Judge Andrew E. Cooper, Case Number: 23CHCV00351, Date: 2023-09-29 Tentative Ruling

Judge: Andrew E. Cooper, Case: 23CHCV00351, Date: 2023-09-29 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV00351 Hearing Date: September 29, 2023 Dept: F51

DEMURRER

Los Angeles Superior Court Case # 23CHCV00351

Demurrer Filed: 7/3/23

MOVING PARTY: Defendant/Cross-Defendant/Cross-Complainant Meco Electric, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Gregory Karapetian (“Plaintiff”)

NOTICE: NOT OK(misstates that this demurrer is being brought against Plaintiff’s First Amended Cross-Complaint.)

RELIEF REQUESTED: Moving Defendant demurs to Plaintiff’s entire first amended complaint (“FAC”).

TENTATIVE RULING: The demurrer is overruled. Moving Defendant is ordered to file and serve its answer to Plaintiff’s FAC within 30 days of this hearing date.

REQUEST FOR JUDICIAL NOTICE: Moving Defendant’s request for judicial notice is granted as to Exhibits 1 and 2, and denied as to Exhibits 3, 4, and 5.

BACKGROUND

Plaintiff alleges that in June 2021, he entered a contract with defendants for installation of a solar panel system at his home, and defendants “failed to properly construct and install the PV System in good and workmanlike manner on the SUBJECT PROPERTY by improperly sealing conduits and pipe flashing connections, as well as creating and leaving holes in the roof that resulted from the solar panel installation.” (FAC ¶¶ 11, 15.) The construction was completed in September 2021, and Plaintiff discovered the allegedly defective workmanship when his property sustained water damage following rainfall on 10/25/21. (Id. at ¶¶ 13, 16–18.)

On 2/7/23, Plaintiff filed his original complaint, alleging against nonmoving defendants Solar Optimum, Inc. and Arnou Aghamalian the following causes of action: (1) Negligence; (2) Breach of Contract; and (3) Breach of Duty of Good Faith and Fair Dealing.

On 3/16/23, nonmoving defendants filed their answers and cross-complaint against Moving Defendant, alleging the following causes of action: (1) Breach of Contract; (2) Implied Indemnity; (3) Equitable Indemnity; (4) Contribution; (5) Apportionment of Fault; and (6) Declaratory Relief.

On 4/19/23, Plaintiff filed his FAC, amending unnamed Doe defendants 1 and 2 to Moving Defendant and nonmoving defendant Meir Abramovitch.

On 6/23/23, Moving Defendant filed its answer to the cross-complaint, and filed a cross-complaint against nonmoving defendant Solar Optimum, Inc. for the following causes of action: (1) Total Indemnity; (2) Equitable Indemnity; (3) Contribution; and (4) Declaratory Relief.

On 7/3/23, Moving Defendant filed the instant demurrer against Plaintiff’s FAC. On 9/14/23, Plaintiff filed his opposition. On 9/21/23, Moving Defendant filed its reply.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer based on any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿However, a “court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.” (Fremont Indemnity Co. v. Fremont General Corp., 148 Cal.App.4th 97, 114–115.)

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Moving Defendant demurs to Plaintiff’s entire FAC for uncertainty and failure to state facts sufficient to constitute any of the causes of action therein.

A. Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendant’s counsel declares that he emailed Plaintiff’s counsel to meet and confer regarding the issues raised in the instant demurrer, but the parties were unable to come to a resolution. (Decl. of Marc Weinberg ¶ 2.) Therefore, the Court finds that Moving Defendant’s counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B. Negligence

Plaintiff’s first cause of action alleges against all defendants Negligence. To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, Plaintiff alleges in his FAC that defendants (1) owed him “a legal duty to correctly construct and install solar panels onto the SUBJECT PROPERTY as expressly outlined in the mutual CONTRACT signed by both parties;” (2) breached those duties by, inter alia, failing to comply with applicable standards of care, and failing to properly install the solar panels; (3) through their alleged breaches caused “significant water damage” to the subject property. (FAC ¶¶ 30–32.)

