2014-00157037-CL-CO

Argelio Ponces vs. Justin Singh

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Zeesman, Alexander J.

Defendant Justin Singh’s (“Defendant”) demurrer to Plaintiff Argelio Ponces’ (“Plaintiff”)
Complaint is SUSTAINED IN PART with LEAVE TO AMEND and OVERRULED IN
PART.

Request for Judicial Notice

In support of his Opposition, Plaintiff filed a Request for Judicial Notice (“Pl.’s RJN”),
which attaches a declaration previously filed in this action.  While the Court could take
judicial notice of the fact that the declaration was filed, it cannot take judicial notice of
the contents of the declaration, nor does it accept the truth of the matters stated
therein.    (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590
(judicial notice of findings of fact does not mean that those findings of fact are true);
Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)
Here, Plaintiff offers the declaration for the truth of the matters stated therein, and
therefore the RJN is DENIED to the extent it is offered for the truth of the matters
stated.

Demurrer A demurrer challenges only the legal sufficiency of a complaint, not the truth or the
accuracy of its factual allegations or the plaintiff’s ability to prove those allegations.  (
Ball v. GTE Mobilnet of California (2000) 81 Cal.App.4th 529, 534-35.)

Allegations

This limited civil dispute arises from work that Plaintiff allegedly performed on a single-
family home (“Subject Property”) owned by Defendant.  Plaintiff alleges that “On or
about November, 2010, Plaintiff and Defendant entered into an oral agreement in
which Plaintiff agreed to perform repairs and remodeling work at the Subject Property;
to wit, removal and replacement of windows, remove carpeting upstairs and replace
with a wood floor; re-plaster pool, restore pool plumbing, install new filter system for
pool, install new baseboard in entire house, build patio bar, clean-up backyard and
landscape, remodel bathroom and install new tile, repair the fireplace, install new
fencing, repair roof leaks and repaint the interior of the Subject Property. Defendant
Owner acknowledged the work being performed by e-mail exchanges with
Plaintiff.”  (Compl. ¶ 6.)  Plaintiff also alleges that “Between November, 2010 and
August 26, 2013, pursuant to the above-described oral agreement, Plaintiff performed
repairs and remodel work of improvement on the Subject Property.”  (Id. ¶ 9.)  Plaintiff
alleges that Defendant breached the contract by not paying “any monies” to Plaintiff for
completing the above-described tasks, and that Defendant owes Plaintiff resulting
damages in the amount of $25,000.  (Id. ¶¶ 13-14.)

Plaintiff’s Complaint lists three causes of action: (1) breach of contract, (2) foreclosure
of mechanic’s lien, and (3) breach of prompt payment statutes.

By way of background, the Court denied Defendant’s Petition to Release Mechanic’s
Lien on April 25, 2014.

Discussion

Defendant demurs to the Complaint on grounds that it fails to state facts sufficient to
constitute a cause of action, is vague and uncertain, and is time-barred.  (Demurrer at
3.)  The Court notes that while the Demurrer lists “time-barred” as a ground for
demurrer, Defendant’s memorandum of points and authorities does not include any
arguments indicating that any cause of action is time-barred.

First Cause of Action (Breach of Contract)

Defendant’s demurrer to the cause of action for breach of contract is SUSTAINED with
LEAVE TO AMEND.  As Defendant argues, the pleading appears to allege the
formation of an “oral agreement,” but the pleading fails to clearly allege what
consideration Defendant was to provide in connection with that alleged agreement.
The elements of a breach of oral contract claim are the same as those for a breach of
written contract. An oral contract is formed when (1) the parties have the capacity to
enter into a contract; (2) the parties consent to the contract; (3) the contract has a
lawful object; and (4) there is sufficient consideration or cause for the parties to enter
into the contract. (See Civ. Code, § 1550.) In the instant action, at most the pleading  alleges that Plaintiff “agreed” to complete various repairs on the Subject Property, not
that Defendant agreed to do anything in exchange therefore.  (See Stevenson v. San
Francisco Housing Authority (1994) 24 Cal.App.4th 269, 284 (a “presumption of
consideration . . . does not, of course, apply to an oral contract. In an action on such
an agreement, the essential element of consideration must normally be alleged. The
instant pleading does not disclose mutual promises or any other indication of
consideration.”) (citations and quotation marks omitted) (affirming trial court’s
sustaining of demurrer without leave to amend after multiple failed attempts to allege a
breach of contract).)  Here, that the Complaint alleges that Plaintiff has suffered
$25,000 in damages resulting from an alleged breach of the alleged oral contract does
not suffice to allege the consideration each party to the alleged agreement provided in
connection therewith.  Plaintiff shall have leave to amend to add factual allegations
supporting the element of Defendant’s alleged consideration underlying the alleged
oral contract.

