Judge: Randy Rhodes, Case: 20CHCV00573, Date: 2022-11-21 Tentative Ruling
Case Number: 20CHCV00573 Hearing Date: November 21, 2022 Dept: F51
Dept. F-51
Date: 11/21/22
Case #20CHCV00573
DEMURRER WITH MOTION TO STRIKE
Demurrer with Motion to Strike Filed: 8/25/22
MOVING PARTY: Defendant Renew Financial Group, LLC, a
Delaware limited liability company (“Renew”)
RESPONDING PARTY: Plaintiff Lawrence Perle
NOTICE: OK
RELIEF REQUESTED: Renew demurs to Perle’s entire
first amended complaint. Renew moves to strike portions of the complaint
relating to punitive damages and attorney fees. Renew requests that the Court
take judicial notice of two Notices of Assessment.
RECOMMENDED RULING:
Renew’s demurrer is OVERRULED.
Renew’s motion to strike is:
(1) DENIED
as to page 18, paragraph 5; and portions of paragraphs 46 and 56 of Perle’s
first amended complaint pertaining to attorney fees; and
(2) GRANTED
as to the portion of paragraph 43 of the first amended complaint which states
“plus reasonable attorney’s fees.”
Renew’s request for judicial notice is DENIED.
I.
BACKGROUND
Procedural
On 9/20/20, Perle filed his complaint alleging against four named
defendants causes of action for: (1) Breach of Contract; (2) Specific
Performance of Contract; and (3) Declaratory Relief.
On 5/10/22, Renew filed a demurrer
without motion to strike to Perle’s entire complaint, which the Court
sustained.
On 7/22/22, Perle filed his first
amended complaint, alleging against three remaining named defendants the
following causes of action: (1) Breach of Contract; (2) Specific Performance of
Contract; (3) Declaratory Relief; (4) Unfair Business Practices; and (5)
Financial Elder Abuse.
On 8/25/22, Renew filed the instant
demurrer, motion to strike, and request for judicial notice. On 11/9/22, Perle
filed his opposition. On 11/16/22, Renew filed its reply.
//
//
Factual
Plaintiff Lawrence Perle (“Perle”)
is a homeowner over the age of 65, who obtained funding from defendant Renew
Financial Group, LLC (“Renew”) to finance two home improvements he made under
the Property Assessed Clean Energy Program (“PACE”) by the County of Los
Angeles.
In 2008, the County of Los Angeles
launched the PACE program under the California HERO Program, which enables
“cities and counties to provide homeowners and businesses with financing to pay
for energy efficiency, water efficiency, and renewable energy products and
their installation.” (FAC ¶
10.) Renew is the PACE program administrator for the County of Los Angeles. (Id.,
¶ 15.) Renew’s
administration contract with the County allegedly provides for various consumer
protections, including those against predatory loaning, and special protections
for seniors over the age of 65. (Id., ¶¶ 15–16.) Renew is also required to enforce its
policies and procedures against its registered contractors, who perform the
home improvements, to ensure compliance. (Id., ¶¶ 18–20.) The
financing contracts administered by Renew under the PACE program place a tax
lien on the subject property “in the amount of the principal, plus fees and
capitalized interest.” (Id., ¶
12.)
On April 9 and July 7, 2016, Perle obtained two loans from Renew,
in equal amounts approximating $63,000 each, to finance the construction of
artificial turf and exterior shading at his residence. (Id., ¶¶ 27–28.) Perle alleges that
the total sum charged by the contractor, and lent to him by Renew
($112,672.00), is significantly more than the reasonable market value of the
improvements ($39,433.77). (Id., ¶ 29.) Perle
brings his action against Renew, alleging that it breached its obligations
under the PACE program administration contract by failing to provide adequate
consumer protections and adequate supervision of its registered contractors.
II.
