Judge Holly J. Fujie, Case Number: 23STCV25326, Date: 2024-07-30 Tentative Ruling

This action was filed on October 17, 2023 and arises out of construction work performed by Defendant Hellman on Plaintiffs’ duplex (the “Project”). The proposal for the Project was presented by Hellman to Plaintiffs on December 10, 2022. (Complaint, para. 6.) Hellman performed work on the Project from January 6 to April, 2023. (Complaint, para. 12.) Plaintiffs allege that “After some of [the allegedly deficient work] came to light, [Plaintiffs] learned that Hellman’s contractor’s license with the Contractor’s State License Board (‘CSLB’) was inactive or had lapsed. They further discovered that some of the subcontractors Hellman hired for the work were also not licensed.” (Complaint, para. 16.)

The Complaint alleges causes of action for Breach of Implied-In-Fact Contract; 2) Negligence; 3) Breach of Implied Warranty; 4) Disgorgement Per Bus. & Prof. Code (“B&PC”) §7031; 5) Unfair Business Practices Per B&PC § 17200, et seq.; and 6) Fraud. All of these causes of action rely, among other things, on Plaintiffs’ allegation that Hellman was an unlicensed contractor at the time he performed work on the Project.

On December 22, 2023, Defendant Hellman filed his demurrer to the Fourth, Fifth and Sixth Causes of Action of the Complaint.

Defendant’s Request for Judicial Notice of a copy of a Contractor’s License naming Hellman and dated January 1982 is DENIED. This is not an official record of the status of Hellman’s license at the time of his work on the Project.

The Court does, however, accept the Declaration of Christopher L. Mass, Esq. in Support of Opposition to Demurrer (“Mass Decl.”), which provides the foundation for the record of the status of Hellman’s contractor’s license since November 1, 2009. This document evidences that Defendant’s license was not active during the period of time that Defendant was working on the Project.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (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.)

Defendant alleges that Plaintiffs’ Fifth Cause of Action for Disgorgement is not a valid cause of action because it is based on the allegation that Defendant was not licensed while working on the Project, whereas Defendant “possessed a contractor’s license during the entire construction project.”

Defendant’s purported evidence of his initial licensure in 1983 does not, however, support his contention that he was actively licensed when he worked on the Project.[1] The evidence supplied by the Mass Declaration shows that Defendant was not actively licensed during his work on the Project.

Defendant’s Demurrer to the Fourth Cause of Action of the Complaint is therefore OVERRULED.

Defendant’s Demurrer to the Fifth Cause of Action for violation of the B&PC Section 17200 for Unfair Business Practices depends upon his position that he was not in violation of the CSLB rules for contractor licensing at the time he performed work on the Project. As indicated above, the Court does not accept Defendant’s position that he was licensed throughout his work on the Project. Even if he were so licensed, which apparently he was not, the allegation that his subcontractors were also not licensed would provide all necessary support for an Unfair Business Practices claim. (Complaint, para. 16.)

Defendant’s Demurrer to the Fifth Cause of Action of the Complaint is therefore OVERRULED.

Defendant’s Demurrer to the Sixth Cause of Action for Fraud is also based upon the premise that Defendant was properly licensed throughout the time he worked on the Project. Defendant has not established that this is the case and, for that reason, the Demurrer to the Sixth Cause of Action is OVERRULED.

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.

[1] Although the Demurrer makes a reference to the one year statute of limitations for claims under B&PC Section 7031, Defendant worked on the Project from January through April of 2023 and this action was filed on October 17, 2023 – well within any one year statute of limitations.