Judge: Kristin S. Escalante , Case: 21STLC07473, Date: 2023-06-22 Tentative Ruling
Case Number: 21STLC07473 Hearing Date: June 22, 2023 Dept: 24
NATURE OF PROCEEDINGS: Hearing on Demurrer - without
Motion to Strike
The
above-captioned matters are called for hearing.
The Court has
read the moving papers in the above-captioned motions and announces its
tentative rulings in open Court.
The Demurrer - without Motion to Strike filed by
Cross-Defendant Builder Boy Inc., on 04/21/2023 is OVERRULED.
Plaintiff/Cross-Defendant Builder Boy Inc., (“Builder Boy”)
demurs to the first (breach of contract) and second (promissory estoppel) causes
of action in the cross-complaint filed by Defendant/Cross-Complainant Cindy
Iskandar (“Iskandar”). (Notice of Dem., at p. 2.) Builder Boy moves pursuant to
Code of Civil Procedure section 430.10. (Notice of Dem., at p. 2.)
By way of background, on October 14, 2021, Builder Boy
filed suit against Iskandar. Iskandar, in turn, filed her initial
cross-complaint on November 22, 2022, which she dismissed without prejudice on
January 27, 2023. Then Iskandar moved for leave refile the cross complaint
(“Cross-Complaint’) to allow her to make her case an unlimited jurisdiction
case, which the court permitted. She filed the new Cross Complaint on March 20,
2023.
The underlying complaint and Cross Complaint arise out of
the same series of events related to Iskandar’s remodel of her kitchen and
bathroom in the winter of 2020 through the spring of 2021. Iskandar alleges she
contracted with Builder Boy and Jereme James (“James”) (collectively
“Cross-Defendants”) to remodel her kitchen and bathroom. Cross-Defendants did
not complete the project. Their failures included (i) improper cabinet,
flooring, and electrical installation in the kitchen, and (ii) failure to
complete the bathroom remodel entirely. Builder Boy, in turn, alleged Iskandar
breached the parties’ contract and owes Builder Boy no less than $6,781.25.
Builder Boy’s 4/21/2023 request
for judicial notice is denied as unnecessary. Should the motion raise an
issue requiring the review of the court’s own record, the court may do so
absent a party’s specific request for judicial notice. (Shugart v. Regents of
University of California (2011) 199 Cal.App.4th 499, 505–506 [addressing a
request for judicial notice on a motion for summary judgment/adjudication]; see
also Evid. Code, § 452.)
1. Cause of Action One - Breach of Contract
“To establish a cause of action
for breach of contract, the plaintiff must plead and prove (1) the existence of
the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3)
the defendant’s breach, and (4) resulting damages to the plaintiff.”
(Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98 [internal citation omitted].)
For a written contract, the plaintiff may “plead the legal effect of the
contract rather than the price language.” (Ibid.) To “plead a contract by its
legal effect, plaintiff must ‘allege the substance of its relevant terms. This
is more difficult, for it requires a careful analysis of the instrument,
comprehensiveness in statement, and avoidance of legal conclusions.’ ” (McKell
v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
Iskandar has alleged a breach of contract claim. She alleges
that she contracted with Builder Boy for a remodel of her kitchen and bathroom;
she attaches the agreement. (Cross Compl., ¶23, Ex. A.) She also alleges she “performed
all the obligations, terms, and conditions required under the Contract. . .except
those obligations, terms, and conditions that were excused by Cross-Defendants’
breach of the Contract . . .” (Cross Compl., ¶40.) Builder Boy then failed to
adequately commence and complete the remodel, refused to repair items it broke,
failed to communicate with Iskandar, and failed to hire another licensed
contract after refusing to finish the project. (Cross Compl., ¶¶ 25, 41) As a
result, Iskandar sustained damages of more than $65,000.00. (Cross Compl., ¶43)
These allegations are sufficient to state a claim.
Builder Boy argues Iskandar’s breach of contract claim fails
because her allegations contradict the statements she made in her pro per answer
to Builder Boy’s complaint. Contrary to Cross-Defendants’ assertion, the Cross
Complaint and answer do not conflict. The answer states further facts giving
rise to the Cross-Defendants’ alleged breach of contract and argues
Cross-Defendants are entitled to less than they claim in fees. The Cross Complaint
expands on the statements in the answer to clarify Iskandar’s claims.
Builder Boy also disputes the allegations and quotes
certain segments of the contract as demonstrating it did not breach the agreement.
However, these arguments—e.g., whether the work was done timely, or whether
Builder Boy destroyed Iskandar’s property—turn on questions of fact and
contract interpretation. Liability on those issues turns on factors such as
whether Cross-Defendants were performing their obligations timely and what the
parties’ intentions were when drafting the agreement. Iskandar alleges a breach
of contract claim and the “allegations of the pleading demurred to must be
regarded as true.” (South Shore Land Co. v. Peterson (1964) 266 Cal.App.2d 725,
732.) Accordingly, this argument is not grounds to sustain the demurrer.
The demurrer to the first cause of action is overruled.
2. Cause of Action Two - Promissory Estoppel
“The elements of a promissory estoppel
claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the
party to whom the promise is made; (3) [the] reliance must be both reasonable
and foreseeable; and (4) the party asserting the estoppel must be injured by
his reliance.” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th
887 [internal quotations omitted].)
Iskandar alleges that “on or
about March 3, 2021,” James orally promised her over the phone that
Cross-Defendants would have the project completed by April 9, 2021. (Cross
Compl., ¶45.) In reliance on that promise, Iskandar did not
exercise her option to cancel the agreement. (Cross Compl., ¶46.)
Iskandar’s reliance was reasonable and foreseeable because James made the
statement to keep Iskandar from canceling the agreement. (Cross Compl., ¶46.)
