Judge: Mark H. Epstein, Case: 23SMCV04998, Date: 2024-02-06 Tentative Ruling

Case Number: 23SMCV04998    Hearing Date: February 6, 2024    Dept: I

The demurrer is SUSTAINED WITH LEAVE TO AMEND as to Solis individually concerning the breach of contract causes of action.  If plaintiff intends to rely on alter ego, additional facts will need to be alleged as to why the court ought to pierce the corporate veil.  At present, the allegations are the boilerplate ones without any specificity.  In all other respects, the two contract actions are adequately pled to withstand demurrer; the elements do not require the specificity defendants demand.  The demurrer is therefore OVERRULED as to Solis Design Studio.  The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to negligence per se (the seventh cause of action) because negligence per se is not a separate cause of action.  Negligence per se is a form of negligence where a law or regulation provides the applicable standard of care, which is only an element of the cause of action.  Because negligence is alleged, this cause of action serves no purpose.  The demurrer is OVERRULED in all other respects.  Plaintiff has 30 days’ leave to amend as to the breach of contract cause of action.

The problem with the breach of contract cause of action is that Solis is not a party to it individually and the allegations of alter ego are not strong enough at this time to include Solis as a defendant.  At to the various torts, the court is satisfied that they are sufficiently pled.  The third cause of action is adequately pled.  While it is true plaintiff agrees defendants were not contractors (indeed, that is the point) plaintiff alleges that they nonetheless performed general contractor services.   If that is true, disgorgement is proper.  Nor is there a statute of limitations defense that can now be raised.  One cannot tell from the complaint’s face when work was completed (or stopped), which is when the statute began to run.  Without that, the demurrer is improper.  Plaintiff is under no duty to allege that date.  That said, defendants can get that date through discovery and then bring an appropriate motion if the defense lies. 

The fourth cause of action contains sufficient specificity—especially given that the allegation is concealment—to overcome the demurrer.  Plaintiff alleges that defendant concealed that there was in fact no contractor and even if the complaint is not clear on that point, plaintiff also claims concealment of the fact that defendant hired unlicensed subcontractors and padded labor and material costs.  A demurrer does not lie to only part of a cause of action.  The fifth and sixth causes of action are sufficiently specifically pled for similar reasons.  The sixth cause of action similarly survives demurrer.  The eighth cause of action is sufficient for pleading purposes.  Finally, the UCL cause of action stands or falls with some of the other intentional tort claims.

Because the intentional tort causes of action survive, so does the request for punitive damages and the motion to strike is DENIED.