Case Number: TC029003 Hearing Date: March 22, 2018 Dept: A

# 12. Sol Del Cielo LLC v. Simon Orea, et al.

Case No.: TC029003

Matter on calendar for: Hearing on plaintiff’s demurrer and motion for sanctions

Tentative ruling:

I. Background

Plaintiff Sol Del Cielo LLC has sued Defendants Simon Orea and Orea’s Welding for fraud, recovery of compensation paid to unlicensed contractor, slander of title, and quiet title arising from performance of structural welding work pursuant to the parties’ agreement. Defendants answered the Complaint and filed a Cross-Complaint.

Plaintiff (1) demurs to the Defendants’ Answer and Cross-Complaint, and (2) moves for sanctions against Defendants. The demurrer and the motion for sanctions are based on Plaintiff’s argument that Defendants are not, and never were, licensed welding contractors.

II. Standard

A. Demurrer

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (CCP § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.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.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.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.) The Court makes no factual findings on demurrer. (Id.)

B. Motion for Sanctions

Any conduct in the course of litigation may be sanctionable if the Court deems it frivolous or solely intended to cause unnecessary delay. (CCP § 128.5; Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 649.) The party seeking imposition of sanctions must first provide notice of the intent to file the motion and give the other side 21 days to cure the purported defect. (CCP § 128.7(c)(1).)

III. Analysis

A. Demurrer

Plaintiff advances essentially one argument: The Answer and Cross-Complaint fail because Defendants are unlicensed welders.

Plaintiff asks the Court to judicially notice “print-outs from the Contractors State Licensing Board showing there is no Contractor’s License ever issued to either Defendant and Cross-Complainant’s Simon Orea and Orea’s Welding.” The Court denies this request because these “print-outs” (1) have not been authenticated; (2) are not government records under Evidence Code § 452, and (3) do not establish that Defendants were not properly licensed during the relevant time period. And the Court generally may not take judicial notice of the contents or factual findings of records. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483-484.)

The parties’ arguments on the merits are improper at the pleading stage.

With respect to the Answer, Bus. & Prof. Code § 7031(d) requires Plaintiff to produce a “verified certificate of licensure from the Contractors’ State License Board” if “licensure or proper licensure is controverted.” Defendants cite to no authority that licensure properly may be “controverted” on demurrer. Section 7031(d) also states that Plaintiff bears the “burden of proof” to establish proper licensure. A term like “burden of proof” is generally reserved for evidence-based motions, not demurrers designed only to test the legal sufficiency of a pleading. Plaintiff has not shown that the Answer is legally insufficient. The Court overrules the demurrer to the Answer.

The Cross-Complaint does not allege that Defendants were “duly licensed contractor[s] at all times during the performance of that act or contract,” as required by Bus. & Prof. Code § 7031(a). It states only that “Cross-Complainant is properly licensed for welding work as reflected on all of the final inspection reports by the City Inspector.” (Cross-Complaint, ¶ 15.) The Cross-Complaint is insufficient as a matter of law. Absent a substantive opposition, the Court sustains the demurrer to the Cross-Complaint with leave to amend.

B. Motion for Sanctions

The motion for sanctions is also based on Plaintiff’s insistence that Defendants are not, and were never, licensed welding contractors. Plaintiff has not proven this. Plaintiff has failed to show that Defendants engaged in frivolous conduct or tried to cause any unnecessary delay. The Court denies this motion.

IV. Ruling

The Court (1) overrules the demurer to the Answer, (2) sustains the demurrer to the Cross-Complaint with 20 days’ leave to amend, and (3) denies the motion for sanctions.