Judge Daniel M. Crowley, Case Number: 23STCV03161, Date: 2023-07-10 Tentative Ruling

Plaintiffs/Cross-Defendants Mechellet Armelin-Martin’s and Perry Martin Jr.’s unopposed demurrer to NALM’s cross-complaint, in pro per, is sustained with 20 days leave to amend as to the 1st, 2nd, and 3rd causes of action.

Plaintiffs’ unopposed motion to compel Defendant Kassy Dieujuste to appear for deposition is granted. Plaintiff is ordered to appear for deposition within 20 days of this ruling.

Plaintiffs’ request for sanctions against Defendant Kassy Dieujuste in support of its motion to compel Dieujuste’s deposition is granted in the reduced amount of $2,182.50. Sanctions are payable within 20 days of this ruling.

Plaintiffs’ unopposed motion to deem Defendant Kassy Dieujuste’s responses to Plaintiffs’ Request for Admissions (Set One) admitted is granted.

Plaintiffs’ request for sanctions against Defendant Kassy Dieujuste for the motion to deem Plaintiff’s RFA (Set One) admitted is granted in the amount of $1,759.15. Sanctions are payable within 20 days of this ruling.

Plaintiffs’ unopposed motion to deem Defendant NALM LLC dba Kassy + Co’s responses to Plaintiffs’ Request for Admissions (Set One) admitted is granted.

Plaintiffs’ request for sanctions against Defendant NALM LLC for the motion to deem Plaintiff’s RFA (Set One) admitted is denied.

On February 14, 2023, Plaintiffs Mechellet Armelin-Martin (“Armelin-Martin”) and Perry Martin Jr. (“Martin”) (collectively, “Plaintiffs”) filed this action against Defendants Kassy Dieujuste (“Dieujuste”), NALM LLC dba Kassy + Company [erroneously sued as Kassy + Co] (“NALM”), Marquez Home Services (“Home Services”), Michael Lurence (“Lurence”), and LEI Electrical Contractors (“LEI”) (collectively, “Defendants”). On June 15, 2023, Lurence and LEI answered Plaintiffs’ Complaint. On June 21, 2023, Defendant Lurence dba LEI electrical Contractors, Inc., filed a cross-complaint (“Lurence Cross-Complaint”) against Plaintiffs alleging three causes of action: (1) breach of contract, (2) common counts, and (3) fraud. On July 26, 2023, Plaintiffs answered the Lurence Cross-Complaint.

On September 13, 2023, Lurence’s and LEI’s Counsel, Richard J. Rosiak, filed the instant Motion to be Relieved as Counsel.

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil form (MC-053)).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

Counsel has submitted completed MC-051, MC-052 and MC-053 forms. Counsel has provided a declaration stating there has been a complete breakdown in communication between counsel and client-attorney client privilege. Counsel declares his client refuses to cooperate by voluntarily signing substitutions of attorney for Lurence and his company LEI. Counsel has indicated that Lurence dba LEI was served with copies of the motion papers filed with the declaration at Lurence’s last known address and confirmed in the last 30 days of filing the motion that the address is current by telephone.

Lurence’s and LEI’s Counsel’s Motion to Be Relieved as Counsel is granted.

Plaintiffs demur unopposed to Defendant/Cross-Complainant NALM’s, in pro per, cross-complaint (“NALM Cross-Complaint”) on the basis the 1st, 2nd, and 3rd causes of action fail to state facts sufficient to constitute causes of action against them and are unintelligible, and demur to the 1st cause of action on the basis it cannot be ascertained from the pleading whether the contract is written, oral, or implied by conduct. (Notice of Demurrer, pg. 2; C.C.P. §§430.10(e), (f), (g).) Plaintiffs also move to strike portions of the NALM Cross-Complaint. (Notice of MTS, pg. 2.)

On February 14, 2023, Plaintiffs filed their operative Complaint in the instant action. On April 3, 2023, NALM filed the operative NALM Cross-Complaint against Plaintiffs alleging three causes of action: (1) breach of contract, (2) common counts (for work, labor, services and materials rendered at the special instance and request of defendant and for which defendant promised to pay plaintiff), and (3) common counts (for open book account for money due).

On May 5, 2023, Plaintiffs filed the instant demurrer and accompanying motion to strike. Plaintiffs filed a notice of non-opposition on September 27, 2023. As of the date of this hearing, NALM has not filed an opposition.