Moving Defendant argues that it owed Plaintiff no duty of care because Plaintiff contracted with nonmoving defendant Solar Optimum, Inc. for the construction project, and “Meco as a subcontractor of Optimum, were [sic] not contractually obligated to plaintiff.” (Dem. 8:12–13.) However, in a demurrer proceeding, the Court assumes the truth of the plaintiff’s factual allegations and does not weigh evidence presented. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)

Here, as Plaintiff observes, he has lodged his complaint and all the causes of action contained therein against all defendants named in the action, including Moving Defendant. “Plaintiff specifically alleges in the FAC that Plaintiff and [Moving] Defendant entered into a contractual agreement, under which Defendant would ‘construct and install the system in good and workmanlike manner; and ensure that all workmanship would meet or exceed all applicable building codes and standards.’” (Pl.’s Opp. 4:24–28, quoting FAC ¶¶ 15, 16.)

Based on the foregoing, the Court is satisfied at the demurrer stage that Plaintiff has properly alleged facts to state each element of a cause of action for Negligence against all defendants. Accordingly, the Court overrules Moving Defendant’s demurrer to Plaintiff’s first cause of action.

C. Breach of Contract

Plaintiff’s second cause of action alleges against all defendants Breach of Contract. To state a cause of action for breach of contract, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A written contract may be pleaded either verbatim or generally “according to its legal intendment and effect.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199.)

Here, Plaintiff alleges in his FAC that (1) “Plaintiff and Defendants entered into a contractual agreement on or about June 9, 2021;” (2) “Plaintiff fully performed all, or substantially all, conditions, covenants, and promises to be performed;” (3) “Defendants breached the CONTRACT by failing to perform all obligations under the CONTRACT, including but not limited to failing to properly install solar panels on the SUBJECT PROPERTY;” and (4) “As a direct and proximate cause of Defendants’ breach of the CONTRACT, Plaintiff has been damaged in an amount to be proven at trial.” (FAC ¶¶ 37, 39, 41, 43.) Plaintiff also alleges that “in the terms of the CONTRACT, Defendants agreed to provide all labor, equipment, and materials required to install a functioning PV System; obtain and pay for all necessary approvals, permits, and inspections required for the work; provide and pay for labor, materials, equipment, tools, construction equipment and machinery necessary for proper execution and completion of the work; construct and install the system in good and workmanlike manner; and ensure that all workmanship would meet or exceed all applicable building codes and standards.” (Id. at ¶ 16.)

Moving Defendant argues that “if there was one contract and one claim for damages, then plaintiff must identify who is the party that he claims breached the contract. Plaintiff cannot have a contract with two separate entities to do the same work and then claim they each owe plaintiff damages.” (Dem. 6:27–7:1.) In opposition, Plaintiff argues that “Defendant’s argument that the existence of one agreement between Plaintiff and another party negates the possibility that any agreement and/or legal duty could exist between Defendant and Plaintiff is not only incorrect, but also a question of fact.” (Pl.’s Opp. 4:6–8.)

As the Court finds above, and as Plaintiff observes, “Plaintiff’s FAC explicitly names [Moving] Defendant and further alleges that Plaintiff and [Moving] Defendant entered into a contractual agreement, leaving no ambiguity as to Plaintiff’s allegations against [Moving] Defendant.” (Id. at 7:12–14.) Plaintiff’s amendment to his complaint to name previously unnamed Doe defendants does not constitute an inconsistent factual pleading that would render his complaint subject to demurrer, nor does Moving Defendant cite to any authority that states otherwise. The Court is therefore satisfied at the demurrer stage that Plaintiff has properly alleged facts to state each element of a cause of action for Breach of Contract against all defendants. Accordingly, the Court overrules Moving Defendant’s demurrer to Plaintiff’s second cause of action.

D. Breach of Duty of Good Faith and Fair Dealing

Plaintiff’s third cause of action alleges against all defendants Breach of Duty of Good Faith and Fair Dealing. Every contract contains an implied covenant of good faith and fair dealing that neither party will do anything to interfere with the other party's right to receive the benefits of the agreement. (Howard v. American Nat'l Fire Ins. Co. (2010) 187 Cal.App.4th 498, 528.) The precise nature and extent of the duty depends on the nature and purpose of the underlying contract and the parties' legitimate expectations arising from the contract. (Ibid.) “A breach of the implied covenant of good faith is a breach of the contract … and breach of a specific provision of the contract is not ... necessary to a claim for breach of the implied covenant of good faith and fair dealing.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.)

