Judge: Joel L. Lofton, Case: 23AHCV01384, Date: 2023-11-16 Tentative Ruling

Case Number: 23AHCV01384    Hearing Date: November 16, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     November 16, 2023                                        TRIAL DATE: No date set.

CASE:                         AGNES BODIN, an individual, and FREDERIC BODIN, an individual, v. LUXE H2O, INC., a California corporation; GARY M. SEWELL, an individual, LORI SEWELL, an individual, and DOES 1-50.  

CASE NO.:                 23AHCV01384

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendants Luxe H2O, Gary M. Sewell, and Lori Sewell

RESPONDING PARTY:      Plaintiffs Agnes Bodin and Frederic Bodin

SERVICE:                              Filed August 15, 2023

OPPOSITION:                       Filed November 2, 2023

RELIEF REQUESTED

             Defendants demurrer to and move to strike Plaintiffs’ complaint. 

BACKGROUND

             This case arises out of Plaintiffs Agnes Bodin and Frederic Bodin’s (“Plaintiff’) breach of contract claim against Defendants Luxe H2O. Gary M. Sewell, and Lori Sewell, for the construction of a swimming pool on Plaintiffs’ property. Plaintiffs filed this complaint on June 15, 2023, alleging six causes of action for (1) breach of contract, (2) implied covenant of good faith and fair dealing, (3) breach of express and implied warranty, (4) negligence, (5) disgorgement, and (6) nuisance.

TENTATIVE RULING

            Defendants’ demurrer is OVERRULED.

            Defendants’ motion to strike is DENIED.

LEGAL STANDARD

Demurrer

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

            As a preliminary issue, the court notes that Defendants apparently attempted to file two separate demurrers, a demurrer by Luxe H2O and a joinder by the Sewells. However, in the court’s record, the two demurrers submitted are identical and are both titled “Lori Sewell and Gary Sewell’s joint demurrer to complaint, and joinder in Defendant Luxe H2O’s demurrer to complaint.” As of now, there is no separate demurrer filed by Luxe H2O. Thus, the court rules on the Sewells’ demurrer.

            Demurrer as to the First, Second, and Third Causes of Action

            The Sewells demurrer to Plaintiffs’ first cause of action for breach of contract, second cause of action for breach of implied covenant of good faith and fair dealings, and breach of express and implied warranties.

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.) “Under California law, every contract includes an implied covenant of good faith and fair dealing.” (Prager University v. Google LLC (2022) 85 Cal.App.5th 1022, 1039.) The covenant “exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.)

            “ ‘The general rule is that privity of contract [between the plaintiff and defendant] is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is [not] a party to the original sale. [Citations.]’ ” (Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1169.)

            Defendants argue that Plaintiffs’ first three causes of action fail because Plaintiffs are unable to establish privity of contract. Plaintiff alleges that Defendants entered into a contract with Plaintiffs on February 8, 2021. (Complaint ¶ 10.) Plaintiffs allege that Gary M. Sewell is an officer of Luxe H2O. (Complaint ¶ 3.) Plaintiffs allege that Lori Sewell is the responsible managing officer of Luxe H2O. (Complaint ¶ 4.) Plaintiffs also allege that Defendants employees, employers, or agents of the other codefendants. (Complaint ¶ 6.) Plaintiffs’ allegations are sufficient at the pleading stage.

            Defendant’s arguments to the contrary are unavailing because Defendants seek to establish as a matter of fact that they are not parties to the contract. The defects of the allegation must appear on the face of the pleadings. (Code Civ. Proc. section 430.30(a).) Further, although the court may consider judicially noticeable documents in ruling on a demurrer, “[t]he hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)

Defendants are relying on judicially noticeable documents to make factual arguments that Plaintiffs’ claims are incorrect. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364.) In ruling on demurrer, courts “accept as true the properly pled factual allegations of the complaint[, and] …the allegations of the complaint must be read in the light most favorable to the plaintiff and liberally construed with a view to attaining substantial justice among the parties.” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1557.)

Defendants’ demurrer to Plaintiffs’ first, second, and third causes of action is overruled.

Fourth Cause of Action for Negligence

Defendants similarly demurrer to Plaintiffs’ fourth cause of action based on factual arguments that Plaintiffs cannot demonstrate a cause of action for negligence.

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)

Plaintiffs allege that Defendants owed them a duty (Complaint ¶ 42), Defendants breached that duty (Complaint ¶ 43), causation and damages (Complaint ¶¶ 46-47). Defendants’ demurrer to Plaintiffs’ fourth cause of action is overruled.

Fifth Cause of Action for Disgorgement

Business and Professions Code section 7031, subdivision (b), provides: “Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.”

Defendants again make factual arguments that Plaintiffs’ claim here fails. However, Plaintiffs allege that Defendants did not have the requisite licensed contractor supervision but were paid at least $100,000 for work on the property. (Complaint ¶¶ 49-54.) At the pleading stage, Plaintiffs’ allegations are sufficient. Defendants’ demurrer to Plaintiffs’ fifth cause of action is overruled.

Sixth Cause of Action for Nuisance

            Plaintiffs must plead and prove three elements to recover under a claim for private nuisance. “ First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

            Defendants’ arguments here fail once again because they are based on factual statements rather than the sufficiency or insufficiency of Plaintiffs’ allegations. Defendants’ demurrer to Plaintiffs’ sixth cause of action is overruled.

            Motion to Strike

            The entirety of Defendants’ motion to strike revolve around similar arguments that Plaintiffs’ allegations as a matter of fact are false. However, “the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 228.) At the pleading stage, Plaintiffs’ allegations are assumed true. Stated another way, Defendants’ arguments are not appropriate at the current juncture.

            Defendants’ motion to strike is DENIED.

CONCLUSION

            Defendants’ demurrer is OVERRULED.

            Defendants’ motion to strike is DENIED.

Dated:   November 16, 2023                                       ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court