Judge: Peter A. Hernandez, Case: 22PSCV00831, Date: 2022-12-06 Tentative Ruling
Case Number: 22PSCV00831 Hearing Date: December 6, 2022 Dept: O
1. Defendant Stewart Design, Engineering
& Construction, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED. The court
will hear from counsel for Plaintiff as to whether leave to amend is requested,
and as to which cause(s) of action, and will require an offer of proof if so.
3. Defendants Carl W. Stewart II and Carl W. Stewart III’s Demurrer to Plaintiff’s Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.
4. Defendants Carl W. Stewart II and Carl W. Stewart III’s Motion to Strike Plaintiff’s Complaint is DENIED as MOOT.
Background
1. Stewart Design Demurrer
Legal Standard
A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) It may also be made on the basis that there is a defect or misjoinder of parties and/or that no certificate was filed as required by Code of Civil Procedure § 411.35. (Code Civ. Proc., § 430.10, subds. (d) and (h).)
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
Stewart Design demurs, pursuant to Code of Civil Procedure § 430.10, subdivisions (d)-(f) and (h), to Plaintiff’s complaint, on the basis that there is a misjoinder of parties, that Plaintiff failed to file a Certificate of Merit and that the first through sixth causes of action therein fail to state facts sufficient to constitute causes of action and are uncertain.
Procedural Deficiencies
Plaintiff has attached two exhibits to its opposition; while Exhibit 1 was also attached as an exhibit to the complaint, Exhibit 2 was not. The court declines to consider Exhibit 2, inasmuch as it is extraneous to the face of the complaint and is not the subject of a request for judicial notice.
Request for Judicial Notice
The court rules on Stewart Design’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit C (i.e., California Secretary of State Corporation—Statement of Information for RWA Group, Inc. filed January 13, 2022); Granted as to Exhibit D (i.e., County of Riverside Office of the County Clerk Fictitious Business Name Statement for RWA Group, Inc. filed August 29, 2019) and Granted as to Exhibit E (i.e., California Secretary of State Corporation—Statement of Information for Stewart Design, Engineering & Construction Inc. filed June 1, 2021).
Merits
At the outset, Stewart Design argues that it is an improper defendant because the improper defendant is Stewart Design and Engineering.
A demurrer made on the basis of misjoinder lies where it appears from the face of the complaint or matters judicially noticed that there is no common question of law or fact as to the defendants. (Code Civ. Proc. § 379, subd. (a) [“All persons may be joined in one action as defendants if there is asserted against them: (1) Any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or (2) A claim, right, or interest adverse to them in the property or controversy which is the subject of the action”].)
Here, Plaintiff alleges that its relationship with
Defendants stems from two written architectural design agreements entered into
in or about August 2021 and January 2022, respectively. (Complaint, ¶ 1.)
Plaintiff has attached both of the aforementioned agreements as Exhibits 1 and
2, respectively. (Id., 5:22 and 6:26). These agreements identify the
contracting parties as Plaintiff and “Stewart Design and Engineering.” Also,
the judicially noticeable documents reflect that a separate corporation, RWA
Group, Inc. does business as Stewart Design and Engineering.
Stewart Design has thus demonstrated that Plaintiff’s claims against it do not arise out of the same transaction or occurrence as the claims against other defendants, or do not involve a common question of law or fact or the same “controversy” at issue in this action such that joinder is appropriate. Plaintiff’s complaint likewise fails to state facts sufficient to constitute causes of action against Stewart Design on this basis.
Furthermore, Plaintiff has failed to file a certificate of merit pursuant to Code of Civil Procedure § 411.35 (i.e. “(a) In every action. . . arising out of the professional negligence of a person holding a valid architect’s certificate. . . or of a person holding a valid registration as a professional engineer . . . on or before the date of service of the complaint. . . on any defendant . . ., the attorney for the plaintiff . . . shall file and serve the certificate specified by subdivision (b).”) Plaintiff’s complaint alleges, inter alia, that Defendants provided deficient design plans that “did not consider the condition of the existing home” and resulted in “support issues” and “sagging.” (Complaint, ¶¶ 26 and 27.) These are allegations of professional negligence requiring the filing of a certificate of merit. Exhibit 1, moreover, attached to Plaintiff’s complaint identifies Stewart Design and Engineering as “licensed to practice engineering in California.” Plaintiff’s contention that the certificate of merit requirement does not apply to an entity defendant is erroneous. (See Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 545 [“Sutherland filed his original complaint, which included a negligence cause of action against petitioner, Curtis Engineering Corporation (Curtis), a provider of engineering services. Sutherland's original complaint did not include a certificate, as required by section 411.35, subdivisions (a) and (b)”]; Ponderosa Center Partners v. McClellan/Cruz/Gaylord & Associates (1996) 45 Cal.App.4th 913.)
Stewart Design’s demurrer is sustained.
2. Stewart Design Motion to Strike
Based upon the ruling made on the demurrer, Stewart Design’s motion to strike is denied as moot.
3. Stewart II’s and Stewart III’s Demurrer
Legal Standard
See Motion #1 above.
Discussion
Stewart II and Stewart III demur, pursuant to Code of Civil Procedure § 430.10, subdivision (h), to Plaintiff’s complaint, on the basis that Plaintiff failed to file a Certificate of Merit.
Request for Judicial Notice
The court rules on Stewart II’s and Stewart III’s RJN as follows: Granted as to Exhibit B (i.e., civil engineer license for Carl Stewart from Board for Professional Engineers, Land Surveyors, and Geologists as of September 14, 2022).
Merits
Stewart II’s and Stewart III’s demurrer is sustained [see Motion #1 re: analysis on Code of Civil Procedure § 411.35].
4. Stewart II’s and Stewart III’s Motion to Strike
Based upon the
ruling made on the demurrer, Stewart II’s and Stewart III’s motion to strike is
denied as moot.