Case Name: Kramer dba Kramer Construction v. Gerhardt, et al.
Case No.: 1-12-CV-236626

Defendants/cross-complainants Floyd Gerhardt (“Gerhardt”) and Sabrina Saucedo (“Saucedo”) (collectively, “cross-complainants”) previously demurred to the fourth cause of action, asserting that the mechanic’s lien was not compliant with the statutory requirements of Civil Code section 8416 because “Plaintiff’s Lien states only a street address, without inclusion of a zip code.” (Defs.’ memorandum in support of demurrer to complaint, pp.5:20-28, 6:1-5.) On February 14, 2013, the Court [Hon. Pierce] overruled the demurrer to the fourth cause of action, stating:

The demurer to the fourth cause of action is OVERRULED. (See Borello v. Eichler Homes, Inc. (1963) 221 Cal.App.2d 487, 492-493 (determining notice of lien was not defective where description of property did not include zip code, and misstated subdivision name as “Terra Linda” instead of “Terra Linda Valley”, stating that “[a]s a general rule the description of property sought to be charged with the lien will be sufficient if it will enable a party familiar with the locality to identify the property with reasonable certainty to the exclusion of others”; also stating that “[e]rrors in the description may be disregarded if the identification of the property is otherwise sufficient, providing there is no fraud and no one is misled by the description”; also stating that “[t]here is great reluctance to set aside a mechanic’s claim merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers; and it is not necessary that the description should be either full or precise”).)

(February 14, 2013 order re: demurrer to initial complaint.)

On February 25, 2013, Plaintiff filed a first amended complaint (“FAC”) against Gerhardt, Saucedo and Union Bank, N.A. (collectively, “Defendants”). Gerhardt and Saucedo demurred to the fourth cause of action, asserting that it was time-barred. On May 7, 2013, the Court [Hon. Pierce] overruled the demurrer.

Gerhardt and Saucedo now move for judgment on the pleadings as to the fourth cause of action of the FAC and the second and fourth through eleventh affirmative defenses of the answer to the cross-complaint (“XC”).

Plaintiff and cross-defendant Stanley A. Kramer dba Kramer Construction (“Kramer”) filed an opposition to the motion as to the fourth cause of action on the afternoon of June 13, 2014, less than nine court days prior to the June 19, 2014 hearing, in violation of Code of Civil Proceudre section 1005, subdivision (b). Nevertheless, the Court shall consider Kramer’s belatedly filed opposition.

The motion for judgment on the pleadings as to the affirmative defenses is apparently not opposed as to the second and fourth through eleventh affirmative defenses of the answer to the XC, as the opposition does not address the motion as to any defenses. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, as to the second and fourth through eleventh affirmative defenses of the answer to the XC, the motion for judgment on the pleadings is GRANTED with 10 days leave to amend.

Defendant Union Bank, N.A. requests to join in cross-complainants’ motion for judgment on the pleadings as to the fourth cause of action of the FAC. Union Bank’s request for joinder is GRANTED.

In the instant motion, Defendants again argue that “KRAMER’s Lien as recorded with the Santa Clara County Recorder’s Office does not comply with the statutory requirements set out in Section 8416 of the California Civil Code.” (See Defs.’ memorandum of points and authorities in support of motion for judgment on the pleadings (“Defs.’ memo”), pp.3:20-28, 4:1-5.) As a preliminary matter, Defendants’ motion relies on facts outside the pleadings and Defendants have not requested judicial notice of the mechanic’s lien. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (stating that “[i]n reviewing the ruling on a demurrer [or a motion for judgment on the pleadings], a court cannot consider…the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents”).) On this basis alone, the motion is DENIED. Moreover, even if the Court were to have the mechanic’s lien before it, the Court has already indicated that the argument is without merit. (See February 14, 2013 order re: demurrer to initial complaint, citing Borello v. Eichler Homes, Inc. (1963) 221 Cal.App.2d 487, 492-493.)

As to Defendants’ latter argument that “[t]he First Amended Complaint is fatally uncertain as to whether KRAMER substantially completed the work,” the fourth cause of action plainly alleges that “[s]ubstatntial complete of the work of improvement had occurred.” (FAC, ¶ 40; see also FAC, ¶ 29 (alleging that “other than where Defendants GERHARDT and SAUCEDO prevented Plaintiff from doing so, Plaintiff performed all of his obligations under the Revised Contract”).) In addition to alleging that he was prevented from performing work by Defendants, the fourth cause of action also alleges facts supporting the timeliness of the recordation of the mechanics’ lien. (See FAC, ¶ 40.) Accordingly, this latter argument is wholly without merit and Defendants’ motion for judgment on the pleadings is DENIED in its entirety.