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; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [citing text].) A demurrer can be utilized where the complaint itself is incomplete or discloses some defense that would bar recovery (e.g., dates pleaded in complaint show statute of limitations has run). (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972; Estate of Moss (2012) 204 Cal.App.4th 521, 535 [citing text]; Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250 [finding rule inapplicable based on fact issues re accrual].)

Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41.)

Plaintiffs’ counsel filed a declaration stating that on April 26, 2023, he met and conferred with NALM’s now-former attorney regarding the issues he raised in a meet and confer letter sent he sent to NALM’s counsel on April 21, 2023. (Decl. of Shahriari ¶¶2-3, Exh. A.) Plaintiffs’ counsel declares NALM’s counsel indicated that NALM refused to amend the NALM Cross-Complaint to cure its failures to allege that it was licensed and to allege the specific legal basis (i.e., contract or statute) upon which NALM bases its claim for attorneys’ fees in connection with its third cause of action. (Decl. of Shahriari ¶3.) Plaintiffs’ counsel’s declaration substantially complies with the requirements of §430.41.

In support of their demurrer to the NALM Cross-Complaint, Plaintiffs argue that because NALM failed to allege that it was “a duly licensed contractor at all times during the performance,” it has failed to state its 1st, 2nd and 3rd causes of action. (Demurrer, pg. 5; see Bus. & Prof. § 7031(a).). Plaintiffs argue that NALM also improperly seeks to recover damages for construction services that require a license. (Demurrer, pg. 5; see NALM Cross-Complaint, Exh. A.)

NALM alleges on or about February 2022, it agreed to provide project management and designer services to Cross-Defendants in exchange for compensation. (NALM CC ¶BC-1.) NALM alleges from May 2022 through August 2022, Cross-Defendants did not pay all invoices for services rendered and materials purchased as agreed. (NALM CC ¶BC-2, Exh. A.) NALM alleges it has performed all obligations to Cross-Defendants except those obligations NALM was prevented or excused from performing. (NALM CC ¶BC-3.) NALM alleges it suffered proximate damages caused by Cross-Defendants’ breach of agreement in the amount of $15,545 in past due invoices for services rendered and materials purchased/delivered to NALM. (NALM CC ¶BC-4.)

NALM fails to allege it possessed a Contractors State Licensing Board (“CSLB”) license of any kind. A “contractor” for the purposes of the licensing requirements as stated in Business & Professions Code §7026 is “any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building . . . or other structure.” (Bus. & Prof. Code §7026.) Exhibit A of the NALM Cross-Complaint states the work and services rendered to Plaintiffs include, for example, “[m]ove new plumbing lines into the bathroom. Add new toilet area copper piping lines for new toilet locations [as] well as new locations for shower drain and water lines in master and guest bathroom area,” “[d]oor cost and lumber to build enclosed structure,” “[b]uild wall ceiling height for guest bathroom” and “[i]nstalling all insulation in the walls and ceiling area.” (NALM CC ¶BC-2, Exh. A.)

The Court grants NALM leave to amend the NALM Cross-Complaint to allege, if applicable, any such CSLB licenses it was required to hold in order to perform the work alleged in Exhibit A.

Accordingly, Plaintiffs’ demurrer to NALM’s 1st, 2nd, and 3rd causes of action is sustained with 20 days leave to amend.

A cause of action for breach of contract must allege the following elements: (1) existence of contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage to plaintiff. (Reichert v. General Insurance Co. (1968) 68 Cal.2d 822, 830; Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387.)

Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.] A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) That plaintiff could not allege with specificity the exact terms of the contract does not preclude statement of a cause of action. (Id.)

NALM fails to allege the contract at issue is either written, oral, or implied by conduct. If the contract alleged is written, NALM fails to attach a written contract or plead the existence of a written contract by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.) If the alleged contract is oral, NALM fails to plead generally as to the contract’s effect.” (Khoury, 14 Cal.App.4th at pg. 616.)

Accordingly, Plaintiffs’ demurrer to NALM’s 1st cause of action for breach of contract is sustained with 20 days leave to amend.

Plaintiffs’ demurrer to NALM’s Cross-Complaint is sustained with 20 days leave to amend as to the 1st, 2nd, and 3rd causes of action.

In light of the Court’s ruling on the demurrer, Plaintiffs’ motion to strike is denied as moot.

