Judge Ronald F. Frank, Case Number: 21TRCV00051, Date: 2023-12-20 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00051, Date: 2023-12-20 Tentative Ruling

Case Number: 21TRCV00051 Hearing Date: April 9, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: April 9, 2024¿

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CASE NUMBER: 21TRCV00051

CASE NAME: Palos Verdes Bay Club Inc. v. Construction Service Group, Inc., et al.

MOVING PARTY: Defendant, Regen America, Inc.

RESPONDING PARTY: Plaintiff, Palos Verdes Bay Club Inc.

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TRIAL DATE: Not Set.

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MOTION:¿ (1) Defendant, Regen American, Inc.’s Demurrer

Tentative Rulings: (1) Defendant Regen’s Demurrer is SUSTAINED in part and OVERRULED in part. The Court identifies below areas for oral argument

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I. BACKGROUND¿¿

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A. Factual¿¿

On January 25, 2021, Plaintiff, Palos Verdes Bay Club Inc. (“Plaintiff”) filed a Complaint against Defendants, Construction Service Group Inc. dba Hunt Bros Roofing, Bradley Hunt, National Roofing Consultants, Inc., and DOES 1 through 25. On January 25, 2021, Plaintiff filed a First Amended Complaint. On July 6, 2021, Plaintiff filed a Second Amended Complaint (“SAC”) alleging causes of action for: (1) Negligence; and (2) Breach of Implied Warranties. On June 5, 2023, Plaintiff DOE’d in Defendant, Regen America, Inc. as DOE 2.

On October 25, 2023, Regen America, Inc. (“Regen”) filed a Motion to Compel Arbitration. On February 8, 2024, this Court DENIED that Motion to Compel Arbitration

Defendant, Regen now files a Demurrer to the SAC.

B. Procedural¿¿

On January 22, 2024, Defendants filed their demurrer to Plaintiff’s Complaint. On January 31, 2024, Defendants filed their amended notice of demurrer to Plaintiff’s Complaint. On March 25, 2024, Plaintiff filed its opposition to the demurrer, making numerous references to the ReGen contract attached to the Demurrer in its argument. To date, no reply has been filed.

II. ANALYSIS¿

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿

B. Discussion

Here, Regen demurs to Plaintiff’s SAC on the grounds that it argues the first and second causes of action fail to state facts sufficient to constitute a cause of action, there is a defect or misjoinder of parties, and the causes of action are uncertain.

Uncertainty

Here, Regen argues that the First and Second causes of action fail because they are uncertain. Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶7:85-7:86.) “A demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.) A failure to specify what aspects of a complaint are uncertain generally results in a demurrer being overruled as to such grounds. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328; CCP §430.60 (demurrer shall distinctly specify grounds or may be disregarded); Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:88-7:88.1; 7A-71 California Points & Authorities (MB 2008) § 71.86.)

Regen contends that Plaintiff’s SAC does not allege that the Solar System was defective, but rather, that there were “excessive leaks” due to defective construction by “Antis” and “Hund Bros,” and not any wrongdoing by Regent. Further, Regen argues that even if these allegations apply to Regen, as DOES 2, the contract clearly states that Palos Verdes entered into a separate installation and maintenance agreement with Broadstreet Energy Corp, to which Regen was not a party. Finally, Regen asserts that the SAC is too uncertain to state a cause of action against it because it does not contain an allegation which purports to show, how, why, or in what manner Regent is being charged. This Court disagrees.

Here, although Plaintiff amended its SAC to include Regen as DOE 2, it does not mean that Plaintiff has failed to sufficiently allege causes of action as against that DOE Defendant. In Plaintiff’s SAC, they allege that DOES 2 through 25 were acting for itself or its agent, servant, employee, and/or alter ego of its co-Defendants, and in doing the things hereinafter mentioned, was acting in the course and scope of its authority as such agent, servant, employee, and/or alter-ego, and with the permission and consent of its Co-Defendants; and that each of said fictitiously named Defendant, whether acting for itself or as agents, corporations, associations, or otherwise, is in some way liable or responsible to Plaintiff on the facts hereinafter alleged…(SAC, ¶ 9.) Plaintiff’s SAC proceeds to state all of the allegations as against Defendants generally. This Court notes that a demurrer tests the sufficiency of the pleading, on its face, or in attachments or exhibits to the Complaint. The Court will entertain argument as to whether the Demurring party contends that Regan’s status as a contracting party is alleged by virtue of a writing attached to the Complaint, or some other basis. The Court did not see that plaintiff alleged Regan entered into a contract with plaintiff, so identification of the paragraph where Regan contends the Complaint so alleges would be helpful. Plaintiff’s opposition to the demurrer makes numerous references to the ReGen contract attached to the Demurrer, but that contract is not attached to the Complaint so it cannot be considered by the Court on a demurrer.

