Maraziti v. Stone

Filed 7/6/06 Maraziti v. Stone CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Affirmed.

Gordon & Rees and William M. Rathbone for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, John A. Yacovelle and Thomas B. Snyder for Defendants and Respondents.

Plaintiff Richard J. Maraziti (Maraziti) appeals from a judgment entered in favor of defendants The Stone Family Trust, Seven Oaks, Inc., and Seven Oaks Holding Company (collectively Defendants), after their demurrer to the first amended complaint was sustained without leave to amend.^[1] Maraziti claims that the trial court erred when it held that he could not state a valid cause of action as the result of the application of Business and Professions code section 7031.^[2] He also claims that the trial court erred in failing to allow him to amend his pleading because he presented facts that, if alleged, would have been sufficient to state a cause of action. We affirm the judgment.

Facts and Procedural History

On October 29, 2002, Maraziti and Signature (collectively Plaintiffs) filed a complaint against Stone alleging causes of action for breach of written contract, fraud, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, intentional or negligent infliction of emotional distress, money had and received and seeking an accounting and the appointment of a receiver. Stone answered that complaint on December 9, 2002, and filed a cross-complaint for breach of contract, fraud, breach of implied covenants and money had and received against Maraziti, Signature and Royal Canadian Log Homes. Plaintiffs answered the cross-complaint on March 26, 2003.

On March 16, 2004, Plaintiffs sought leave to file a first amended complaint to allege additional causes of action and to add Defendants, Stone's alleged alter egos. Over Stone's objection, the trial court allowed the amendment.

The first amended complaint was filed against Defendants, Stone and David Stone Construction on May 4, 2004. In it Maraziti purports to allege causes of action against Defendants for breach of written, oral, and implied contracts, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, equitable, implied, expressed and contractual indemnity and total indemnity contribution, intentional or negligent infliction of emotional distress, money had and received, and also seeks an accounting and the appointment of a receiver.

Plaintiffs alleged the following in their first amended complaint: Defendants were all alter egos of Stone and of each other. Beginning in the year 2000, Signature was involved in the marketing and sale of log home packages in Big Bear Lake, California. Defendants had purchased unimproved parcels of real property in Big Bear Lake intending on constructing homes upon them and selling them for a profit. On August 24, 2000, Signature and Stone entered into a written joint venture agreement (the Agreement) in which Signature agreed to construct a log package for five sites at its standard rates, not to exceed $45.00 per square foot. Stone would enter a contract for each package providing for three progress payments. Signature was to provide all materials and labor for the log packages and while it was to coordinate the design of the plans, Stone was to have final approval. The Agreement further provided, â€