherein the permits had lapsed are all subject to rescission. Similarly, when Plaintiffs cancelled the permits, preventing any work from being done, rescission was instantly triggered as a remedy. B. PLAINTIFFS ACTIONS OF NOT OBTAINING PROPER PERMITS, NOT CORRECTING THE WORK THEY HAD DONE, AND SELF-TERMINATING CONSTITUTED BREACHES OF CONTRACT “The wrongful, i.e., the unjustified or unexcused, failure to perform a contract is a breach. Where the nonperformance is legally justified, or excused, there may be a failure of consideration, but not a breach.” (1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847, original italics, internal citations omitted.) “Ordinarily, a breach MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 13 © OC N N n n B R A W N N N rN No No No rN rN ND p- - - - - =a - - - co AN Wn ES Ww r o - (< =) Oo o o ~ aN wn Ww r o - is the result of an intentional act, but negligent performance may also constitute a breach, giving rise to alternative contract and tort actions.” (Ibid., original italics.) The failure to obtain one or more proper permits on June 30, 2016 was an immediate breach of contract as it subjects the homeowner to potential liabilities. The court in ACCO Engineered Systems, Inc. v. Contractors’ State License Bd., supra opined that: “The company holds the contractor's license, and Narbonne is the ‘responsible managing officer.” As such, he is ‘responsible for exercising that direct supervision and control of [Acco's] construction operations to secure compliance with’ the laws and regulations applicable to contractors, at risk of being fined or even prosecuted for a misdemeanor. (§ 7068.1, subd. (a), (e).)” Following the reasoning of ACCO Engineered Systems, Inc. v. Contractors’ State License Bd., supra; Plaintiffs as the contractor failed to obtain the proper permit on June 3. 2019. were issued correction notices on December 12 and 19, 2016 which were only partially fixed by them; the permits were allowed to lapse, necessitating that a letter be issued in April to reinstate the permits, then cancelled the permits entirely in May of 2017 with 2 pending correction notices instituted against the Miniaci residence; Plaintiffs were in breach of contract for the duration of the alleged contract. This leads us to the duties held by Plaintiffs. BP § 7107 provides the following duty: “Abandonment without legal excuse of any construction project or operation engaged in or undertaken by the licensee as a contractor constitutes a cause for disciplinary action.” Abandonment is also a breach of contract. Bailey-Sperber, Inc. v. Yosemite Ins. Co. (1976), 64 Cal. App. 3d 725, 729-730. Even before abandoning the contract, Plaintiffs had a duty pursuant to BP § 7113 which states: “Failure in a material respect on the part of a licensee to complete any construction project or operation for the price stated in the contract for such construction project or operation or in any modification of such contract constitutes a cause for discipliNery action.” The court in Terminix Co. v. Contractors’ State License Board of Dep't of Professional & Vocational Standards (1948) 84 Cal. App. 2d 167, 175-176. MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 14 it S S OO 0 9 O N Wn BA W N p t p d md pe d pe d pe ed pe d mk fe d co NN O N nm BA W N = “A contractor who has done inferior work is not a violator of the statute if, before he has made any settlement with the owner, he offers and is able and willing to replace the inferior work with good work at no expense to the owner. In determining whether injury has resulted to the owner, the positions of the owner and contractor must be judged as of the time when their business is concluded. Although during the course of the work there may be mistakes and failures on the part of the contractor to keep his agreements, if, when the time for payment for the work arrives, he makes a fair and satisfactory settlement with the owner, he has been guilty of no breach of the law and the same, of course, is true if he corrects any overcharges whether they were made inadvertently or intentionally.” Without regard to legal consequences, the following issues arose between Plaintiffs and the Miniacis, without Plaintiffs making any serious effort to correct their numerous and costly mistakes. Defendants complained via text on September 23, 2016 that the windows were improperly installed. (UF 20). Ruth Miniaci made it clear that she was not paying further until items listed on her check were completed. (UF 21). Another legitimate complaint that Defendants made was via email on October 17, 2016 regarding the poor installation of the kitchen cabinets. (UF 22). Despite claiming in their complaint that they had made timely requests for payments, Plaintiffs refused to answer any interrogatories regarding said requests, as they were “unlikely to result in admissible information” (UF 23). No replacement work has been done on the cabinets to date. (UF 24). Current photographs show issues which still exist regarding the cabinets. (UF 25). Plaintiff provided no claims for payment which were more recent than October of 2016. (UF 26). Gecko construction has recommended the replacement of all cabinets installed by CIM. (UF 27). These issues remain after Plaintiffs abandonment of the contract, thus placing Plaintiffs squarely in breach of contract, beginning on June 30, 2016 and continuing through the May 24, 2017 self-termination letter. Such breaches are still in need of repair. 