Case Number: BC640592 Hearing Date: March 07, 2018 Dept: 32

Legendary Structures, Inc.,

Plaintiff,

v.

KPRS Construction Services, Inc., et al.,

Defendants.

Case No.: BC640592

Hearing Date: March 7, 2018

[TENTATIVE] order RE:

Demurrer to Plaintiff’s SECOND amended complaint

BACKGROUND

Plaintiff Legendary Structures, Inc. (“Plaintiff”) alleges that it entered a written agreement with Defendant KPRS Construction Services, Inc. (“KPRS”), whereby Plaintiff agreed to provide labor and materials to construct a parking garage (“Project”) for a Courtyard Marriot located in Glendale, CA (“Property”). Plaintiff alleges that a sum of $295,575.73 remains due and owing. On August 12, 2016, Plaintiff recorded a mechanic’s lien on the Property. (Compl., Exh. A.) Plaintiff asserts causes of action for (1) breach of contract; (2) common counts; and (3) action on release bond in lieu of foreclosure of mechanic’s lien.

DISCUSSION

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

Defendants demur to the second cause of action against Defendant Glendale Arts Colony (“GAC”) on the grounds that Plaintiff fails to properly plead that GAC itself specifically requested the services in question. The demurrer is well-taken.

“[T]o recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Ochs v. PacifiCare of California (2004) 115 Cal. App. 4th 782, 794.) In ruling on the demurrer to the FAC, the Court sustained the demurrer to the second cause of action, finding that the allegations establish that only KPRS requested the services rendered. In the SAC, Plaintiff now alleges that it “was acting pursuant to either an express or implied request for services from Defendant GAC as requested by and through KPRS. . . . GAC was a recipient of services performed and requested by GAC through KPRS as its agent, or acquiesced in GAC by taking benefit therefrom.” (SAC ¶¶ 17, 19.) Thus, Plaintiff’s theory is that KPRS was acting as GAC’s agent when it requested the services. “Generally, an allegation of agency is an allegation of ultimate fact and is, of itself, sufficient to avoid a demurrer.” (Garton v. Title Ins. & Trust Co. (1980) 106 Cal. App. 3d 365, 376.) As such, Plaintiff’s new allegations are sufficient to state a cause of action against GAC.

Based on the foregoing, the demurrer is OVERRULED.