Case Name: Wesley Chen v. U.S.-Sino Investment, Inc., et al.

Case No.: 1-13-CV-245057

Demurrer to the complaint by defendants RE Realty Experts, Inc. and RE Realty Experts Affiliates, Inc.

This action involves claims arising out of an agreement for the construction of a home in Milpitas. On August 17, 2011, plaintiff Wesley Chen and defendants US-Sino Investment, Inc. (“US-Sino”) and Richard Xin Liu executed a construction contract whereby they agreed to construct a residence for Chen and provide all labor and materials and expertise for the construction in a good and workmanlike fashion. (Complaint, ¶ 11, Ex. A.) US-Sino and Liu breached the contract by performing negligent construction, creating an unsafe worksite and abandoning the project on January 28, 2012, after a subcontractor’s employee was fatally injured at the property. (Id., ¶¶ 14, 15.) On February 21, 2014, Chen filed a Doe amendment designating defendants RE Realty Experts, Inc. and RE Realty Experts Affiliates, Inc. (collectively “Defendants”) as Doe 2 and Doe 3.

Defendants now demur to first through fifth causes of action in the complaint. To the extent the parties rely on facts outside the four corners of the complaint, this reliance is misplaced. (Code Civ. Proc., § 430.30; see Comm. on Children’s Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-14 [“A demurrer tests only the legal sufficiency of the pleading.”] The Court has not considered the additional facts or the relevance the parties ascribe to them. (See, e.g., Memorandum at p. 2:18-24; Opposition at p. 2:3-8, 11-13, 23-28.)

Chen’s request for judicial notice of the complaint is GRANTED. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].)

Defendants’ demurrer to the first cause of action for breach of contract on the ground of failure to state whether the contract is written, oral, or implied by conduct under Code of Civil Procedure section 430.10, subdivision (g), is OVERRULED. A written contract is alleged. (Complaint, ¶ 20, Ex. A; see Otworth v. S. Pac. Transp. Co. (1985) 166 Cal.App.3d 452, 458-59 [“To state a cause of action for breach of contract . . . the complaint must indicate on its face whether the contract is written, oral, or implied by conduct.”].) Defendants include arguments that there are not sufficient allegations to support the existence of a contract between themselves and Chen. Defendants, however, did not specifically provide notice that they were demurring to this cause of action under Code of Civil Procedure section 430.10, subdivision (e).

Defendants’ demurrer to the second cause of action for negligence, third cause of action for fraud and deceit, fourth cause of action for intentional/negligent misrepresentation, and fifth cause of action for violation of Business and Professions Code section 17200 on the ground of uncertainty [Code Civ. Proc., § 430.10, subd. (f)] is OVERRULED. A demurrer based on uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty should only be sustained when the complaint is so bad that the defendant cannot reasonably respond. (Id.) Here, the causes of action are certain enough to allow Defendants to understand the nature of the allegations and the theory of liability to fashion an appropriate response.

Similar to the first cause of action, Defendants include arguments that there are not sufficient allegations to support these claims. The Court observes that Defendants’ notice as to the second through fifth causes of action does not specifically indicate that they are demurring to these causes of action under Code of Civil Procedure section 430.10, subdivision (e). The Court, therefore, has not reached the merits of Defendants’ contentions regarding the sufficiency of the allegations as to these claims.

Finally, Defendants include arguments in their memorandum going to the sufficiency of the pleadings as to the sixth cause of action for breach of the covenant of good faith and fair dealing. Defendants, however, did not provide notice to Chen that they were demurring to this cause of action. As a result, the Court has not considered Defendants’ arguments as to this cause of action.