Judge: Mark H. Epstein, Case: 24SMCV05093, Date: 2025-02-26 Tentative Ruling

Case Number: 24SMCV05093    Hearing Date: February 26, 2025    Dept: I

The demurrer is OVERRULED. 

Plaintiff alleges that defendant improperly constructed plaintiff’s roof.  Plaintiff alleges that she entered into a contract with Immaculate Roofing to improve her home.  She claims that the contract was breached when defendant did not perform the work properly, secure permits, seal the roof properly, and failed to do other things as required.  (The court notes that the reply is untimely, but inasmuch as the court, having read it, remains of the view that the demurrer ought to be overruled, the court will overlook that issue.  What is harder to overlook is the new evidence that is submitted in reply.  That is improper and the court will not consider it.  There is no reason that was not included in the moving papers.) 

The uncertainty demurrer is OVERRULED.  Such demurrers are disfavored and apply only if one cannot make out what it is plaintiff is alleging.  (Butler v. Sequeira (1950) 100 Cal.App.2d 143.) 

The remainder of the demurrer is also OVERRULED.  The complaint is adequately alleged for breach of contract.  For example, plaintiff alleges that defendant failed to secure the necessary permits.  As to the express warranty cause of action, the court disagrees with the defense that an express warranty will only lie as to goods.  Parties may warrant almost anything they want, including the quality of services or labor.  While there will certainly be cases where only goods are subject to the warranty, that will be because of the warranty itself, not some general rule of law that one cannot warrant competence.  And here, the contract states that there is a “10-year warranty on workmanship defects” in addition to the 30 year warranty relating to manufacturing defects.  As to the implied warranty cause of action, the court can glean that the “goods” in question over which there is an implied warranty would be the roof.  As to negligence, the court is unsure how assumption of the risk bars the claim entirely.  Defendant argues that plaintiff agreed to keep the driveway clear and therefore she assumed the risk that something would fall on her car.  The court is not sure that the doctrine applies to property as opposed to persons.  What it really would be might be an argument that having the car in the driveway was such that plaintiff is at least partially at fault.  That might well be a partial defense, or maybe even a complete one.  But it will not prevail at the pleading stage, especially where the promise to keep the driveway clear is in the context of providing defendant with access, not in the context of avoiding risk to the car.  Finally, defendant argues that the cause of action going to the bond fails.  The court is not so sure.  It might well be that it is better alleged in the prayer—that part of the relief plaintiff seeks is recovery of the bond rather than stating it as a cause of action.  But it does no mischief as stated, and the court sees little benefit in forcing a redraft of this action.

In short, the demurrer is OVERRULED.  Defendant has 30 days to answer.