Judge Randolph M. Hammock, Case Number: 23STCV30557, Date: 2024-04-10 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV30557, Date: 2024-04-10 Tentative Ruling

Plaintiff Poolside Gardens Incorporated brings this action against Defendant Lillian Lee for (1) “breach of contract warranty” and (2) declaratory relief. Plaintiff, a construction contractor, alleges it entered into a written contract with Defendant to repair or remodel Defendant’s pool. When issues arose after the repair, Plaintiff alleges Defendant concealed the issues and instead, filed a complaint against Plaintiff’s contractor’s bond demanding repayment and a replacement. Plaintiff alleges that any damage to the pool was the result of Defendant’s own conduct or those of other hired after Plaintiff’s completion of the repairs.

This motion was initially set for hearing on April 3, 2024. Based on that date, Plaintiff’s opposition to the motion was due on March 20, 2024. (See CCP § 1005(b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing”].)

Be that as it may, given the stakes in an anti-SLAPP motion, the court exercises its discretion to consider the late opposition. Importantly, there is no evidence Defendant was unduly prejudiced by the timing. Moreover, because the hearing was later continued to April 10, 2024, the parties have had ample time to prepare for the hearing, and will be afforded the opportunity to present any arguments at that time.

CCP section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

Plaintiff, a construction contractor, alleges it entered into a written contract with Defendant to remodel or repair Defendant’s home pool. (Compl. ¶¶ 1, 4.) The contract included various services like “removing existing pool plaster, pool tiles, brick coping, [and] brick decking, and replacing the “tile and pool interior,” but specifically excluded “any repair and/or replacement of the pool equipment, and/or services to perform the ‘pool startup’ upon completion of the Pool Repairs.” (Id. ¶ 4.) Defendant paid Plaintiff $62,500 for the repairs. (Id.)

Upon completion of the repairs, “Plaintiff once again warned Defendant to ensure that it needed to have it’s pool equipment checked and to have a professional pool service technician to perform the specialized and technical process of restarting the pool.” (Id.) Instead, Plaintiff alleges Defendant “performed her own pool restart-up without the aid of a professional pool service technician.” (Id.)

In September of 2022, “a small pinhole sized ‘leak’ at the location of the newly installed low voltage light cover submerged inside the pool.” (Id. ¶ 5.) Defendant alleges this leak was “easily fixable for a few hundred dollars.” (Id.) However, Plaintiff “failed and/or refused to allow Plaintiff to inspect and/or repair” the leak. (Id.)

About a year later, Plaintiff alleges it learned Defendant “had made a fraudulent complaint against it’s existing contractor’s bond.” (Id. ¶ 6.) At that time, Plaintiff learned Defendant “had concealed from Plaintiff that there were any other needed repairs, including but not limited to that she had replastered the pool.” (Id.) Plaintiff alleges that “any and all alleged damage to the pool plaster was entirely caused by Defendant’s improper restartup of the pool either by herself or through others hired or used by her, after Plaintiff’s completion of the Pool Repairs.” (Id.) Plaintiff asserts two causes of action for (1) “Breach of Contract Warranty” and (2) Declaratory Relief.

To satisfy the first prong of the two-prong test, a movant defendant must demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech”].) Section 425.16 expressly “defines the types of claims that are subject to the anti-SLAPP procedures…as these terms are defined in subdivision (e)(1)-(4) of the statute.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75–76.)

Thus, Defendant must demonstrate the action here arises from conduct protected by one of the four enumerated categories. First, Defendant seemingly argues the Complaint here falls under CCP section 425.16, subdivision (e)(4), which protects “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc. §425.16(e)(4); see Mtn. 9: 12-22.) Section (e)(4) is meant to be a broadly construed “catch-all.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal. App. 4th 156, 164.) A cause of action arises from protected activity under this subdivision if “(1) defendants' acts underlying the cause of action, and on which the cause of action is based, (2) were acts in furtherance of defendants' right of petition or free speech (3) in connection with a public issue.” (Tamkin v. CBS Broad., Inc. (2011) 193 Cal. App. 4th 133, 142–43.)

“Section 425.16 does not define ‘public interest,’ but its preamble states that its provisions ‘shall be construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Tamkin, supra, 193 Cal. App. 4th at 143 [citing § 425.16, subd. (a)].) “[A]n issue of public interest’ ... is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.” (Id.) It includes “conduct that could directly affect a large number of people beyond the direct participants” and a “topic of widespread, public interest.” (Balla, supra, 59 Cal. App. 5th at 673.) There must be “some degree of closeness between the challenged statements and the asserted public interest.” (Id.)

Defendant argues the Complaint here “clearly arises out of Lee’s protected activity in furtherance of her statutory right to petition and free speech in connection with a public issue in that Poolside has sued Lee for making a statutory claim against Poolside’s contractor’s bond which Poolside’s is required by law to have and which is in favor of the State of California and for the benefit and protection of the public, including Lee.” (Mtn. 9: 24-28.) Defendant notes there is a statutory process for a consumer to make a claim against a contractor’s bond, which also allows the contractor to dispute any claim against it. (See Bus. & Prof. Code § 7071.11 [setting out procedure for actions against a contractor’s bond].)