Negligence

Next, Regen asserts that Plaintiff cannot allege negligence in the First Cause of Action because the Parties’ Relationship was purely contractual. In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Regen asserts that Plaintiff’s SAC alleges “excessive leaks” due to defective construction by “Antis” and “Hund Bros.” However, Regen argues that if it had a contractual obligation to “construct” or “install” solar panels, then any defect in the performance would be subject to a cause of action for breach of the contract, not an independent negligent cause of action. Regen contends that no tort cause of action will lie against Regen where the breach of duty is nothing more than a violation of a promise which undermines the expectations of the parties to any agreement. As such, Regen argues that it has been improperly joined in this cause of action because it is not responsible for any “construction” related defects, but rather, only for the contractual obligation to lease the Solar Systems themselves. But the claimed contractual relationship is not contained within the four corners of the Complaint.

As a general tule, a party may not convert a broken promise into a tort by simply pleading breach of a duty of care. (See Erlich v. Menezes (1999) 21 Cal.4th 543, 553 (“Elrich”)(courts must avoid “converting every contract breach into a tort”); Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1041 (“Despite the cross-complaint's use of negligence terminology, the alleged misconduct by [defendant] describes, at most, a breach of contract, not a breach of a legal duty of care”).)

The Supreme Court in Erlich discussed North American Chemical Co. v. Superior Court by noting that “conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty. (Erlich, supra, 21 Cal.4th at 551.) The mere negligent breach of a contract is insufficient to state a claim for damages sounding in tort. (Id.) The remedy for a breach of contract is generally limited to contract law, and recovery in tort is not permitted unless: (1) the breach is accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion or; (3) one party intentionally breaches the contract intending or knowing that such a breach will cause severe, unmitigable harm in the form of mental anguish, personal hardship, or substantial consequential damages.” (Id. at pp. 553–554.)

In North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774, the Court of Appeal described the common law duty contracting parties have to perform with reasonable care, skill, expedience and faithfulness, and stated that the same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts. Negligent performance of a contract entitles the aggrieved party to sue in tort or contract, distinguishing failure to perform, which gives rise only to a contract action. As the court explained: “A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort.” (Id. at p. 774; see also Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 688; 3 Witkin, Cal. Proc. (5^th ed. 2020) Actions §145.)

Here, Plaintiff’s SAC does not even allege a contract between Defendant Regen and Plaintiff. Instead, the SAC only alleges that it entered into a contract with Defendant, National Roofing Consultants, Inc. (“NRC”). It is entirely possible that Plaintiff and Defendant Regen have a contractual relationship, however, nothing of the sort is present in the SAC, nor in judicially noticed documents. Thus, Regen has not given this Court grounds to sustain demurrer as to this cause of action, and this cause of action is OVERRULED on demurrer.

Breach of Implied Warranty

Lastly, Defendant Regen argues that the second cause of action for Breach of Warranty fails because Plaintiff has failed to attach any written contract. “‘Implied warranty of merchantability’ or ‘implied warranty that goods are merchantable’ means that the consumer goods meet each of the following: [¶] (1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or affirmations of fact made on the container or label.” (Civ. Code, § 1791.1, subd. (a).)

In opposition, Plaintiff asserts that the contract between the parties has been identified, and that there is no question that the Regen Contract is the contract at issue with respect to this defendant. However, the Court disagrees. In fact, the reason the Court overruled demurrer above is because there was no attached contract as referenced in Defendant Regen’s arguments, nor was one judicially noticed. When alleging a breach of contract cause of action, where a 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.) In some circumstances, a plaintiff may also “plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Plaintiff has not done such here. Thus, Plaintiff will be unable to meet the required elements above as there is no contract description of the product or service, etc. Thus, the demurrer is SUSTAINED as to the second cause of action. Plaintiff is allowed twenty (20) days leave to amend, in which Plaintiff must attach the contract itself, or plead the legal effects of the contract.

III. CONCLUSION¿¿

For the foregoing reasons, the Defendant Regen’s demurrer is OVERRULED in part and SUSTAINED in part as specified above. Plaintiff is granted twenty (20) days leave to amend.

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Defendant Regen is ordered to give notice.¿¿¿¿