Judge: Latrice A. G. Byrdsong, Case: 21STLC09127, Date: 2023-10-30 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 21STLC09127    Hearing Date: October 30, 2023    Dept: 25

Hearing Date:                         Monday, October 30, 2023

Case Name:                             COMFORTING HOME HOSPICE INC., and ALEXANDER EVEREST v. DAVID C. PERKINS; and DOES 1-10

Case No.:                                21STLC09127

Motion:                                   Motion for Order of Dismissal of Cross-Complaint

Moving Party:                         Plaintiff Alexander Everest

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:           Plaintiff Alexander Everest’s Motion for Order of Dismissal of Cross-Complaint is GRANTED.
Setting of a trial date as to the complaint to be discussed at the hearing, as well as the status of the Small Claims Case

BACKGROUND

On December 30, 2021, Plaintiff Comforting Home Hospice Inc. and Alexander Everest (“Plaintiffs”) filed a Complaint against Defendant David C. Perkins (“Defendant”) and DOES 1 through 10, inclusive, alleging causes of action for (1) violation of Business & Professions Code § 7031; (2) breach of contract; (3) fraudulent concealment; and (4) negligent misrepresentation.

On April 7, 2022, Defendant filed an Answer and Cross-Complaint against Plaintiffs alleging causes of action for (1) common count-work labor and services, and (2) breach of oral contract. On May 13, 2022, Plaintiffs filed a joint Answer to the cross-complaint.

On February 9, 2023, Plaintiffs/Cross-Defendants filed a Motion for Summary Adjudication of Plaintiffs’ first cause of action for violation of Business & Professions Code § 7031. On May 4, 2023, this Court granted the motion. (Min. Order 5/4/23.)

On August 3, 2023, Plaintiffs/Cross-Defendants filed a Motion for Order Dismissing the Cross-Complaint. No opposition has been filed to date.

On August 16, 2023, Plaintiff/Cross-Defendant Comforting Home Hospice Inc. filed a Notice of Withdrawal from the action.

On August 18, 2023, the Court granted Plaintiff/Cross-Defendant Alexander Everest’s Ex Parte Application with respect to the request to continue trial, but denied the application with respect to the request to shorten time for hearing on the September 25, 2023 on the motion to dismiss the cross-complaint. (Min. Order 8/18/23.)

On September 25, 2023, this Court ordered Plaintiff/Cross-Defendant Alexander Everest to submit supplemental briefing by September 29, 2023 to support this instant motion. Plaintiff/Cross-Defendant Alexander Everest filed the supplemental brief on September 27, 2023.

MOVING PARTY POSITION

            Plaintiff Comforting Home Hospice Inc. and Alexander Everest (“Plaintiffs/Cross-Defendants”) moves for an order dismissing the cross-complaint on the grounds that there are no triable issues of fact to be determined at trial as all issues were determined by the Court in the prior motion for summary adjudication ruling of May 4, 2023. Plaintiffs/Cross-Defendants assert that the Court ruled that Defendant David C. Perkins (“Defendant/Cross-Complainant”) claims are for work as an unlicensed contractor in violation of Business & Professions Code (“BPC”), Section 7031, so Defendant/Cross-Complainant may not bring or maintain any claims under BPC, Section 7031(a).

            In the supplemental brief, Plaintiff/Cross-Defendant Alexander Everest argues that Code of Civil Procedure (“CCP”), Section 436 gives the Court discretionary power to strike a cross-complaint not filed in conformity with the laws of this state. Plaintiff/Cross-Defendant Alexander Everest also argues that the Court may allow him to amend the pending motion and make a ruling based on CCP  438. Moreover, Plaintiff/Cross-Defendant Alexander Everest contends that the Court may grant the pending motion as a motion for judgment on the pleadings.

OPPOSITION

None as of 10/25/23.

REPLY

None as of 10/25/23.

ANALYSIS

I. Motion

A.    Legal Standard

Pursuant to Business & Professions Code (BPC), Section 7031(a), “Except as provided in subdivision (e), no 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.” (BPC § 7031(a).)

