Demurrer

Demurrer to the 1st and 2nd causes of action for violation of B&P Code § 17200

Governmental entities are not included in the definition of “person” for purposes of liability under the Unfair Competition Law. People for the Ethical Treatment of Animals, Inc. v. California Milk Producers, 125 Cal.App.4th 871, 879-80 (2005).

Here, the demurer to the 1st and 2nd causes of action for violation of B&P Code § 17200 is sustained without leave to amend. The complaint alleges that Defendant Mesa Water is a public entity. [Complaint, ¶ 3] As a public entity, Defendant Mesa Water cannot be liable under B&P Code § 17200. Plaintiff Synetcom’s opposition did not address this argument, effectively conceding it.

Demurrer to the 7th cause of action for common counts

Common counts is an alternate theory of recovery based on a contract that is either “implied in fact” or “implied in law.” Katsura v. City of San Buenaventura, 155 Cal.App.4th 104, 109 (2007). It is settled that a private party cannot sue a public entity on an implied-in-law or quasi-contract theory, because such a theory is based on quantum meruit or restitution considerations which are outweighed by the need to protect and limit a public entity’s contractual obligations. Id. at 109-110.

The demurrer to the 7th cause of action for common count – good and services rendered should be sustained without leave to amend. The complaint alleges that Defendant Mesa Water is a public entity and a common count cause of action cannot be had against it. Plaintiff Synetcom’s opposition did not address this argument, effectively conceding it.

Demurrer to the 8th through 10th causes of action for unjust enrichment, intentional interference with economic relations and negligent interference with prospective economic relations

Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. Cal. Gov’t Code § 815(a).

Here, the demurrer to the 8th through 10th causes of action for unjust enrichment, intentional interference with economic relations and negligent interference with prospective economic relations is sustained with leave to amend. None of these causes of action allege a statutory basis of liability against Defendant Mesa Water. Plaintiff Synetcom’s opposition did not address these defects, effectively conceding to Defendant Mesa Water’s arguments. Unless Plaintiff Syntecom can state at the hearing how it can properly allege a statutory basis for liability against Defendant Mesa Water, the demurrer to the 8th through 10th causes of action will be sustained without leave to amend.

Demurrer to the 4th through 6th causes of action

A. Government Claims Act

Under Government Code § 945.4, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board. Claims relating to economic damage, including breach of contract, must be presented within one year after accrual of the cause of action. Cal. Gov’t Code § 911.2; Voth v. Wasco Public Utility Dist., 56 Cal. App. 3d 353, 357 (1976).

The failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action. State of Calif. v. Superior Court, 32 Cal. 4th 1234, 1239 (2004). The failure to comply with the claims statute bars the claim against the public entity. State of Calif. v. Superior Court, 32 Cal. 4th 1234, 1239 (2004).

Here, Defendant Mesa Water’s demurrer to the 4th through 6th should be sustained with leave to amend. There are no allegations in the complaint to show Plaintiff Syntecom’s compliance with, or excuse from, the claims presentation requirement.

Plaintiff Syntecom argues that the Prime Contract, which was incorporated into the Subcontract, contained a comprehensive claims procedure and that it complied with that procedure. It asserts that it sent demand letters and alleged that in paragraphs 97 and 223 of the complaint. Defendant Mesa Water argues that the Prime Contract’s procedure does not apply to Plaintiff Synetcom because it was not a party to the Prime Contract.

Whether or not the Prime Contract’s claims procedure applies to Plaintiff Syntecom need not be resolved now because the complaint does not allege anything about that procedure. Plaintiff Synetcom must allege compliance or excuse from the claims presentation requirement. If and when Plaintiff Synetcom makes such allegations, Defendant Mesa Water can then challenge the sufficiency of such allegations. The demurrer to the 4th through 6th causes of action is sustained with leave to amend.

B. Compliance with B&P Code §§ 143 and 7026

No person engaged in any business or profession for which a license is required under the Business and Professions Code may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required without alleging and proving that he or she was duly licensed at all times during the performance of that act or contract, regardless of the merits of the cause of action brought by the person. Cal. Bus. & Prof. Code § 143(a).

With limited exceptions, no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract, regardless of the merits of the cause of action brought by the person. Cal. Bus. & Prof. Code § 7031(a). A contractor is synonymous with “builder” and includes subcontractors. Cal. Bus. & Prof. Code § 7026.

The demurrer to the 4th through 6th causes of action on the ground that the complaint does not allege that Plaintiff Synetcom does not allege that it is a duly licensed contractor is overruled. The complaint alleges that Plaintiff Synetcom is a contractor duly licensed pursuant to Electrical Engineering license no. 18848 and Control Systems Engineering license no. 7429. [Complaint, ¶ 2] Defendant Mesa Water requested judicial notice of printouts of websites in which it checked Plaintiff Synetcom’s license status and the website showed that neither license number exist. The request for judicial notice should be denied because the website printouts are not proper for judicial notice. Jolley v. Chase Home Finance, LLC

213 Cal.App.4th 872, 889 (2013)(noting “we know of no ‘official Web site’ provision for judicial notice in California” and that “simply because information is on the Internet does not mean that it is not reasonably subject to dispute.”). Without the judicial notice, Defendant Mesa Water’s argument fails.

Deny Defendant Mesa Water District’s request for judicial notice.

Sustain, without leave to amend, the demurrer to the 1st, 2nd, and 7th through 10th causes of action.

Sustain, with 10 days leave to amend, the demurrer to the 4th through 6th causes of action.