Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a construction defect case.  Plaintiffs Elliott Khodari and Stephanie Khodari allege that on March 3, 2020, Defendant Cochrane Construction Inc. “negligently performed a work of improvement on the exterior deck at 1159 Daniels Drive, Los Angeles, California.”  The form Complaint alleges a single claim for negligence.   

This hearing is on Defendant’s demurrer.  Defendant argues that (1) the claim for negligence is time-barred; (2) Plaintiffs have not alleged any duty owed by Defendant to them; (3) Defendant did work for the prior owners of the Property (Michael and Helen Spence), and paragraph 1 of their contract has specific provisions disclaiming any warranties and duties for alleged injury in this case; (4) Plaintiffs entered into a settlement agreement with the Spences which specifically released claims against their “agents [and] employees,” which would include claims against Defendant as the contractor they hired; (5) Plaintiffs fail to allege elements of breach and causation because they do not state who performed the alleged work, what was not performed properly, what part of the deck was defective and why the work was defective; and (6) the complaint is uncertain and fails to allege damages against Defendant because it alleges damages of $59,331.04 but during the parties’ meet and confer, Plaintiffs state they already received a settlement of $20,000 from the former owners. 

 

MEET AND CONFER¿ 

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring 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 demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)¿ Defendant submits the declaration of Adam G. Carpinelli attesting that counsel met and conferred by phone on February 22, 2024, more than five days before Defendant filed its demurrer.  This satisfies the meet and confer requirements of Code Civ. Proc. § 430.41.¿ 

LEGAL STANDARD 

A demurrer to a complaint may be general or special.  A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e); 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.)  

A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)  The term uncertain includes the issue of whether the pleading is “ambiguous and unintelligible.”  (Id.)  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

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.) 

ANALYSIS 

 

Defendant argues that the negligence claim is time-barred.  The Court disagrees. 

Code Civ. Proc. § 335.17 applies to provide a 10 year statute of limitations for latent defects while Code Civ. Proc. § 337.1 applies to provide a four year statute of limitations for patent defects.  The defect alleged by Plaintiffs can only be either patent or latent.  Under either statute of limitation, Plaintiffs’ complaint is timely.  The alleged work was completed on March 3, 2020, and the deadline to file would be March 2, 2030 under the ten year statute, and March 2, 2024 under the four year statute.  Plaintiffs filed their complaint on December 18, 2023.     

Defendant raises other arguments in support of the demurrer that are not based on the allegations in the Complaint.  For example, Defendant argues that Plaintiffs are complaining about water proofing repair work, and Defendant’s contract with the former owners disclaims warranties for this work.  But the contract is not referenced in or attached to the Complaint.  Nor does the Complaint limit the alleged defect to water proofing repair work.  Also, for example, Defendant argues that Plaintiffs released claims against it in a settlement agreement which is also not referenced in or attached to the Complaint.  For purposes of the demurrer, the Court is confined to the four corners for the Complaint, except as to facts that are subject to judicial notice.  Defendant has not argued that the construction contract or settlement agreement are the proper subjects of judicial notice.   

Defendant also argues that the Complaint is too vague and uncertain.  A demurrer for uncertainty is a¿special demurrer that is¿disfavored and strictly construed because “ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal. App. 4th 1125, 1135.)  Special demurrers will be overruled where “the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures… .” (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, to sustain a demurrer for uncertainty, the complaint must be so vague or ambiguous that the defendant cannot reasonably respond.¿ (Id. at 614.)  The Court cannot conclude that the Complaint here is so vague or ambiguous that Defendant cannot reasonably respond.  It specifically identifies the work Defendant performed negligently: “Defendants performed a work of improvement on an exterior deck at 1159 Daniels Drive, Los Angeles, California.”  The scope of work performed by Defendant is also within their knowledge.  While the Complaint does not specify how the work was negligent, that is the proper subject of discovery and not a basis to sustain a demurrer.   

CONCLUSION 

For the foregoing reasons, the Court OVERRULES Defendant’s demurrer. 

 

IT IS SO ORDERED. 

 

DATED: June 18, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court