Judge: Malcolm Mackey, Case: 22STCV13345, Date: 2022-12-08 Tentative Ruling

Case Number: 22STCV13345    Hearing Date: December 8, 2022    Dept: 55

SELA v. UTOPIA DEVELOPMENT, INC.                                              22STCV13345

Hearing Date:  12/8/22,  Dept. 55

#10:   DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT.

Notice:  Not Okay (wrong address for Plaintiff on demurrer’s proof of service)

No Opposition

MP:  Defendant BUSINESS ALLIANCE INSURANCE COMPANY (BAIC).

RP:  

Summary

On 4/21/22, Plaintiff filed a Complaint.

On 5/19/22, Plaintiff filed a First Amended Complaint, alleging that plaintiffs contracted with Defendant UTOPIA DEVELOPMENT, INC. to remove a residential structure, at 549 Westminster Ave., Los Angeles, and to replace it with a new structure, but water staining, mold, delamination, plaster separation, and other damages resulted from defendants’ contractor negligence and construction defects, including an improperly waterproofed home leading to rain leaks.

The causes of action are:

1. NEGLIGENCE

2. BREACH OF CONTRACT

3. BREACH OF WARRANTY

4. UNFAIR COMPETITION LAW

5. RECOVERY ON CONTRACTOR’S LICENSE BOND

6. BREACH OF FIDUCIARY DUTY.

MP Positions

Moving party requests an order sustaining the demurrer to the First Amended Complaint, on grounds including the following:

·         The Fifth Cause of Action of the FAC fails to state facts sufficient to state a cause of action against Defendant for Recovery on Contractor’s License Bond.

·         The operative facts occurred more than one year before the effective date of the Bond (December 6, 2020).

·         Plaintiffs’ allegations are based on events that occurred between “late 2016” and “the last few months of 2019” (FAC ¶ 15).

·         Plaintiffs allegedly discovered the operative facts “in November and December 2019,” (FAC ¶ 17).

·         A surety is not liable for the acts or omissions of the licensee that occur prior to the posting of a bond. Morton Regent Enterprises, Inc. v. Leadtec California, Inc. ((1977) 74 Cal.App.3d 842, 846.

·         To the extent that Plaintiffs allege that BAIC’s bondholder failed to fulfill any warranty obligations, the allegations of the FAC fail to identify the nature or terms of the warranty or how Genty allegedly breached said warranty, when the bondholder is not alleged to have issued any warranty.

Tentative Ruling

The demurrer hearing is continued to 1/20/23 at 8:30 a.m. in Department 55.

The proof of service, attached near the back of the demurrer, shows that the wrong attorney and the wrong party from another case, were served, instead of Plaintiff’s attorney of record.  That could explain the lack of opposition.

“Successful service by mail requires strict compliance with all statutory requirements, including those set forth in section 1013; the failure to comply deprives a court of jurisdiction to act.”  Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509-510 (where notice was not mailed to the “‘office address as last given by that person on any document filed in the cause,’” per CCP Section 1013(a), notice was ineffective, and order entered was void). Accord  Silver v. McNamee (1999) 69 Cal. App. 4th 269, 279. 

If both parties wish to submit on the court’s tentative ruling, please call Department 55 at 213-633-0655.