Judge: Wesley L. Hsu, Case: 20PSCV00849, Date: 2023-03-23 Tentative Ruling

Case Number: 20PSCV00849    Hearing Date: March 23, 2023    Dept: L

Defendants Lanterprise, Inc. dba Lanterprise Corporation dba Lanterprise Construction’s, Waiming Li’s and Weiheng Zhen’s Motion for Judgment on the Pleadings is DENIED.

Background   

Plaintiff Miller Liu (“Plaintiff”) alleges as follows: In or about September 2018, Plaintiff engaged in discussions with Waiming Li (“Li”) and Weiheng Zhen (“Zhen”), whereby Li’s construction company, Lanterprise, Inc. dba Lanterprise Corporation dba Lanterprise Constriction (“Lanterprise”), would build an ADU for Plaintiff in Plaintiff’s backyard. Plaintiff advised Li and Zhen that he intended to move into the ADU and wanted the ADU to have a separate and independent water, gas and electric meters. The parties thereafter entered into a contract and Plaintiff paid $170,000.00 towards the $180,000.00 projected costs as construction progressed. On August 15, 2019, Li prepared a change order, which set forth additional costs of $21,965.00 for items related to gas and water connections and meters. Li and Zhen refused to finish construction of the ADU when Plaintiff disputed paying the $21,965.00. Plaintiff has obtained a written quote of $41,705.44 to finish the construction. As Plaintiff was inspecting the ADU, he discovered that Li and/or Zhen sabotaged some of the construction before leaving the premises, including drilling a hole in one of the new metal water pipes and removing a previously installed electrical breaker that had passed inspection and replacing it with an inexpensive one which failed inspection by the building inspector in a subsequent inspection.

On December 7, 2020, Plaintiff filed a complaint, asserting causes of action against Lanterprise, Li, Zhen and Does 1-20 for:

1.      Breach of Written Agreement

2.      Intentional Destruction of Property

The Final Status Conference is set for April 11, 2013. Trial is set for April 25, 2023.

Legal Standard

The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4^th 995, 999; Code Civ. Proc., § 438, subd. (d) [“The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit”].)

A motion by a plaintiff may only be made on the grounds “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint” or (2) “[t]he

complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c).)

Although a nonstatutory motion “may be made at any time either prior to the trial or at the trial itself” (Stoops v. Abbassi (2002) 100 Cal.App.4^th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)

Discussion

Lanterprise, Li and Zhen (hereinafter, “Defendants”) move the court for an order granting them judgment on the pleadings, on the basis that M. Liu’s action herein is barred by Code of Civil Procedure § 426.30.

The motion is denied. The court notes that on August 23, 2021, Defendants filed a “Motion for Judgment on the Pleadings” on the grounds that “the pleadings herein, and in the prior action of Lanterprise, Inc. v. Liu, Case No. 20PSCV00146, of which defendants request that the Court take judicial notice, demonstrate that plaintiff’s action herein is barred by Code of Civil Procedure § 426.30 in that the causes of action asserted herein were required to have been stated by plaintiff herein as a cross-complaint in said prior action, but were not, and that as a result defendants herein are entitled to judgment.” On November 19, 2021, Judge Hernandez denied the motion.

On February 3, 2022, Defendants filed a second “Motion for Judgment on the Pleadings,” on the grounds that “the pleadings herein, and in the prior action of Lanterprise, Inc. v. Liu, Case No. 20PSCV00146, of which defendants request that the Court take judicial notice, demonstrate that plaintiff’s action herein is barred by the doctrines of res judicata and collateral estoppel, in that the causes of action asserted herein were necessarily decided against plaintiff by the default judgment entered against plaintiff in said prior action, and that as a result defendants herein are entitled to judgment.” On June 21, 2022, the court denied the motion.

On February 22, 2023, Defendants filed this instant motion, on the grounds that “the pleadings and in the prior action styled Lanterprise, Inc. v. Liu, Case No. 20PSCV00146, of which defendants request that the Court take judicial notice of the complaint and related orders, demonstrate that plaintiff’s action herein is barred by Code of Civil Procedure § 426.30 in that the causes of action asserted herein were required to have been stated by plaintiff herein as a cross-complaint in said prior action, but were not, and that as a result defendants herein are entitled to judgment.”

The notice of motions filed August 3, 2021 and February 22, 2023, then, are essentially identical. The instant motion is denied, on the basis that it constitutes an untimely and noncompliant motion for reconsideration of, at the very least, Judge Hernandez’s November 19, 2021 ruling pursuant to Code of Civil Procedure § 1008.