Judge: Melissa R. Mccormick, Case: "Rozenberg v. Castagna, et al.", Date: 2023-08-03 Tentative Ruling

Defendant Rainstoppers, Inc.’s Demurrer to Complaint

Defendant Rainstoppers, Inc. demurs to the first, fourth, fifth and sixth causes of action in plaintiff Marc Rozenberg’s complaint.  For the following reasons, defendant’s demurrer is sustained with leave to amend.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.

Plaintiff’s first (breach of contract), fourth (negligence/negligent construction and defective workmanship), fifth (breach of implied warranty or correctness of plans and specifications), and sixth (breach of implied covenant to perform work in a good and competent manner) causes of action do not allege sufficient facts to state those claims against defendant.  Plaintiff does not allege any facts demonstrating a contract between plaintiff and defendant.  More generally, plaintiff does not allege facts showing what it contends this defendant did or did not do that gave rise to liability.  Plaintiff generally alleges “defendants” collectively are liable for damages arising from construction work at plaintiff’s home, but does not allege any specific facts supporting its claims against defendant Rainstoppers, Inc. 

Should plaintiff desire to file an amended complaint addressing the issues in this ruling, plaintiff must file and serve it by August 14, 2023.

Defendant Rainstoppers, Inc. to give notice.

Case Management Conference

The trial is scheduled for September 23, 2024 at 9:00 a.m. in Department C13.

Clerk to give notice.