Judge Randolph M. Hammock, Case Number: 23STCV16761, Date: 2024-01-29 Tentative Ruling

Plaintiff Ben Assil alleges he furnished labor, services, equipment, and materials for a work of improvement on Defendant Lorraine Beebe’s house pursuant to a written agreement. Plaintiff further alleges that Defendant breached the agreement by not paying for the work, for which $96,000 remains due.

Defendant’s Demurrer to the Complaint is SUSTAINED in its entirety. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

The Declaration of Attorney Nick M. Campbell reflects that counsel for Defendant attempted to meet and confer by letter and telephone, however, Plaintiff never responded to the communications. Though this demonstrates the lack of a substantive meet and confer, the court considers Defendant’s attempts to have satisfied her obligation. (CCP § 430.41.)

Pursuant to Defendant’s request, the court takes judicial notice of Defendant’s Exhibits A, B, and C. The court takes judicial notice of the exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Plaintiff Ben Assil, in pro per, brings this action in his individual capacity. The Mechanic’s Lien lists the Claimant as “Buildmore Const. & Remodeling, Inc.” (See Compl. Exh. A.) Plaintiff Ben Assil is listed as “the Person by whom the claimant was employed or to whom the claimant furnished work.” (Id.)

Defendant argues that Plaintiff has failed to allege that he holds the license required to perform the work he was contracted to do. Hence, per Business & Professions Code section 7031, Plaintiff is unable to enforce the contract allegedly entered into.

Business and Professions Code, section¿7031, subdivision (a) provides: “Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person…”¿ (Bus. & Prof. Code, §¿7031, subd. (a).)¿“[I]t is well settled that section 7031 applies despite injustice to the unlicensed contractor. Section 7031 represents a legislative determination that the importance of deterring unlicensed persons from engaging in the contracting business outweighs any harshness between the parties, and that such deterrence can best be realized by denying violators the right to maintain any action for compensation in the courts of this state. [Citation.] ...“ (Id.)

“[A] contractor is any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, parking facility, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith, or the cleaning of grounds or structures in connection therewith…, and whether or not the performance of work herein described involves the addition to, or fabrication into, any structure, project, development or improvement herein described of any material or article of merchandise. “Contractor” includes subcontractor and specialty contractor.” (Bus. & Prof. Code, § 7026.)

Here, Plaintiff alleges that he contracted with Defendant and “agreed to furnish certain labor, services, equipment, and materials for a work of improvement on” Defendant’s house. (Compl. ¶ 6.) This included “installing [an] electrical box, flooring, lighting, plumbing, framing, lath & black paper stucco mix, concrete, lumber iron gates & fence, electrical material, remove and replace windows, and fence in front yard for an agreed contract price of $96,000.00 plus 18% Annum.” (Id.)

Based on these allegations, Plaintiff was a “contractor” as defined in the Code, as he agreed to “construct, alter, [or] repair” the structure at issue. (See Bus. & Prof. Code, § 7026.) By failing to oppose, Plaintiff has failed to show otherwise, or demonstrate that he meets a recognized exception to the licensing requirement.

Thus, by the plain text of section 7031, Plaintiff needed, but failed to, “alleg[e] that [he] was a duly licensed contractor at all times during the performance of that act or contract.” (Bus. & Prof. Code, § 7031(a).) Because Plaintiff does not allege that he possessed a valid contractor’s license, the contract relied upon is invalid under Business & Professions Code section 7031.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff will be given the opportunity at the hearing to make an “offer of proof” that he or an entity he controls is licensed. If he cannot, no leave to amend will be given. [FN 2]

Judge of the Superior Court

FN 1- Defendant’s Proof of Service shows service on Plaintiff in pro per by mail and email on October 30, 2023. (See 10/30/23 Proof of Service.)

FN 2- Defendant’s Exhibit A is a printed record from the California Contractors State License Board. It suggests that an entity named “Biltmore Inc. dba Buildmore Construction and Remodeling”