Judge: Robert B. Broadbelt, Case: 20STCV49467, Date: 2022-10-19 Tentative Ruling

Case Number: 20STCV49467    Hearing Date: October 19, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Brian Nicholas Gelt, Westside Contractors, Inc., Orange Grove Property Investors, LLC, and Orange Grove Property Holdings, LLC

RESPONDING PARTY:       Plaintiff Regency Plastering, Inc.

Demurrer to First Amended Complaint

The court considered the moving and opposition papers filed in connection with this demurrer.  No reply papers were filed.  

BACKGROUND

Plaintiff Regency Plastering, Inc. (“Plaintiff”) filed this action on December 29, 2020, alleging various claims for common counts and breach of contract.  Plaintiff filed its operative First Amended Complaint on April 18, 2022, against defendants Gelt Brian Nicholas, Westside Contractors, Inc., Orange Grove Property Investors, LLC, Orange Grove Property Holdings, LLC, Cathay Bank, and American Contractors Indemnity Company.

Plaintiff’s First Amended Complaint asserts six causes of action for (1) breach of written contract; (2) reasonable value of work, labor services, materials and equipment; (3) agreed price for work, labor, services, material and equipment; (4) account stated; (5) foreclosure of mechanic’s lien; and (6) enforcement of contractor’s bond.

Defendants Brian Nicholas Gelt (“Gelt”), Westside Contractors, Inc. (“Westside”), Orange Grove Property Investors, LLC (“Investors”), and Orange Grove Property Holdings, LLC (“Holdings”) (collectively, “Defendants”) move the court for an order sustaining their demurrer to (1) Plaintiff’s first cause of action for breach of written contract and (2) fifth cause of action for foreclosure of mechanic’s lien as alleged against defendant Westside.

REQUEST FOR JUDICIAL NOTICE

The court grants Defendants’ request for judicial notice, filed May 20, 2022.  (Evid. Code, § 452, subd. (c).)

The court denies Plaintiff’s request for judicial notice, filed October 7, 2022, because pages of contracts are not permissible subjects for judicial notice.  (Evid. Code, § 452; Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)  However, the court notes that it can consider the pages Plaintiff seeks to judicially notice since they are attached to Plaintiff’s First Amended Complaint.  (FAC Ex. B, pp. 1-2.)

DISCUSSION

The court sustains the demurrer to Plaintiff’s first cause of action for breach of contract as to defendants Gelt, Investors, and Holdings because it does not state facts sufficient to constitute a cause of action against those defendants since the contract that is the subject of this cause of action, as attached to Plaintiff’s complaint, identifies the contracting parties only to be Plaintiff and defendant Westside.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶ 7; FAC Ex. B, pp. 1-2.) 

The court notes that Plaintiff contends, in opposition, that Defendants are improperly arguing “signatories rather than alleged parties and participants in to the contract.”  (Opp., p. 5:21-22.)  The court disagrees.  The agreement on which Plaintiff sues identifies only two contracting parties:  Plaintiff and Westside.  (FAC Ex. B, p. 2 [stating that the agreement is “made and entered into by and between” defendant Westside and the identified subcontractor, i.e., Plaintiff].)  This fact is given precedence over Plaintiff’s allegation that it executed a contract “as drafted and requested by defendants.”  (FAC ¶ 7; Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282.)  Because Plaintiff does not allege the existence of a contract between it and defendants Gelt, Investors, and Holdings, the court sustains the first cause of action for breach of contract as to those defendants.  (Code Civ. Proc., § 430.10, subd. (e); Coral Farms, L.P. v. Mahony (2021) 63 Cal.App.5th 719, 727 [setting forth elements of a cause of action for breach of contract].)  The court overrules the demurrer as to defendant Westside because Plaintiff has properly alleged that a contract existed between Plaintiff and Westside by attaching the parties’ agreement to the First Amended Complaint.  (Ibid.)

The court overrules defendant Westside’s demurrer to Plaintiff’s fifth cause of action for foreclosure of mechanic’s lien as moot since Plaintiff dismissed this cause of action, as alleged against Westside, on August 8, 2022.

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 48 Cal.App.4th 268, 290.)  To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  Plaintiff requests the court grant it leave to amend.  However, Plaintiff has not identified any facts which can be alleged to cure its complaint.  The court therefore finds that Plaintiff has not met its burden to articulate how it could amend its pleading to render it sufficient and denies Plaintiff’s request for leave to amend.

The court denies Defendants’ request for sanctions against Plaintiff. 

ORDER

            The court overrules defendant Westside Contractors, Inc.’s demurrer to plaintiff Regency Plastering, Inc.’s first cause of action for breach of written contract and fifth cause of action for foreclosure of mechanic’s lien.

            The court sustains defendants Brian Nicholas Gelt, Orange Grove Property Investors, LLC, and Orange Grove Property Holdings, LLC’s demurrer to plaintiff Regency Plastering, Inc.’s first cause of action for breach of written contract without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).)

The court orders defendants Brian Nicholas Gelt, Westside Contractors, Inc., Orange Grove Property Investors, LLC, and Orange Grove Property Holdings, LLC to file an answer to the First Amended Complaint within 10 days of the date of this order.

            The court orders defendants Brian Nicholas Gelt, Westside Contractors, Inc., Orange Grove Property Investors, LLC, and Orange Grove Property Holdings, LLC to give notice of this order.

IT IS SO ORDERED.

DATED:  October 19, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court