Judge: H. Jay Ford, III, Case: 23SMCV02908, Date: 2025-05-22 Tentative Ruling

Case Number: 23SMCV02908    Hearing Date: May 22, 2025    Dept: O

  Case Name:  Flood-Cide Restoration & Hardware v. Helen Mohsenzadeh, et al.  

SUBJECT:                 DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendant Helen Moshsenzadeh

RESP. PARTY:         Plaintiff Flood-Cide Restoration and Construction, Inc.

TENTATIVE RULING

            Defendant Helen Moshsenzadeh’s Demurrer against both causes of action in Plaintiff Flood-Cide Restoration and Construction, Inc.’s Complaint is OVERRULED. Plaintiff states all necessary facts to allege both the breach of contract and common count causes of action.

            Defendants Motion to Strike is DENIED.  

REASONING

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

"Demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond . . . . We strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. ["demurrers for uncertainty are disfavored"].)

I.                Demurrer to the first cause of action for breach of contract—OVERRULED

Establishing a breach of contract claim "requires a showing of (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

Defendant Helen Moshsenzadeh (“Defendant”) argues that (1) the attached contract to Plaintiff Flood-Cide Restoration and Construction, Inc.’s (“Plaintiff”) is illusory and thus invalid, (2) Plaintiff cannot ascertain whether the contract is written or oral, and (2) the cause of action is uncertain as to the amount Defendant owed the Plaintiff upon alleged breach.

Plaintiff pleads all the necessary elements of breach of contract, and attached the alleged contract to the complaint which shows Defendant agreed upon a pricing based on performance standards for the service. Pricing in a contract based on performance standards do not render a contract void, neither does the “absence of a price provision,” if the price “can be objectively determined.” (Tiffany Builders, LLC v. Delrahim (2023) 97 Cal.App.5th 536, 546.) Plaintiff alleges that the amount of damages are $94,704.83, and the Court must accept this alleged fact as true at this stage.

            Additionally, due to the pleadings and attached written contract, it is clear the contract is a written contract. Moreover ,the alleged facts are not so incomprehensible to render the complaint uncertain. Plaintiffs pleads the existence of a contract (attached the signed contract to the complaint), performance, breach, and damages.

            Defendant’s Demurrer to the first cause of action is OVERRULED.

II.             Demurrer to second cause of action for common counts—OVERRULED

“The essential allegations of a common count ‘are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.”(Allen v. Powell (1967) 248 Cal.App.2d 502, 510.)

            Defendant argues the second cause of action fails because Plaintiff did not allege any scope of work, work done, expenses undertaken, nor any basis for the claim to be made. The Court again does not agree. Plaintiff checks the box that states Defendant promised to pay Plaintiff $94,706.83 for “work, services, and materials,” contracted for by the Parties. Plaintiff alleges this is the reasonable value of services rendered, Defendant failed to pay this amount after Plaintiff demands and thus Plaintiff is damaged in the amount of $94,706.83. Plaintiff attaches the contract to the Complaint as Exhibit A. Thus, Plaintiff has properly alleged all necessary elements of the common counts cause of action.

Defendant’s Demurrer to the Second cause of action is OVERRULED.

III.           Motion to Strike—DENIED

“In order to survive the motion to strike, appellant must establish “the ultimate facts showing an entitlement” to the relief she has requested in her petition.” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1163.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Ibid.)

“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.) A motion to strike may be directed to all or a portion of a complaint, cross-complaint, answer, or demurrer. (See Code Civ Proc., § 435, subdiv., (a).) On a motion to strike, a judge must read the complaint as a whole, considering all parts in their context, and must assume the truth of all well-pleaded allegations. (See Atwell Island Water Dist. v. Atwell Island Water Dist. (2020) 45 Cal.App.5th 624, 628, as modified (Feb. 27, 2020).)

            Defendant improperly moves to strike allegations that are essential to Plaintiff’s claims without providing any authority to support their argument as to why these allegation should be stricken. The Court will not weigh arguments regarding the accuracy of the alleged breach of contract damages, nor any arguments as to the alleged facts within the complaint, at the pleading stage.

            Defendant’s Motion to Strike is DENIED.