Judge: Mark A. Young, Case: 22SMCV02209, Date: 2025-05-07 Tentative Ruling

Case Number: 22SMCV02209    Hearing Date: May 7, 2025    Dept: M

CASE NAME:             Massara, et al., v. KFG Properties, LLC, et al. 

CASE NO.:                   22SMCV02209

MOTION:                     Demurrer to the First Amended Cross-Complaint  

HEARING DATE:   5/7/2025

LEGAL STANDARD 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.) 

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)  

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.) 

ANALYSIS 

Cross-Defendants LC Engineering Group Inc. and Calwest Geotechnical demurs and moves to strike the First Amended Cross-Complaint (FACC) filed by Cross-Complainants KFG Properties LLC (KFG), Northstar Development & Construction, Inc. (Northstar), and Klodian Gjoka (Gjoka).

Certificate of Merit (CCP § 411.35)

In both motions, Cross-Defendants assert that the FACC fails to state a claim and should be stricken because Cross-Complainants failed to comply with Code of Civil Procedure (CCP) section 411.35. Cross-Defendants assert that a Certificate of Meritorious Cause was not filed prior to the service of the Cross-Complaint on any Cross-Defendant and was only recently filed nearly 18 months after the initial filing of the Cross-Complaint. CCP section 411.35, in relevant part, provides: 

(a) In every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect's certificate … or of a person holding a valid registration as a professional … or a person holding a valid land surveyor's license … on or before the date of service of the complaint or cross-complainant on any defendant or cross-defendant, the attorney for the plaintiff or cross-complainant shall file and serve the certificate specified by subdivision (b). 

(b) A certificate shall be executed by the attorney for the plaintiff or cross-complainant declaring one of the following: 

(1) That the attorney has reviewed the facts of the case, that the attorney has consulted with and received an opinion from at least one architect, professional engineer, or land surveyor who is licensed to practice and practices in this state or any other state, or who teaches at an accredited college or university and is licensed to practice in this state or any other state, in the same discipline as the defendant or cross-defendant and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action. The person consulted may not be a party to the litigation. The person consulted shall render his or her opinion that the named defendant or cross-defendant was negligent or was not negligent in the performance of the applicable professional services. 

(2) That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint. 

(3) That the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three separate good faith attempts with three separate architects, professional engineers, or land surveyors to obtain this consultation and none of those contacted would agree to the consultation. 

[…]

(g) The failure to file a certificate in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.”¿

(CCP § 411.35.) 

            Here, Cross-Complainants filed their initial Cross-Complaint on June 30, 2023. No certificate of merit was filed with the Cross-Complaint, or within 60 days thereafter. It was not until November 13, 2024, that Cross-Complainants filed their FACC with a supporting Certificate of Merit.

Cross-Complainants’ submission of the Certificate of Merit contemporaneously with the FACC cured their failure to file the Certificate within 60 days of their initial Cross-Complaint. A party can cure these defects with the Certificate as long as the Certificate is filed with an amended pleading, within the applicable statute of limitations period. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 358-362 (failure to file a timely Certificate with an original complaint may be cured by filing the Certificate with an amended complaint.) In Price, after failing to file a certificate with the initial complaint in March 1998, Price filed a Certificate of merit on March 15, 1999, an amended certificate the next day, and a first amended complaint on March 25, 1999. On that record, the court found that sustaining a demurrer without leave was in error. “Since a certificate was on file before the first amended complaint was served, Price cannot be faulted for untimeliness… [¶] [B]y granting leave to file an amended complaint the court can give the plaintiff an opportunity to fully comply with the statutory requirements for filing a certificate of merit.” (Id., at 359-360.) Although the Certificate in Price was filed outside of the 60-day period following the filing of the initial complaint and was substantively defective (as it was not signed by plaintiff’s counsel of record), the Price court still held that the defects were curable and the trial court should have permitted leave to amend.

