ARMANDO PADILLA VS PADILLAS CO INC ET AL

Tentative Rulings

Case Number: ****0352    Hearing Date: June 29, 2020    Dept: 71

Defendant’s unopposed demurrer to the third amended complaint is sustained without leave to amend.

Defendant’s unopposed motion to strike is moot.

1. Demurrer

   Defendant Padilla’s Company, Inc. (“Defendant”) demurs to the 1^st (breach of oral contract), 2^nd (failure to pay wages due), and 3^rd (quantum meruit) causes of action of the third amended complaint (“TAC”) of Plaintiff Armando Padilla (“Plaintiff”). Defendant demurs on the grounds that the TAC fails to allege facts sufficient to constitute the causes of action. (Notice of Demurrer, pg. 1.)

   The hearing on the demurrer and motion to strike was originally noticed for January 27, 2020. On December 20, 2020, the Court granted Plaintiff’s ex parte application, advancing the hearing on the motion to be relieved as counsel to January 27, 2020, and continuing the hearing on the demurrer and motion to strike to February 20, 2020. On January 27, 2020, the Court granted the motion to be relieved as counsel filed by Plaintiff’s counsel, David Scott Miller. On February 20, 2020, the Court continued the demurrer/motion to strike hearing to March 27, 2020, pursuant to Defendant’s request. On March 20, 2020, the Court continued the hearing to June 10, 2020, and on May 1, 2020, the Court continued the hearing to June 29, 2020. Plaintiff has not filed oppositions to the demurrer and/or the motion to strike.

   Defendant’s 9/23/19 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted in the complaint, the first amended complaint (“FAC”), the second amended complaint (“SAC”), the TAC, or the Notice of Ruling. (D-RJN, Exhs. 1-5.)

   As a preliminary matter, Plaintiff’s TAC exceeds the scope of amendment permitted by the Court. (See People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785-786.) On May 8, 2017, Plaintiff filed a complaint for failure to pay work done and/or breach of contract. On December 11, 2017, the Court sustained the demurrer to the complaint with leave to amend. (12/11/17 Ruling.) Plaintiff filed his FAC on May 31, 2018, adding new causes of action. On October 24, 2018, the Court sustained Defendants’ demurrer to the SAC with leave to amend and ruled that Plaintiff’s FAC exceeded the scope of amendment permitted by the Court, was uncertain, was a sham pleading, and failed to allege sufficient facts to constitute the causes of action. (10/24/18 Ruling.) On November 26, 2018, Plaintiff filed his SAC, again alleging causes of action that exceeded the scope of amendment permitted by the Court. On June 20, 2019, the Court sustained the demurrer to the SAC, with leave to amend, ruling that the SAC exceeded the scope of amendment permitted by the Court. (6/20/19 Ruling.) On June 19, 2019, Plaintiff, who had been pro per, retained counsel. (6/19/19 Substitution of Attorney.) On August 2, 2019, Plaintiff filed his TAC alleging causes of action for breach of oral contract, failure to pay wages due, and quantum meruit, a cause of action not previously alleged and therefore exceeding the scope of amendment provided for in the Court’s prior ruling.

   The Court also notes that on August 20, 2019, Plaintiff dismissed Defendants Jim Arnold (“Arnold”), Citadel Outlets, J.A. (“CO”), Stowell Construction, Inc. (“Stowell”), and Craig Realty Group, LLC (“Craig Realty”). Defendant filed the instant demurrer on September 23, 2019. On December 17, 2019, Plaintiff’s counsel filed a motion to be relieved as counsel, which the Court granted on January 27, 2020.

   Breach of Oral Contract (1^st COA)

   Plaintiff failed to allege sufficient facts to constitute a cause of action for breach of oral contract. “The standard elements of a claim for breach of contract are ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. [Citation.]’ [Citation]” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

