Judge Cherol J. Nellon, Case Number: 24STCV26500, Date: 2025-02-26 Tentative Ruling

Judge: Cherol J. Nellon, Case: 24STCV26500, Date: 2025-02-26 Tentative Ruling

Case Number: 24STCV26500 Hearing Date: February 26, 2025 Dept: 14

Case Background

This is an action for breach of contract, elder fraud, and false mechanic’s lien. Plaintiff alleges that she entered into a written contract with a contract who rendered her home uninhabitable and charged her for more than the original contract price.

On October 11, 2024, Plaintiff Christine Garner filed her Complaint against Defendants Hometown Flooring dba Hometown Restorations.

On November 15, 2024, Defendant filed its demurrer.

On November 18, 2024, Plaintiff filed an opposition.

On February 19, 2024, Defendant filed a reply.

Instant Pleading

Defendant demurs to the Complaint.

Decision

Defendant’s demurrer is SUSTAINED as to the causes of action for breach of contract and elder fraud with leave to amend. The demurrer is OVERRULED as to the cause of action for false mechanic’s lien. Plaintiff must file a First Amended Complaint within 30 days of this order.

Discussion

Defendant demurs to each cause of action in Plaintiff’s Complaint. Plaintiff argues in opposition that the demurrer was improperly filed because it is untimely and Defendant is in default. However, Defendant is not in default because Plaintiff’s request for entry of default was rejected. Additionally, given the substantial defects with the Complaint identified below, the Court will exercise its discretion to consider this demurrer. (Code Civ. Proc., section 473(a)(1).)

1. Breach of Contract

Defendant demurs to the cause of action for breach of contract on the grounds that Plaintiff merely attached an incomplete version of the contract at issue and does not include the initial estimate for the work Defendant performed. Defendant includes other facts extraneous to the Complaint which cannot be considered on demurrer.

The elements of a claim for breach of contract are: “(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.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.)

For a written contract, the plaintiff may plead it “by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 abrogated on other grounds in Freeman v. Quicken Loans Inc. (2012) 566 U.S. 624.) When an action is founded upon a contract, the complaint is subject to demurrer if it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Code Civ. Proc., section 430.10(g); Maxwell v. Dolezal (2014) 231 Cal.App.4th 93.)

Here, the Complaint alleges that the parties entered into a written contract for asbestos remediation which stated the repairs and costs, that Plaintiff fulfilled the demolition obligations under the Contract, and that Defendant increased the cost of the work by more than triple after demolition was done. (Compl., ¶¶4-8.) Plaintiff attaches a Change Order, Release of Liability for Premature Equipment Removal, and a work authorization contract to the Complaint. (Compl., Exh. A.) The emergency services contract does not specify what services Plaintiff had retained Defendant to perform and does not include a contract price. Rather, it refers to invoices and addendums that were not included with the Complaint. (Id.)

The Complaint does not set forth the terms of the parties’ contract verbatim or by the terms’ legal effect. Rather, the Complaint sets forth in a conclusory manner that the contract had terms pertaining to repairs and costs. It is not apparent what the parties’ obligations were under the contract. Thus, the Complaint fails to state a cause of action for breach of written contract.

The demurrer is SUSTAINED as to the cause of action for breach of contract.

2. Elder Fraud

Defendant next argues that the cause of action for elder fraud fails because Defendant has not taken any real or personal property of an elder with any intention to defraud. Defendant also argues that the cause of action is vague and ambiguous because it is unclear what the alleged elder fraud allegations are.

Uncertainty

The Court notes there is no cause of action for elder fraud. Rather, it appears Plaintiff improperly combined a cause of action for elder financial abuse with a cause of action for fraud. This combination renders the Complaint vague and uncertain. Therefore, Defendant’s demurrer is SUSTAINED as to the cause of action for elder fraud.

Sufficiency

The next issue is whether the Complaint alleges sufficient facts to support a cause of action for elder financial abuse.

Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. (Welf. & Inst. Code, section 15610.30(a).) A person is deemed to have taken the property when he or she has deprived an elder of any property right. (See Welf. & Inst. Code section 15610.30(c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person . . . takes . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder . . . .” (Id., section 15610.30(b).)

A person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult. (Id., section 15610.30(c).)

Here, the Complaint alleges that the parties entered into a contract wherein Defendant agreed to perform asbestos abatement and remediation. (Compl., ¶5.) After demolition was done, Defendant increased the cost to more than triple the original cost and rendered the home uninhabitable. (Id., ¶¶8-9.) As a result, Plaintiff suffered damages, including a loss of her residence, a false lien, stress, and displacement. (Id., ¶18.)

The Complaint fails to allege that Defendant took Plaintiff’s property. Although Plaintiff’s residence is uninhabitable after the demolition, there are no facts that Plaintiff was deprived of ownership of the property. Therefore, the demurrer is SUSTAINED as to the cause of action for elder abuse.

The next issue is whether the Complaint alleges sufficient facts to support a cause of action for fraud.

A claim for fraud must plead all the following elements: (1) misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.)

Fraud causes of actions must be pled with specificity in order to give notice to the defendant and to furnish him or her with definite charges. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216, superseded by amendments to the Unfair Competition Law contained in Proposition 64 on unrelated grounds.) “(a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Ibid.)

The specificity standard is less stringent “when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.’” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, superseded by statute on other grounds as stated in Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 227, quoting Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825.)

As discussed above, the Complaint alleges that after demolition was done, Defendant increased the cost to more than triple the original cost. Additionally, Defendant intended to defraud Plaintiff and induced Plaintiff to enter into the contract by raising the price of the work only after demolition was already complete. (Compl., ¶¶15-16.) As a result, Plaintiff’s home was rendered uninhabitable.

Under these facts, Plaintiff has pled facts to support each element of fraud. However, the Complaint also states that Plaintiff never signed or entered into a contract with Plaintiff. (Compl., ¶14.) If Plaintiff never entered into a contract with Defendant, then she was never induced to agree to the work. The Court finds that this inclusion renders the cause of action for fraud uncertain. The demurrer is SUSTAINED as to the cause of action for fraud.

3. False Mechanics Lien

The Court notes that there is no cause of action for false mechanic’s lien. However, California Civil Code section 8480 provides that the owner of property may petition the court for an order to release the property from the claim of lien if the claimant has not commenced an action to enforce the lien within the time provided in section 8460. (Civ. Code, section 8480(a).) Section 8460 provides that “[t]he claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien.” (Id., section 8460(a).) Section 8460 further provides that “[i]f the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.” (Id.) Here, the Court will construe the cause of action for false mechanic’s lien as a cause of action to release mechanic’s lien.

Here, Defendant demurs to the cause of action for false mechanic’s lien on the grounds that Defendant completed the work on the subject property and Plaintiff thereafter failed to issue payment. Defendant contends the lien is valid. However, these facts are extraneous to the Complaint and thus cannot be considered on demurrer. Therefore, Defendant’s demurrer is OVERRULED as to the cause of action for false mechanic’s lien.

4. Leave to Amend

Plaintiff failed to seek leave to amend in her opposition. However, because the complaint may reasonably be amended to cure the defects identified above, the Court will grant leave to amend in an abundance of caution.

Conclusion