Second and Third Causes of Action (Foreclosure of Mechanic’s Lien and Violation of
Prompt Payment Statutes)

Defendant demurs to the second and third causes of action on grounds that because
Plaintiff is an unlicensed contractor, he is either “prohibited” from making these claims
or that such claims are “unenforceable.”  (Def.’s Ps & As at 5-7 (citing Business &
Professions Code §§ 7026 (defining “contractor”), 7031 (unlicensed contractor cannot
make a claim for compensation earned while unlicensed); 7031(c) (security interest
unenforceable if taken for work performed by unlicensed contractor).)  Without citing to
any case law, Defendant argues that because Plaintiff completed the alleged repairs
without having a contractor’s license, he cannot as a matter of law recover
“compensation” for such repairs, and he might also lack standing to bring an action
seeking such compensation.  (Id.)  However, a demurrer tests the sufficiency of
allegations in a pleading, not the truth of the facts alleged therein.  Plaintiff has not
alleged that every specific alleged repair required a contractor’s license or that he
lacked such a license, and Defendant did not cite to authorities indicating that every
specific alleged repair required a contractor’s license.  Accordingly, Defendant has not
shown that these claims fail as a matter of law based upon the facts alleged in the
pleading or on judicially noticeable facts.

To the extent Defendant intended to argue that the face of Plaintiff’s pleading reveals
that Plaintiff lacks standing to assert a mechanic’s lien cause of action and/or a
“prompt payment” cause of action, Defendant cited no authorities discussing the legal
requirements of standing to bring such claims, and no authorities involving discussion
of the threshold pleading requirements for such causes of action.  Accordingly,
Defendant has not persuasively supported any “standing” arguments it may have
intended to raise.

Finally, the Court notes that it even if Defendant could cite authorities confirming that a
particular alleged repair required a contractor’s license as a matter of law, which
Defendant has not shown here, the question of whether Plaintiff actually possessed or  lacked a contractor’s license to complete each particular alleged repair presents a
factual argument requiring extrinsic proof as to the nature of the repair and Plaintiff’s
license status.  Defendant’s arguments that Paragraph 7 of the Complaint is
“completely false” and that the demurrer should be sustained “because Plaintiff was
and is not a licensed contractor” confirms that Defendant’s challenges to the pleading
turn on the truth of extrinsic facts.  (Def.’s Ps & As at 6-8.)  In general, and absent
Defendant’s citation to authorities suggesting otherwise, such arguments are outside
the scope of those that can be properly determined at the pleading stage.

Accordingly, the demurrer to the Second and Third Causes of Action is OVERRULED.

In accordance with the foregoing, Plaintiff shall file and serve a Second Amended
Complaint (“SAC”) by no later than July 21, 2014.  Defendant’s response thereto to be
filed and served within 10 days thereafter, 15 days if the SAC is served by mail.
(Although not required by any statute or rule of court, Plaintiff is requested to attach a
copy of the instant minute order to the FAC to facilitate the filing of that pleading.)

Tentative Ruling Language

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website. Counsel for moving
party is ordered to notify opposing party immediately of the tentative ruling system and
to be available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).

The Court notes that moving party has indicated the incorrect address in its notice of
motion.  The correct address for Department 53 of the Sacramento County Superior
Court is 800 9th Street, Sacramento, California 95814.  Moving party shall notify
responding party(ies) immediately.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.