   Plaintiff’s breach of oral contract cause of action is based on allegations that in 2016, Plaintiff entered a verbal agreement with Defendant (“Agreement”) in connection with the performance of a Project involving demolition work at 100 Citadel Drive in Commerce, California (the “Project”), that Plaintiff had been invited to bid on by Stowell. (TAC ¶¶5, 9, 21.) Plaintiff alleged that the Project required that the contractor performing the work carry certain insurance that Padilla Demolition did not possess, and that Plaintiff therefore approached Frank Padilla, president of Defendant, to inquire if he would be willing to have Defendant work with Plaintiff on the Project using Defendant as the contractor since it had the required insurance. (TAC ¶8.) Plaintiff alleged that the Agreement provided that Defendant would enter into the contract with Stowell for the contract, that Defendant would furnish the necessary insurance and performed under Defendant’s contractor’s license, that PCI would provide clerical and billing services, that Plaintiff would calculate and pay most employees while subcontractors and vendors would be paid directly from Stowell, that Plaintiff would also perform work on the Project and neither Defendant nor Frank Padilla would do any work on the project, and that Defendant would receive 15 % of the profit in compensation for use of its insurance and license and Plaintiff would receive the balance. (TAC ¶10.) Plaintiff alleged that shortly after the agreement was made, Frank Padilla, on behalf of Defendant, entered into a separate agreement with Stowell. (TAC ¶13.) Plaintiff alleged that he oversaw demolition and performed substantial work on the project, that after the first month PCI received $90,000 from Stowell, which it paid Plaintiff $16,500, which Plaintiff used to pay off expenses in connection with the Project. (TAC ¶¶14-15.) Plaintiff alleged that Frank Padilla, on behalf of Defendant, began telling Plaintiff’s subcontractors that Plaintiff was no longer affiliated with the Project and that Defendant had taken it over. (TAC ¶16.)

   However, these allegations conflict with allegations made in Plaintiff’s prior complaints in which he alleged he was a subcontractor on the project, that he worked on the Project for two weeks prior to approaching Frank Padilla or Defendant to perform work on the Project and use its contractor’s license, and that Defendant would be a silent partner to the Agreement. (Demurrer, pgs. 4-5.) The allegations suggest that Plaintiff held himself out as a contractor and/or subcontractor during the contract period and as such, he is barred from seeking compensation under Cal. Bus. & Prof. Code ;7031(a).

   Plaintiff bears the burden of proving there is a reasonable possibility of amendment; however, Plaintiff has not filed an opposition to the instant demurrer, and as such, has failed to meet his burden. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

   Based on the foregoing, Defendant’s unopposed demurrer to Plaintiff’s 1^st cause of action is sustained without leave to amend.

   Failure to Pay Wages Due (2^nd COA)

   Plaintiff failed to allege sufficient facts to constitute causes of action for failure to pay wages due. First, Plaintiff alleged facts suggesting Business & Professions Code ;7031 bars any action for recovery of wages due because Plaintiff alleged he hired and paid other employees while performing services as an unlicensed contractor before entering into the alleged agreement with Defendant. (TAC ¶15; See Demurrer, pgs. 5-6.) Plaintiff’s allegations suggest he was not an employee, but an independent contractor, and as such Plaintiff is precluded from bringing an action for work performed. (Bus. & Prof. Code ;7031(a) [“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”].)

   Plaintiff’s allegations contradict a finding that he was an employee of Defendant including allegations that he used money received from PCI, in connection with the project, “to pay employees,” and allegations in previous versions of the complaint that he should be recognized as an independent contractor. (TAC ¶15; see SAC ¶¶21,31.)

   In light of the non-opposition to the demurrer, Plaintiff has not met his burden of demonstrating the defects in the pleadings can be cured via amendment.

   Based on the foregoing, Defendant’s unopposed demurrer to Plaintiff’s 2^nd cause of action is sustained without leave to amend.

   Quantum Meruit (3^rd COA)

   A cause of action for quantum meruit requires the following elements: (1) defendant requested, by words or conduct, that plaintiff perform services/deliver goods for the benefit of defendant; (2) plaintiff performed the services/delivered the goods as requested; (3) defendant has not paid plaintiff for the services/goods; and (4) the reasonable value of the goods/services that were provided. CACI 371.

   As discussed above, the TAC’s inclusion of a cause of action for quantum meirut exceeds the scope of amendment provided by the Court in ruling on the Demurrer to the SAC. Moreover, Plaintiff’s quantum meruit cause of action is based on allegations that Plaintiff did not receive reasonable value for services he alleges to have performed on the Project. (TAC ¶41.) However, Section 7031 bars actions that seek compensation for unlicensed contract work and, as discussed above, Plaintiff’s allegations suggest he performed contract work without a license.

   In addition, given the non-opposition to the demurrer, Plaintiff has not met his burden of demonstrating the defects in the pleadings can be cured via amendment.

   Based on the foregoing, Defendant’s unopposed demurrer to Plaintiff’s 3^rd cause of action is sustained without leave to amend.

2. Motion to Strike

   In light of the ruling on the demurrer, the unopposed motion to strike is

   moot.