Judge: Michael Shultz, Case: 22CMCV00276, Date: 2022-12-08 Tentative Ruling
Case Number: 22CMCV00276 Hearing Date: December 8, 2022 Dept: A
22CMCV00276
Portrait Construction, Inc. v. RBT Electric, Inc.
[TENTATIVE] ORDER
I.
BACKGROUND
The First Amended Complaint
(“FAC”) filed on August 16, 2022, alleges that Plaintiff, the general
contractor for a project at Jordan Downs Apartments (“the Project”), contracted
with Defendant, an electrical subcontractor to perform electrical work on the
Project. Plaintiff alleges that Defendant was understaffed, causing the Project
to fall behind schedule. Defendant abandoned the Project on November 8, 2021,
in breach of its obligations. Plaintiff was required to hire a replacement
electrical subcontractor to complete the work. Plaintiff alleges claims for breach
of contract with damages estimated at $841,302.11.
II.
ARGUMENTS
Defendant’s demur, filed on
November 2, 2022, asserts that the breach of contract claim is inadequately
pleaded because Plaintiff failed to attach a “Cause of Action” on Judicial
Council form. Defendant argues that Plaintiff failed to attach a copy of the
contract to the complaint or allege the contract’s material terms. Plaintiff
failed to allege facts demonstrating how Defendant breached the contract.
Plaintiff’s opposition, filed on
November 11, 2022, argues that it has alleged facts to support each element of
the claim. Defendant did not cite any authority that Plaintiff is required to
place those allegations on Judicial Council form.
In reply filed on November 30,
2022, Defendant reiterates that Plaintiff has not alleged the essential terms
of the contract or how Defendant allegedly breached the contract.
A
demurrer tests the sufficiency of a complaint as a matter of law and raises
only questions of law. Schmidt
v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706. In testing the
sufficiency of the complaint, the court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.
The
Court may not consider contentions, deductions, or conclusions of fact or law. Moore
v. Conliffe (1994) 7 Cal.4th 634, 638. Because a demurrer
tests the legal sufficiency of a complaint, the plaintiff must show that the
complaint alleges facts sufficient to establish every element of each cause of
action. Rakestraw
v. California Physicians Service (2000) 81 Cal.App.4th 39, 43. Where the
complaint fails to state facts sufficient to constitute a cause of action,
courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.
Sufficient
facts are the essential facts of the case "with reasonable precision and
with particularity sufficiently specific to acquaint the defendant with the
nature, source, and extent of his cause of action.” Gressley
v. Williams (1961) 193 Cal.App.2d 636, 643-644. Whether the
Plaintiff will be able to prove the pleaded facts is irrelevant. Stevens
v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.
A
demurrer may also be sustained if a complaint is “uncertain.” Uncertainty
exists where a complaint’s factual allegations are so confusing, they do not
sufficiently apprise a defendant of the issues it is being asked to meet. Williams
v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ.
Proc., § 430.10(f).
A
pleading is required to assert general allegations of ultimate fact.
Evidentiary facts are not required.
Quelimane Co. v. Stewart Title Guaranty Co. (1998)
19 Cal. 4th 26, 47; Lim v.
The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. However, unlike
federal courts, California state courts are not a notice pleading jurisdiction,
and notice alone is not a sufficient basis for any pleading. California is a fact pleading
jurisdiction. Merely putting an opposing party on notice is not sufficient. Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see
Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.
The alleged facts are “sufficient in precision to acquaint the defendant with the nature, source, and extent of his cause
of action.” Gressley
v. Williams (1961) 193 Cal.App.2d 636, 643-644.
IV.
DISCUSSION
Defendant’s counsel, Elaine B. Alston, complied with the statutory
obligations to meet and confer with opposing counsel prior to filing a
demurrer. Code Civ. Proc., § 430.41. Alston Declaration.
The elements of a claim for breach
of contract are (1) the existence of a valid and existing contract between the
parties, (2) plaintiff’s performance or excuse for non-performance, (3)
defendant’s breach; and (4) resulting damage. Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. A written contract may be pleaded either by its terms, set out
verbatim in the complaint, or Plaintiff may attach a copy of the contract the
complaint and incorporate it by reference. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.
Plaintiff may also allege the contract by its legal effect by alleging the
substance of its relevant terms. Id. at 993.
While Plaintiff did not attach a
Judicial Council Form PLD-C-001(1), “Cause of action – Breach of Contract,” the
FAC includes an attachment to paragraph 8 of the FAC. That attachment includes
all essential terms of the contract and facts supporting the Defendant’s
alleged breach.
Plaintiff alleges the existence of
the contract; Plaintiff’s performance of its obligations by paying Defendant
for the work completed; Defendant’s breach consisting of abandoning the project
on November 8, 2021 and leaving 57 percent of the work completed; and damages suffered
as a result of hiring replacement contractors. FAC, .pdf page 3. Plaintiff also
alleged the verbatim terms entitling Plaintiff to recover expenses in the event
the subcontractor’s rights are terminated. FAC, .pdf page 4. These facts
support the substance of the material terms and Defendant’s breach.
Requiring Plaintiff to include
these allegations on a Judicial Council form would be elevating form over
substance. The alleged facts are “sufficient in precision to acquaint the defendant with the nature,
source, and extent of his cause of action.” Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.
Defendant has not shown any prejudice resulting from the failure to place these
allegations on a form. Code Civ. Proc., § 475 [“The court must disregard errors in
pleadings or proceedings, which do not affect the substantial rights of the
parties.”].
V.
CONCLUSION
Accordingly, the demurrer is
OVERRULED. Defendant is required to answer within 10 days. Cal. Rules of Court, rule 3.1320.