Judge: Mark A. Young, Case: 24SMCV01589, Date: 2024-12-03 Tentative Ruling

Case Number: 24SMCV01589    Hearing Date: December 3, 2024    Dept: M

CASE NAME:             Rafipoor, et al., v. Ataian, et al. 

CASE NO.:                   24SMCV01589

MOTION:                     Demurrer to the Complaint  

HEARING DATE:   12/3/2024

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.)  

“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 Mike Rafipoor, Santa Playa Vista Panini Investments, Inc., Santa Monica Panini Investments, Inc., and San Aliso, Inc., demur to Cross-Complainants Hootan Ataian and Pacific Stone Construction Inc.’s First Amended Cross-Complaint (“FACC”). The FACC states a sole cause of action for breach of contract.

In March 2020, Rafipoor approached Cross-Defendants and orally offered them the opportunity to perform demolition work on four Panini Kabob Grill (“PKG”) locations, including locations in Santa Monica and Aliso Viejo. (FACC ¶¶10, 18.) Cross-Defendants promised to pay Cross-Complainants: a. Santa Monica Location: $27,500.00; and b. Aliso Viejo Location: $19,800.00. (FACC ¶ 14.) Cross-Defendants still have not paid Cross-Complainants for their work. (FACC ¶15.) Cross-Defendants first orally offered and requested Cross-Complainants to work on the four PKG locations, which the Cross-Complainants accepted. However, for the Santa Monica and Aliso Viejo Locations, the agreement and its material terms were reduced to writing on or about July 2, 2020, when Rafipoor initialed the invoices generated by Cross-Defendants for these two locations. (FACC ¶18, Ex. A.) Based on the written agreement, Cross-Defendants were to pay Cross- Complainants $27,500.00 for the Santa Monica Location, and $19,800.00 for Aliso Viejo Location. (FACC ¶ 19.) Cross-Complainants performed all of the conditions, covenants, and promises required by the written agreement. (FACC ¶20.) Cross-Complainants have been damaged in the amount of $47,300.00.

The FACC fails to allege that Cross-Complainants are licensed contractors. A “Contractor” may not “bring or maintain any action … in any court in 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.) Cross-Complainants allege they provided to Plaintiffs certain “demolition work,” including “removal of signs, awnings, dining tiles, mechanical grease interceptors, and disconnecting electric wirings,” and “electrical.” (FACC ¶¶10-11.) As such, Cross-Complainants are contractors and must allege they are licensed.

Otherwise, the FACC is well stated. Cross-Defendants contend that the contract is not written because the invoice cannot be considered a written contract. Cross-Defendants cite no authority that holds such a proposition. Instead, Cross-Defendants cite authority that an invoice “standing alone” cannot create a contract. (Hebberd–Kulow Enterprises, Inc. v. Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283; Filmservice Lab'ys, Inc. v. Harvey Bernhard Enterprises, Inc., (1989) 208 Cal. App. 3d 1297, 1299 [mere existence of two invoices did not evidence accounts, rather, simply memorialized the oral contract under which the indebtedness arose].) The factual allegations above show that the Invoice is not “standing alone.” Here, Cross-Defendants manifested an intent to be bound to the written terms by having Rafipoor initial the Invoices. (FACC ¶18.)

The FACC is also not uncertain. Simply put, the FACC is not so unclear that Cross-Defendants cannot reasonably respond, determine what issues must be admitted or denied, or what counts or claims are directed against them.

Accordingly, the demurrer is SUSTAINED with leave to amend.  Cross-Complainants have 30 days to file an amended cross-complaint.