Defendant, however, has not met its burden to demonstrate a public interest in this action. Viewed in context, this private dispute cannot reasonably be understood as implicating a public issue. “The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not sufficient to meet the statutory requirements of the anti-SLAPP statute.” (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal. App. 4th 1561, 1570; Rand Resources v. City of Carson (2019) 6 Cal. 5th 610, 625–626 [“At a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance. What a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern.”].)

Alternatively, Defendant argues Plaintiff’s complaint also challenges conduct protected under section 425.16, subdivision (e)(2), as a “written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).) This section “do[es] not require the defendant to show a public issue or issue of public interest. [Citation]….Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.” (Vergos v. McNeal (2007) 146 Cal. App. 4th 1387, 1395.)

The official proceeding, Defendant argues, is Defendant’s statutory bond claim with Hartford made pursuant to the Contractor’s License Law. But even assuming the bond claim is an official proceeding, Defendant has not demonstrated that this action “arises from” that proceeding.

“[A] claim may be struck [as a SLAPP] only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. [Citation].” (Wong v. Wong (2019) 43 Cal. App. 5th 358, 364.) The fact “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78 [emphasis added].)

Here, Plaintiff does not seek to impose liability against Defendant for her having filed a bond claim with the surety. Instead, now that Defendant has done so, Plaintiff merely seeks to adjudicate the merits of the dispute in this forum. In substance, this action resembles a defense to the bond claim. In other words, liability is based not on the bond claim, but rather, the conduct that gave rise to the bond claim.

The burden of showing a probability of prevailing on the claim rests with Plaintiff. “To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

First, as to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal. 5th 931, 940 [emphasis added]; Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 213–214 [“[a]n anti-SLAPP motion is an evidentiary motion.”].)

Plaintiff asserts causes of action for (1) “breach of contract warranty” and (2) declaratory relief. In support of the first cause of action, Plaintiff alleges Defendant breached various warranties when she “improperly and negligently restarted the pool after the completion of the Pool Repairs.” (Compl. ¶ 12.)

However, Plaintiff has not demonstrated that “breach of contract warranty” is a recognized cause of action, much less a viable one. Generally, warranties protect consumers, not contractors. Such is the case for the “fit and finish” warranty under Civil Code section 900, referenced by Plaintiff in its demurrer, which provides:

As to fit and finish items, a builder shall provide a homebuyer with a minimum one-year express written limited warranty covering the fit and finish of the following building components. Except as otherwise provided by the standards specified in Chapter 2 (commencing with Section 896), this warranty shall cover the fit and finish of cabinets, mirrors, flooring, interior and exterior walls, countertops, paint finishes, and trim, but shall not apply to damage to those components caused by defects in other components governed by the other provisions of this title. Any fit and finish matters covered by this warranty are not subject to the provisions of this title. If a builder fails to provide the express warranty required by this section, the warranty for these items shall be for a period of one year.

In other words, the warranty Plaintiff references operates exclusively for the benefit of Defendant. There is no manner in which Defendant could have breached that warranty. Thus, Plaintiff has not demonstrated that this cause of action is “legally sufficient.” (Soukup, supra, 39 Cal.4th at 291.)

Plaintiff’s second cause of action for declaratory relief, however, fairs better. A complaint for declaratory relief must demonstrate: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. (Brownfield v. Daniel Freeman Marina Hosp. (1989) 208 Cal. App. 3d 405, 410).

Here, Plaintiff has established a dispute over the work performed at Defendant’s property, culminating in a bond claim with Plaintiff’s surety. The parties dispute who is to blame for the defective conditions at the property. While this issue can be resolved through the bond claim, Defendant has not provided authority demonstrating that route is the exclusive means to settle the dispute. Indeed, the surety Hartford Insurance has apparently taken the position that it will wait until the instant action is resolved before making any determinations on the bond claim. (See Barton Decl. Exh. 1, email correspondence from Hartford Insurance.)

Thus, Plaintiff has established the proper subject of declaratory relief, and an actual controversy involving justiciable questions relating to the rights or obligations of a party, especially when considering its minimal burden necessary under prong 2.

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.)

First, as discussed in the preceding anti-SLAPP motion, this court is unaware of any authority recognizing the viability of a “breach of contract warranty” claim asserted by a contractor. The first cause of action therefore fails on this ground.

Accordingly, Defendant’s Demurrer to the First Cause of Action is SUSTAINED. 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 is given leave to amend to assert a viable breach of contract claim, which should include allegations as to which portion of the remodel agreement was actually breached.

As to the second cause of action for declaratory relief, Plaintiff has established the existence of an actual controversy justifying declaratory relief. It is “the rule that a plaintiff in a declaratory relief action is entitled to a declaration of his rights, even if it be adverse. [Citations.] Strictly speaking, therefore, a demurrer is not the appropriate weapon with which to attack the merits of a claim for declaratory relief.” (Siciliano v. Fireman's Fund Ins. Co. (1976) 62 Cal. App. 3d 745, 755 [Emphasis added].)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.