This case was last updated from Los Angeles County Superior Courts on 06/26/2020 at 21:45:43 (UTC).

SALVADOR RODRIGUEZ VS STEPHANIE RAYE SCHESTAG-MYRIANO, ET AL.

Case Summary

On 09/09/2019 SALVADOR RODRIGUEZ filed a Contract - Other Contract lawsuit against STEPHANIE RAYE SCHESTAG-MYRIANO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8221

  • Filing Date:

    09/09/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

RODRIGUEZ SALVADOR

Defendants

SCHESTAG-MYRIANO STEPHANIE RAYE

OWENS BRIDIE

 

Court Documents

Memorandum of Points & Authorities - Memorandum of Points & Authorities that Support the Defendant's Demurrer Being Overruled

2/20/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities that Support the Defendant's Demurrer Being Overruled

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

2/24/2020: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Reply (name extension) - Reply in Support of Demurrer to Complaint

2/18/2020: Reply (name extension) - Reply in Support of Demurrer to Complaint

Challenge To Judicial Officer - Peremptory (170.6) - Challenge To Judicial Officer - Peremptory (170.6)

11/26/2019: Challenge To Judicial Officer - Peremptory (170.6) - Challenge To Judicial Officer - Peremptory (170.6)

Request for Judicial Notice - Request for Judicial Notice in Support of Defendant Stephanie Schestag's Demurrer to Complaint

11/26/2019: Request for Judicial Notice - Request for Judicial Notice in Support of Defendant Stephanie Schestag's Demurrer to Complaint

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike Notice of Demurrer and Demurrer to Complaint

11/26/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike Notice of Demurrer and Demurrer to Complaint

Minute Order - Minute Order (Court Order Re: Peremptory Challenge)

11/27/2019: Minute Order - Minute Order (Court Order Re: Peremptory Challenge)

Certificate of Mailing for - Certificate of Mailing for [Minute Order (Court Order Re: Peremptory Challenge)]

11/27/2019: Certificate of Mailing for - Certificate of Mailing for [Minute Order (Court Order Re: Peremptory Challenge)]

Complaint - (Amended)

9/9/2019: Complaint - (Amended)

Proof of Service by Mail - Proof of Service by Mail

11/25/2019: Proof of Service by Mail - Proof of Service by Mail

Civil Case Cover Sheet - (Amended)

11/25/2019: Civil Case Cover Sheet - (Amended)

Other - (name extension) - Other - Discovery from Defendant: Bridie Owens

11/4/2019: Other - (name extension) - Other - Discovery from Defendant: Bridie Owens

Proof of Service by Substituted Service - Proof of Service by Substituted Service

9/20/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Proof of Service by Substituted Service - Proof of Service by Substituted Service

9/20/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Civil Case Cover Sheet - Civil Case Cover Sheet

9/9/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

9/9/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

14 More Documents Available

 

Docket Entries

  • 09/12/2022
  • Hearing09/12/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 03/08/2021
  • Hearing03/08/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 02/24/2020
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 02/24/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 02/24/2020 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 02/24/2020; Result Type to Held

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  • 02/20/2020
  • DocketMemorandum of Points & Authorities that Support the Defendant's Demurrer Being Overruled; Filed by: Salvador Rodriguez (Plaintiff)

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  • 02/20/2020
  • DocketOpposition TO DEFENDANTS MOTION TO STRIKE; Filed by: Salvador Rodriguez (Plaintiff)

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  • 02/18/2020
  • DocketReply in Support of Demurrer to Complaint; Filed by: Stephanie Raye Schestag-Myriano (Defendant)

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  • 02/11/2020
  • DocketOpposition to defendant's demurrer; Filed by: Salvador Rodriguez (Plaintiff)

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  • 11/27/2019
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 94 - Hon. Serena R. Murillo; Reason: Challenge / Recusal, by Defendant

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  • 11/27/2019
  • DocketCertificate of Mailing for [Minute Order (Court Order Re: Peremptory Challenge)]; Filed by: Clerk

