Judge: Joseph Lipner, Case: 24STCV09823, Date: 2024-10-01 Tentative Ruling

Case Number: 24STCV09823    Hearing Date: October 1, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

            Defendant Nancy M. Chein demurs to and moves to strike portions of plaintiff Express Restoration Corp.’s complaint.

            The Court OVERRULES the demurrer. The Court DENIES the motion to strike.

Background

            Plaintiff Express Restoration Corp. sued defendant Nancy M. Chien on April 18, 2024 for (1) breach of contract, (2) work, labor, and materials furnished, and (3) unjust enrichment.

            Plaintiff alleges it performed construction work at seven (7) properties owned by Defendant. (Compl., ¶ 7; see also id., Exhs. A-H [copies of contracts].) Defendant allegedly did not pay Plaintiff for its services, and Plaintiff seeks to recover approximately $250,000 in damages.

            On August 12, 2024, Defendant demurred to and moved to strike certain portions of Plaintiff’s complaint. On September 17, 2024, Plaintiff filed its oppositions. On September 23, 2024, Defendant replied.

/ / /

Request for Judicial Notice

            Defendant requests judicial notice of Exhibit 1 to its demurrer, which purports to be Plaintiff’s current license record printed from the Contractors State License Board website. The Court denies the request, as it is not based on a certified government record. Even if the Court granted Defendant’s request, it could not take notice of the facts within the document, which remain inadmissible hearsay. And even if the Court could take notice of the facts within the document, the fact that Plaintiff was licensed between 2021 and 2025 does not establish it was otherwise unlicensed when it performed work for Defendant.

            The Court denies the request.

Discussion

            Meet and Confer

            Code of Civil Procedure sections 430.41 and 435.5 require a moving party to meet and confer with its opponent before filing a demurrer or motion to strike, respectively. Counsel submitted a form declaration satisfying the meet and confer requirements. (08-12-2024 Zuetel Decl., ¶ 2(a) [Form CIV-140].)

            Demurrer

            Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) When considering a demurrer, a court reads the allegations stated in the challenged pleading liberally and in context, and “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. 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 (2007) 147 Cal.App.4th 740, 747.)

            Defendant demurs to all three of Plaintiff’s causes of action, arguing for each that Plaintiff fails to state a claim or has not alleged its cause of action with sufficient certainty.

            Defendant relies on the assertion that Plaintiff did not have a contractor’s license when it performed work on her properties. The Court has declined to take notice of the relevant records.  The matter falls outside the four corners of the complaint and noticeable materials.  Accordingly, the demurrer lacks merit.

            Motion to Strike

            The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) As with a demurrer, the grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

            The Court denies Defendant’s motion to strike for the same reason the Court overruled the demurrer. Defendant seeks to “strike all paragraphs for which Plaintiff is barred [from recovering] by the Contractors’ State License Law”. (Mot., 3:18-19.) As discussed above, Defendant has not established that any such bar appears on the face of the complaint or in judicially noticeable materials.

.