Judge: Stephen P. Pfahler, Case: 20CHCV00573, Date: 2022-07-26 Tentative Ruling

Case Number: 20CHCV00573    Hearing Date: July 26, 2022    Dept: F49

Dept. F-49

Date: 7-26-22

Case # 20CHCV00573

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendant, Renew Financial Group, LLC

RESPONDING PARTY: Plaintiff, Lawrence Perle[1]

RELIEF REQUESTED

Demurrer to the Complaint

·         1^st Cause of Action: Breach of Contract

·         2^nd Cause of Action: Specific Performance

·         3^rd Cause of Action: Declaratory Relief

SUMMARY OF ACTION

On April 9, 2016 and November 22, 2016, Plaintiff Lawrence Perle either executed or received loan proceeds in the amounts of $63,000 and $83,000 from Defendants Renewable Funding and Renovate America. The loans were undertaken for certain home improvement work purportedly under the Property Assessed Clean Energy Program (PACE) and California HERO program, which exist for the purposes of facilitating energy and water efficiency upgrades to homeowners.

Plaintiff represents use of the loan proceeds for a list of upgrades, which amounted to $168,022 in charges from the identified contractor defendants. Plaintiff, however, contends the work performed the work performed only totaled a “reasonable market” value of $58,779.39. Plaintiff apparently submitted the dispute to the lenders for resolution pursuant to program rules, but represents the lenders refusal to intervene.

On September 29, 2020, Plaintiff filed a complaint for Breach of Contract, Specific Performance, and Declaratory Relief. On February 9, 2021, Defendant Renovate America, Inc. filed a Notice of Stay of Proceedings based on the December 21, 2020 filing of a Chapter 11 Bankruptcy. On April 8, 2021, Systems Paving, Inc. dba Systems Pavers answered. On March 23, 2022, the court dismissed Renovate America, Inc. from the action.

RULING: Sustained with Leave to Amend.

Plaintiff represented the intent to file a first amended complaint prior to the hearing date. As of the date of the tentative ruling publication cutoff, the court electronic filing system shows no filed amended complaint. The demurrer is therefore sustained with 30 days leave to amend.

If Plaintiff in fact files a first amended complaint, which appears on the court electronic filing system prior to the hearing date, the court still sustains the demurrer with leave to amend. Under any circumstance, the first amended complaint was not timely filed before the July 13, 2022 opposition due date. “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment.” (Code Civ. Proc., § 472, subd. (a).)

Because the court sustained the demurrer with leave to amend, the subject ruling now counts towards the amendment limit guidelines. “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472 , provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).)

The court also notes that Paragraph 14 of the complaint specifically references a requirement for arbitration pursuant to the “Program Documents,” and Plaintiff in fact specifically demands submission to binding arbitration. The court advises the parties to consider addressing any possibility for submission to arbitration issues prior to any potential, future substantive hearing on the merits of the action presented in the operative pleading.

Moving party to give notice.