Judge Lee W. Tsao, Case Number: 23NWCV03081, Date: 2024-05-07 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV03081, Date: 2024-05-07 Tentative Ruling

Case Number: 23NWCV03081 Hearing Date: May 7, 2024 Dept: C

Express Restoration Corp. vs Jamin Xu

Case No.: 23NWCV03081

Hearing Date: May 7, 2024 @ 9:30 a.m.

Tentative Ruling

Defendant Jasmin Xu’s Demurrer is SUSTAINED with 30 days leave to amend.

Defendant to give notice.

Background

The Complaint alleges Plaintiff Express Restoration Corp. (“Plaintiff”) possessed a “General Building Contractor” license at all relevant times and is duly licensed by the California Contractors State License Board to enter into construction contracts in the State of California. (Complaint ¶ 3.) Between March 31, 2023 and April 12, 2023, pursuant to a written work authorization contract dated April 4, 2023, Plaintiff performed work of improvement consisting of demolition, water remediation, dryout, and mold mitigation work at Defendant Jasmine Xu’s (“Defendant”) property. (Complaint ¶ 8.) Plaintiff has substantially completed all work it was required to perform, but Defendant has refused to pay Plaintiff. (Complaint ¶¶ 9-10.) The reasonable value of the work performed by Plaintiff is $29,771.11. (Complaint ¶ 11.)

Based thereon, Plaintiff brings causes of action for: (1) Foreclosure of Mechanic’s Lien; (2) Breach of Contract; (3) Work, Labor, and Materials Furnished; and (4) Unjust Enrichment.

Defendant demurs to all causes of action set forth in the Complaint on the grounds that 1) Plaintiff was not licensed to perform the work for which it is seeking compensation; 2) recovery is barred because Plaintiff commenced work before providing Defendant a mandatory notice of consumers’ rights to cancel; 3) the contract is unenforceable because it fails to include essential terms necessary for the formation of a home improvement contract; and 4) as to the First Cause of Action, Plaintiff lacks capacity to sue because the Mechanic’s Lien was not timely filed and not properly served.

Judicial Notice

Defendant requests judicial notice of 1) Plaintiff’s verified certificate of licensure as it appeared on July 31, 2023, and 2) the Contractor’s State License Board’s License Detail for License No. 1084141 for Plaintiff as it appeared on December 15, 2023.

The Request for Judicial Notice is GRANTED.

Legal Standard

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)

Discussion

The Contractors’ State License Law prohibits unlicensed contractors from maintaining any action or recovering in law or equity in any action for compensation for performance of any act or contract where a license is required. Under Business and Professions Code § 7031, “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 …” (Bus. & Prof. Code §¿7031(a), italics added.)

Defendant argues Plaintiff is barred from seeking compensation because Plaintiff was not licensed at all times Plaintiff performed work for Defendant. Plaintiff’s verified certificate of licensure indicates Plaintiff’s contractor license has lacked a qualifying individual since January 1, 2023, was suspended as of April 1, 2023, and has remained suspended as of July 31, 2023. (RJN, Exhibits 1-2.) According to Defendant, the demurrer should be sustained because Plaintiff’s assertion that “[a]t all relevant times, Plaintiff possessed a “General Building Contractor” license” is contradicted by publicly available records. (CCP § 430.30.) Plaintiff disputes that the nature of the work performed required a contractor’s license. Plaintiff argues it performed no demolition work, structural alterations, or reconstruction work requiring a contractor’s license.

Under Business and Professions Code § 7026, “a contractor is any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, parking facility, railroad, excavation or other structure, project, development or improvement, or to do any part thereof …” (Bus. & Prof. Code §¿7026, italics added.)

As alleged in the Complaint, the nature of the work performed by Plaintiff requires a contractor’s license. Plaintiff performed “certain labor, services, equipment and materials, to be used and which were actually used in that certain work of improvement consisting demolition [sic], water remediation, dryout, and mold mitigation work at the Property …” (Complaint ¶ 8, italics added.) Plaintiff also alleges, “The whole of the Property described herein upon which said construction work is located is necessary and required for the convenient use of said work of improvement.” (Complaint ¶ 16, italics added.) Therefore, as alleged, Plaintiff’s recovery is barred because Plaintiff was not licensed at all times Plaintiff performed work which required a contractor’s license. Because the demurrer to the Complaint is sustained on this basis, the Court need not address Defendant’s remaining contentions.

Accordingly, the demurrer Is SUSTAINED with 30 days leave to amend.