Atlas Construction v. Miano

Filed 5/3/06 Atlas Construction v. Miano CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph E. DiLoreto, Judge. Affirmed.

Rami Kayyali for Defendant and Appellant.

Emerald Lake Corporate Centre and Anthony T. Ditty for Plaintiff and Respondent.

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Defendant and appellant Antonio Miano appeals from a judgment enforcing a settlement agreement in favor of plaintiff and respondent Atlas Construction Supply, Inc. Miano contends the judgment must be vacated, because Atlas may not use the courts to recover compensation for unlicensed contractor services that it performed. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On March 22, 2004, Atlas filed a complaint against Miano for breach of contract and breach of personal guarantee. The complaint alleged that Miano had executed a credit application on October 19, 2000, as well as a personal guarantee. Atlas agreed to deliver building, framing, and other construction materials to Miano at the sites that he designated for use on a construction project. Miano agreed to pay for materials and rental of the equipment, and was responsible for returning the equipment to Atlas undamaged. He also agreed to pay a service charge of 18 percent on any overdue account, as well as attorney fees and costs incurred in the event Atlas had to institute a collection action. In 2001 and 2002, Atlas furnished equipment to Miano. Miano failed to make rent payments, resulting in damages to Atlas of $49,046.74. Miano filed an answer.

On December 22, 2004, Atlas filed an application for a right to attach order and a writ of attachment. Miano opposed the application. Miano acknowledged that Atlas sought to recover unpaid rental fees allegedly resulting from Miano's rental of equipment for a construction project on which Miano had been a concrete subcontractor. However, Miano argued that the application was untimely and requested interest in conflict with the usury laws. On January 10, 2005, Miano executed a substitution of attorney notice to relieve his attorney and substitute himself in propria persona.

On January 11, 2005, the parties agreed to a settlement and placed it on the record. Miano appeared in propria persona. Attorney Rami Kayyali assisted Miano in negotiating a settlement with Atlas, which the parties placed on the record. Attorney Kayyali told the trial court that he was not yet substituting in as Miano's attorney, because he had not had a chance to review the case. Miano agreed to pay Atlas a total of $42,500. The first payment of $5,000 was due on January 31, 2005. The remainder of $37,500 would be the subject of a promissory note at eight percent interest due to be secured by a third deed of trust on real estate in Miano's name. If Miano failed to make timely payments, Atlas could request judgment for $50,000 by filing a declaration with the trial court after giving 24 hours notice to Miano.

The trial court asked Miano if he understood that Atlas would not have to file another lawsuit, but could simply give 24 hours notice and get a judgment based on a declaration to the trial court. Miano stated that he understood. The trial court also asked Miano if he understood that were he to fail to make timely payments, Atlas probably would come in and get a judgment based on the higher amount. Miano again stated that he understood. The trial court asked if the representation that it would be a third trust deed was true. Miano replied that his sister had a third trust deed, but â€