In Curtis Eng’g Corp., the court of appeal found that a certificate filed after expiration of the statute of limitations and more than 60 days after filing the original pleading cannot “relate back” to the filing of the original pleading and thus requires dismissal. (Curtis Eng'g Corp. v. Superior Ct., (2017) 16 Cal. App. 5th 542, 545, 548-551.) There, a crane operator was injured in May 2014 when his crane tipped over. (Id., at 545.) The crane operator filed his original complaint in May 2016 against an engineer, without filing a Certificate. (Id.) In December 2016, the crane operator filed and served a first amended complaint which included a certificate. (Id.) The trial court overruled the engineer’s demurrer, holding that amended pleading, along with the attached Certificate, related back to the original complaint. The court of appeal found this to be an error, reasoning that the two-year statute of limitations applicable to the negligence cause of action had expired seven months before the filing of the certificate, and the 60-day period for filing a certificate under section 411.35(b)(2) expired about five months before the filing of the certificate. (Id., at 548-551.) The Curtis Eng’g Corp court further observed that this defect could not be cured by the application of the relation-back doctrine. The doctrine would essentially enable a plaintiff to file the certificate at any time during a suit and completely undermine the purpose of the Certification statute. (Id.) The court thus issued a writ instructing the trial court to sustain the demurrer without leave to amend.

Here, Cross-Defendant does not address whether the Certificate of Merit filed in this action on November 13, 2024, was filed outside of the applicable statute of limitations period. Thus, the defect was curable. Accordingly, Cross-Defendant’s demurrer cannot be sustained, and the motion to strike cannot be granted for Cross-Complainants’ failure to comply with section 411.35.

Demurrer- Negligence, Duty

The elements of negligence are a duty the defendant owes to the plaintiff, a breach of that duty by the defendant, a causal connection between the breach and the plaintiff's injury, and actual injury. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141.) In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)

Cross-Defendants assert that they owe no tort duties to Cross-Complainants under the pled facts because Cross-Complainants were engaged in the project to sell the property as a commercial enterprise, and that none of the Cross-Complainants are ultimate purchasers/owners of the subject property for residential purposes. Cross-Defendants posit no authority which would hold that the FACC fails to state a claim. Instead, Cross-Defendants cite a case where a subcontractor was dismissed at summary judgment after showing that there was no dispute of material fact concerning the imposition of a duty. (Weseloh Family Ltd.vs. K.L. Wessel Construction Co. (2004) 125 Cal.App.4th 152; see Lynch v. Peter & Associates, Engineers, Geologists, Surveyors, Inc. (2024) 104 Cal.App.5th 1181 [summary judgment reversed where firm owed property owner a duty of care to perform its inspection with skill expected of professional in its position, even though firm was not in contractual privity with property owner]; Beacon Residential Cmty. Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal. 4th 568 [reversing a sustained demurrer; despite a lack of privity, architects owed a duty to homeowners for construction design defects after balancing the Biakanja/Bily factors].)

Weseloh is distinguishable from the instant case. In Weseloh, the designers of a retaining wall (Randle and Owen) produced undisputed evidence showing they did not owe the Weseloh plaintiffs (owners of the subject property) or Wessel (the general contractor hired to construct a car dealership) a duty with respect to designing the subject retaining walls. (Weseloh, supra, 125 Cal.App.4th at 164.) There, Randle and Owen produced undisputed evidence that (1) the Weseloh plaintiffs contracted with Wessel to construct automobile dealership facilities at the property; (2) Randle worked for Sierra; (3) Sierra built the retaining walls at the project; (4) a portion of the retaining walls failed; (5) neither Randle nor Owen had a “role in the construction” of the retaining walls; (6) neither Randle nor Owen entered into a contract with the Weseloh plaintiffs; (7) neither Randle nor Owen entered into a contract with Wessel; and (8) neither Randle nor Owen was ever compensated by the Weseloh plaintiffs or Wessel for any work performed for the project. (Id.) The Weseloh court then examined the plaintiffs’ evidence, and found that the evidence failed to demonstrate: (1) Randle and Owen's design was primarily intended to affect the Weseloh plaintiffs and Wessel; (2) the closeness of the Weseloh plaintiffs' and Wessel's injury to Randle and Owen's conduct; (3) any moral blame implicated by Randle and Owen's conduct; or (4) how, by imposing expanded liability on design engineers under similar circumstances, future harm would be prevented. (Id. at 167-172.)

Subsequent cases have repeatedly held that the holding in Weseloh is limited to its specific factual circumstances. Weseloh itself expressly warned:

“In light of the Weseloh plaintiffs and Wessel's failure to carry their burden under Code of Civil Procedure section 437c, subdivision (p)(2), the trial court properly concluded Randle and Owen did not owe them a duty of care. Our holding should not be interpreted to create a rule that a subcontractor who provides only professional services can never be liable for general negligence to a property owner or general contractor with whom no contractual privity exists. There might be a set of circumstances that would support such a duty, but it is not presented here.”