DEMURRER
Late Filings
Under Code of Civil Procedure
section 1005, subdivision (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, and all reply papers at least five court days before the hearing.” The
Court observes that both Perle’s opposition papers and Renew’s reply papers
were filed two court days late under Code of Civil Procedure section 1005,
subdivision (b). The parties are advised to take note of the filing deadlines
under the statute, as future filings made past the statutory deadlines may
result in the Court declining to consider the late-filed papers at the hearing.
Meet-and-Confer
Before filing its demurrer, “the demurring party shall
meet and confer in person or by telephone with the party who filed the pleading
that is subject to demurrer for the purpose of determining whether an agreement
can be reached that would resolve the objections to be raised in the demurrer.”
(Code Civ. Proc. § 430.41, subd. (a).) If the parties are unable to meet and
confer at least five days before the responsive pleading is due, that deadline
may be extended by 30 days if “a declaration stating under penalty of perjury
that a good faith attempt to meet and confer was made and explaining the
reasons why the parties could not meet and confer” is filed and served. (Ibid.)
On 8/25/22, Perle’s counsel filed a declaration using
Judicial Council form CIV-140 regarding its meet and confer requirements. Perle’s
counsel declared that Renew failed to respond to meet and confer requests.
(Decl. re Meet and Confer, ¶ 2b.) Counsel provides no additional details
about his meet and confer attempts. Therefore, it is unclear whether he has satisfied
the preliminary meet and confer requirements of Code of Civil Procedure section
430.41, subdivision (a).
Legal Standard
As a general matter, a party may respond to a pleading
against it by demurrer on the basis of any single or combination of eight
enumerated grounds, including when “the pleading does not state facts
sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).)
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 pleading alone, and not the evidence or facts
alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, 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 burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Id.; Lewis v.
YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any
reasonable possibility that the plaintiff can state a good cause of action, it
is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
Here, Renew demurs to each cause of
action pled in Perle’s complaint on the ground that Perle fails to allege facts
sufficient to state a cause of action against Renew, pursuant to Code of Civil
Procedure section 430.10, subdivision (e).
1.
Perle has sufficiently pled a cause of
action for breach of contract in his first amended complaint.
Perle’s first cause of action is for
breach of contract. (FAC ¶ 30–33.) To
state this cause of action, a plaintiff must be able to establish “(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.4th 811,
821.) If a breach of contract claim “is based on alleged breach of a written
contract, the terms must be set out verbatim in the body of the complaint or a
copy of the written agreement must be attached and incorporated by reference.”
(Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)
Here,
Perle alleges that Renew breached various PACE program documents, including its
administration contract with the County of Los Angeles. Renew argues that Perle
has failed to sufficiently plead a cause of action for breach of contract
because he failed to identify (1) the specific contract terms Renew allegedly
breached; (2) the underlying actions constituting such a breach; and (3) any resulting
damages. (Dem. 10:16–12:13.) Each of these arguments fails.
Contractual
Terms
Renew
argues that Perle “based his breach of contract claim on unspecified provisions
contained in ‘the Program Documents,’” and “entirely fails to allege the
relevant specific terms of any such agreement.” (Dem. 10:22–11:4.) However, as
Perle observes, he set forth the specific provisions of the program documents
in paragraphs 15, 16, 20, and 26 of his first amended complaint. (Pl.’s Opp.
5:14–15.) Such specified provisions include, for example, Renew’s obligation
under the administration contract to “ensure best in class protections for
property owners from actions such as, including but not limited to, predatory
lending, unscrupulous contractors and poor-quality assessment servicing.” (FAC
¶ 15.) Therefore, there is no merit to Renew’s argument that Perle entirely
failed to identify the contractual terms it allegedly breached.
Breach
Renew
further argues that Perle “fails to specify what actions he claims Renew
committed in breach of the alleged agreement(s).” (Dem. 11:17–18.) Perle argues
in opposition that he alleged Renew’s breach in paragraphs 17, 18, 20, 21, 22,
29, and 32 of his first amended complaint. (Pl.’s Opp. 5:16.) In the paragraphs
identified by Perle, he alleges, inter alia, that Renew “did not use licensed
mortgage brokers to market or originate PACE loans,” “directly and indirectly
encouraged their Registered Contractors to market PACE aggressively,” and
failed to provide homeowners with copies of their financing contract until
after the improvement work had already been completed. (FAC ¶¶ 18, 20–21.)
