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Montgomery Sansome Lp v. Zhian Z. Rezai

March 28, 2012

MONTGOMERY SANSOME LP, PLAINTIFF AND APPELLANT,
v.
ZHIAN Z. REZAI, INDIVIDUALLY AND AS TRUSTEE, ETC., ET AL., DEFENDANTS AND RESPONDENTS.



Trial Court: Superior Court of San Francisco County Trial Judge: Hon. Charlotte Walter Woolard (San Francisco County Super. Ct. No. CGC 09 489918)

The opinion of the court was delivered by: Haerle, Acting P.J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

Plaintiff and appellant Montgomery Sansome LP (plaintiff), a limited partnership, appeals after the trial court granted summary judgment in favor of defendants and respondents Zhian Z. Rezai and Jacklyn J. Rezai (individually and as trustees of the Zhian Z. Rezai and Jacklyn Jordan Rezai Revocable Trust) (collectively, defendants) on plaintiff's complaint seeking payment for repair work performed at a building owned by defendants. The trial court ruled that, under Business and Professions Code section 7031,*fn1 plaintiff could not recover from defendants because the business entity that contracted with defendants was Montgomery Sansome Ltd. LP, a general partnership that did not have a contractor's license. In two appeals, which we consolidated pursuant to the parties' stipulation, plaintiff challenges (1) the judgment and a subsequent order denying a new trial (No. A130272), and (2) the court's award of attorney fees to defendants (No. A130694). Because we conclude summary judgment was erroneously granted, we reverse the judgment and the fee award.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Montgomery Sansome Business Filings

On July 25, 1997, Leonard Nordeman filed a certificate of limited partnership for "Montgomery-Sansome, LP" with the California Secretary of State. The certificate names Nordeman as a general partner. The certificate lists the limited partnership's office address as 755 Prairie Creek Drive in Pacifica. In 2002, an amendment added Catherine Diane Magee and Deborah V. Fico as general partners.

On October 22, 1997, the Contractors State License Board (CSLB) issued license number 741713 to "Montgomery Sansome LTD[.]" The license application states that this entity is a "partnership," and lists Nordeman as a general partner and Magee and Fico as limited partners. The application lists Nordeman as the "qualifying individual" for the limited partnership. The application lists as the partnership's business address the same Pacifica address that was listed on the certificate of limited partnership discussed above. A renewal application filed in 2007 also lists "Montgomery Sansome LTD" as the licensed entity; it identifies Nordeman as the "qualifying partner" and Magee and Fico as limited partners. The renewal application lists the partnership's address as 305 Adrian Road in Millbrae. A May 2010 printout of a CSLB record identifies the licensed entity as "Montgomery Sansome LP," and lists the same Millbrae address. The parties agree that the entity holding license number 741713 was and is a limited partnership.

On February 20, 2008, Nordeman, Magee and Fico filed a fictitious business name statement (FBN statement) in San Mateo County, listing the fictitious business name "MONTGOMERY SANSOME LTD., L.P." The FBN statement states: "This business is conducted by General Partnership." The statement lists the same Millbrae business address as used for the limited partnership in the more recent CSLB records. The FBN statement, although filed in 2008, states: "The registrant commenced to transact business under the FBN or names on 10/22/97." As noted above, October 22, 1997, is the same date on which the CSLB issued license number 741713 to "Montgomery Sansome LTD"; the certificate of limited partnership for "Montgomery-Sansome, LP" was also issued in 1997. Nordeman signed the FBN statement and declared all information in it to be true.

B. The Contract

On February 4, 2008, defendants hired "Montgomery Sansome Ltd. Lp." to perform repairs at an apartment building they owned (the property). On that date, and again on March 6, 2008, the parties executed work orders (collectively, the contract) with the name "Montgomery Sansome Ltd. Lp." printed at the top. The work orders list contractor's license number 741713 and the Adrian Road address in Millbrae. Each work order includes an attorney fee provision stating: "In the event of legal action to enforce any of the terms of this agreement, owner agrees to pay all costs incurred by Montgomery Sansome involved in the legal process, including reasonable attorney fees, process serving costs, any and all testimony for which Montgomery Sansome may be required to pay."

In April 2008, defendants terminated the contract. Prior to doing so, they made payments totaling $65,000.

C. The Complaints Against Defendants

In July 2008, "Montgomery Sansome Ltd. L.P." recorded a mechanic's lien against the property. In August 2008, Nordeman filed an action (the Nordeman action) to foreclose the mechanic's lien and for other relief, alleging defendants had failed to pay $203,061.67 owed for work performed at the property. The complaint stated it was filed by "LEONARD NORDEMAN, individually and d.b.a. MONTGOMERY SANSOME LTD., LP." The complaint alleged that "MONTGOMERY SANSOME LTD., LP." is a limited partnership. The complaint asserted causes of action for breach of contract, foreclosure of mechanic's lien, common counts and fraud. On June 29, 2009, Nordeman voluntarily dismissed the action without prejudice; "Montgomery Sansome Ltd. L.P." subsequently released the mechanic's lien.

Also on June 29, 2009, plaintiff (Montgomery Sansome LP) filed the complaint in this action. The complaint (like the one in the Nordeman action) alleges that defendants failed to pay $203,061.67 for work performed at the property. Plaintiff's complaint asserts the same causes of action as the Nordeman complaint (breach of contract, foreclosure of mechanic's lien, common counts and fraud), and adds a cause of action for imposition of constructive trust.*fn2

D. Defendants' Motion for Summary Judgment

Defendants moved for summary judgment, arguing that plaintiff (Montgomery Sansome LP) was not the real party in interest and lacked standing to sue, because it was not a party to the contract. Defendants also contended that section 7031, which precludes compensation for unlicensed contracting work, barred plaintiff's claims.

In support of the motion, defendants submitted a declaration of Zhian Rezai, attaching the work orders and related documents. Defendants also submitted an attorney declaration attaching the Montgomery Sansome business filings discussed above, including (1) a certified copy of the certificate of limited partnership for "Montgomery-Sansome, LP," (2) certified copies of CSLB records, showing issuance of license number 741713 to "Montgomery Sansome LTD" (as well as an uncertified 2010 document showing "Montgomery Sansome LP" as the licensee), and (3) a certified copy of the FBN statement for "MONTGOMERY SANSOME LTD., L.P."

In opposition, plaintiff contended that it held a valid contractor's license, and that differences in the names used on various documents were not significant. Plaintiff submitted a declaration from its attorney, attaching (1) documents that he stated had been obtained from the CSLB, pertaining to license number 741713, and (2) documents that he stated had been obtained from the California Secretary of State, pertaining to the limited partnership. Plaintiff did not submit any other evidence or ...


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