Judge Holly J. Fujie, Case Number: 23STCV10552, Date: 2023-11-02 Tentative Ruling

Plaintiff filed a complaint arising from the alleged breach of an agreement for construction services as to a property located at HNTB LA Office, 777 S. Figueroa Street, 22nd and 23rd Floors, Los Angeles, CA 90017 (the “Property”) alleging causes of action against Defendants for: (1) foreclosure of mechanic’s lien; (2) breach of written contract; (3) services rendered; (4) account stated; (5) open book account; (6) reasonable value; and (7) contractor’s license bond.

The complaint alleges that, within the last four years, Plaintiff and Defendant Howard Building Corporation (“Defendant Howard”) entered into a written agreement whereby Plaintiff agreed to and did furnish Defendant Howard with certain cabinet, casework, and millwork and other related services and supplies and Defendants agreed to pay for such services and supplies. (Complaint, ¶ 11 and Exhibit A.) Defendant Howard allegedly failed to pay Plaintiff pursuant to the parties’ agreement. (Id., ¶ 12.) The complaint alleges that: (1) prior to furnishing Defendants said project work, Plaintiff served Defendants with a written Preliminary Notice stating with substantial accuracy a general description of the project work to be furnished and the name of the party to whom same were furnished (Id., ¶ 16 and Exhibit B); and (2) on or about April 21, 2023, Plaintiff filed and recorded a Mechanic’s Lien, which identifies Moving Defendant as an owner or reputed owner of the Property. (Id., ¶ 17 and Exhibit C.) The complaint alleges that Defendants “have or claim to have some estate, lien, right, title or interest in or upon the premises or some part thereof, which the claim and claims and all such claims or liens are subject, subsequent and subordinate to the lien of the Plaintiff.” (Id., ¶ 18.)

On September 15, 2023, Moving Defendant filed a demurrer to the first cause of action in the complaint for foreclosure of mechanic’s lien. Moving Defendant contends that it is neither a party to the underlying contract nor an owner of the Property.

On October 18, 2023, Plaintiff filed its opposition brief. On October 26, 2023, Moving Defendant filed its reply brief.

Initially, the Court finds that Plaintiff’s counsel, Patricia League (“League”), filed a declaration in support of Plaintiff’s opposition to Moving Defendant’s request for judicial notice. If Plaintiff wanted the Court to properly have before it the exhibits attached to the declaration of League, then Plaintiff should have filed a request for judicial notice. A declaration submitted in opposition to a demurrer is a nullity, of no purpose or effect, in a court’s consideration of a demurrer. (Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 993.) The Court therefore will disregard the declaration of League submitted to support Plaintiff’s opposition to the demurrer.

The Court GRANTS Moving Defendant’s request for judicial notice. (Evid. Code § 452, 453.)

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Id.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Accordingly, “[w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.) A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10(e).) Although Courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

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.) If 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).

A person that provides work authorized for a work of improvement, including but not limited to a direct contractor, subcontractor, material supplier, equipment lessor, laborer, and design profession has a lien right under Cal. Civ. Code § 8400 et seq. (Cal. Civ. Code § 8400.) A claim of mechanics lien must contain the name of the owner or reputed owner, if known. (Cal Civ. Code § 8416(a)(2).) A reputed owner is a person or entity reasonably and in good faith believed to be the owner by those involved with the work of improvement including the general contractor and those furnishing labor, service, equipment, or material to be used in the work of improvement. (Brown Co. v. Appellate Department (1983) 148 Cal.App.3d 891, 900.)

The demurrer of Moving Defendant merely cites to Cal. Civ. Code § 8400 in support of its argument that the first cause of action is insufficient. (Demurrer at 1:23-27.) Neither the moving papers nor reply papers cite any applicable legal authority setting forth the elements to state a cause of action for foreclosure of mechanic’s lien.

Moving Defendant contends that the grant deed for the Property is proof that it is not the owner or reputed owner of the Property. (Moving Defendant’s RJN at Exhibit 2.) The Court, however, finds that the grant deed is from 2005 and the fact that Moving Defendant is not named as an owner therein does not mean that it cannot be the present owner or reputed owner.[1] (Moving Defendant’s RJN at Exhibit 2.) The construction work at issue occurred within the last four years. Moreover, Moving Defendant asserts that because it is not a party to the construction contract, it cannot be held liable pursuant to the first cause of action. (Demurrer at 2:13-17; Complaint, ¶ 11 and Exhibit A.) Moving Defendant, however, provides no citation to any legal authority to support such contention. Contentions are waived when a party fails to support them with reasoned argument and citations to legal authority. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

Therefore, the Court OVERRULES the demurrer of Moving Defendant to the first cause of action in the complaint.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] A demurrer is not the appropriate procedure for determining the truth of disputed facts. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) A court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show. (Id. at p. 115.)