Judge: Elaine W. Mandel, Case: 23SMCV00082, Date: 2023-08-31 Tentative Ruling

Case Number: 23SMCV00082    Hearing Date: August 31, 2023    Dept: P

Tentative Ruling

VBA Sepulveda v. Wittrock Woodworking & Manufacturing, Case No. 23SMCV00082

Hearing Date August 31, 2023

Cross-Defendant VBA Sepulveda’s Demurrer to First Amended Cross-Complaint and Motion to Strike Cross-Complaint

Plaintiff/cross-defendant VBA hired general contractor Construction by De Mill to refurbish an apartment building. De Mill contracted with defendant/cross-complainant Wittrock to perform woodworking. VBA fired De Mill, then contracted directly with Wittrock to complete the work. Wittrock alleges it agreed to stay on the job if VBA paid outstanding amounts owed by De Mill; VBA allegedly failed to make required progress payments and denied existence of a direct contract with Wittrock. VBA demurs to the first amended cross-complaint.

Standing/Licensing

Under Cal. Code of Civ. Proc. §7031, a contractor cannot recover compensation for performance under a contract unless duly licensed. An unlicensed contractor cannot recover compensation for work performed. Brown v. Solano County Business Dev., Inc. (1979) 92 Cal.App.3d 192, 198.

VBA argues the FACC does not allege Wittrock is licensed, and Contractor’s State License Board records indicate Wittrock has never been licensed in California. VBA argues under §7301 Wittrock cannot recover. Wittrock argues VBA’s licensing arguments draw on evidence outside the complaint. Wittrock does not deny it was unlicensed, and the contents of the State License Board’s online records are subject to judicial notice under Cal. Code of Civ. Proc. §452(h).

Judicially noticeable evidence indicates Wittrock was unlicensed. On its face, the FACC is an attempt by Wittrock, an unlicensed contractor, to recover for work performed, contrary to §7031. In opposition, Wittrock argues it does not qualify as a “contractor” under §7031 so was not required to obtain a license. Wittrock must amend to make this claim explicit. SUSTAINED as to all causes of action with ten days leave to amend.

Motion to Strike

Since the demurrer has been sustained as to all causes of action, the motion to strike is MOOT.