(Id. at 173.) The court in Lynch echoed this warning: “we were very clear that Weseloh should 'not be interpreted to create a rule that a subcontractor who provides only professional services can never be liable for general negligence to a property owner... with whom no contractual privity exists.' We found it altogether conceivable that 'a set of circumstances that would support such a duty' could exist. And here we have such a case." (Lynch, supra, 104 Cal.App.4th at 1193, citations omitted.)

Similarly, the Beacon court found a duty to third party homeowners at the pleading stage, despite the duty analysis in Weseloh. (Beacon, supra, 59 Cal.4th at 586-587.) The Beacon court distinguished Weseloh, emphasizing the differences between a demurrer and summary judgment. “In the present case, which is before us on demurrer, no similar causation problem confronts us. According to the complaint, defendants approved the use of defective windows and designed a defective ventilation system, all of which created conditions that made the homes uninhabitable for portions of the year. The complaint sufficiently alleges the causal link between defendants' negligence and plaintiff's injury that was lacking in Weseloh.” (Id. at 587.) The Beacon court saw Weseloh’s limited holding as “merely suggest[ing] that an architect's role in a project can be so minor and so subordinate to the role or judgment of other design professionals as to foreclose the architect's liability in negligence to third parties.” (Id.)

Turning to the allegations here, the FACC establishes facts which support the imposition of a duty of care. KFG owned the Subject Property located at 6325 Malibu Park Lane in Malibu, California 90265. (FACC ¶ 25.) Northstar was contracted to build, and did build, a home on the Subject Property. (¶ 26.) KFG contracted with and retained Vitus to help obtain permits and approval from the City of Malibu for the construction project. (¶ 27.) Vitus’s job duties included:

• Reviewing geo/soils requirements with project structural engineer.

• Generate construction documents based on compliance with city reviews and

geotechnical requirements.

• Coordinate preparation of site plans and building sections as required by project

geologist, soils engineer, septic design specialist, civil and structural engineers

(Id.)

Vitus subcontracted with Calwest Geotech, a division of LC Engineering, to

perform the geotechnical soils study/investigation at the Subject Property. (FACC ¶ 28.) Calwest Geotech would prepare a geological soils report required for approval by the City of

Malibu to allow Northstar to build on the Subject Property. (Id.) Northstar subcontracted with various other cross-defendants to perform construction work on the Property. (¶ 29.) After Northstar completed the home, Plaintiffs Darren Massara and Shaun Bernier bought the Subject Property. (¶ 30.) After moving in, Plaintiffs discovered several issues with the newly built home on the Property, including cracks in the wall and ground, periodic flooding, sloping issues causing separation between walls, floors, and ceilings, and cracks in the asphalt. (¶ 31.) The issues with the Subject Property allegedly stem from Defendants/Cross-Complainants failure to properly perform sufficient evaluation of the soil on the Subject Property prior to building the foundation. (¶32.)

LandPhases, Inc. and KFG entered into a contract where LandPhases, Inc. would be the geologic engineering company to perform the inspection of the Subject Property and submit a proposal/report. (FACC ¶ 33.) As part of this agreement between LandPhases, Inc. and KFG, there is clear indication that Vitus was consulted regarding LandPhases, Inc.’s work on behalf of KFG. (¶ 36.) LandPhases, Inc. recommended and confirmed Calwest Geotech would perform the required geotechnical engineering study. (Id.) For instance, on July 14, 2014, Calwest Geotech’s proposal to perform geotechnical engineering investigation services at the Subject Property was addressed to Cross-Complainant Gjoka c/o Vitus Matare and Associates, Inc. (¶ 34.) Calwest Geotech submitted multiple Notice of Field Observation forms to its “client” KFG from October 2016 through August 2017, regarding the Subject Property relating to the geotechnical investigation. (¶ 35.) LandPhases, Inc. submitted to KFG a Report of Engineering Geologic Study for the Subject Property on October 20, 2014. (¶ 38.) Vitus and Calwest Geotech were noted and/or cc’d as recipients of this report. (Id.) On August 23, 2017, a soils engineer, Leonard I. Liston, for Calwest Geotech signed off on the Supervised Rough Grading Inspection Certificate for the Subject Property. (¶42.) The engineer verified that for the Subject Property that “the earth fills placed…were placed upon competent and properly prepared soil base material and compacted under my supervision and in compliance with the requirements of the Malibu Building Code and sound engineering practices” and the additional verification that, “where the report(s) of an Engineering Geologist, relative to this site, has recommended the installation off stabilization measures, such earthwork construction has been completed in accordance with the approved design. Fill slop surfaces have been compacted in accordance with my recommendations. Subdrains have been property installed where required.” (Id.) There is also reference to a June 28, 2017, As-Built Report by Calwest Geotechnical. (Id.) Vitus then applied for permits to fix the issues at the Subject Property that were overlooked and not noted in the report submitted by Vitus’ subcontractor, Calwest Geotech, a division of LC Engineering. (¶ 44.) Cross Complainants relied on this report. (Id.) The City of Malibu also relied the same report to approve permits for construction at the Subject Property. (Id.)