Therefore, there is no merit to Renew’s argument that Perle failed to plead the
alleged actions forming Renew’s breach.
Damages
Finally, Renew argues that Perle has failed to “allege how
he arrived at [his] damage figure resulting from the purported breach of
contract.” (Dem. 12:9–10.) Perle argues that he pleads the causation and
damages elements in paragraph 33 of his first amended complaint. (Pl.’s opp.
5:16–17.) This paragraph states: “As a proximate result of the breach of
Defendants, and each of them, Plaintiff has incurred damages in the sum of at
least seventy-three thousand, two hundred and thirty-eight and 23/100 dollars
($73,238.23), and in the sum equivalent to restitution from Renew of amounts
paid to it by Plaintiff and the amounts paid by Plaintiff under the Program for
the Loans, together with interest thereon from the date of the Loans to the
entry of judgment by this Court.” (FAC ¶
33.) In the preceding paragraph, Perle identifies the alleged breach as Renew’s
failure “to provide or ensure compliance with the consumer protections which
are set forth hereinabove and [breach of] the above referred to Elder Abuse
Statute and Unfair Competition Law.” (Id., ¶ 32.) Therefore, there is no merit to Renew’s argument that Perle
failed to plead the elements of causation and damages stemming from Renew’s
alleged breach.
Accordingly, Perle has asserted facts sufficient to state a
viable cause of action for breach of contract against Renew. Therefore, Renew’s
demurrer as to Perle’s first cause of action is overruled.
2.
Perle has sufficiently alleged facts to
support a remedy of specific performance against Renew in his first amended
complaint.
In his second cause of action,
Perle requests that the contractor defendants be ordered to satisfy “their
obligations under the ADR Procedures.” (Id., ¶ 35.) “Specific performance and injunctive relief are
equitable remedies and not causes of action for injuries.” (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1361, fn. 2.) Here, Renew notes that “although
Renew is listed as a party to the second cause of action it does not appear
[that] the specific performance cause of action is directed at Renew.
Therefore, Renew should be dismissed with prejudice as to the second cause of
action.” (Dem. p. 10, fn. 2.) In his opposition, Perle merely argues that he
“has sufficiently pled a cause of action for breach of contract and with
sufficient specificity for specific performance.” (Pl.’s Opp. 6:1–2.) However,
Perle’s first amended complaint specifically requests for Renew to comply with
provisions of the California Residential HERO Program Handbook, the Registered
Contractor Participation Agreement, and the PACE Consumer Protection Policies,
requiring it, as the program administrator, to “investigate and mediate
disputes between homeowners and contractors.” (FAC ¶ 26.) Perle also requests
that Renew “agree to submit the claims which are described in this Complaint …
to binding arbitration a[s] provided for in the [program] Application.” (Ibid.)
Therefore, Perle has sufficiently alleged facts to support a prayer for
specific performance as against Renew.
Accordingly, Renew’s demurrer is overruled as to Perle’s
second cause of action.
3. Perle has alleged sufficient facts
pertaining to future harm to support a prayer for declaratory relief.
In his third cause of action, Perle requests a judicial
determination that he “he is entitled to the difference between the sums he was
charged by the Contractor Defendants for the Improvements and the reasonable
market value of the Improvements.” (FAC ¶ 38.) “When … it appears that the cause of action
has already accrued and the only question for determination is the liability or
relief for or to which the respective parties are charged, ‘the nature of the
action is not a cause for declaratory relief but is defined by the subject
matter of the accrued cause of action.’" (Fritz v. Superior Court of
San Francisco (1936) 18 Cal.App.2d 232, 235.) “In a dispute involving an
alleged breach of contract, courts may provide declaratory relief under [Code
of Civil Procedure] section 1060 if the relief sought would also govern the
future conduct of the parties.” (Osseous Technologies of America, Inc. v.
DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 372.)
Here, it appears that Renew’s alleged breach of contract
has already accrued. Renew argues that Perle’s alleges “entirely that [he] is
entitled to relief for past alleged wrongs.” (Dem. 12:23.) While Perle’s
opposition does not address this cause of action, he alleges in his complaint
that he “will continue to suffer the above-described harm unless and until such
declaration is made,” and that he has “no adequate remedy at law.” (FAC ¶ 40.) Specifically, “Renew levied and
continues to charge Plaintiff every year for the PACE charges.” (FAC ¶ 48.) Therefore, Perle has shown that
he will continue to suffer future harm caused by Renew’s alleged breach.
Accordingly, Renew’s demurrer is overruled as to Perle’s
third cause of action.
4. Perle has alleged sufficient facts
pertaining to future harm to support a cause of action for unfair business practices.
Perle’s fourth cause of action alleges
that Renew violated Business and Professions Code section 17200 et seq. (the “UCL”).
To set forth a claim for unfair business practices in violation of the UCL, a plaintiff
must establish that the defendant was engaged in an “unlawful, unfair or
fraudulent business act or practice and unfair, deceptive, untrue or misleading
advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) “In
essence, an action based on Business and Professions Code section 17200 to
redress an unlawful business practice ‘borrows’ violations of other laws and
treats these violations, when committed pursuant to business activity, as
unlawful practices independently actionable under section 17200 et seq. and
subject to the distinct remedies provided thereunder.” (People ex rel. Bill
Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.) “The test of
whether a business practice is ‘unfair’ for purposes of the Act involves an
examination of [that practice's] impact on its alleged victim, balanced against
the reasons, justifications and motives of the alleged wrongdoer. In brief, the
court must weigh the utility of the defendant's conduct against the gravity of
the harm to the alleged victim.” (People v. Duz-Mor Diagnostic
Lab. (1998) 68
Cal.App.4th 654, 662.) “‘Fraudulent,’ as used in the statute, does not refer to
the common law tort of fraud but only requires a showing members of the public ‘are
likely to be deceived.’” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th
608, 618.)
Here, Perle pleads that Renew violated all
three prongs of the UCL when it violated Civil Code sections
1571–1573, 1710, and Business and Professions Code section
7161. (FAC ¶ 43.) Business and Professions Code § 7161,
outlaws, inter alia, false, misleading, or deceptive advertising or
misrepresentation to induce one to enter into a home improvement contract. Renew
argues that it cannot be held liable under this statute because this section
applies to contractors, not financial providers, and it cannot be held
vicariously liable under the UCL. (Dem. 13:9–15.) Perle argues in opposition
that he “is not suing Renew for the acts and omissions of the contractor in
making the Improvements. Perle is suing Renew for its failure to comply with
its obligations as a Program Administrator under the Program documents, some of
which involved supervising the subject contractor.” (Pl.’s Opp. 6:9–12.) Therefore,
the parties seem to agree that Business and Professions Code section
7161 does not apply to Renew.
While any alleged violation of Business
and Professions Code section 7161 does not apply to Renew, there
remains other alleged statutory violations which go unaddressed by Renew’s
demurrer. Perle also alleges that Renew violated Civil Code sections
1571–1573 and 1710, which pertain to fraud and deceit. (FAC ¶ 43.) As
Renew did not mention these allegations in its demurrer, the Court concludes
that Renew found no defects with the pleading as to these portions of Perle’s
fourth cause of action, and Perle may proceed with litigating the case under
those statutes.
Accordingly, Renew’s demurrer is overruled as to Perle’s
fourth cause of action.
5. Perle has alleged sufficient facts
pertaining to future harm to support a cause of action for financial elder abuse.
