Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.1 Page 1 of 9 1 2 3 4 5 6 7 8 LEONIDOU & ROSIN Professional Corporation A. Robert Rosin (SBN 115245) Timur Bilir (SBN 269919) 777 Cuesta Drive, Suite 200 Mountain View CA 94040 Telephone: (650) 691-2888 arrosin@alr-law.com tbilir@alr-law.com Attorneys for Plaintiff LEVEL 10 CONSTRUCTION, LP 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 16 17 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS Plaintiff, 14 15 Case No.: '20CV1048 BEN AGS LEVEL 10 CONSTRUCTION, LP, a California limited partnership, vs. SEA WORLD LLC dba SEA WORLD SAN DIEGO, a Delaware limited liability company, DEMAND FOR JURY TRIAL 18 Defendant. 19 20 21 22 For its complaint, Plaintiff Level 10 Construction, LP avers as follows: 23 PARTIES 24 1. Plaintiff Level 10 Construction, LP (“Plaintiff”) is, and at all times 25 herein mentioned was, a limited partnership duly organized and existing under 26 California law and authorized to do business and is doing business in the State of 27 California. At all relevant times, Plaintiff has been licensed by the Contractors 28 State License Board to perform the work referred to herein. 1 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.2 Page 2 of 9 1 2. Plaintiff is informed and believes and thereon avers that at all relevant 2 times Defendant Sea World LLC dba Sea World San Diego (“Sea World San 3 Diego”) is and has been a limited liability company that purports to be organized 4 and to exist under Delaware law, doing business in San Diego County, California. 5 JURISDICTION AND VENUE 6 3. This court has personal jurisdiction over Defendant Sea World San 7 Diego because this suit arises out of or relates to defendants’ contacts with this 8 forum; specifically, Defendant entered into a written contract pursuant to which it 9 hired Plaintiff to perform construction work in San Diego, California. 10 4. The jurisdiction of this Court over the subject matter of this action is 11 predicated on 28 U.S.C. Section 1332(a)(1). The amount in controversy exceeds 12 $75,000.00, exclusive of interest and costs. Plaintiff is a citizen of the State of 13 California and Defendant Sea World San Diego is a citizen of the State of 14 Delaware. Diversity of citizenship therefore exists pursuant to 28 U.S.C. Section 15 1332(c)(1). 16 5. Venue is proper pursuant to 28 U.S.C. Section 1391(b)(2) because a 17 substantial part of the events or omissions giving rise to Plaintiff’s claims for relief 18 occurred in San Diego, California, and the real property that is the subject of the 19 mechanic’s lien claim for relief is located there. 20 FIRST CLAIM FOR RELIEF 21 (Breach of Written Contract) 22 23 24 6. Plaintiff refers to and incorporates as though fully set forth herein each of the foregoing paragraphs. 7. Effective June 20, 2019, Plaintiff and Sea World San Diego entered 25 into a written agreement (the “Contract”) pursuant to which Sea World hired Level 26 10 to perform construction work at its theme park in San Diego, California. In 27 general, the work in connection with the Contract consists of the construction 28 labor, equipment, materials and services necessary for the erection of the 2020 2 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.3 Page 3 of 9 1 Attraction, (the “2020 Project”) including site demolition, grading, utilities, 2 foundations, ride station, electrical, plumbing, landscape, hardscape, and general 3 contractor services. The 2020 Attraction is located on a 3.1-acre portion of the 4 existing parking lot at the Sea World San Diego theme park, adjacent to the Journey 5 to Atlantis attraction to the west and the Wild Arctic attraction to the north. 6 8. The original Contract amount was $11,096,042.00. A true and correct 7 copy of the principal provisions of the Contract is attached hereto and incorporated 8 herein as Exhibit A. The Contract also incorporated plans and technical provisions 9 by reference, which are voluminous, and which to avoid prolixity are not attached. 10 9. The Contract provided that Plaintiff would be paid for its work, labor, 11 materials, and services. Payment for the work was not conditioned upon Sea World 12 San Diego’s theme park being open for business to the public. 13 10. Pursuant to the terms of the Contract, Plaintiff provided all necessary 14 materials, equipment and services for performance of the Contract, and performed 15 all other conditions, covenants, and promises under the Contract, except those 16 conditions, covenants, and promises which it was prevented or otherwise was 17 excused from performing. 18 11. Under the terms of the Contract and California law, Sea World San 19 Diego at all relevant times has owed a duty to Plaintiff to furnish reasonably 20 accurate and complete specifications, plans, drawings, and designs, and to execute 21 change orders increasing the Contract amount, in the event that Plaintiff was 22 required to perform extra work. 23 12. The Contract amount was increased by one or more change orders. 