The FACC further alleges that the Subcontractors caused and/or contributed to Plaintiffs’ alleged damages. (FACC ¶ 48.) Cross-Defendants are legally responsible for said injuries and damages, and for separate and independent harm and damages to Northstar. (Id.) Vitus, Calwest Geotech, LC Engineering “had a duty of care” to Cross-Complainants to perform the work each was subcontracted to do at the Subject Property for the Cross-Complainants as a reasonable prudent contractor and/or professional engineer and within the standards of the industry. (FACC ¶ 61.) Calwest Geotech and LC Engineering breached their duty by failing to supervise and manage sub-contractors and failing to investigate, inspect, and report on the geological state of the soils at the Subject Property consistent with industry standards. (¶ 64.) As a result, Cross-Complainants have been damaged. (¶ 65.)

At the pleading stage, and unlike at summary judgment, the Court must take the charging allegations as true. As alleged throughout the FACC, Cross-Defendant’s services and work was intended to benefit Cross-Complainants as the owners of the Property. It is foreseeable that owners of a property would be harmed if a geotechnical expert fails to investigate, inspect and report on the geological state of the soils at a property consistent with industry standards. Both Cross-Complainants and the City relied on the Grading Inspection Certificate to issue certain permits and construct the subject Home. Cross-Defendants’ allegedly negligent work would therefore risk improper construction on Cross-Complainants’ Property, directly resulting in the claimed damage to the property. Cross-Complainants allege both direct damage to themselves and for indemnity of any damage suffered by Plaintiffs. Cross-Defendants’ negligent conduct is closely connected to those injuries suffered, since the negligent work resulted in the alleged defects in the construction. The policy of preventing future harm to homeowners would be met, since homeowners need to rely on the specialized geotechnical skills of contractors such as Cross-Defendants in order to safely construct their homes. The safety risks involved in improper geotechnical reports also bolster the “moral blame” factor against negligent geotechnical inspectors. Thus, the factors support imposition of a duty against Calwest Geotech and LC Engineering in favor of Cross-Complainants.

Accordingly, the demurrer is OVERRULED.

Motion to Strike - Attorneys’ Fees

Cross-Defendants move to strike the request for attorneys’ fees. They note that the FACC sets forth no contract or statute upon which to base the demand for attorney's fees.

Cross-Complainants do not cite any contractual or statutory right to recover attorneys’ fees. Cross-Complainants cite allegations that they hired Cross-Defendants to provide professional geotechnical engineering consultation services and perform a geotechnical soils studies and investigation. (FACC ¶¶ 27, 28.) They also cite allegations that Cross-Defendants were “aware” that the agreement was for the benefit of the Cross-Complainants. (FACC ¶ 28, 63.) Neither set of allegations show that Cross-Defendants agreed to pay attorneys’ fees or cite a statute in support of such a claim.

Cross-Complainants also cite a “proposed,” “unsigned” agreement with CalWest Geotechnical, which contains an attorneys’ fees provision. This unalleged contract does not support a claim for attorneys’ fees, since Cross-complainants admit that they did not enter into this agreement with CalWest Geotechnical. Thus, there is no reasonable probability that Cross-Complaints will successfully plead a claim for fees. Accordingly, the motion to strike is GRANTED without leave to amend as to the attorneys’ fees request.