TENTATIVE RULING

Plaintiff/Cross-Defendant Arman Solimani’s Demurrer to Cross-Complaint of the Cross-Complainants is OVERRULED as to the first, second, and third causes of action and SUSTAINED without leave to amend as to the fourth and sixth causes of action.

Plaintiff/Cross-Defendant Arman Solimani shall file and serve an answer to Defendants/Cross-Complainants Yigal Hay and Lillian Hay’s Cross-Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Plaintiff/Cross-Defendant Arman Solimani to give notice. 

REASONING

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action: Breach of Contract

To state a cause of action for breach of contract, Defendants/Cross-Complainants Yigal Hay and Lillian Hay (“Defendants”) must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Plaintiff/Cross-Defendant Arman Solimani (“Plaintiff”) demurs to this claim on the ground that Defendants have not alleged the existence of a written agreement between the parties because the attached agreement has not been signed by the parties. This is not well taken. In the context of a demurrer, the Court need only see the terms of the agreement; whether the agreement was signed and is enforceable is a matter to be determined with the introduction of evidence. (See Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 [if a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference”].) Defendants have set forth the terms of the agreement by providing a copy of the agreement. (Cross-Compl. ¶ 20, Ex. 1.) Accordingly, Plaintiff’s demurrer to the first cause of action is OVERRULED.

Second Cause of Action: Unfair Business Practices

To set forth a claim for a violation of Business and Professions Code section 17200, Defendants must establish Plaintiff was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

Defendant demurs to this claim on the ground that Defendants only recite statutes and fail to state facts to support this claim. While the body of the claim is not a model of clarity, Defendants elsewhere allege that Defendant caused damage to their property, misled Defendants about the status of the project, unliterally charged more money and changed the terms of the agreement, and performed defective services. (Cross-Compl. ¶¶ 13-18.) Defendants then refer to this conduct as misleading business practices. (Cross-Compl. ¶ 25.) Whether the conduct sufficiently constitutes an unfair business practice is a matter of fact. Insofar as Defendant refers to facts and arguments outside the pleading, those are not proper considerations for a demurrer. This is not a fraud claim, so the Court need not determine whether it meets the heightened specificity requirements of a fraud claim. Thus, Plaintiff’s demurrer to the second cause of action is OVERRULED.

Third Cause of Action: Negligence

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Defendant argues that Plaintiffs’ claim is barred by the economic loss doctrine. Under the economic loss rule in construction defect cases, a party may not recover for “purely economic losses, i.e., those not accompanied by either property damage or physical injuries.” (Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1210.) This action is one for failure to properly complete a construction agreement; it is not one for construction defect, i.e., Defendants allege that Plaintiff was negligent in his failure to complete the project, such that it is not clear that this claim is barred by the economic loss doctrine. Insofar as Defendant argues that this claim does not assert a duty independent of the purported contract, contractors generally owe a duty to the property owner. (See Sabella v. Wisler (1963) 59 Cal.2d 21, 27-30 [describing duties owed in home construction context].) Accordingly, Plaintiff’s demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action: Breach of Implied Warranty

“‘Implied warranty of merchantability’ or ‘implied warranty that goods are merchantable’ means that the consumer goods meet each of the following: [¶] (1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or affirmations of fact made on the container or label.” (Civ. Code, § 1791.1, subd. (a).)

In the fourth cause of action, Defendants allege that the work performed at their property were not of merchantable quality. (Cross-Compl. ¶ 38.) This claim is duplicative of Defendants’ claims for breach of contract and negligence, and Defendants fail to state a basis for holding a construction contractor liable for goods he did not create, i.e., the construction consisted of the use of many products, and there is no basis to take the entire work as a whole to assert a claim for breach of implied warranty. Thus, Plaintiff’s demurrer to the fourth cause of action is SUSTAINED without leave to amend.

Sixth Cause of Action: Declaratory Relief

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.)

In the sixth cause of action, Defendants seek a judicial determination as to whether Plaintiff violated the contractor licensing laws. First, a cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470), and “[t]he availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (California Insurance Guarantee Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624). This claim appears to be no more than a different way of asserting Defendants’ other claims, and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.) Here, Defendants seek a determination based on Plaintiff’s past work, which is not a proper basis for declaratory relief. Accordingly, Plaintiff’s demurrer to the sixth cause of action is SUSTAINED without leave to amend.

Conclusion

Plaintiff/Cross-Defendant Arman Solimani’s Demurrer to Cross-Complaint of the Cross-Complainants is OVERRULED as to the first, second, and third causes of action and SUSTAINED without leave to amend as to the fourth and sixth causes of action. Plaintiff/Cross-Defendant Arman Solimani shall file and serve an answer to Defendants/Cross-Complainants Yigal Hay and Lillian Hay’s Cross-Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)