Judge: Edward B. Moreton, Jr, Case: 23SMCV01274, Date: 2024-11-20 Tentative Ruling

Case Number: 23SMCV01274    Hearing Date: November 20, 2024    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from a dispute between a homeowner and her general contractor.  The homeowner (Christie Carr) is alleging construction defects while the general contractor (Primary Home Improvement & Design, Inc.) is alleging non-payment. 

Carr owns real property located in Malibu, California (the “Property”).  In 2020, Carr entered into a contract with Primary Homes to build a 4,500 square foot home at the Property (the “Contract”).  In January 2023, Carr gave Primary a notice to suspend work.  An inspection revealed construction defects related to the balcony at the home constructed on the Property—including drywall and waterproofing issues.  Carr then hired another contractor to repair the defects.

In March 2023, Primary filed a lawsuit against Carr.  Primary alleges that Carr failed to make payments due and owing under the Contract for work performed by Primary at the Property. 

In May 2023, Carr filed a cross-complaint against Primary and Roes 1-10.  In the cross-complaint, Carr alleges that Primary breached the contract and the covenant of good faith and fair dealing by performing substandard work at the Property.  In July 2024, Carr filed various Roe amendments adding (among others) Cross-Defendant GeoMat Testing Laboratories, Inc. (a geotechnical engineering company). 

This hearing is on GeoMat’s demurrer to the Complaint.  GeoMat argues that (1) Carr failed to allege the existence of a contract between Carr and GeoMat, as required for a breach of contract and breach of implied covenant claim, (2) Carr failed to allege any defects relating to GeoMat, and (3) Carr failed to attach a Code Civ. Proc. § 411.35 certificate which is required in every action arising out of the professional negligence of a professional engineer.  There was no opposition filed as of the posting of this tentative ruling. 

MEET AND CONFER

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  GeoMat submits the Declaration of Kenny Brooks, which shows counsel reached out to Plaintiff to meet and confer.  Despite multiple emails and phone messages over the course of several weeks, Plaintiff’s counsel did not respond.  The Court concludes GeoMat has satisfied the meet and confer requirements of §430.41.  Plaintiff is admonished to respond to requests to meet and confer.     

LEGAL STANDARD

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)        

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

REQUEST FOR JUDICIAL NOTICE

GeoMat requests judicial notice of two documents: (1) a printout from the California Department of Consumer Affairs website showing that Haytham Nabilsi is a licensed geotechnical engineer, and (2) a printout from the California Secretary of State website demonstrating the Haytham Nabilsi is the CEO of GeoMat.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(h) and 453. 

DISCUSSION

GeoMat demurrers to the Complaint on the ground Carr fails to allege the existence of a contract between GeoMat and Carr.  The Court agrees.

The most basic requirement of a breach of contract claim is the existence of a contract.  (Oasis West Realty LLC v. Goldman (2011) 51 Cal.4^th 811, 821.)  Carr has not alleged any contract between GeoMat and Carr.  She has only alleged a contract between her and Primary. 

Due to the fact Plaintiff has not adequately pled a cause of action for breach of contract, it follows that she has not adequately pled a cause of action for breach of the implied covenant of good faith and fair dealing.  (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885.)  Because there has been no breach of contract, there has also been no breach of the implied covenant.

Additionally, GeoMat argues there was no breach because Carr fails to allege defects relating to GeoMat.  Carr alleges construction defects relating to a drywall installation and waterproofing issues in a balcony.  Carr does not explain how these defects relate to any geotechnical work performed by GeoMat.  Demurrer is sustained for this additional reason. 

Finally, GeoMat argues that Carr has failed to attach a Code Civ. Proc. §411.35 certificate.  Section 411.35 provides that in any action arising out of the professional negligence of a person holding a valid registration as a professional engineer, the attorney for the complaining party must file and serve a certificate declaring one of the following:

(1)   That the attorney consulted with and received an opinion from at least one architect, professional engineer, or land surveyor who is licensed to practice and practices in this state or any other state, or who teaches at an accredited college or university and is licensed to practice in this state or any other state, in the same discipline as the defendant or cross-defendant and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action. The person consulted may not be a party to the litigation. The person consulted shall render his or her opinion that the named defendant or cross-defendant was negligent or was not negligent in the performance of the applicable professional services.

(2)   That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificate required by paragraph (l) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint.

(3)   That the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three separate good faith attempts with three separate architects, professional engineers, or land surveyors to obtain this consultation and none of those contacted would agree to the consultation."

(Code Civ. Proc. §411.35.)  Plaintiff did not file the required certificate.  This is a separate and independent reason to sustain the demurrer. 

CONCLUSION

            For the foregoing reasons, the Court SUSTAINS GeoMat’s demurrer to the cross-complaint without leave to amend.  Carr has not filed an opposition showing that there is a reasonable possibility of a successful amendment.  Accordingly, the Court will not grant Carr leave to amend her cross-complaint against GeoMat.    

DATED:  November 20, 2024                                            ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court