Judge: Stephen P. Pfahler, Case: 22CHCV00225, Date: 2022-08-17 Tentative Ruling
Case Number: 22CHCV00225 Hearing Date: August 17, 2022 Dept: F49
Dept.
F-49
Date:
8-17-22
Case
#22CHCV00225
Trial
Date: Not Set
DEMURRER
MOVING
PARTY: Defendant, Green Power Pros
RESPONDING PARTY: Unopposed/Plaintiffs,
Carlos and Elsy Soriano[1]
RELIEF
REQUESTED
Demurrer
to the Complaint
·
1st
Cause of Action: Breach of Written Contract
SUMMARY
OF ACTION
Plaintiffs
Carlos and Elsy Soriano allege Defendant Green Power Pros installed solar power
panels on Plaintiffs’ home, but failed to repair “exposed stucco near the
energy panel.” Plaintiffs also allege that the represented reductions in home
electricity bills have not materialized, and instead said rates “have soared.”
On
April 1, 2022, Plaintiff filed a complaint for Breach of Written Contract.
RULING: Sustained with
Leave to Amend.
Defendant
Green Power Pros a demurrer to the complaint for breach of contract on grounds
that the complaint lacks an identified cause of action, and to the extent
Plaintiffs seek to allege breach of contract, the complaint lacks sufficient
articulation of the terms and basis of a breach.
A
demurrer is an objection to a pleading, the grounds for which are apparent from
either the face of the complaint or a matter of which the court may take
judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) The purpose of a demurrer is to challenge the sufficiency of a pleading
“by raising questions of law.” (Postley
v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a
pleading, for the purpose of determining its effect, its allegations must be
liberally construed, with a view to substantial justice between the parties.”
(Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law . . . .” ’ ” (Berkley v.
Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the
court liberally construes the complaint to determine whether a cause of action
has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th
726, 733.)
“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139 [“[U]nder our liberal pleading rules,
where the complaint contains substantive factual allegations sufficiently
apprising defendant of the issues it is being asked to meet, a demurrer for
uncertainty should be overruled or plaintiff given leave to amend.
The form complaint in fact incorporates a “Breach of
Contract” attachment, with the written contract box checked. The court
therefore considers the breach of written contract claim.
“To state a cause of action for
breach of contract, [a plaintiff] must plead the
contract, his performance of the contract or excuse for nonperformance, [defendant’s]
breach and the resulting damage. (Citation.) Further, the complaint must
indicate on its face whether the contract is written, oral, or implied by
conduct. (Citation.)” (Otworth v.
Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–59.) In
examining a breach of contract claim, the court is required to examine the terms,
or at least the legal effect of the contract. (Blank v. Kirwan, supra,
39 Cal.3d at p. 318 [“we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context”]; Otworth v. Southern Pac. Transportation Co.,
supra, 166 Cal.App.3d at p. 459 [“If
the action is based on an 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
instrument must be attached and incorporated by reference”]; Construction Protective Services, Inc. v.
TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199 [“In an action
based on a written contract, a plaintiff may plead the legal effect of the
contract rather than its precise language”].)
The complaint lacks a copy of any written contract. The
court also finds the terms insufficiently articulated. While Plaintiffs allege
a requirement to restore stucco near the installation, it’s not clear how the
represented reduction in electricity bills appears as a contractual term.
The
unopposed demurrer is therefore sustained with 30 days leave to amend.
Plaintiffs may not add new or different causes of action beyond the scope of
the existing claims, but the court will allow Plaintiffs the opportunity to
allege any and all potential fraud based claims regarding the utility rates as
long as they arise from the alleged original business relationship of the
parties. (Harris v. Wachovia Mortgage,
FSB (2010)
185 Cal.App.4th 1018, 1023.)
Defendant
to give notice.