Perle alleges in his fifth and final cause of action that
Renew violated Welfare and Institutions Code section 15610.30 et seq. (the “Elder
Abuse Act”), which applies to California residents over the age of 65. (FAC ¶¶ 47–58.) Under the Elder Abuse Act,
one has committed “financial abuse” of an elder adult if one “takes, secretes,
appropriates, obtains, or retains real or personal property of an elder or
dependent adult,” either for a wrongful use, with intent to defraud, or by
undue influence, or assists another in doing so. (Welf. & Inst. Code § 15610.30, subd. (a).) A plaintiff can
show a “wrongful use” under the statute by alleging that the “person or entity
knew or should have known that this conduct is likely to be harmful to the
elder or dependent adult.” (Id., subd. (b).)
Here, Perle alleges that Renew has “taken, secreted,
appropriated and/or retained” his property for a wrongful use by “failing to
implement best in class consumer protections and special protections for
seniors as required by Renew’s Administration Contract with the County, and by
originating loans for seniors in excess of the reasonable market value of the
subject improvements and secured by a first-priority lien on their homes.” (FAC
¶
51.) Perle further argues that Renew assisted its contractors in violating the
Elder Abuse Act. (Id., ¶ 52.)
Renew argues that “the simple act of entering into a
financing agreement with an elder does not meet this [wrongful use] standard,
even if the borrower later dislikes the terms.” (Dem. 14:2–4.) This argument is
irrelevant because Perle’s argument is essentially based on Renew’s alleged
breach of its administration contract, not its act of providing the loan.
(Pl.’s Opp. 3:6–9.)
Renew further argues that Perle “fails to allege facts
showing that Renew would be liable for the alleged misrepresentations by [its]
contractor.” (Dem. 14:10–11.) On the
contrary, Perle alleges in his first amended complaint that “the administration
contract required Renew to ‘enforce all policies and procedures for
[contractor] compliance.’” (FAC ¶ 20.)
Renew also argues that “nothing in the FAC shows why
Renew would be aware” of Perle being elderly and therefore having “limited
cognitive ability and understanding the contracts he signed.” (Dem. 14:15–17.)
However, as Perle accurately observes, Renew was aware that he was over the age
of 65 because its loan application form “requires disclosure of the borrower’s
birthdate.” (FAC ¶ 50.) Furthermore, the administration contract allegedly requires Renew
to explicitly “provide special protection for seniors over 65 years of age to
confirm they clearly understand the terms of the financing.” (Id., ¶ 16.) Therefore, there is no merit to Renew’s
assertion that the first amended complaint lacks facts to support an allegation
that it should have been aware of Perle’s vulnerable position as a senior
citizen.
Accordingly, Renew’s demurrer is overruled as to Perle’s
fifth cause of action.
III.
MOTION TO STRIKE PORTIONS OF THE FIRST
AMENDED COMPLAINT
The court may, upon a motion, or at
any time in its discretion, and upon terms it deems proper, strike any
irrelevant, false, or improper matter inserted in any pleading. (Code Civ.
Proc., § 436, subd. (a).) The court may also strike
all or any part of any pleading not drawn or filed in conformity with the laws
of this state, a court rule, or an order of the court. (Id., § 436,
subd. (b).) The grounds for moving to strike must appear on the face of the pleading
or by way of judicial notice. (Id., § 437.)
1.
Renew has not satisfied its meet and
confer requirement under Code of Civil Procedure section 635.5.
“Before filing a motion to strike
pursuant to this chapter, the moving party shall meet and confer in person or
by telephone with the party who filed the pleading that is subject to the
motion to strike for the purpose of determining if an agreement can be reached
that resolves the objections to be raised in the motion to strike.” (Code Civ.
Proc. § 435.5, subd. (a).)
The parties are required to meet and confer at least five days before the date
a motion to strike must be filed, otherwise the moving party is granted a
30-day extension to file the motion. (Ibid.)
