Judge: Theresa M. Traber, Case: 24STCV13923, Date: 2025-03-19 Tentative Ruling

Case Number: 24STCV13923    Hearing Date: March 19, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 19, 2025                      TRIAL DATE: NOT SET

CASE:                         Amin Ben Assil, et al. v. Jorge Teixeira, et al.

CASE NO.:                 24STCV13923           

DEMURRER TO COMPLAINT

MOVING PARTY:               Defendant Jorge Texeira

RESPONDING PARTY(S): No response on eCourt as of March 14, 2025

CASE HISTORY:

·         06/04/24: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract and foreclosure on a mechanics’ lien. Plaintiff alleges that Defendants failed to compensate him for construction work on Defendants’ property which he performed.

Defendant Jorge Texeira demurs to the Complaint.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend.

            Plaintiff shall have 30 days leave to amend the Complaint.

DISCUSSION:

Defendant Jorge Texeira demurs to the Complaint.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).)

            The declaration of Defendant’s counsel included with the moving papers states that Attorney Omrani attempted to confer with Plaintiff directly via telephone and email between September 3 and 4, 2024, but was not able to resolve the dispute giving rise to this demurrer. (Declaration of Sepehr Omrani ISO Dem. ¶¶ 3-5.) Defendant has satisfied his statutory meet and confer obligations.

Analysis

            Defendant demurs to the Complaint on the grounds that, first, there is another action pending between the same parties on the same cause of action. Defendant has not requested judicial notice of any such proceeding and offers no explanation of that conclusion. Defendant also offers challenges to the Complaint as to Defendants Awesome Coffee and US12GJV, LLC. However, as neither of these Defendants have joined the demurrer, Defendant has no standing to challenge the Complaint on their behalf.

            Of greater import, however, is Defendant’s contention that Plaintiff cannot maintain either his claim for breach of contract or his claim for foreclosure of a mechanic’s lien because Plaintiff has not properly alleged that he is a licensed contractor.

A person or corporation may not act as a contractor if that person is not licensed in the manner provided by the Business & Professions Code. (Bus & Prof. Code §§ 7025, 7028.) A person may not bring an action for recovery of compensation for the performance of any act as a contractor without alleging that they were licensed at all times. (Bus. & Prof. Code § 7031(a).) For the purposes of these statutes, a “contractor” includes ““any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building ... or other structure, project, development or improvement, or to do any part thereof,” as well as any “subcontractor and specialty contractor.” (Bus. & Prof. Code § 7026.) The term also includes “[a]ny person who advertises or puts out any sign or card or other device that would indicate to the public that he or she is a contractor . . . regardless of whether his or her operations as a builder are otherwise exempted.” (Bus & Prof. Code § 7027.) “[M]ere execution of a construction contract is an act ‘in the capacity of a contractor.’” (Panterra GP, Inc. v. Superior Court (2022) 74 Cal.App.5th 697, 720-21.) Put differently, “those who enter into construction contracts must be licensed, even when they themselves do not do the actual work under the contract.” (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 941.)

            Here, Plaintiff’s Complaint in this action is totally silent as to whether Plaintiff was a licensed contractor. For this reason alone, Defendant’s demurrer to both causes of action must be SUSTAINED for failure to state facts sufficient to constitute either cause of action.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate how they can amend their pleadings to state their claims against a defendant.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

            Although Defendant attempts to show that Plaintiff is not a licensed contractor, Defendant’s support for this assertion is premised entirely on extrinsic material for which judicial notice was not even requested, let alone granted. The Court therefore is obligated by well-established authority to extend Plaintiff a fair opportunity to amend the Complaint.

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CONCLUSION:

            Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend.

            Plaintiff shall have 30 days leave to amend the Complaint.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 19, 2025                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.