However, “if the allegations [of breach of implied covenant of good faith and fair dealing] do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

Here, Plaintiff alleges that:

“Defendants breached the implied duty of good faith and fair dealing by: (1) including vague and/or misrepresented terms of the CONTRACT; improperly conducting services as agreed upon explicitly or implicity [sic] in the CONTRACT; failing to remedy improper construction and/or installation of the PV System; and failing to investigate, evaluate, and resolve Plaintiff’s complaints and concerns regarding water damage resulting from improper and/or faulty construction and/or installation; (2) denying Plaintiff’s claim for damages without conducting a fair, unbiased, and thorough investigation or inquiry, arbitrarily and capriciously, and/or with knowledge that the denial was unreasonable under the CONTRACT ; (3) misrepresenting CONTRACT terms; and (4) compelling Plaintiff to initiate litigation to recover contractual benefits to which Plaintiff is entitled.” (FAC ¶ 47.)

Moving Defendant argues that Plaintiff’s third cause of action fails because it is redundant of his second cause of action for breach of contract and therefore superfluous. (Dem. 7:18–8:4.) Plaintiff argues in opposition that he “specifically alleges that Defendant’s conscious and deliberate acts, as outlined above, are separate, different from, and beyond Plaintiff’s breach of contract allegations.” (Pl.’s Opp. 6:16–17.) The Court agrees and finds that the above allegations pertain only to Plaintiff’s third cause of action.

Based on the foregoing, the Court finds that Plaintiff has alleged facts sufficient to support a cause of action for Breach of Duty of Good Faith and Fair Dealing. Accordingly, the Court overrules Moving Defendant’s demurrer to Plaintiff’s third cause of action.

E. Uncertainty

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)

In applying the stringent standard for demurrers filed on this ground, the Court finds that Plaintiff’s complaint is not “so incomprehensible” that Moving Defendant cannot respond, especially given the extensive analyses it has offered in attacking the pleading. Even where a complaint is in some respects uncertain, ambiguities can be clarified under modern discovery procedures. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Accordingly, the demurrer is overruled on this basis.

CONCLUSION

The demurrer is overruled. Moving Defendant is ordered to file and serve its answer to Plaintiff’s FAC within 30 days of this hearing date.

DEMURRER

Los Angeles Superior Court Case # 23CHCV00351

Demurrer Filed: 6/30/23

MOVING PARTY: Defendant Meir Abramovich (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Gregory Karapetian (“Plaintiff”)

NOTICE: NOT OK(misstates that this demurrer is being brought against Plaintiff’s First Amended Cross-Complaint.)

RELIEF REQUESTED: Moving Defendant demurs to Plaintiff’s entire first amended complaint (“FAC”).

TENTATIVE RULING: The demurrer is overruled. Moving Defendant is ordered to file and serve its answer to Plaintiff’s FAC within 30 days of this hearing date.

REQUEST FOR JUDICIAL NOTICE: Moving Defendant’s request for judicial notice is granted as to Exhibits 1 and 2, and denied as to Exhibits 3, 4, and 5.

BACKGROUND

On 3/16/23, nonmoving defendants filed their answers and cross-complaint against nonmoving defendant Meco Electric, Inc. (“Meco”).

On 4/19/23, Plaintiff filed his FAC, amending unnamed Doe defendants 1 and 2 to Moving Defendant and Meco. On 6/30/23, Moving Defendant filed the instant demurrer against Plaintiff’s FAC. On 9/13/23, Plaintiff filed his opposition. On 9/21/23, Moving Defendant filed his reply.

ANALYSIS

Here, Moving Defendant demurs to Plaintiff’s entire FAC for uncertainty and failure to state facts sufficient to constitute any of the causes of action therein.

