Judge: Donald F. Gaffney, Case: "Bonakdar v. Ranger Construction, Inc.", Date: 2023-07-26 Tentative Ruling
TENTATIVE RULING:
Demurrer to Complaint.
Defendant Ranger Construction, Inc., demurs to the First Amended Complaint of Plaintiff Monica Bonakdar. For the following reasons, the demurrer is OVERRULED in part and SUSTAINED in part, with 30-days leave to amend.
The demurrer to the Second Cause of Action (Negligence) and Third Cause of Action (Breach of Express Warranty) are SUSTAINED with 30-days leave to amend.
The demurrer to the Fourth Cause of Action (Breach of Implied Covenant) is OVERRULED.
“A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is limited to the operative complaint’s four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) “A demurrer does not lie to a portion of a cause of action.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [citation omitted].) “To properly state a cause of action, and as pertinent here, the operative complaint must sufficiently allege (1) every element of [that] cause of action and (2) the plaintiff’s standing to sue.” [Citations.]” (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125 [internal quotation marks omitted].)
Because a demurrer tests only the sufficiency of the complaint, “[a] court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7 [citation omitted].) “[A] demurrer may be sustained where judicially noticeable facts render the pleading defective . . . and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751 [citations omitted].) “A court ruling on a demurrer ... cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer. [Citations]. [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.” (New Liveable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 716 [citations omitted].)
Second Cause of Action (Negligence)
The second cause of action alleges that Defendant breached its legal duty of due care in its construction activities. (FAC ¶ 18.)
To state a claim for negligence, plaintiff must allege that: the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff’s injuries. (Kesner v. Super. Ct. (2016) 1 Cal.5th 1132, 1159.) The existence of duty is a question of law for the courts. (Isaacs v. Huntington Mem. Hosp. (1985) 38 Cal.3d 112, 124.)
The economic loss rule “precludes recovery for purely economic loss due to disappointed expectations unless the plaintiff can demonstrate harm above and beyond a broken contractual promise. Conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.” (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 988-989.)
Here, the FAC alleges purely economic losses due to unmet expectations. Thus, as currently alleged, the negligence claim appears to be barred by the economic loss rule.
Third Cause of Action (Breach of Express Warranty)
The third cause of action alleges Defendant breached the contractual one-year warranty covering the quality of construction materials and providing Defendant’s work will be free of material defects. (FAC ¶¶ 23-24.)
The third cause of action is duplicative of the first cause of action. The first cause of action incorporates allegations that Defendant breached the contract’s one-year warranty. (FAC ¶¶ 11, 14.) “A demurrer may be sustained to a cause of action on the ground it is duplicative if it ‘adds nothing to the complaint by way of fact or theory of recovery.’” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; see also Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)
Fourth Cause of Action (Breach of Implied Covenant)
The fourth cause of action alleges that Defendant failed to perform the work as expected with the care, skill, reasonable expedience, and faithfulness under the Contract competently and failed to use proper materials for the work. (FAC ¶ 31.)
“There is implied in every contract a covenant by each party not to do anything which will deprive the other parties thereto of the benefits of the contract. . . . This covenant not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose.” (Harm v. Frasher (1960) 181 Cal.App.2d 405, 417.)
The elements of this cause of action are: (i) a contract; (ii) the defendant’s actions pursuant to the contract that destroys or injures the rights of the plaintiff to receive the benefits of the contract; and (iii) resulting damages. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36.)
Defendant contends this cause of action is duplicative of the breach of contract claim. “If the allegations 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, as modified on denial of reh'g (Oct. 31, 2001).)
The FAC alleges sufficient facts to support each element of the claim, including the existence of a contract (FAC ¶ 5, Ex. 1), Defendant’s actions pursuant to the contract that destroys or injures the rights of the plaintiff to receive the benefits of the contract (FAC ¶¶ 11, 31), and resulting damages (FAC ¶ 38).
Also, the claim is not duplicative of the first cause of action. (See FAC ¶¶ 14-16.)
Consequential Damages
A demurrer is not the proper vehicle to strike specific damages claims. Defendant’s argument that consequential damages are barred by the parties’ contract is more appropriately addressed in a motion to strike. Thus, the request is denied.
Should Plaintiff wish to file an amended complaint addressing the deficiencies addressed in this ruling, Plaintiff shall file and serve an amended complaint no later than 30-days from service of the notice of ruling.
Defendant to give notice.