Case Number: TC029032 Hearing Date: August 07, 2018 Dept: A

# 3. Architectural Casework, Inc. v. AP Construction Group, Inc.

Case No.: TC029032

Matter on calendar for: hearing on demurrer

Tentative ruling:

I. Background

This is a dispute between a subcontractor and general contractor. Plaintiff Architectural Casework, Inc., (dba Woodcraft Casework) is the subcontractor which bid on a cabinetry portion of the Los Angeles Unified School District’s (‘LAUSD”) project entitled Carson High School Laboratory Safety Improvements. Woodcraft’s bid totaled $289,950. Defendant AP Construction Group, Inc., used Woodcraft’s bid and was awarded the prime contract for the project.

After being awarded, AP approached Woodcraft and asked Woodcraft to lower its bid price. Woodcraft and AP reached a partially oral, partially written contract whereby Woodcraft would lower its bid to $280,000 and AP agreed to pay $280,000. They also agreed on various payment terms. Woodcraft then was allegedly pressured into providing a much larger reduction.

On June 21, 2017, Woodcraft sent a submittal package to AP. On August 10, 2017, AP sent Woodcraft a 72-hour notice stating, “We received notification from LAUSD of several delinquent submittals, one if [sic] which is yours.” Woodcraft alleges AP deliberately delayed the submittal process to terminate Woodcraft’s subcontract.

AP demurs to the original Complaint. The demurrer was filed May 30, 2018, for a hearing on August 7, 2018. Plaintiff timely filed and FAC on July 25, 2018, before the opposition papers were due.

II. Standard

A. Demurrer

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc. § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal. App. 4th 1112, 1126.) In ruling on a demurrer, the Court shall accept all material allegations in the Complaint as true. (Blank v. Kirwan (1985) 39 Cal. App. 3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal. App. 4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal. App. 4th 39, 43.)

A plaintiff must allege the “essential facts . . . with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal. App. 2d 636, 643-644.)

Under Code Civ. Proc. § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are confusing and do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App. 3d 135, 139, fn. 2.)

B. Motion to strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. §436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)

III. Analysis

A plaintiff can amend the complaint once without leave of court before defendant files an answer, demurrer, or motion to strike. (Code Civ. Proc. § 472; see Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175.)

If defendant files a demurrer or motion to strike, plaintiff has a right to amend the complaint without leave of court up to the date for filing an opposition to the demurrer or motion to strike. Plaintiff may amend the complaint after the date for filing an opposition to the demurrer or motion to strike upon stipulation of the parties. (Code Civ. Proc. § 472.) When plaintiff files an amended complaint after a demurrer is filed, but before it is decided, the demurrer must be overruled as moot. (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.)

The opposition papers were due July 25, 2018, pursuant to Code Civ. Proc. § 1005(b). The FAC was filed July 25, 2018 and served the same day by email. This does not appear to be disputed by defendant. The filing was thereby timely and the demurrer to the Complaint is moot.

IV. Ruling

The demurrer is overruled as moot.