Judge: Melvin D. Sandvig, Case: 22CHCV01360, Date: 2023-08-21 Tentative Ruling

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Case Number: 22CHCV01360    Hearing Date: August 21, 2023    Dept: F47

Dept. F47

Date: 8/21/23

Case #22CHCV01360

 

DEMURRER TO THE FIRST AMENDED COMPLAINT

 

Demurrer filed on 4/18/23.

 

MOVING PARTY: Defendant Margarita St. John

RESPONDING PARTY: Plaintiff KN Remodeling, Inc.

NOTICE: ok

 

Demurrer is to the entire First Amended Complaint:

            1.  Breach of Written Contract

            2.  Foreclosure of Mechanic’s Lien

 

RULING: The demurrer is overruled.  Answer is due within 20 days. 

 

SUMMARY OF FACTS AND PROCEDURAL HISTORY

 

This action arises out of a contract for construction services entered into on or about 10/15/20 between Plaintiff KN Remodeling, Inc. (Plaintiff) and Defendant Margarita St. John (Defendant) for property located at 10000 Orion Ave., Mission Hills, California (the Property).  (FAC, Ex.A).  Plaintiff alleges that Defendant still owes $70,464.82 under the contract.  Plaintiff alleges that on 9/19/22, Plaintiff recorded a mechanic’s lien on the Property.  (FAC, Ex.B). 

 

On 12/12/22, Plaintiff filed this action against Defendant for: (1) Breach of Written Contract and (2) Foreclosure of Mechanic’s Lien.  On 3/9/23, Plaintiff filed a First Amended Complaint alleging the same causes of action.  Defendant’s counsel contends that he met and conferred with Plaintiff’s counsel regarding purported defects in the First Amended Complaint by written communication on 3/15/23.  (See Melkonian Decl. ¶2).  However, the letter attached to attorney Melkonian’s declaration is dated 1/27/21.  (Id., Ex.1).  Additionally, CCP 430.41(a) requires the meet and confer to be in person or by telephone.  Attorney Melkonian gives no indication of any effort to meet and confer in person or by telephone before filing the instant demurrer.  (See Melkonian Decl. and Ex.1 thereto).  Since a determination by the court that the meet and confer process was insufficient is not grounds to overrule a demurrer, the Court will address the merits of the demurrer to the First Amended Complaint that was filed and served on 4/18/23.  See CCP 430.41(a)(4).  No opposition to the demurrer has been filed. 

 

ANALYSIS   

 

Defendant’s demurrer is based on the ground that the First Amended Complaint fails to state sufficient facts to constitute either the 1st cause of action for Breach of Written Contract or the 2nd cause of action for Foreclosure of Mechanic’s Lien.  CCP 430.10(e).  (See Demurrer, p.3:5-10).    

 

Defendant argues that the breach of contract cause of action fails because the contract attached to the First Amended Complaint does not comply with certain of the requirements set forth in Business and Professions Code 7159.  (See Demurrer Memorandum of Points and Authorities, p.9:5-11).  Defendant then cites Asourdian  (1985) 38 C3d 276, without a citation to any specific page, to support her argument that “[c]ourts have held that a contract made in violation of a regulatory statute, such as the California Business and Professions Code applicable to Home Improvement Contracts, are void.”  (See Demurrer Ps&As, p.11:23-25).  However, Asourdian actually held that “there is no indication that the Legislature intended that all contracts made in violation of [Business and Professions Code] section 7159 are void.” (italics in original) See Asourdian, supra at 292.  The Asourdian court went on to explain that “[i]n compelling cases, illegal contracts will be enforced in order to ‘avoid unjust enrichment to a defendant and a disproportionately harsh penalty upon the plaintiff.’”  Id. [internal citations omitted].  Further, in Asourdian, the contracts which did not conform to the requirements of Business and Professions Code 7159 were held to be enforceable.  Id. at 293-294.

 

It cannot be determined at the pleading stage that the contract which underlies the breach of contract cause of action is void.   

 

Defendant claims that the foreclosure of mechanic’s lien cause of action fails because the mechanic’s lien attached to the First Amended Complaint was not recorded within 90 days of completion of work as required by Civil Code 8412.  Contrary to Defendant’s assertion, it cannot be determined as a matter of law that the completion date was 10/18/21 at the latest. 

 

CONCLUSION

 

The demurrer is overruled.  Answer is due within 20 days.