Case Name: A&B Painting, Inc. v. The Weitz Company, LLC, et al.
Case No.: 16-CV-295030

Currently before the Court is defendants The Weitz Company, LLC (“Weitz”), Fidelity and Deposit Company of Maryland (“Fidelity”), Zurich American Insurance Company (“Zurich”) and Liberty Mutual Insurance Company’s (“Liberty”) (collectively, “Defendants”) demurrer to the complaint of Plaintiff A & B Painting, Inc. (“Plaintiff”).

I. Factual and Procedural Background

On May 11, 2016, Plaintiff filed its operative complaint against Defendants, in which it alleges the following: Signature Flight Support Corporation (“Signature Flight”) entered into a contract with Weitz to furnish labor, materials, equipment and services necessary to construct the SJC Signature/BCH FBO Project (the “Project”). (Compl., ¶¶ 10-11.) On May 21, 2015, Plaintiff entered into a written contract with Weitz, under which it agreed to furnish labor, equipment, materials and services necessary for wall coverings and paintings for the Project. (Compl., ¶12.) Weitz breached the contract by failing to pay Plaintiff all monies due and owing. (Compl., ¶ 15.)

On February 4, 2015, Plaintiff recorded a mechanic’s lien against the property where the Project is located. (Compl., ¶ 25.) Weitz as principal and Fidelity as surety executed a bond for the release of the lien. (Compl., ¶ 29.) In addition, Weitz and Fidelity, Zurich, and Liberty executed a private works payment bond for the benefit of subcontracts on the Project. (Compl., ¶ 32.)

In the complaint, Plaintiff asserts four causes of action against Defendants for breach of contract, quantum meruit, recovery on the mechanic’s lien release bond, and recovery on the payment bond.

On June 27, 2016, Defendants filed the instant demurrer to the complaint on the ground of failure to state sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10., subd. (e).) Plaintiff filed its opposition on July 19, 2016.

II. Discussion

Defendants contend that each cause of action in the complaint fails because Plaintiff does not allege a condition precedent to the maintenance of its claims. In particular, it asserts that the contract between the parties requires Plaintiff to pursue any claims only after substantial completion of the Project and the Project has not been substantially completed.

“In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.” (Code Civ. Proc., § 457; see also Gordon Bldg. Corp. v. Gibraltar Sav. & Loan Ass’n (1966) 247 Cal.App.2d 1, 6 [providing that the performance of conditions precedent may be alleged generally].) Here, the complaint generally alleges that Plaintiff satisfied all conditions precedent before initiating this action. (Compl., ¶ 14.) As such, the complaint adequately alleges the performance of all conditions precedent.

Nevertheless, Defendants contend that the demurrer should be sustained because two facts extrinsic to the face of the complaint, namely, that the contract between the parties’ requires that the Project be substantially completed before the initiation of any action and the Project is not substantially complete at this time, establish that all conditions precedent to this action have yet to be performed. This argument is not well-taken.

“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 (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; see also Childs v. State of California (1983) 144 Cal.App.3d 155, 163 [providing that “[i]t is an elementary rule that the sole function of a demurrer is to test the sufficiency of the challenged pleading” and “[i]t cannot, properly, be addressed to or based upon evidence or other extrinsic matters”].) Accordingly, the Court may not consider Defendants’ evidence unless it is subject to judicial notice. However, Defendants do not request judicial notice of the terms of the contract or the progress of the construction project and, in any event, neither of these facts are subject to judicial notice. (See Evid. Code, § 452, subd. (h) [stating that the court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”]; see also Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145 [providing that a court may not take judicial notice of a written contract under Evidence Code section 452, subdivision (h).) Accordingly, Defendants fail to establish that the complaint is subject to demurrer on this basis.

In light of the foregoing, Defendants’ demurrer to the complaint is OVERRULED.