Judge: Stephen P. Pfahler, Case: 22CHCV00382, Date: 2023-04-04 Tentative Ruling

Case Number: 22CHCV00382    Hearing Date: April 4, 2023    Dept: F49

Dept. F-49

Date: 4-4-23

Case #22CHCV00382

Trial Date: N/A

DEMURRER

MOVING PARTY: Defendants, Aqua Blue Construction, Inc., et al.

RESPONDING PARTY: Plaintiffs, Kristen and Alfredo Galvan

RELIEF REQUESTED

Demurrer to the Cross-Complaint

·         1^st Cause of Action: Breach of Written Contract

·         2^nd Cause of Action: Negligence

·         3^rd Cause of Action: Negligence Per Se

·         4^th Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing

·         5^th Cause of Action: Breach of Express Warranty

Motion to Strike

SUMMARY OF ACTION

Plaintiffs Kristen and Alfredo Galvan allege defendants Aqua Blue Construction, Inc., and Britton Julien entered into a contract for installation of a swimming pool and hardscape improvements to Plaintiffs’ home without a valid contractors license, due to the failure to maintain workers compensation insurance. Plaintiffs also allege the construction project was defectively completed.

On May 27, 2022, Plaintiffs filed a complaint for Breach of Contract, Negligence, Negligence Per Se, Breach of Implied Covenant of Good Faith and Fair Dealing, Breach of Express Warranty, and Recovery on Contract’s License Bond. On December 8, 2022, Aqua Blue Construction, Inc., and Britton Julien filed a cross-complaint against the Galvans for Breach of Written Contract, Defamation, and Fraud and Deceit. On December 22, 2022, American Contractors Indemnity Co. answered the complaint and filed a cross-complaint against Aqua Blue Construction, Inc., and the Galvans for Interpleader and Injunctive Relief.

On February 27, 2023, the court deemed the subject action and Aqua Blue Construction, Inc., et al. v. John Goshorn 22CHCV00392 NOT related.

RULING

Demurrer: Sustained with Leave to Amend.

Defendants, Aqua Blue Construction, Inc. and Julien Britton submits a demurrer to the complaint on the first through fifth causes of action for Breach of Contract, Negligence, Negligence Per Se, Breach of Implied Covenant of Good Faith and Fair Dealing, and Breach of Express Warranty. The demurrer summarizes the arguments on grounds of the statute of limitations, and uncertainty and/or ambiguity. Plaintiffs in opposition challenges the opposition as grounded in extrinsic facts and inference. Plaintiffs further reiterate the factual basis of the individual causes of action. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

On March 20, 2023, Plaintiffs filed their first amended complaint without leave of court. The amended pleading required leave of court given the answers and cross-complaints filed in the action. (Code Civ. Proc., 472, subd. (a).)

The court therefore accepts the filed pleading as a concession to the merits of the demurrer, and sustains the demurrer with leave to amend. The amended pleading is deemed filed.

“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 now deems the complaint considered once under the standard, and will again consider the applicable standard should a second demurrer get filed.

Motion to Strike: Moot.

Motion to compel arbitration set for April 6, 2023.

Aqua Blue Construction, Inc. and Julien Britton to give notice to all parties.