Judge: Mark H. Epstein, Case: 23SMCV00152, Date: 2023-04-10 Tentative Ruling
Case Number: 23SMCV00152 Hearing Date: April 10, 2023 Dept: R
The demurrers to the causes of action two through eight are
OVERRULED. The demurrers to the ninth
through eleventh causes of action are SUSTAINED WITH LEAVE TO AMEND. The demurrers to the twelfth and thirteenth
causes of action are SUSTAINED WITHOUT LEAVE TO AMEND.
This is a construction defect case. Plaintiffs lived in their home since 1998. They assert that in 2020, they saw physical damage to the home and contacted defendants to do repair and remediation. They claim that defendant Besten came to their home in December 2020 and said that he and the company would fix the home so that the problems would not recur. He allegedly made multiple promises regarding the licensing of subcontractors, his knowledge of the problems, and the quality of his work. Plaintiffs state that they agreed to use him due to those representations and they signed a contract on December 18, 2020 to that effect. Plaintiffs assert that the scope of work expanded and that on April 11, 2022 the parties entered into an additional contract for additional work. Plaintiffs contend that defendants did not complete the work and that what they did do was substandard. Plaintiffs also maintain that defendants billed them improperly and overcharged them. And plaintiffs claim that the promises defendants made to induce them to enter into the contracts were knowingly false when made. Defendants demur to the complaint other than the first cause of action. Plaintiffs oppose.
Preliminarily, the court notes that the meet and confer was not well done. Plaintiff could have, and should have, offered to extend the time to respond, or defendants should have asked, to allow adequate time to discuss the issue. In addition, the opposition is overlong. The court will not comment further on these problems, but hopefully it is not a harbinger of things to come and the parties are now on notice that the court expects compliance with the letter and spirit of the rules.
The court also notes that both parties spent time quoting the court’s prior orders in other cases, but especially plaintiff. Doing so is improper. Superior Court rulings are inadmissible as precedential or persuasive authority. It is no better that plaintiff is citing to this court’s rulings. Every case is different. The fact that the court ruled one way in a case involving different facts and circumstances is not authority for the instant case, and plaintiff’s counsel ought to know it. The court is somewhat surprised that, when defendant pointed this out, plaintiff doubled-down on the plainly improper behavior.
It is clear that tempers are running too hot here. Both parties need to calm down. It will serve neither party well.
Causes of action two, four, eight, and nine go to implied warranty and covenant assertions. Defendants state that they should be stricken as duplicative. Generally, the court does not sustain demurrers on that ground as the cause of action does no mischief, although sometimes the court will sustain demurrers to duplicative causes of action. Generally, absent some reason to believe that the additional cause of action will do mischief, It is better dealt with at a later time. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LC (2008) 162 Cal.App.4th 858.) The demurrers as causes of action two, four, and eight are OVERRULED. The demurrer to the ninth cause of action is SUSTAINED WITH LEAVE TO AMEND. The court just does not understand the gist of the cause of action and it needs to be clarified.
The three negligence causes of action are also attacked on the basis that they are duplicative. The same analysis as above pertains. Defendants contend, though, that negligence per se is really just negligence. That is correct as a legal matter. The per se part of the doctrine does not define or create the duty; it creates the standard of care for a duty that otherwise exists. In other words, the duty must come from elsewhere. (California Service Station & Auto Repair Ass’n. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166.) Even so, again, the cause of action does no harm and there is no confusion as to whether plaintiffs are alleging that a duty existed. For now, and because it might be an alternative “count” of negligence, the court will OVERRULE the demurrers to the negligence causes of action to the extent they go to a claim of being duplicative.
The cause of action for Intentional infliction of emotional distress is attacked on the theory that the alleged conduct is not sufficiently outrageous. The court must agree. Failing to do the construction properly, and even lying about it to get the job or to hide overbilling, is not so outrageous as to qualify for this tort. The demurrer is SUSTAINED WITH LEAVE TO AMEND. If plaintiff has additional details that takes this beyond the realm of poor construction or even fraudulent representations, plaintiff can allege it. If not, the court would prefer that plaintiff move on. The cause of action also does not seem to add anything to the case.
The demurrer as to the fraud claim is SUSTAINED WITH LEAVE TO AMEND. The court agrees with the defense that opinions are not actionable, and generally statements about future events are not actionable. But not everything alleged falls in that category. For example, a promise to use licensed subcontractors when one intends to use cheaper unlicensed subcontractors is fraud. Accordingly, the problem is not that everything alleged to have been said cannot be fraud; rather, the problem here is that plaintiff needs to allege with greater specificity exactly what was said and when. In a fraud case, specificity is required and it is not adequately alleged here. Dates, times, and (to the extent possible) exact quotes or at least specific recitations need to be alleged.
Finally, last two causes of action are not proper. The twelfth cause of action cites to Business and Professions Code section 7160. But the court agrees with the defense that it constitutes a remedy, not a cause of action. The same is true of unjust enrichment. Because there is no way to turn something that is not a cause of action into a cause of action, the demurrers are SUSTAINED WITHOUT LEAVE TO AMEND. But lest there be any doubt, in the likely-to-be-filed amended pleading plaintiff may amend the prayer as it relates to other causes of action to assert these remedies.
Plaintiff has 30 days’ leave to amend.