Pursuant to Code of Civil Procedure (“CCP”), Section 436, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP § 436.)

Pursuant to Code of Civil Procedure (“CCP”), Section 438(c)(1)(B), a Cross-Defendant may move for a judgment on the pleadings if either “(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint” or “(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” (CCP § 438(c)(1)(B).) Likewise, “The court may upon its own motion grant a motion for judgment on the pleadings.” (CCP § 438(b)(2).)

B.     Judicial Notice

In support of the motion and supplemental brief, Plaintiff/Cross-Defendant Alexander Everest request judicial notice of (1) small claim complaint filed by Defendant/Cross-Complainant David C. Perkins and (2) Plaintiffs/Cross-Defendants motion for summary adjudication.

Plaintiff/Cross-Defendant Alexander Everest’s requests for judicial notice are GRANTED pursuant to Evidence Code sections 451(f), and 452(c), (g), and (h).

C.    Discussion

Here, Plaintiff Alexander Everest (“Plaintiff/Cross-Defendant”) moves for an order dismissing the cross-complaint on the grounds that there are no triable issues of fact to be determined at trial as all issues were determined by the Court in the prior motion for summary adjudication ruling of May 4, 2023. In initial briefing of this motion, Plaintiff/Cross-Defendant asserted that the Court ruled that Defendant David C. Perkins (“Defendant/Cross-Complainant”) claims were for work as an unlicensed contractor in violation of Business & Professions Code (“BPC”), Section 7031(b), so Defendant/Cross-Complainant may not bring or maintain any claims under BPC, Section 7031(a). However, this Court previously denied the motion without prejudice indicating that nothing in BPC, Section 7031(a) gives the Court authority to dismiss an action brought in violation of BPC, Section 7031. (Min. Order 9/25/23.) This Court also stated that Plaintiff/Cross-Defendant did not present any other legal basis that confers authority on the Court to dismiss such an action. (Id.) Plaintiff/Cross-Defendant was given the opportunity to submit supplemental briefing on this matter.

In the supplemental brief, Plaintiff/Cross-Defendant argues that Code of Civil Procedure (“CCP”), Section 436(b) and Section 438(b)(2) gives the Court discretionary power to strike a cross-complaint not filed in conformity with the laws of this state or grant a motion for judgment on the pleadings. Plaintiff/Cross-Defendant also argues that the Court may allow him to amend the pending motion and make a ruling based on CCP, Section 438(c)(1)(B). Essentially, Plaintiff/Cross-Defendant appears to argue that Defendant/Cross-Complainant’s cross-complaint is not in conformity with the laws of this state because BPC, Section 7031(a) does not permit unlicensed contractors to bring or maintain an action in law or equity. Similarly, Plaintiff/Cross-Defendant appears to also argue that Defendant/Cross-Complainant’s cross-complaint does not state facts sufficient to constitute a cause of action against Plaintiff/Cross-Defendant.

Pursuant to CCP, Section 438(d), “The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (CCP § 438(d).)

Here, Plaintiff//Cross-Defendant asserts that this Court may take judicial notice of the Court’s ruling on Plaintiffs/Cross-Defendants’ motion for summary adjudication, which references BPC, Section 7031(a), the basis for Defendant/Cross-Complainant’s inability to proceed with the cross-complaint. Moreover, Plaintiff/Cross-Defendant concurrently filed a request for judicial notice of Plaintiffs/Cross-Defendants’ motion for summary adjudication on September 27, 2023.

Therefore, the Court finds that Plaintiff/Cross-Defendant’s motion for order of dismissal of Cross-Complaint is warranted under law. Plaintiff/Cross-Defendant’s supplemental briefing provided two statutory bases that confer discretionary authority on the Court to dismiss such an action.

II. Conclusion

            Accordingly, Plaintiff Alexander Everest’s Motion for Order of Dismissal of Cross-Complaint is GRANTED.