Judge: Peter A. Hernandez, Case: 20PSCV00776, Date: 2022-08-15 Tentative Ruling

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Case Number: 20PSCV00776    Hearing Date: August 15, 2022    Dept: O

Defendant La Rocca Builders, Inc.’s Demurrer to Plaintiff’s Second Amended Complaint is OVERRULED.

Background[1]  

This lawsuit arises from construction work undertaken at Plaintiff Shou Yang (“Plaintiff”) real property located at 1480 Atterbury Drive in Walnut, California (“subject property”).

On December 17, 2021, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against La Rocca Builders, Inc. (“LRB”), Christian Martinez (“Martinez”) and Does 1-100 for:

1.                  Breach of Contract

2.                  Negligent Construction & Defective WorkmanshipFraud—Intentional Misrepresentation

3.                  Fraud—Suppression of Fact

4.                  Negligent Misrepresentation

On February 17, 2022, Plaintiff filed a “Notice of Errata,” wherein he advised that Exhibits 1 and 2 had been inadvertently omitted from the SAC and attached a corrected copy of the SAC with said exhibits.

A Case Management Conference is set for August 15, 2022.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

LRB demurs, pursuant to Code of Civil Procedure section 430.10, subdivision (e), to the first and second causes of action in Plaintiff’s SAC, on the basis that they both fail to state facts sufficient to constitute causes of action. LRB also demurs to then first cause of action, per subdivision (g).

First Cause of Action (i.e., Breach of Contract)

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4^th 811, 821.) A written offer may be accepted orally or by acceptance of performance. (E.O.C. Ord, Inc. v. Kovakovich (1988) 200 Cal.App.3d 1194, 1201.)

Plaintiff has alleged that “[o]n or about 12, 2020, [Plaintiff] was presented the document attached hereto as Exhibit 1. Thereafter Exhibit 2, attached hereto and expressly incorporated herein by reference was drafted further detailing the work to be performed. Thereafter Plaintiff communicated with Defendant Christian Martinez, who advised that he was an authorized agent of Defendant, La Rocca Builders, Inc. Plaintiff orally authorized the work to be performed to Christian Martinez, who Plaintiff was informed and believed to be an authorized agent of La Rocca Builders, Inc. to perform the work pursuant to the written terms of Exhibit 1 and 2. Accordingly, Plaintiff alleges that Defendants LA ROCCA, MARTINEZ, and DOES 1 through 60, entered into a written and verbal agreement based on communicated [sic] referred to in this paragraph . . .” (SAC, ¶ 8 [emphasis added].) Plaintiff has further alleged that “Defendants never issued a proper contract to Plaintiff as required for contractors pursuant to the California Business & Professions Code section 7159 . . .” (Id., ¶ 9.) Plaintiff has alleged his performance (Id., ¶¶ 10 and 11), LRB’s breach (Id., ¶¶ 10 and 12) and damages (Id., ¶ 13.)

LRB’s demurrer to the first cause of action is overruled.

Second Cause of Action (i.e., Negligent Construction & Defective Workmanship)

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) Plaintiff has sufficiently pled these elements as against LRB in Paragraphs ¶¶ 15-18 of the SAC.

LRB’s demurrer to the second cause of action is overruled.