Judge: Theodore R. Howard, Case: 19-1117522, Date: 2023-01-05 Tentative Ruling

Before the Court is a Demurrer filed on 5/4/22 by moving parties Defendants William Dalke and Rancho Laguna Builders (here, collectively “MPs”) as to the First, Second and Sixth Causes of Action (each a “COA”) in the First Amended Complaint (the “FAC”) which was filed on 11/9/20 by Plaintiff Mark Volk dba Volk Drywall (“Plaintiff”). 

The Demurrer to the FAC is SUSTAINED as to COAs 1 and 2, with 20 days leave to amend from the date of service of notice of this ruling, but OVERRULED as to COA 6.

As a preliminary matter, MPs did not comply with C.C.P. § 430.41(a) in bringing this Demurrer.  As the Demurrer has been substantively addressed in the Opposition, the Court nonetheless considered the Demurrer on its merits. However, MPs are reminded that full compliance with all filing requirements is expected, and that any future omission may be treated differently.

For COA 1, the FAC fails to present a written contract between Plaintiff and either one of the MPs, or otherwise state facts sufficient to support the allegation that a contract between either or both of them exists.  Although Plaintiff asserts a claim for breach of a written contract attached as Ex. A  (FAC at ¶¶ BC-1, BC-2), the document attached as Ex. A is entitled “Proposal/Contract” and appears to reflect only that it was presented by Plaintiff to “Rancho Laguna Builders.”  It does not show any signatures reflecting acceptance. And while Ex. A includes a handwritten statement on what appears to be Plaintiff’s letterhead, COA 1 does not even discuss that document.  COA 1 as pled is thus deficient, as the referenced “contract” appears to be merely a proposal which was not signed by any of the defendants, Plaintiff has not alleged that it was ever signed by any of them, and the FAC does not otherwise state facts as to why these defendants should be deemed bound by the terms stated therein. The Demurrer is therefore sustained as to COA 1, with 20 days leave to amend.

For COA 2, Plaintiff is correct that a common count may be pled as an alternative basis for recovery. But the FAC identifies only “RANCHO” as the defendant on this COA, without stating which defendant(s) that is meant to identify and why that defendant is liable on this COA. COA 2 is thus deficient as pled and uncertain. (The same defect appears in COAs 3-5, although MPs did not demur thereto.) The Demurrer is therefore also sustained as to COA 2, with 20 days leave to amend.

For COA 6, this COA is directed only to a different defendant (American Contractors Indemnity Company) which is not a demurring party here. The Demurrer is therefore OVERRULED as to COA 6.

Counsel for MPs is to give notice of this ruling.