Here, Renew’s attorney declares that on 8/22/22 he sent
Perle’s attorney an email attempting to schedule a meet and confer by telephone
before the 8/25/22 deadline to file the motion, “as required by Code of Civil
Procedure section 430.5,” but his email went unanswered. (Decl. of Adam Barasch
iso MTS, ¶ 4.) The Court notes that counsel has cited the incorrect statute
governing the meet and confer requirement for this motion. Nevertheless,
assuming that counsel is citing to Code of Civil Procedure section 435.5, the
statute requires the parties to meet and confer at least five calendar days
before the deadline to file the motion. (Code Civ. Proc. § 435.5, subd. (a)(2).) Here,
Renew’s attorney did not reach out to Perle’s attorney until three calendar
days before the filing deadline. (Barasch Decl. ¶ 4.) Therefore, Renew’s
attorney has not sufficiently shown a good faith attempt to meet and confer
with opposing counsel on these issues.
2.
Renew’s motion to strike portions of Laurita’s
complaint pertaining to punitive damages is denied because Laurita has sufficiently
pled malice, fraud, and oppression.
Punitive damages may be recovered
upon a proper showing of malice, fraud, or oppression by clear and convincing
evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct
intended to cause injury to a person or despicable conduct carried on with a
willful and conscious disregard for the rights or safety of others. (Turman
v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.)
“Oppression” means despicable conduct subjecting a person to cruel and unjust
hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud”
is an intentional misrepresentation, deceit, or concealment of a material fact
known by defendant, with intent to deprive a person of property, rights or otherwise
cause injury. (Ibid.) Punitive damages must be supported by factual allegations.
Conclusory allegations, devoid of any factual assertions, are insufficient to
support a conclusion that parties acted with oppression, fraud or malice. (Smith
v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)
Here, Perle prays for punitive
damages under his fifth cause of action, for financial abuse as defined the
Elder Abuse Act. (FAC p. 18, ¶
4.) Renew argues that “there is simply nothing to support the conclusion that
Renew acted with malice, fraud or oppression, as required by law. Plaintiff
states no facts against Renew that rise to the level required to support a
claims [sic] for punitive damages.” (Def.’s Mem. of P. & A. iso MTS,
5:3–5.) However, Perle alleges that Renew originated “loans for seniors in
excess of the reasonable market value of the subject improvements and secured
by a first-priority lien on their homes,” while highlighting that senior
citizens are “especially vulnerable to financial abuse, such as by predatory
lending.” (FAC ¶¶
51, 53.) Such conduct may be considered malicious, oppressive, and fraudulent
as defined in Turman. (191 Cal.App.4th at 63.)
Accordingly,
Renew’s motion to strike the entirety of page 18, paragraph 5 of Perle’s first
amended complaint pertaining to punitive damages is DENIED.
3.
Renew’s motion to strike portions of the
complaint pertaining to attorney fees is denied because Perle has pled both a contractual
and statutory basis for this award.
An award of attorney fees is proper
when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd.
(b); 1033.5, subd. (a)(10).) Here, Perle prays for attorney fees pertaining to
his fourth and fifth causes of action for violations of the PACE contract, the
UCL, and the Elder Abuse Act, respectively. (FAC ¶¶ 46, 56.) While the UCL does not provide for attorney
fees, the Elder Abuse Act entitles a plaintiff to reasonable attorney’s fees
and costs for violation of Welfare
and Institutions Code section 15610.30. (Welf. & Inst. Code §
15657.5.) Accordingly, Renew’s
motion to strike the portion of paragraphs 46 and 56 of the first amended
complaint pertaining to attorney fees is denied.
Perle also bases this request on
Renew’s alleged violation of Business and Professions Code section 7161. (FAC ¶ 43.) As set forth
above, Renew is not liable under this statute because it applies only to
contractors. Therefore, Renew’s motion to strike the portion of paragraph 43 of
the first amended complaint which states “plus reasonable attorney’s fees” is
granted without leave to amend.
CONCLUSION
Renew’s demurrer is: OVERRULED.
Renew’s motion to strike is:
(1) DENIED
as to page 18, paragraph 5; and portions of paragraphs 46 and 56 of Perle’s
first amended complaint pertaining to attorney fees; and
(2) GRANTED
as to the portion of paragraph 43 of the first amended complaint which states
“plus reasonable attorney’s fees.”
Renew’s request for judicial notice is DENIED.