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17 More Docket Entries
  • 09/09/2019
  • DocketUpdated -- Amended Complaint (1st): Status Date changed from 11/25/2019 to 09/09/2019

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  • 09/09/2019
  • DocketUpdated -- Amended Complaint (1st): Status Date changed from 11/25/2019 to 09/09/2019

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  • 09/09/2019
  • DocketRequest to Waive Court Fees; Filed by: Salvador Rodriguez (Plaintiff)

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  • 09/09/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Salvador Rodriguez (Plaintiff)

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  • 09/09/2019
  • DocketCivil Case Cover Sheet; Filed by: Salvador Rodriguez (Plaintiff)

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  • 09/09/2019
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 09/09/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/09/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 09/09/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 09/09/2019
  • DocketNon-Jury Trial scheduled for 03/08/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 19STLC08221    Hearing Date: February 24, 2020    Dept: 26

Rodriguez v. Schestag-Myriano, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Stephanie Schestag’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

ANALYSIS:

Both parties in this matter are self-represented. On September 9, 2019, Plaintiff Salvador Rodriguez (“Plaintiff”) filed the instant action in pro per alleging common counts and breach of contract against Defendants Stephanie Raye Schestag-Myriano (“Defendant”) and Bridie Owens. On November 25, 2019, Plaintiff filed an amended complaint (“FAC”), removing Bridie Owens as a defendant and removing attorney’s fees from the damages sought, as well as other amendments regarding the dates of the agreement and when the cause of action arose.

The FAC alleges that on December 10, 2018, Defendant agreed to pay Plaintiff $23,990 for a restoration project on a real property located at 3357 Wonder View Drive, Los Angeles, California 90068, which Defendant was listing for sale. (FAC, p. 4 § BC-2.) Plaintiff alleges that Defendant has not paid for his services rendered to date while benefitting from the work completed, as she has since listed and sold the property. (Id.) Plaintiff further alleges that Defendant tried to pay “only 3,000 dollars” and “only 5,000 dollars” “for a 23,990 dollar job.” (Id. at § BC-4.)

It should be noted that the original complaint filed on September 9, 2019, Plaintiff alleged that both the agreement was entered into and the causes of action arose on December 19, 2018. In the FAC, Plaintiff amended the complaint form to state that he entered into the agreement with Defendant on October 2, 2018, and that Defendant breached the agreement on December 10, 2018 (under § BC-2, Plaintiff inexplicably lists 11/02/2018 as the date in the heading, yet uses 12/10/2018 as the date in the body for the cause of action). (FAC, p. 4 §§ BC-1, BC-2.) In the attached “Explanation-Exhibit A” to the FAC, Plaintiff states that he entered into the contract with Defendant on October 3, 2018, and that the work was completed on December 10, 2018, which is when Defendant breached by not paying under the terms of their agreement. (FAC, Explanation-Exhibit A.)

Defendant filed the demurrer in pro per to the Complaint on November 26, 2019. Plaintiff filed an opposition on February 11, 2020. Defendant filed a reply on February 18, 2020.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP § 430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

Discussion

Meet and Confer

In the FAC, the attached Exhibit C shows a letter from Defendant’s counsel (at that time) to Plaintiff dated September 27, 2019, advising him that the complaint needed to have been served on Defendant personally and that the letter was an attempt to meet and confer about problems with the complaint and its service. However, Defendant did not file and serve a declaration with the demurrer detailing a meet and confer effort. The Court finds that the parties did not meet and confer. Under CCP § 430.41(4), any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.

Defendant’s Request for Judicial Notice

In support of the demurrer, Defendant requests that the Court take judicial notice of the following, attached as the following exhibits:

  1. Exhibit 1: A true and correct copy of the Plaintiff’s listing on California Contractors State Licensing Board website evidencing that his license expired on November 30, 2018 and has not been renewed since that time.

  2. Exhibit 2: A true and correct copy of e-mail correspondence between Plaintiff and Defendant, which Plaintiff also attaches as Exhibit A to the complaint and FAC.