24 13. Within the last two years, Sea World San Diego breached the Contract 25 by, among other conduct: 26 a. Failing to make millions of dollars of progress payments when due; 27 b. Repudiating the Contract by stating that Sea World San Diego “would 28 not process any outstanding payments until the parks open,” or words to that effect; 3 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.4 Page 4 of 9 1 2 3 4 and c. Stating that Sea World San Diego “understand[s] they are in breach of contract,” or words to that effect. 14. As a direct and proximate result of Sea World San Diego’s breach of 5 the Contract, Plaintiff has incurred damages in the principal amount of not less 6 than $3,278,471.30, plus interest. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 7 8 SECOND CLAIM FOR RELIEF 9 (Monies Due) 10 11 12 15. Plaintiff refers to and incorporates as though fully set forth herein each of the foregoing paragraphs. 16. Within the last two years, in San Diego County, California, Sea World 13 San Diego became indebted to Plaintiff in the agreed sum of at least $3,278,471.30 14 for labor, materials, services, and equipment furnished by Plaintiff to Sea World 15 San Diego at the latter’s special instance and request. 16 17. Notwithstanding Plaintiff’s demands for payment, there is now due, 17 owing, and unpaid from Sea World San Diego to Plaintiff the principal amount of 18 $3,278,471.30, together with interest thereon at the prevailing legal rate. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 19 20 THIRD CLAIM FOR RELIEF 21 (Quantum Meruit) 22 23 24 18. Plaintiff refers to and incorporates as though fully set forth herein each of the foregoing paragraphs. 19. Within the last two years, in San Diego County, California, Plaintiff 25 furnished labor, materials, equipment, and services to Sea World San Diego at the 26 latter’s special instance and request, which Sea World San Diego then and there 27 agreed to pay to Plaintiff the reasonable value thereof. 28 20. The principal amount of $3,278,471.30 remains due and owing by Sea 4 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.5 Page 5 of 9 1 World San Diego to Plaintiff, plus interest at the legal rate, for such labor, 2 materials, and equipment. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 3 FOURTH CLAIM FOR RELIEF 4 (Account Stated) 5 6 7 8 21. Plaintiff refers to and incorporates as though fully set forth herein each of the foregoing paragraphs. 22. Within the last year and in San Diego County, California, an account 9 was stated in writing by and between Plaintiff on the one hand and Sea World San 10 Diego, on the other hand. On such account the principal balance of at least 11 $3,278,471.30 was found to be due to Plaintiff. Sea World San Diego agreed to 12 pay Plaintiff this balance in San Diego, California. 13 23. Although demanded by Plaintiff from Sea World San Diego, no part 14 of the agreed balance has been paid. There is now due, owing, and unpaid from 15 Sea World San Diego to Plaintiff the principal sum of at least $3,278,471.30, of 16 which the same total principal amount remains due, owing, and unpaid by Sea 17 World San Diego to Plaintiff, together with interest at the legal prevailing rate from 18 the time such payments became due. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 19 20 FIFTH CLAIM FOR RELIEF 21 (Foreclosure of Mechanics Liens) 22 23 24 24. Plaintiff refers to and incorporates as though fully set forth herein each of the foregoing paragraphs. 25. Plaintiff is informed and believes and, on that basis avers, Sea World 25 San Diego is the successor to “Sea World, Inc.” and is the tenant on a long term 26 lease of the real property on which Sea World San Diego’s theme park is located, 27 including, without limitation, 500 SeaWorld Drive, San Diego, CA 92109, APN 28 435-480-17, consisting of a “Portion of Pueblo lot 252 of MM 36 filed in the office 5 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.6 Page 6 of 9 1 2 of the county recorder November 14, 1921” (hereinafter, the “Property”). 26. Prior to and during the time that Plaintiff performed work pursuant to 3 the Contract, no notice of nonresponsibility was posted or recorded in connection 4 with Plaintiff’s work. Plaintiff is informed and believes, and thereon avers, the 5 City of San Diego was aware that Plaintiff as performing construction at the 6 Property. 7 27. Plaintiff is informed and believes and thereon avers that at all relevant 8 times Sea World San Diego has, or claims to have, some right, title or interest in 9 the Property, including the long-term leasehold interest described above. 