Judge: Elaine W. Mandel, Case: 22SMCV00512, Date: 2023-01-30 Tentative Ruling

Case Number: 22SMCV00512    Hearing Date: January 30, 2023    Dept: P

Tentative Ruling

Afakori, Inc. et al. v. Icon West, Inc., Case No. 22SMCV00512

Hearing Date January 30, 2023

Cross Defendant Old Republic’s Demurrer to First Amended Cross-Complaint

Defendant/cross-complainant general contractor Icon West contracted with plaintiff/cross-defendant subcontractor Afakori. West alleges Afakori’s work was deficient, sues for breach of contract and makes a claim on Afakori’s performance bond issued by cross-defendant Old Republic, which demurs.

The court notes that the plaintiff is still unrepresented and has been since November 11, 2022. An entity cannot represent itself in court.

A plaintiff alleging breach of contract must plead that it performed all things to be performed under the terms of the contract. Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.

Old Republic argues Icon has not alleged compliance with the terms of the performance bond. Under the bond, Icon was required to declare Afakori in default and give Old Republic the opportunity to complete the work under the subcontract before making a claim on the bond. Old Republic argues the first amended cross-complaint does not allege Icon performed these obligations. Additionally, Old Republic alleges Icon failed to mitigate damages.

The FACC alleges “Icon West has performed all obligations required of it, has timely provided notice of default and all other conditions to recovery on the bond.” FACC ¶24. Additionally, Icon alleged damages caused by Afakori for which Old Republic could be responsible as principal. FACC ¶19. For purposes of pleading, these allegations are sufficient. Old Republic’s arguments regarding mitigation and failure to perform conditions precedent are factual claims, not a proper basis for demurrer. OVERRULED. Old Republic to answer within 15 days.