A. Meet and Confer

B. Negligence

Moving Defendant argues that he owed Plaintiff no duty of care because Plaintiff contracted with nonmoving defendant Solar Optimum, Inc. for the construction project, and “Meco and its CEO Abramovitch, as a subcontractor of Optimum, were not contractually obligated to plaintiff.” (Dem. 9:8–9.) However, in a demurrer proceeding, the Court assumes the truth of the plaintiff’s factual allegations and does not weigh evidence presented. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)

Moving Defendant further argues that there are no allegations in Plaintiff’s FAC that Moving Defendant is liable, in his personal capacity, to Plaintiff. (Dem. 6:6–7.) However, as Plaintiff argues in opposition, “Plaintiff’s FAC specifically names Defendant Abramovitch with regard to each cause of action, thereby directing all factual allegations to Defendant Abramovitch.” (Pl.’s Opp. 9:25–26.)

C. Breach of Contract

Here, Plaintiff alleges in his FAC that (1) “Plaintiff and Defendants entered into a contractual agreement on or about June 9, 2021”; (2) “Plaintiff fully performed all, or substantially all, conditions, covenants, and promises to be performed”; (3) “Defendants breached the CONTRACT by failing to perform all obligations under the CONTRACT, including but not limited to failing to properly install solar panels on the SUBJECT PROPERTY”; and (4) “As a direct and proximate cause of Defendants’ breach of the CONTRACT, Plaintiff has been damaged in an amount to be proven at trial.” (FAC ¶¶ 37, 39, 41, 43.) Plaintiff also alleges that “in the terms of the CONTRACT, Defendants agreed to provide all labor, equipment, and materials required to install a functioning PV System; obtain and pay for all necessary approvals, permits, and inspections required for the work; provide and pay for labor, materials, equipment, tools, construction equipment and machinery necessary for proper execution and completion of the work; construct and install the system in good and workmanlike manner; and ensure that all workmanship would meet or exceed all applicable building codes and standards.” (Id. at ¶ 16.)

Moving Defendant argues that “if there was one contract and one claim for damages, then plaintiff must identify who is the party that he claims breached the contract. Plaintiff cannot have a contract with two separate entities to do the same work and then claim they each owe plaintiff damages.” (Dem. 7:23–25.) In opposition, Plaintiff argues that “Defendant’s argument that the existence of one agreement between Plaintiff and another party negates the possibility that any agreement and/or legal duty could exist between Defendant and Plaintiff is not only incorrect, but also a question of fact.” (Pl.’s Opp. 4:7–9.)

As the Court finds above, and as Plaintiff observes, “Plaintiff’s FAC explicitly names [Moving] Defendant and further alleges that Plaintiff and [Moving] Defendant entered into a contractual agreement, leaving no ambiguity as to Plaintiff’s allegations against [Moving] Defendant.” (Id. at 7:13–15.) Plaintiff’s amendment to his complaint to name previously unnamed Doe defendants does not constitute an inconsistent factual pleading that would render his complaint subject to demurrer, nor does Moving Defendant cite to any authority that states otherwise. The Court is therefore satisfied at the demurrer stage that Plaintiff has properly alleged facts to state each element of a cause of action for Breach of Contract against all defendants. Accordingly, the Court overrules Moving Defendant’s demurrer to Plaintiff’s second cause of action.

D. Breach of Duty of Good Faith and Fair Dealing

Here, Plaintiff alleges that:

Moving Defendant argues that Plaintiff’s third cause of action fails because it is redundant of his second cause of action for breach of contract and therefore superfluous. (Dem. 8:14–28.) Plaintiff argues in opposition that he “specifically alleges that Defendant’s conscious and deliberate acts, as outlined above, are separate, different from, and beyond Plaintiff’s breach of contract allegations.” (Pl.’s Opp. 6:17–18.) The Court agrees and finds that the above allegations pertain only to Plaintiff’s third cause of action.

E. Uncertainty

In applying the stringent standard for demurrers filed on this ground, the Court finds that Plaintiff’s complaint is not “so incomprehensible” that Moving Defendant cannot respond, especially given the extensive analyses he has offered in attacking the pleading. Even where a complaint is in some respects uncertain, ambiguities can be clarified under modern discovery procedures. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Accordingly, the demurrer is overruled on this basis.

CONCLUSION

The demurrer is overruled. Moving Defendant is ordered to file and serve its answer to Plaintiff’s FAC within 30 days of this hearing date.