Judge: Christopher K. Lui, Case: 24STCV07022, Date: 2024-12-06 Tentative Ruling

Case Number: 24STCV07022    Hearing Date: December 6, 2024    Dept: 76

Defendants Modernize Remodeling Inc. and Renovateworks Inc.’s demurrer to the Second Amended Complaint is SUSTAINED without leave to amend as to the third cause of action and with leave to amend as to the fourth cause of action.

Defendants’ motion to strike is GRANTED with leave to amend as to Prayer for Relief, Page 8, Line 4 (punitive damages); Prayer for Relief, Page 8, Line 5 (attorney fees), and without leave to amend as to Prayer for Relief, Page 8, Line 6 (declaratory relief). The motion to strike is DENIED as to Prayer for Relief, Page 8, Line 7 (prejudgment interest).

            Plaintiff is given 30 days’ leave to amend.

ANALYSIS

Demurrer

Meet and Confer

            The Declaration of Eitan Yehoshua reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Discussion

Defendants Modernize Remodeling Inc. and Renovateworks Inc. demur to the Second Amended Complaint and move to strike portions thereof. 

1.         Third Cause of Action (Declaratory Relief).

            Defendants argue that this cause of action only pertains to past conduct.  Declaratory relief is not available to address completed past wrongs: 

“The purpose of a judicial declaration of rights in advance of an actual tortious incident is to enable the parties to shape their conduct so as to avoid a breach. ‘[D]eclaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.’ “ (Citation omitted.) Although Roberts filed her complaint prior to the November 2000 General Election, that election is long past, and Roberts does not claim she has a present contractual relationship with the Bar Association. (See Travers v. Louden (1967) 254 Cal. App. 2d 926, 929 [62 Cal. Rptr. 654] [“[W]e have found no authority for the proposition that declaratory relief is proper procedure when the rights of the complaining party have crystallized into a cause of action for past wrongs, all relationship between the parties has ceased to exist and there is no conduct of the parties subject to regulation by the court.”].) Thus, declaratory relief is not available.

(Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 [bold emphasis added].)

            Here, the actions alleged against Defendants occurred in March 2023 and there is no allegation that there is an ongoing contractual relationship between Plaintiff and Defendants.

            As such, the demurrer to the third cause of action is SUSTAINED without leave to amend.

2.         Fourth Cause of Action (Violation of Business and Professions Code, § 17200).

            Defendants argue that this cause of action does not allege any unfair business practices as against demurring Defendants, but only pertain to the insurance policy.

            Here, Plaintiff does not specify the unlawful, unfair or fraudulent business practices which form the basis of this statutory cause of action. “[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

            The demurrer to the fourth cause of action is SUSTAINED with leave to amend.

Motion To Strike

Meet and Confer

            The Declaration of Eitan Yehoshua reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 435.5.

Discussion

Defendants Modernize Remodeling Inc. and Renovateworks Inc. move to strike the following portions of the Second Amended Complaint:

1.         The following language in Plaintiffs Prayer for Relief, Page 8, Line 4: “For punitive damages in an amount according to proof;

            GRANTED with leave to amend as to moving Defendants.

            The 2AC fails to allege that the moving Defendants acted with malice, oppression or fraud toward Plaintiff. (Civ. Code, § 3294(c)(1) – (3).)

2.         The following language in Plaintiffs Prayer for Relief, Page 8, Line 5: “For attorney fees in an amount according to proof;

            GRANTED with leave to amend as to moving Defendants.

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) Here, the 2AC does not specify a contractual or statutory basis for recovery of attorney’s fees as against moving Defendants.

3.         The following language in Plaintiffs Prayer for Relief, Page 8, Line 6: “Declaratory relief;

            GRANTED without leave to amend.

            As discussed above re: the demurrer, declaratory relief is improper as against moving Defendants.

4.         The following language in Plaintiffs Prayer for Relief, Page 8, Line 7: “Prejudgment interest and interest on any judgment entered by the Court”.

            DENIED.

            Prejudgment interest on tort claims may be awarded on unliquidated sums in the jury’s discretion.  Civil Code § 3288.  “In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.” (Civ. Code, § 3288.) Here, a jury has discretion to award prejudgment interest on any tort claims which are successfully pled.

            Plaintiff is given 30 days’ leave to amend where specified.