Judge: Colin Leis, Case: 21AHCV00156, Date: 2022-09-27 Tentative Ruling

Case Number: 21AHCV00156    Hearing Date: September 27, 2022    Dept: 3

Superior Court of California

County of Los Angeles – NORTHEAST District

Department 3

MOVING PARTY:                Cross-Defendant Rainy Day Roofing, Inc.

RESPONDING PARTY:       Cross-Complainant Building Worx, Inc.

Demurrer of Cross-Defendant Rainy Day Roofing, Inc. to the Cross-Complaint of Building Worx, Inc.

The court considered the moving papers and opposition filed in connection with this motion.

BACKGROUND

            Plaintiffs Chin Yu (John) Yeh and Terri Cheong filed this construction defect action on December 17, 2021 against Defendant Building Worx, Inc. (“Building Worx”). This case arises from a construction project to build a residence located at 2020 Gardi Street, Bradbury, California. Plaintiffs allege that their contractor, Building Worx, acted negligently, causing various defects throughout the home.

            On March 14, 2022, Building Worx filed a cross-complaint for (1) total indemnity, (2) equitable indemnity, (3) implied indemnity, (4) contractual indemnity, (5) breach of contract – AI, (6) breach of contract – defense, (7) breach of express warranty, (8) declaratory relief, and (9) negligence.

            Cross-Defendant Rainy Day Roofing, Inc. (“Rainy Day”) now demurs to the fifth, sixth, seventh, and ninth causes of action of Building Worx’s cross-complaint.

REQUEST FOR JUDICIAL NOTICE

            The court grants Rainy Day’s request for judicial notice.

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

DISCUSSION

As an initial procedural matter, the court notes that although Rainy Day did not meet and confer in person or by telephone prior to filing the demurrer, Rainy Day did meet and confer via letter, and Building Worx does not dispute that it received the letter and responded in substance. Therefore, the court finds that Rainy Day substantially complied with the meet and confer requirement. Moreover, even if the meet and confer effort was insufficient, that is not a basis to overrule the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) 

Rainy Day contends that the contract claims (fifth, sixth, and seventh causes of action) and the negligence claim (ninth cause of action, which Rainy Day inadvertently initially misnumbers as the eighth cause of action) must fail because Building Worx fails to specifically state the amount of damages demanded. (Code Civ. Proc., § 425.10, subd. (a)(2).) Even if this were a proper basis to demur to a cause of action, the court finds that the allegation that Building Worx has been damaged in an amount “in no event less than $25,000” satisfies the requirement. The cases cited by Rainy Day are inapposite. For one, the cites cases are all default judgment cases that were not decided on demurrer. (See Dhawan v. Biring (2015) 241 Cal.App.4th 963; Sass v. Cohen (2020) 10 Cal.5th 861; Yu v. Liberty Surplus Ins. Corp. (2018) 30 Cal.App.5th 1024.) More importantly, those cases involved complaints that stated no monetary amount of damages at all. That is not the case here.

Rainy Day next contends that the cause of action for breach of express warranty is defective because (1) Building Worx failed to allege that they gave notice to Rainy Day prior to filing the cross-complaint, and (2) Building Worx failed to specify whether the warranty agreement was oral or in writing (instead, Building Worx alleges that the agreement was made either orally or in writing). Notice is an essential element of a breach of warranty claim, including in residential construction cases. (Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 380.) Because Building Worx failed to allege that notice was given, the demurrer is sustained. However, the court finds that the allegation that the agreement was oral or written is sufficient to overcome demurrer on that basis.

CONCLUSION

Based on the foregoing, the court sustains Rainy Day’s demurrer to the seventh cause of action for breach of express warranty, with leave to amend. The court otherwise overrules Rainy Day’s demurrer.

The court orders Building Worx to file and serve an amended cross-complaint, if any, within 20 days of the date of this order. If no amended cross-complaint is filed within 20 days, the court orders Rainy Day to file and serve an answer to the cross-complaint within 30 days of the date of this order.

Rainy Day is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 27, 2022

_____________________________

Colin Leis

Judge of the Superior Court