Judge: Mark E. Windham, Case: 23STLC03509, Date: 2024-06-12 Tentative Ruling

Case Number: 23STLC03509    Hearing Date: June 12, 2024    Dept: 26

  

 CW General Constr. Inc. v. Schilit, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

 

Defendants Kelsey Schilit and David Meredith’s Demurrer to the First Amended Complaint is OVERRULED. DEFENDANTS ARE TO FILE AND SERVE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

 

 

ANALYSIS:

 

On June 1, 2023, Plaintiff CW General Construction, Inc. (“Plaintiff”) filed the Complaint in this action against Defendants Kelsey Schilit and David Meredith (“Defendants”). The First Amended Complaint was filed on January 18, 2024. Defendants filed the instant Demurrer to the First Amended Complaint on April 18, 2024. Plaintiff filed an opposition on May 1, 2024 and Defendants replied on May 8, 2024.

 

Discussion

 

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Setian Decl. ¶4.) Defendants demur on the grounds that the Complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The First Amended Complaint alleges causes of action for breach of contract and common counts.

 

Allegations in the First Amended Complaint

 

Plaintiff and Defendants had an oral agreement for Plaintiff to remove existing carpet flooring at the property located at 4657 Natoma Avenue, Woodland Hills, California (“the subject Property”) and replace it with hardwood floors. (FAC, ¶BC-1.) The agreement included labor and materials in accordance with the scope of work contained in the attached invoice for a total contract price of $40,650.00. (Ibid.) Defendants made a partial payment of $15,079.41 but breached the contract by refusing to pay the remaining balance of $25,570.59. (Id. at ¶¶ BC-1, BC-2.) Plaintiff performed all obligations except those it was prevented or excused from performing. (Id. at ¶BC-3.) As a result of Defendants’ breach, Plaintiff suffered damages. (Id. at ¶¶BC-4, BC-6.)

 

The attached invoice shows that Defendant Schilit was billed on November 3, 2022 for a balance of $25,570.79 relating to demo carpet work, installation of plywood, sanding floors, buffing flooring, and application of coating. (Id. at Exh. A.) The invoice also shows that a payment was made in the amount of $15,079.41. (Ibid.)

 

1st Cause of Action for Breach of Contract

 

A cause of action for breach of contract must allege “(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.” (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) As pointed out in the Demurrer, an oral contract may be pled according to its effect, by which a plaintiff must allege the substance of its relevant terms, which requires a careful analysis of the instrument, comprehensiveness in statement and avoidance of legal conclusions. (Citing Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.)

 

The First Amended Complaint sufficiently alleges the substance of the agreement’s relevant terms. It is alleged that the work was to be performed as set forth in the invoice; the invoice provides sufficient detail regarding the work to be performed in nine separate line items. (FAC, Exh. A.) Defendants argue that relevant terms, such as the materials used, square footage, and amount of time the alleged project took, are omitted. They do not explain why these terms should be considered relevant to the agreement; those items were not included in the scope of work by either party as set forth in the invoice. Defendants also argue the invoice does not confirm the agreement because an unsigned invoice does not create a contract or any contractual obligation. (Citing C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1501.) It is not Plaintiff’s contention that the invoice itself creates the agreement, however, only that it confirms what the parties orally agreed. Finally, Defendants argues that Plaintiff has not affirmatively alleged that the work was completed or adequately performed. The First Amended Complaint need not set forth evidentiary facts demonstrating that Plaintiff performed its obligations or was excused from them; it is sufficient that Plaintiff alleges the ultimate fact of its performance at paragraph BC-3. (See Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126.)

 

Therefore, the Demurrer to the first cause of action for breach of contract is overruled.

 

2nd Cause of Action for Common Counts

 

Defendants demur to the second cause of action on the grounds that the underlying breach of contract cause of action fails. As discussed above, however, the first cause of action is sufficiently alleged. The Demurrer to the second cause of action is also overruled.

 

Conclusion

 

 

Defendants Kelsey Schilit and David Meredith’s Demurrer to the First Amended Complaint is OVERRULED. DEFENDANTS ARE TO FILE AND SERVE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

 

 

Plaintiff to give notice.