General Facilities v. Atkins Enterprises

Filed 1/31/07  General Facilities v. Atkins Enterprises CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE

            APPEAL from an order of the Superior Court of Los Angeles County, John Shepard Wiley, Jr., Judge.  Affirmed.

            Law Offices of Marshall E. Rosenbach and Marshall E. Rosenbach for Cross-complainant and Appellant.

            Braun & Melucci and Kerri M. Melucci for Cross-defendant and Respondent.

______________________________

            In this action instituted by a general contractor, a subcontractor filed a cross-complaint against the general contractor seeking damages for nonpayment of services.  The trial court disposed of the cross-complaint by either granting a motion to strike or sustaining a demurrer without leave to amend.  It is not clear from the state of the record exactly what occurred below.  But either way, the trial court acted properly because the subcontractor's corporate status was suspended during the trial court proceedings, and its contractor's license was not valid during the entire period of performance under the construction contracts.

I

BACKGROUND

            For purposes of our review, we accept as true the following allegations of the pleadings.  (See Blank v. Kirwan (1985) 39  Cal.3d 311, 318 [demurrer]; Velez v. Smith (2006) 142  Cal.App.4th 1154, 1161 [motion to strike].)

            In January 2004, Claude  E. Atkins Enterprises, Inc. (Atkins), a general contractor, filed this action against General Facilities, Inc., a subcontractor doing business as Commerce Systems (Commerce).  The complaint is not in the record.  Commerce filed an answer and a cross-complaint.

            The cross-complaint alleged that the parties had entered into a written agreement on or about April  5, 1999, obligating Commerce, as subcontractor, to furnish heating, ventilation, and air-conditioning (HVAC) services in connection with a construction project at the Veterans Affairs (VA) Medical Center in Sepulveda, California.  Atkins breached the agreement in or about December 2002 by failing to pay Commerce for work performed.  Further, on or about July  17, 2002, the parties executed a written change to the VA subcontract, obligating Commerce to perform further services for additional compensation, namely, providing HVAC work on the gymnasium at the medical center.  Atkins breached that portion of the subcontract in or about February 2003 by failing to make payment.

            Meanwhile, according to Atkins, on or about July  24, 2001, the parties entered into a subcontract on a different project, the construction of the physical sciences building at the University of California, Santa Cruz.  During work on the Santa Cruz project, the parties realized that Atkins had overpaid Commerce on the VA project (including the July  17, 2002 change) in the amount of $143,838.94.  As a result, they executed a â€