1 I 1! MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 15 0 Nd O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 2 23 24 25 26 27 VII. PLAINTIFFS’ FOURTH CAUSE OF ACTION FAILS BECAUSE THEY IMPROPERLY FILED THEIR MECHANIC’S LIEN IN THIS CASE Civil Code § 8412 requires in relevant part that: “A direct contractor may not enforce a lien unless the contractor records a claim of lien after the contractor completes the direct contract, and before the earlier of the following times: (a) Ninety days after completion of the work of improvement. . .” Emphasis added. Plaintiffs failed to follow this statute in both relevant respects. A. PLAINTIFFS’ FOURTH CAUSE OF ACTION FAILS BECAUSE THE WORK ON THE CONTRACT WAS NOT COMPLETED BEFORE PLAINTIFF FILED A MECHANIC’S LIEN Plaintiffs recorded this Mechanic’s Lien on May 16, 2017. (UD 44). The project was formally abandoned via a letter to the CITY, cancelling the permits on May 24, 2017. Work, for purposes of the statute is not completed “if work under the contract remains to be done.” Howard S. Wright Construction Co. v. BBIC Investors, LLC (2006) 136 Cal. App. 4th 228, 240. Isam Maaytah admitted the work was not completed when the letter to the city was drafted terminating Cabinet Installation Masters’ permits. (UF 45). This fact is affirmed by the fact that Plaintiffs counsel admitted in her letter to the bond company that the work was not completed. (UF 46). The Mechanic’s lien was filed without the completion of the contract and is thus invalid. B. PLAINTIFFS’ FOURTH CAUSE OF ACTION WAS FILED MORE THAN 90 DAYS AFTER THE COMPLETION OF THE WORK OF IMPROVEMENT Plaintiff kept a log of what work was completed and when. Within this log there is no indication that anything was done after October 14, 2016 on the initial contract. In fact all entries after October 14, 2016 deal exclusively with HVAC installation, which was paid for in full on August 3, 2016. (UF 47). Plaintiff last requested payments in September and October of 2016 while being aware of the Miniacis’ complaints regarding the work. (UF 48). Furthermore, Plaintiffs objected to any special interrogatories on the MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 16 f t o Oo c o ~ aN ( J += 2 39 ] ro ro rN ro rN NO - - - - - - pt - - -_ - wn + Ww B o bd =] Oo oo ~ aN wn += 2 r o - 26 issue of what work was unpaid to justify a Mechanic’s Lien, considering such interrogatories “unlikely to result in admissible evidence.” (UF 49). Plaintiffs’ Mechanics Lien was filed on May 17, 2017, seven months after any work of significance was performed. Where significant work, with the exception of a pair of inexpensive bolts had occurred outside of the statutory time, the addition of minor work did not save the improperly filed Mechanics Lien. Barrows v. Knight (1880) 55 Cal. 155, 156-157. VIII. THE LIS PENDENS BASED UPON THE MECHANIC’S LIEN MUST BE EXPUNGED Code of Civil Procedure (“CCP”) § 405.20 allows: “A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action.” CCP § 405.30 allows the property owner to: “At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” CIM has no legal interest in the ownership or possession of Subject Property other than the Mechanic's Lien itself. (UF 50). The Mechanic’s Lien was filed improperly. IX. DEFENDANTS ARE ENTITLED TO ATTORNEY'S FEES FOR SUCCESSFULLY EXPUNGING THE MECHANIC’S LIEN AND LIS PENDENS MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 17 S © Le N N nn A W N N O N N O N m t md mi t p d b d md p d e d p d WwW NN = O O N O N nn E W N 25 26 27 28 Plaintiffs,” through their counsel, were provided with a warning letter that if this issue required a motion to resolve that the Miniacis” would seek attorney’s fees. (UF 51). Plaintiffs have not willingly relinquished their Mechanic’s Lien or Lis Pendens so by operation of law, Defendants are entitled to attorney’s fees. (UF 52). CCP § 405.38 provides attorney’s ffes and costs for defeating an improperly filed Lis Pendens. As to the Mechanic's Lien, attorney’s fees are recoverable in connection with Civil Code § 1717. Korech v. Hornwood (1997) 58 Cal. App. 4th 1412; 1420-1422. X. PLAINTIFFS’ FIFTH CAUSE OF ACTION FOR ACCELLERATED PAYMENT FAILS BECAUSE A GOOD FAITH DISPUTE HAS EXISTED BETWEEN THE PARTIES SINCE AT LEAST SEPTEMBER 23, 2016 Civil Code § 8800 provides: “(a) Except as otherwise agreed in writing by the owner and direct contractor, the owner shall pay the direct contractor, within 30 days after notice demanding payment pursuant to the contract is given, any progress payment due as to which there is no good faith dispute between them. The notice given shall comply with the requirements of Chapter 2 (commencing with Section 8100) of Title 1. (b) If there is a good faith dispute between the owner and direct contractor as to a progress payment due, the owner may withhold from the progress payment an amount not in excess of 150 percent of the disputed amount. (c) An owner that violates this section is liable to the direct contractor for a penalty of 2 percent per month on the amount wrongfully withheld, in place of any interest otherwise due. In an action for collection of the amount wrongfully withheld, the prevailing party is entitled to costs and a reasonable attorney’s fee. (d) This section does not supersede any requirement of Article 2 (commencing with Section 8810) relating to the withholding of a retention.” Here, Plaintiffs fail to meet the threshold required by section 8800(a) because there has been a dispute regarding the work since September 23, 2016. This was added to on October 17, 2016 when a good faith dispute arose regarding the cabinets installed by Plaintiffs. 