Judge: Theodore R. Howard, Case: 22-1272753, Date: 2023-05-25 Tentative Ruling
Before the Court are a Demurrer and Motion to Strike filed by Saed Maralan as to plaintiff Marwan Sholakh’s Complaint. The Demurrer is OVERRULED as to the 1st cause of action and SUSTAINED as to the 2nd – 4th causes of action. The Motion to Strike is GRANTED in part and made MOOT in part due to the ruling on the Demurrer.
1st C/A: DISGORGEMENT OF MONIES PAID TO UNLICENSED CONTRACTOR
Business and Professions Code §7031(b) states: “Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.” B usiness and Professions Code §7026 defines a “contractor” as a person who does work to “alter … add to … improve” a structure.
The issue comes down to whether or not plaintiff has alleged that the defendant was a contractor and therefore subject to Business and Professions Code §7031(b). Defendant asserts that “Defendants only picked up the existing carpet for disposal after it was already removed and delivered the new carpet. The mere pickup and delivery of carpet does not require a contractor license” (Demurrer at 6:15-17). However, the complaint alleges that the contract between the defendants and the plaintiff was “to replace carpets” (¶11) and that the defendants breached the contract when they “installed” the wrong carpet (¶13). Despite the clearly different versions of what happened, the factual allegations in the complaint are accepted as true, for purposes of demurrer. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459 - “To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]”)
Accordingly, the Demurrer is OVERRULED as to the demurrer to 1st cause of action.
2ND C/A: SLANDER OF TITLE
“Slander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof ‘some special pecuniary loss or damage.’ (Citation) The elements of the tort are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss. (Citation).” (Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030)
The basis of plaintiff’s claim for slander of title is that “[o]n January 3, 2022, Defendants without any legal justification, wrongfully filed a mechanics lien in the amount of $6,600.00 against Plaintiff's personal residence located in Dana Point, California.” (Complaint at ¶28)
“As established in Frank Pisano, the recording of a mechanic's lien is absolutely privileged, and does not give rise to a slander of title action even if the claim of lien is invalid. (Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 25.)” (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co. (2020) 56 Cal.App.5th 413, 437) “Any deficiencies in the lien procedure were a matter of defense to the action and did not militate against the privilege.” (Frank Pisano & Assocs. v. Taggart (1972) 29 Cal.App.3d 1, 25). By analogy to cases applying the litigation privilege to a lis pendens, courts have held that “the filing of a lis pendens was held to be privileged notwithstanding it was later held in the action that the person filing the lis pendens was not entitled to any relief.” (Frank Pisano & Assocs. v. Taggart, supra, at p. 25.
While plaintiff correctly points out that an unlicensed contractor cannot enforce a mechanics lien, that argument goes to a defense of an action to enforce but does not vitiate the litigation privilege. Similarly, plaintiff’s suggestion that one has to file a complaint before the mechanics lien is recorded, or that the litigation privilege ceases to apply when the deadline to file the complaint is missed, also goes to the defense of an action to enforce the mechanics lien.
Accordingly, the Demurrer is SUSTAINED with 20 days leave to amend.
3rd C/A: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The elements to a claim for Intentional Infliction of Emotional Distress are, “‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050.)
“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” [Citation.] “Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)
The cause of action for IIED does not contain any facts but is a collection of conclusory phrases reflecting the elements. Although plaintiff alleges generally that “despicable and outrageous conduct has included, but is not limited to, harassment, ridicule, embarrassment, sleeplessness, constant worry, humiliation, resulting in physical illness,” there are not sufficient facts, as opposed to conclusions, pled. (Complaint at ¶35) Further, plaintiff’s allegations that the defendants “conspired” to cause him emotional distress is not supported by any facts. The court does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
Accordingly, the Demurrer is SUSTAINED as to the 3rd cause of action with 20 days leave to amend.
4th C/A: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
CACI 1620 (“Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Direct Victim—Essential Factual Elements”) states the elements plaintiff must prove for a claim of serious emotional distress arising from negligence: (1) That defendant was negligent; (2) That plaintiff suffered serious emotional distress; and (3) That defendant’s negligence was a substantial factor in causing plaintiff’s serious emotional distress. Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.
Plaintiff has not pled sufficient facts showing the defendant was negligent. Plaintiff has not pled facts showing serious emotional distress or that such was caused by defendant’s negligence. Plaintiff has not pled facts beyond breach of the agreement, being unlicensed and recording a mechanics lien. Although plaintiff includes conclusions in the complaint the facts pled are insufficient.
PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE
Plaintiff requests the Court take Judicial Notice of “the case, Jaimie S. Buster v. Rug Design Gallery, Inc. Dba OC Rug Store-30-2022-01300834-CL-PT-CJC, where the Defendants also filed a Mechanics lien against a Homeowner, but never foreclosed upon that Mechanics lien.” (Opp. at 2:14-16)
Plaintiff failed to comply with Rules 3.1113 and 3.1306. The RJN was a paragraph within the Opposition to Demurrer and the document was not attached. Further, the document referenced does not appear to be relevant to the matters in the Demurrer. (Mangini v.R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 - only relevant material is subject to judicial notice.)
Accordingly, the plaintiff’s Request for Judicial Notice is DENIED.
MOTION TO STRIKE
The Motion to Strike seeks to strike 17 separate items in the complaint. They are discussed below in the appropriate groups.
A. Punitive Damages (Items 9 & 17)
In order to survive a motion to strike punitive damages, the Plaintiff must plead ultimate facts to show it is entitled to such relief. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Conclusory characterization of defendant’s conduct as intentional, willful, and fraudulent is a patently insufficient statement of “oppression, fraud, or malice” within the meaning of CC §3294. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Regardless of relaxed pleading criteria, “allegations that the Defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (G.D. Searle & Co. v. Superior Court (1974) 49 Cal.App.3d 22, 29.)
In light of the ruling on the demurrer, the only items remaining in the Motion to Strike which refer to punitive damages are Items 9 (¶25) and 17 (Prayer, Pg. 8, ¶5). Both are based on the 1st cause of action for Disgorgement of Monies Paid to Unlicensed Contractor pursuant to B&P Code §7031(b). Section 7031(b) is a statutorily created cause of action for recovery of a penalty. (Eisenberg Vill. of Los Angeles Jewish Home for the Aging v. Suffolk Constr. Co., Inc. (2020) 53 Cal.App.5th 1201, 1212 - “[I]t is clear that the disgorgement provided in section 7031(b) is a penalty.”) Since the plaintiff is proceeding on a cause of action for recovery of a statutorily created penalty, the same cause of action cannot be used to support a cause of action for punitive damages. “[W]hen a new right, not existing at common law, is created by statute and a statutory remedy for the infringement thereof is provided, such remedy is exclusive of all others unless the statutory remedy is inadequate.” (Turnbull & Turnbull v. ARA Transportation, Inc. (1990) 219 Cal.App.3d 811, 827)
Further, the plaintiff has not pled facts with sufficient particularity to support a claim for punitive damages for the first cause of action as required by CC §3294.
Accordingly, the Motion to Strike is GRANTED as to Items 9 & 17.
B. General Damages (Item 8 - Pg. 5, ¶23; Item 15 - Prayer at Pg. 8, ¶2)
In light of the ruling on the Demurrer, the only remaining cause of action is the 1st cause of action which seeks recovery of a penalty in the form of disgorgement. Plaintiff cites no authority for recovery of pain and suffering damages as a result of violation of the statute.
Accordingly, the Motion to Strike is GRANTED as to Items 8 and 15.
C. Attorneys Fees (Item 7 - Pg. 4, ¶22; Item 16 - Prayer at Pg. 8, ¶5)
“‘California generally follows what is commonly referred to as the “American Rule,” which provides that each party to a lawsuit must ordinarily pay his or her own attorney fees. [Citation.] The American Rule is codified in Code of Civil Procedure section 1021, which states in relevant part: “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties....” ’ [Citation.]” (Retzloff v. Moutlon Parkway Residents’ Assn., No. One (2017) 14 Cal.App.5th 742, 749.) The complaint does not allege a basis for the recovery of attorney’s fees.
Accordingly, the Motion to Strike is GRANTED as to Items 7 & 16.
D. Miscellaneous Requests to Strike
The Defendant also seeks to strike paragraphs 2, 3, 4, 6, 15 and 19 (Items 1-6). However, the defendant does not offer any argument or authority in the motion as to why the paragraphs should be stricken.
Accordingly, the Motion to Strike is DENIED as to Items 1-6.
E. Items Made MOOT By Ruling On Demurrer
In light of the ruling on the Demurrer, Motion to Strike is MOOT as to Items 10-14.
Where leave to amend was granted in connection with the ruling on the Demurrer, if plaintiff elects to file an amended complaint, such must be filed within 20 days. However, leave to amend is limited to the causes of action for Slander of Title, IIED and NIED. Leave to amend is NOT granted to add or amend other causes of action. If plaintiff seeks leave to amend beyond these three causes of action, such must be done pursuant to CCP §473 and the appropriate rules.
The Court orders moving party to give notice of this ruling.