Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
James Houston vs Vince Petit et al
Case No: 19CV05175
Hearing Date: Tue Oct 22, 2019 9:30

Nature of Proceedings: Motion

Demurrer to complaint

ATTORNEYS:

Plaintiff is in pro per

John Thyne for defendants.

RULING: The demurrer is ordered off calendar, based upon defendants’ failure to comply with the pre-filing requirements of Code of Civil Procedure section 430.41. Defendants are ordered to file their answer to the complaint within 10 days.

Background:

Plaintiff James Houston filed his verified complaint for breach of contract on September 26, 2019, seeking damages of $38,700.00, plus interest, against defendants Vince Pettit and Eilene Bruce. The complaint alleges that on march 1, 2019, he entered into an oral agreement with defendants under which he would perform handyman duties for defendants at a rate of $20.00/hour, in exchange for room and board (rent) in the amount of $1150/month. Any amount earned that exceeded the amount due for rent, would be paid to plaintiff. He alleges that he worked on approximately 5 large projects on 2 homes owned by defendants, as well as multiple small tasks, totaling approximately 1,935 hours of work performed for defendants pursuant to the agreement. On July 15, 2019, defendants breached the agreement by failing to pay plaintiff for the work performed, and failing to give plaintiff credit against his rent, and evicting plaintiff. At $20.00/hour, he seeks damages of $38,700 for the 1,935 hours worked.

Defendants demurred to the complaint on October 2, 2019, both generally and specially. The demurrer sets forth substantial facts which are not contained in the complaint, and are not the proper subject of judicial notice. It contends that plaintiff is prohibited from seeking compensation for any work performed, because he is not a licensed contractor, and that the complaint is vague in failing to set forth any description of the work completed, the hours during which the work was completed, the days upon which such work was completed, the rate agreed for such work, what was paid and not paid, and what rent credits he received. Defendants seek to have the demurrer sustained, without leave to amend.

Defendants filed the demurrer without including a meet-and-confer declaration pursuant to Code of Civil Procedure section 430.41.

ANALYSIS:

The demurrer is fatally defective in multiple respects, but first and foremost in its failure to comply with the mandatory pre-filing meet-and-confer requirements of Code of Civil Procedure section 430.41. The demurrer is therefore ordered off calendar, and defendants are ordered to file their answer to the complaint within 10 days.

Code of Civil Procedure section 430.41 provides, in relevant parts:

(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. . . .

(3) The demurring party shall file and serve with the demurrer, a declaration stating either of the following:

(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

Whether or not defendants properly met and conferred with plaintiff prior to filing their demurrer, as is required by Section 430.41(a), the demurrer is not accompanied with the mandatory declaration pursuant to Section 430.41(a)(3). Section 430.41 sets forth mandatory pre-filing and filing requirements for a demurrer. Because the demurrer fails to comply with the express requirements of the section, the Court will order the demurrer off calendar, and order defendants to file their answer to the complaint within 10 days.

Even had defendants complied with the requirements of Section 430.41, the demurrer was legally improper in multiple respects, and would have been overruled. First, it impermissibly relied upon a factual scenario outside the four corners of the allegations of the complaint, and of which judicial notice was not permitted. This included not merely the “background story” which defendants improperly interposed, but also the contention that the work performed required a contractor’s license, and that plaintiff did not possess one. Finally, defendants’ contention that plaintiff’s claim was impermissibly vague because the evidentiary-level “details” of every aspect of the plaintiff’s performance of the alleged oral contract were not alleged, is simply contrary to law. The breach of contract cause of action was adequately alleged.