Case Name: Ashley Sterling, et al. v. Atlas Construction & Development, Inc. dba Good Fellas Construction, et al.

Case No.: 18CV327545

Demurrer to Plaintiff’s First Amended Complaint

Factual and Procedural Background

Plaintiffs Ashley Sterling and Matthew Sterling (collectively, “Sterlings”) are owners of real property commonly known as 435 N 19th Street in San Jose (“Subject Property”). (First Amended Complaint (“FAC”), ¶1.)

In or about August 2017, plaintiff Sterlings hired defendant Atlas Construction & Development, Inc. dba Good Fellas Construction (“Good Fellas”) to construct an addition to the Subject Property for the price of $160,000. (FAC, ¶7.) By February 2018, plaintiff Sterlings paid defendant Good Fellas approximately $133,500. (Id.)

Defendants failed to complete the construction agreed upon pursuant to the written contract with plaintiff Sterlings. (FAC, ¶8.) Plaintiff Sterlings discovered a number of deficiencies/ conditions that were not constructed in accordance with applicable code or in accordance with the plans. (Id.) On or about March 2017, plaintiff Sterlings notified defendant Good Fellas of the deficiencies, but defendant Good Fellas failed to respond. (FAC, ¶9.) Despite numerous requests for a list of the subcontractors who worked on the project, defendant Good Fellas failed to disclose the names of entities that performed work on the Subject Property. (FAC, ¶10.) For several months, plaintiff Sterlings have been unable to live in the Subject Property and incurred out of pocket costs. (FAC, ¶11.) Plaintiff Sterlings are in the process of hiring new contractors to complete the construction project and to remedy the deficiencies. (FAC, ¶12.)

On May 2, 2018, plaintiff Sterlings filed a complaint against defendant Good Fellas, Amnon Peter Nosek (“Nosek”), and Maria Natalia Assouline asserting causes of action for:

(1) Breach of Contract
(2) Negligence
(3) Common Count for Money Had and Received
(4) Breach of the Implied Covenant of Good Faith and Fair Dealing
(5) Breach of Express and Implied Warranties

On July 18, 2018, plaintiff Sterlings filed a Doe amendment substituting Eli Assouline (“Assouline”) for a Doe defendant.

On August 15, 2018, the court clerk dismissed defendant Maria Natalia Assouline without prejudice at the request of plaintiff Sterlings.

On August 29, 2018, plaintiff Sterlings filed the operative FAC against defendants Good Fellas, Nosek, and Assouline asserting claims for:

(1) Breach of Contract
(2) Negligence
(3) Common Count for Money Had and Received
(4) Breach of the Implied Covenant of Good Faith and Fair Dealing
(5) Breach of Express and Implied Warranties

On September 25, 2018, defendant Assouline filed the motion now before the court, a demurrer to plaintiff Sterlings’ FAC.

I. Code of Civil Procedure section 430.41.

Effective January 1, 2016, Code of Civil Procedure section 430.41 requires a demurring party to meet and confer with the party who filed the challenged pleading to seek informal resolution of the demurring party’s objections. (Code Civ. Proc., § 430.41, subd. (a).) The meet and confer must be conducted in person or by telephone, and must address each cause of action to be included in the demurrer. (Ibid.) “The parties shall meet and confer at least five days before the date the responsive pleading is due.” (Code Civ. Proc., §430.41, subd. (a)(2); emphasis added.) If these efforts fail, the demurring party must file and serve a declaration regarding the meet and confer process with the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).)

The demurring party, defendant Assouline, failed to file a declaration as required by Code of Civil Procedure section 430.41, subdivision (a)(3). While a court may not overrule or sustain a demurrer for insufficient meet and confer efforts (Code Civ. Proc., § 430.41, subd. (a)(4)), it may continue the hearing and order the parties to meet and confer as required (see Assem. Com. on Judiciary, Rep. on Sen. Bill No. 383 (2015-2016 Reg. Sess.), p. 2).

In view of the lack of any meet and confer efforts, defendant Assouline’s demurrer to plaintiffs Sterlings’ FAC is hereby taken off calendar without prejudice and defendant Assouline shall meet and confer with Petitioners as required by Code of Civil Procedure section 430.41.