Additionally, Iskandar had “no reason to believe that the Project could not be
completed by the agreed completion date when it was over a month away from when
Cross-Defendants made the promise. . .” (Cross Compl., ¶47.)
As a result, Iskandar was injured. Cross-Defendants deprived her of her right
to cancel the contract or to request a refund of the monies paid, and she
continued to incur costs beyond what she expected. (Cross Compl., ¶48.)
This is sufficient to allege a claim for promissory estoppel and the demurrer
will not be sustained on this ground.
However, Builder Boy also
argues the claim is facially insufficient because the two-year statute of
limitations has passed. Builder Boy is correct that “[t]he statute of
limitations for promissory estoppel based on oral promises is two years.” (Newport
Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 6 Cal.App.5th
1207, 1224.) “The applicable statute of
limitations is determined by the nature of the right sued upon rather than the
form of the action or the relief demanded.” (Id. at p. 1224, fn. 5 [citing Day
v. Greene (1963) 59 Cal.2d 404, 411].) Where
the primary purpose of an equitable cause of action is to recover money under a
contract, the statute of limitations applicable to contract actions governs the
equitable claim. (Jefferson v. J. E. French Co. (1960) 54 Cal.2d 717
[accounting action was subject to the two-year statute of limitations of
section 339 because “the primary purpose of the action [was] to recover money
under the oral contract” and the “accounting [was] merely ancillary to the
perfection of plaintiff's right under the oral contract”].)
The allegations in the Cross Complaint
are that James made the alleged oral promise “at or around March 3, 2021.”
(Cross Compl., ¶45) The court finds this insufficient to say the statute
of limitations is a bar on the face of the complaint for two reasons. Iskandar’s
equivocates on the exact date of the phone call when she alleges the call was
“at or around March 3, 2021.” Additionally, she filed the complaint on March
20, 2023. Given the equivocation, it is possible the call happened as late as
March 20, 2023, and the Cross Complaint is timely. While this may be unlikely, the
court does not find the statute of limitations is a clear and affirmative bar
to Iskandar’s claim.
Assuming arguendo, the court
had found otherwise, Iskandar argues the statute of limitations was tolled.
(Opp., at pp. 14:13-15:06.) The factual situation surrounding whether the
statute of limitations was tolled is intricate and the court would benefit from
further briefing on this issue should the parties raise it in another motion.
Iskandar cites cases which
support her position that the statute of limitations does not bar amending a
cross-complaint to state another cause of action against a party. (See Sidney
v. Superior Ct. (1988) 198 Cal.App.3d 710, 713 [“we hold that the statute of
limitations does not bar amending a compulsory cross-complaint to state a cause
of action against the plaintiff for a different injury arising from the same
accident where the cause of action was not barred when the original complaint
was filed.”]; ZF Micro Devices, Inc. v. TAT Cap. Partners, Ltd. (2016) 5
Cal.App.5th 69, 92 [“we are bound by California Supreme Court precedent to the
effect that a defendant’s cross-complaint against the plaintiff, irrespective
of whether it is related to the matters asserted in the complaint, is entitled
to the benefit of the tolling doctrine.”].)
Under this case law, Iskandar’s
Cross-Complaint against Builder Boy would be tolled because Builder Boy was
already a party. However, as Builder Boy correctly points out, neither of the
cited cases address an amendment to add a new defendant, i.e., James, and
Iskandar has not explained why these cases should apply in that situation.
The only case law before the
court regarding an amendment adding a new defendant is Builder Boy’s citation
to Woo v. Superior Ct. (1999) 75 Cal.App.4th 169, 176. In Woo, the court stated
“[t]he general rule is that an amended complaint that adds a new defendant does
not relate back to the date of filing the original complaint and the statute of
limitations is applied as of the date the amended complaint is filed, not the
date the original complaint is filed.” (Woo v. Superior Ct. (1999) 75
Cal.App.4th 169, 176.) There is a “recognized exception to the general rule
[which] is the substitution under section 474 of a new defendant for a
fictitious Doe defendant named in the original complaint as to whom a cause of
action was stated in the original complaint.” (Ibid.) Iskandar did not attempt
to satisfy this procedural requirement. Nevertheless “the courts of this state
have considered noncompliance with the party substitution requirements of
section 474 as a procedural defect that could be cured and have been lenient in
permitting rectification of the defect.” (Id. at p. 177.)
However, another “non-procedural
requirement for application of the section 474 relation-back doctrine is that [cross-complainant]
must have been genuinely ignorant of [cross-defendant’s] identity at the time
she filed her original complaint.” (Ibid.) As laid out in the allegations,
Iskandar was not ignorant of James’ identity at the time of filing; she spoke
with him several times about the project. (Cross Compl., ¶¶27,
35, 45.) Therefore, Iskandar could not claim an exception to the general rule
by adding James through a Doe Amendment. Thus, under Woo tolling would not
apply. However, Woo does not deal with a cross compliant, but rather when a
complaint is amended to add a new defendant to a complaint. Neither party has
sufficiently argued which case law should apply here.
The court withholds judgment on
the issue of tolling since the statute of limitations is not a bar on the face
of the complaint and since the issue only appears to apply to James. Additionally,
only Builder Boy brought this motion, Builder Boy’s counsel does not represent
James, and it is unclear why it has grounds to raise the argument on his
behalf. (Reply, at p. 6:10-11 [“As such, the claim as to Defendant
Jereme James is time-barred, and he should be effectively dismissed from this
action.”].)
For the reasons previously
discussed the court also finds that the first and second causes of action are
not “uncertain.”
The demurrer is overruled as to
the second case of action.
Moving party is directed to
give notice.