The notice of motion must state with precision the nature of the relief sought and the grounds therefore. CCP §1010; CRC 3.1110(a). A trial court is not free to grant relief which is different, or based on different grounds, than that set forth in the notice of motion. Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124. Here, the Notice states that defendants are moving for judgment on the pleadings, without regard to the difference between a statutory MJOP and a “non-statutory” MJOP – which have important differences.

A statutory motion for judgment cannot be made on a ground previously asserted in an unsuccessful demurrer absent a material change in law. CCP §438(g)(1); Thompson v. Canyon (2011) 198 Cal.App.4th 594, 602. To the contrary, a non-statutory motion for judgment on the pleadings can be made on grounds previously overruled without an intervening change in the law. See Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.

Although the continuing existence of a non-statutory MJOP is controversial (it effectively renders CCP §438 meaningless), it remains viable – as such it is appropriate to treat this motion as the non-statutory version and proceed to the merits. Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321.

On the Merits

A non-statutory MJOP, just like its sibling the demurrer, is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. Southern California Edison Company v. City of Victorville (2013) 217 Cal.App.4th 218, 227; Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782, 785.

Defendants contend that the Second Amended Complaint demonstrates within the four corners that plaintiff was an unlicensed contractor at the time he rendered services for defendants, and that his defective licensure bars the present action for unpaid contract damages.

Pursuant to B&P Code §7031, “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 by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract” (emphasis added).

Here, plaintiff has alleged that he was duly licensed to perform contracting work as the sole owner/operator of “Jimage” (see SAC ¶ 2, 9, 14, 16), and that “Jimage” was merely a dba (see SAC ¶ 9, 11, 14). Defendants have effectively admitted these very facts (see RFA and 11/07/13 Minute Order). DBAs are not separate parties or legal entities, and in the case of a sole proprietorship, that is one in the same with the individual owner. See Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 701; Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348. Although it is true plaintiff’s use of “Inc.” in a dba is a violation of B&P §17910.5, that conduct subjects him to sanctions and/or reprisals from the CSLB, not disqualification as a litigant. So long as the license it itself valid, and covers the individual performing the services, slight variations in the name of the dba is of no consequence. See Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 701-702; in accord:

 Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1449-1450: “for example, if Smith Heating is a sole proprietorship owned by Smith, it is the individual, Smith, who is the licensee, and under that license Smith can perform work under the name Smith Heating.”

 Montgomery Sansome LP v. Rezai (2012) 204 Cal.App.4th 786, 797: “if the entity that contracted with defendants is the same entity that held a license, then the use of slightly different names for that entity on different documents would not bar its recovery under section 7031.”

In addition, though neither party has addressed this issue, §7031(a) is subject to §7031(e), which permits application of the doctrine of substantial compliance where the contractor had been licensed in California prior to the performance of the contract, had acted in good faith, had not known that his or her license was invalid when the contract work commenced, and had acted promptly to correct the problem. Thus, even if there was a technical issue with the license, given that it was a valid license for someone, substantial compliance may apply. Montgomery Sansome LP v. Rezai (2012) 204 Cal.App.4th 786, 794. This is a quintessential fact question not amenable to resolution at the pleading stage. See WSS Indus. Const., Inc. v. Great West Contractors, Inc. (2008) 162 Cal.App.4th 581, 594.

Lastly, defendants contend that the presence of the name “Jimage General Builders, Inc.,” on various invoices means that (1) Jimage General Builders, Inc. is actually a stand-alone legal entity, and (2) the work performed at the site was by Jimage General Builders, Inc., not plaintiff James McClung. These are fact questions not amenable to resolution on a pleading motion. The SAC adequately alleges licensing, and nothing offered on tis motion shows as a matter of law that Jimage (or any derivative name) is anything but a dba. If defendants can prove otherwise that is for them to do at another time. See Montgomery Sansome LP v. Rezai (2012) 204 Cal.App.4th 786 [triable issue of fact whether license attached to separate legal entity]; Opp v. St. Paul Fire & Marine Ins. Co. (2007) 154 Cal.App.4th 71, 77-79 [president’s license did not cover corporation as contractor].

Motion for judgment on the pleadings DENIED.