Judge: Joel L. Lofton, Case: 22AHCV00606, Date: 2023-03-07 Tentative Ruling

Case Number: 22AHCV00606    Hearing Date: March 7, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     March 7, 2023                         TRIAL DATE: No date set.

CASE:                         ZIMING HE, an individual, v. WING HO, an individual.  

CASE NO.:                 22AHCV00606

DEMURRER

DEMURRER PARTY:        Defendant and Cross-Complainant Wing Ho

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed September 26, 2022

RELIEF REQUESTED

            Defendant demurrers to Plaintiff’s sole cause of action for breach of contract.

BACKGROUND

             This case arises out of Ziming He’s (“Plaintiff”) claim that Defendant Wing Ho (“Defendant”) breached a contract where Defendant agreed to pay Plaintiff $211,172.74 to build an accessory dwelling unit (“ADU”). Plaintiff filed a form complaint on August 25, 2022, alleging one cause of action for breach of contract.

TENTATIVE RULING

            Defendant’s demurrer to Plaintiff’s first cause of action is SUSTAINED with leave to amend.

            Plaintiff is ordered to file an amended pleading within 30 days of the notice of this order.

LEGAL STANDARD

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 of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  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.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

DISCUSSION

            Defendant demurrers to Plaintiff’s sole cause of action on the grounds that Plaintiff fails to allege he was a licensed contractor pursuant to Business and Professions Code section 7031.

            The essential elements of a breach of contract are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damages to the plaintiff. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th. 425, 433.)

            Business and Professions Code section 7031, subdivision (a), provides, in part: “[N]o person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that they were a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person, except that this prohibition shall not apply to contractors who are each individually licensed under this chapter but who fail to comply with Section 7029.”

            Plaintiff alleges that the parties agreed he would build an ADU on Defendant’s property. He does not, however, allege that he was duly licensed as required by Business and Professions Code section 7031. Thus, Plaintiff’s allegations fail as a matter of law to state a claim for breach of contract. 

CONCLUSION

            Defendant’s demurrer to Plaintiff’s first cause of action is SUSTAINED with 20 days leave to amend.

            Plaintiff is ordered to file an amended pleading within 30 days of the notice of this order.

            Moving Party to give notice.

Dated:   March 7, 2023                                   ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org