Plaintiffs move unopposed to compel Dieujuste, in pro per, to appear for deposition. (Notice of Motion Depo, pg. 2; C.C.P. §2025.450.) Plaintiffs also request an award of sanctions against Dieujuste in the amount of $2,971.65 to pay expenses and costs incurred on this motion. (Notice of Motion Depo, pg. 2; C.C.P. §§2023.010, 2023.030, 2025.450.)

Having reviewed Plaintiffs’ Motion to Compel Dieujuste to Attend Deposition, the Court rules as follows.

On May 4, 2023, Plaintiffs served a Notice of Deposition on Dieujuste for a deposition on June 14, 2023. (Decl. of Shahriari ¶2, Exh. A.) On June 12, 2023, Dieujuste’s former attorneys served objections to the notice. (Decl. of Shahriari ¶3, Exh. B.) Dieujuste’s objections were untimely, as they were served only two days before her scheduled deposition. (See Decl. of Shahriari ¶3, Exh. B.) Plaintiffs’ counsel declares that after Dieujuste’s former counsel was granted a motion to withdraw, he contacted Dieujuste via email on July 13, 2023, to reschedule the deposition. (Decl. of Shahriari ¶4, Exh. C.) Plaintiffs’ counsel declares that he served the first amended notice of deposition on July 19, 2023, for a deposition scheduled for August 8, 2023. (Decl. of Shahriari ¶5, Exh. D.) On August 4, 2023, Plaintiff’s counsel emailed Dieujuste to confirm the deposition, to which Dieujuste replied that she is unable to participate in the deposition until she obtains proper legal counsel. (Decl. of Shahriari ¶6, Exh. E.) Plaintiffs’ Counsel declares that to date, Dieujuste has not reached out to reschedule her deposition. (Decl. of Shahriari ¶8.)

The Court grants the motion pursuant to C.C.P. §2025.450 and orders Dieujuste to appear for deposition in 20 days.

The Court awards sanctions pursuant to C.C.P. §2030.290(c) in the amount of $2,182.50 calculated as follows:

The sanctions are payable by Plaintiff and her counsel within 20 days of this order.

E. Plaintiffs’ Motion to Deem Plaintiffs’ Request for Admissions (“RFA”) (Set One) Admitted by Kassy Dieujuste

Having reviewed Plaintiffs’ unopposed Motion to Deem Requests for Admission Admitted by Dieujuste, the Court rules as follows.

On June 1, 2023, Plaintiffs served Request for Admissions (“RFA”) (Set One) on Dieujuste’s former counsel. (Decl. of Shahriari ¶3, Exh. A.) Plaintiffs granted Dieujuste’s former counsel an extension on June 26, 2023, to respond to the propounded discovery. (See Decl. of Shahriari ¶6, Exh. D.) After Dieujuste’s counsel withdrew from this case, Plaintiffs’ counsel granted Dieujuste an additional extension until August 7, 2023, to respond to the RFAs. (Decl. of Shahriari ¶8, Exh. E.) Dieujuste has failed to provide timely responses. Plaintiffs now move for the Court to deem the requests for admission admitted.

The Court grants the motion pursuant to C.C.P. §2033.280 and deems Plaintiffs’ RFA to Dieujuste admitted.

The Court awards sanctions pursuant to C.C.P. §2033.280(c) in the amount of $1,759.15, calculated as follows:

F. Plaintiffs’ Motion to Deem Plaintiffs’ RFA (Set One) Admitted by NALM LLC

Having reviewed Plaintiffs’ unopposed Motion to Deem Requests for Admission Admitted by NALM, the Court rules as follows.

On June 1, 2023, Plaintiffs served RFA (Set One) on NALM’s former counsel. (Decl. of Shahriari ¶3, Exh. A.) Plaintiffs granted NALM’s former counsel an extension on June 26, 2023, to respond to the propounded discovery. (See Decl. of Shahriari ¶6, Exh. D.) After NALM’s counsel withdrew from this case, Plaintiffs’ counsel granted NALM an additional extension until August 7, 2023, to respond to the RFAs. (Decl. of Shahriari ¶8, Exh. E.) NALM has failed to provide timely responses. Plaintiffs now move for the Court to deem the requests for admission admitted.

The Court grants the motion pursuant to C.C.P. §2033.280 and deems Plaintiffs’ RFA to NALM admitted.

The Court declines to award sanctions on the motion, as it is substantively identical to the motion to deem admitted the RFAs to Dieujuste.

Hon. Daniel M. Crowley

Judge of the Superior Court