11 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 18 SS OO 0 NN O n A W N - p k m k p k p d md pe t pe d pe d 0 NN O N Wn Bs W N 19 XI.PLAINTIFFS’ SIXTH AND SEVENTH CAUSES OF ACTION FAIL BECAUSE THERE IS NO PROOF THAT DEFENDANTS HAD KNOWLEDGE OF ANY OF THE CONTRACTS BETWEEN PLAINTIFFS AND THE PERSONS NAMED IN THE COMPLAINT The elements of the tort of interfering with a contract are: “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. The elements of the tort of negligent interference with a prospective business advantage are: “Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendants action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512 The second element of both torts requires that the interference must interfere with a contract or business relationship between the Plaintiff and a third party. Paragraphs 32 and 42 of the Plaintiffs’ Complaint name numerous persons with whom Defendants allegedly had interfered with a contract or economic relationship. (UF 53). Defendants asked in their Requests for Admissions that Plaintiffs identify how the Defendants knew of these parties and the response was that the Plaintiffs were unaware of Defendants knowing these parties. (UF 54). Because the Miniacis are ignorant of these parties, Plaintiffs cannot successfully maintain either their sixth or their seventh cause of action. I! 1 I 11 MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 19 No S OC 0 N S N nn B W P O = e m em t p t e d e d e d pe d p d ee SS 0 xX NN ON n n BB W O N = XII. PLAINTIFFS’ SIXTH CAUSE OF ACTION FOR INTENTIONAL INTERFERENCE WITH A CONTRACT FAILS BECAUSE DEFENDANTS CANNOT INTERFERE WITH THEIR OWN CONTRACT Unable to prove actual interference with third party contracts and/or economic relationships with third parties; Plaintiffs have adopted some wrong but creative theories of interference during this litigation. At various times Plaintiffs have tried to use the reports of the Defendants to the CSLB, the Reports of the Defendants to the CITY and the paying $800 to Chak Nery for him to replace windows he broke as interferences with Contract and/or economic relationship. These arguments fail for two reasons. The first reason these theories fail is that both causes of action require a contract or relationship between the Plaintiff and another party, which is not established by those facts. The second, fundamental reason why these actions cannot be an interference with contract or economic advantage is that one cannot interfere with their own contract. Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 961. XIII. PLAINTIFFS’ SIXTH AND SEVENTH CAUSES OF ACTION FAIL BECAUSE REPORTS TO THE CITY OF DIAMOND BAR AND THE CONTRACTOR'S STATE LICENSE BOARD WHICH WERE ACTED UPON DO NOT CONSTITUTE INTERFERENCE Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1137 held that: “We conclude that a plaintiff seeking to state a claim for intentional interference with contract or prospective economic advantage because defendant induced another to undertake litigation, must allege that the litigation was brought without probable cause and that the litigation concluded in plaintiff's favor.” Here, Plaintiffs complain that the CITY and the CSLB were notified by the Miniacis that the Plaintiffs had not acted properly. The result was notices of correction by the CITY and a citation by the CSLB. These are akin to the litigation discussed in Pacific Gas & Electric Co. v. Bear Stearns & Co. supra. And because the Miniacis acted MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 20 2 Oo Le N N nn 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 lawfully and not in bad, faith the actions of notifying the CITY and the CSLB cannot be an interference with contract or economic advantage. XIV. CONCLUSION As a matter of law, Plaintiffs will be unable to present triable issues of fact as to the arguments presented in this brief. As a result, the Motion for Summary Judgment, or in the alternative, Summary Adjudication should be granted and judgment entered for Defendants. March 15, 2020 A Richafd Coberly, Esq. MINIACI MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION 21 + Journal Technologies Court Portal Court Reservation Receipt Reservation Reservation ID: 155383293103 Reservation Type: Motion for Summary Judgment Case Number: BC686478 Filing Party: Ruth Miniaci (Defendant) Date/Time: June 8th 2020, 8:30AM Fees Description Reschedule Fee Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $20.55 Account Number: XXXX6653 ¢< BacktoMain ~~ ®4Print Page Copyright © Journal Technologies, USA. All rights reserved. Status: RESERVED Number of Motions: 1 Case Title: ISAM MAAYTAH CORP. INC. VS. MICHAEL MINIACIL ET AL Location: Stanley Mosk Courthouse - Department 48 Confirmation Code: CR-QZJUDDQUPZCSZZJYD Fee Qty Amount 20.00 1 20.00 0.55 1 0.55 $20.55 Type: Visa Authorization: 004449