The request for judicial notice is granted as to Exhibit 1, pursuant to Cal. Evidence Code section 452, subdivision (h). The request for judicial notice is denied as to Exhibit 2, as it does not fall within the categories of judicially noticeable matters as defined by Evidence Code section 452. However, the court will consider all of the evidence set forth in the papers.

Complaint is Barred by Law and is Uncertain

Defendant demurs to the Complaint on the grounds that Plaintiff’s claims are barred as a matter of law and are uncertain. Defendant contends that Plaintiff’s two causes of action for common counts and breach of contract fail to provide information about what work Plaintiff performed or what materials were purchased. Defendant argues that Plaintiff failed to attach the contract or allege its material terms.

Further, Defendant argues that even if the causes of action were well-pleaded, they fail as a matter of law because Plaintiff showed that his contractor’s license had expired on November 30, 2018, before he entered into the contract with Defendant on December 19, 2018. (Complaint, p. 4 § BC-2, Exhibit E.) It should be noted that Defendant’s arguments are in reference to the dates listed in Plaintiff’s original complaint, and not the FAC. As such, Defendant argues that Plaintiff is barred from pursuing damages for work he performed while unlicensed under Bus. and Prof. Code § 7031.

Cal. Bus. & Prof. Code § 7031(a) states: “… 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 regardless of the merits of the cause of action brought by the person ….” (Bus. & Prof. Code § 7031(a).)

Defendant further argues that if a contractor is unlicensed for any period of time while delivering construction services, the contractor forfeits all compensation for the work, not merely compensation for the period when the contractor was unlicensed. (Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239 Cal. App. 4th 882, 896, as modified on denial of rehearing (Sept. 15, 2015).)

In opposition, Plaintiff contends that the FAC alleges sufficient facts to state the causes of action and that the complaint is not uncertain.

Regarding his license status, Plaintiff argues that he completed the main job of painting the house on November 10, 2018, before his license expired, and that Defendant added more “small jobs” to their original agreement. Plaintiff argues that under the doctrine of severability, these additional jobs were added between mid-November and December 10, 2018, separate from what was originally agreed upon, and should be severed from his claims. As such, Plaintiff argues that his claims are not barred as a matter of law. Plaintiff also adds that he has been unable to reinstate his contractor license due to financial hardship and medical conditions. (Opposition, p. 4.)

Additionally, Plaintiff raises additional arguments that had not been raised in the FAC regarding equitable remedy, estoppel, quasi-contract, undue influence, fraud, and misrepresentation on the part of Defendant. As demurrer can be used only to challenge defects that appear on the face of the pleading under attack, the Court declines to address these arguments.

In reply, Defendant contends that Plaintiff filed the opposition late, two days beyond the February 7, 2020 deadline, and that it should be stricken as a result. The Court declines to strike the opposition.

Based on the foregoing, the Court finds that Plaintiff’s breach of contract claim is barred as a matter of law. Bus. & Prof. Code § 7031(a) bars a contractor from bringing an action “…for the collection of compensation for the performance of any act or contract where a license is required … without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract…” (Bus. & Prof. Code § 7031(a), emphasis added.) Using the dates Plaintiff alleges in the FAC, even if Plaintiff entered into the contract with Defendant on October 2, 2018 while his contractor’s license was valid, his license is shown to have expired on November 30, 2018, and he alleges that he completed the work on December 10, 2018.

Furthermore, Plaintiff’s arguments raised in opposition about severability fail as they were not initially pleaded in the FAC. Plaintiff alleges for the first time in opposition that he completed painting the house on November 10, before his license expired. Also, Plaintiff fails to offer any evidence in the FAC as to a copy of the actual contract, its material terms, any dates of completion of specific tasks, or a severability provision. The extent of Plaintiff’s evidence as to the contract or its line items are in Exhibit A, which is merely a copy of email correspondence Plaintiff send to Defendant listing the costs for tasks he performed, yet lacking dates or additional details. (FAC, Exhibit A.)

Conclusion

Based on the foregoing, Defendant Stephanie Schestag’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Moving party to give notice.