10 28. Plaintiff supplied labor, equipment, materials, and services, which 11 were incorporated and consumed in the construction of a work of improvement at 12 the Property. 13 29. After Plaintiff ceased furnishing labor, equipment, materials and 14 services, on April 30, 2020, Plaintiff recorded in the official records of San Diego 15 County, California, a verified mechanic’s lien (the “Mechanic’s Lien”). Before 16 recording the Mechanic’s Lien, Plaintiff timely served on Sea World San Diego 17 and others a copy of the Mechanic’s Lien, together with an executed proof of 18 service affidavit. A true and correct copy of the Mechanic’s Lien that Plaintiff 19 recorded and the Notice of Mechanic’s Lien that Plaintiff served is attached hereto 20 as Exhibit B and is incorporated herein by reference. The Mechanic’s Lien was 21 recorded in the time allowed by the California Civil Code. 22 30. Subsequently, on or about May 12, 2020, upon obtaining further 23 information regarding Sea World San Diego’s interest in the Property, Plaintiff 24 recorded in the official records of San Diego County, California, a second verified 25 mechanic’s lien (the “Amended Mechanic’s Lien”). 26 Amended Mechanic’s Lien, Plaintiff timely served on Sea World San Diego and 27 others a copy of the Amended Mechanic’s Lien, together with an executed proof 28 of service affidavit. A true and correct copy of the Amended Mechanic’s Lien Before recording the 6 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.7 Page 7 of 9 1 that Plaintiff recorded and the Notice of Amended Mechanic’s Lien that Plaintiff 2 served is attached hereto as Exhibit C and is incorporated herein by reference. The 3 Amended Mechanic’s Lien was recorded in the time allowed by the California 4 Civil Code. 5 6 7 31. There remains due and owing to Plaintiff an amount that is not less than $3,214,306.00 sum stated in the Amended Mechanic’s Lien. 32. Plaintiff is informed and believes and avers thereon that that Sea World 8 San Diego has some estate, leasehold, right, title or interest in or in the Property or 9 part thereof, which estate, leasehold, right, title or interest in or in the Property is 10 subsequent and subordinate to Plaintiff’s rights under the Mechanic’s Lien and 11 Amended Mechanic’s Lien. As set forth in the Mechanic’s Lien and the Amended 12 Mechanic’s Lien, Plaintiff only claims a lien with regard to interests, such as 13 leasehold interests, of persons or entities who are not public agencies. 14 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. PRAYER FOR RELIEF 15 16 17 18 Plaintiff Level 10 Construction, LP prays for relief against Defendant Sea World LLC dba Sea World San Diego as follows: On the First, Second, Third, and Fourth Claims for Relief: 19 1. For damages in the principal sum of not less than $3,278,471.30; 20 2. For interest at the prevailing legal rate from the time payments became 21 due; 22 On the Fifth Claim for Relief: 23 24 3. For a judgment and decree: a. Declaring that the rights, claims, ownership, liens, title or 25 demands of Defendant Sea World LLC dba Sea World San 26 Diego, in the above-described real property be subject to and 27 subordinate to the Plaintiff’s Mechanic’s Lien and Amended 28 Mechanic’s Lien; 7 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.8 Page 8 of 9 b. 1 Ordering that Plaintiff’s Mechanic’s Lien and Amended 2 Mechanic’s Lien be foreclosed and the usual judgment be made 3 for the sale of the property, according to law, by an individual to 4 be appointed by the Court; c. 5 Ordering that the proceeds of the sale be applied to the payment 6 in the amounts due, including interest thereon, through the date 7 of entry of judgment due Plaintiff; and d. 8 Declaring that the title of Defendant Sea World LLC dba Sea 9 World San Diego, and all persons claiming under it, be adjudged 10 subsequent to Plaintiff’s rights under the Mechanic’s Lien and 11 Amended Mechanic’s Lien; 12 On All Claims for Relief: 13 5. For costs of suit incurred herein; and 14 6. For such other and further relief as the Court may deem just and proper, 15 16 including equitable relief. Dated: June 5, 2020 LEONIDOU & ROSIN Professional Corporation 17 18 19 s/A. Robert Rosin Attorney for Plaintiff Level 10 Construction, LP arrosin@alr-law.com 20 21 22 23 24 25 26 27 28 8 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX Case 3:20-cv-01048-W-AGS Document 1 Filed 06/08/20 PageID.9 Page 9 of 9 DEMAND FOR JURY TRIAL 1 2 Plaintiff Level 10 Construction, LP hereby demands a trial by jury on all 3 claims for relief that may be tried before a jury. 4 Dated: June 5, 2020 5 LEONIDOU & ROSIN Professional Corporation 6 7 s/A. Robert Rosin Attorney for Plaintiff Level 10 Construction, LP arrosin@alr-law.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND FORECLOSURE OF MECHANIC’S LIENS S:\ALRDOCS\30501\5\00240048.DOCX