HUA STAR CAPITAL USA, LLC VS DONALD G ABBEY, ET AL.

Tentative Rulings

Case Number: *******0898    Hearing Date: August 14, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 14

Date: 8/14/20

Case No: 19 GDCV00898 Trial Date: March 8, 2021

Case Name: Hua Star Capital USA, LLC v. Abbey, et al.

DEMURRERS (2)

[CCP ;430.10 et. seq.]

Moving Party: Defendant Nittany Lion Landscaping, Inc.

Defendant Donald G. Abbey

Responding Party: Plaintiff Hua Star Capital USA, LLC

RELIEF REQUESTED:

Sustain demurrer to Second Amended Complaint

CAUSES OF ACTION: from Second Amended Complaint

1) Negligence

SUMMARY OF FACTS:

Plaintiff Hua Star Capital USA, LLC alleges that it is the owner of real property in Bradbury. Plaintiff alleges that defendant Donald G. Abbey purchased the subject property in the 1990s, and periodically performed and hired others to perform various construction work on the property, through May of 2011, when Abbey obtained the Certificate of Occupancy for the subject property. The SAC alleges that defendant Abbey was the general contractor who installed the retaining walls and performed other work in the main house, that defendant Pacific Mechanical Contractors acted as the mechanical contractor, that defendant Aaron Anthony, Inc. was the pool deck contractor, that defendant Nittany Lion Landscaping, Inc. was the electrician and roofer, and that defendant Extreme Fire Protection, Inc. was the fire sprinkler installer at the subject property. Plaintiff alleges that in June of 2016, defendant Abbey transferred his ownership interest in the subject property to his lender, Second Step Asset Management, and that in September 2017, plaintiff purchased the subject property from Second Step.

The SAC alleges that subsequent to plaintiff’s purchase of the subject property, plaintiff discovered and continues to discover problems with the property, and alleges that the design and construction work is substandard, and the subject property has suffered problems such as water seepage in the downstairs basement causing interior damage to drywall in the main home and pool house, windows leaking causing damage to the interior, premature failure of boiler system components, and omission of proper drainage collection systems at lower level entrances from exterior staircases. The SAC alleges that defendants breached their duty of care to act reasonably in the structural design and construction undertaken at the subject property and to produce a home and other improvements reasonably fit for its intended purpose and free of defects and deficiencies in a good and workmanlike fashion and to comply with all building codes and regulations and manufacturer recommendations.

Defendant Abbey filed a demurrer in response to the original complaint, which was rendered moot upon the filing of the First Amended Complaint.

Defendant Abbey and defendant Nittany Lion Landscaping each filed demurrers to the FAC, which were heard on February 7, 2020. The demurrers were sustained with leave to amend as to the first cause of action for negligence and sustained without leave to amend as to the second cause of action for breach of implied warranty, and, at the concession of plaintiff in the opposition papers, sustained without leave to amend to the third cause of action for strict liability.

The Second Amended Complaint asserts one cause of action for negligence. Defendant Abbey and defendant Nittany Lion Landscaping each again challenge the sufficiency of the SAC.

ANALYSIS:

The SAC now asserts a single cause of action for negligence.

The demurrer by Nittany Lion Landscaping to this cause of action was previously sustained as follows:

“Demurrer to the first cause of action for negligence is SUSTAINED WITH LEAVE TO AMEND for the reasons stated in the moving papers and reply. The FAC does not sufficiently allege facts supporting the existence of a duty on the part of moving defendant owed to plaintiff. The court on amendment expects facts to be alleged addressing the duty foreseeability factors, and on any further demurrer expects thorough briefing on the issue of whether a duty is owed by a contractor to a subsequent owner of real property which purchased the real property from a third-party seller.”

The demurrer by Abbey to this cause of action was previously sustained as follows:

“Demurrer to the first cause of action for negligence is SUSTAINED WITH LEAVE TO AMEND on the ground the FAC does not sufficiently allege facts supporting the existence of a duty on the part of moving defendant owed to plaintiff, even as an alleged contractor directly performing construction work. The court on amendment expects facts to be alleged addressing the duty foreseeability factors, and on any further demurrer expects thorough briefing on the issue of whether a duty is owed by a owner/contractor to a subsequent owner of real property which purchased the real property from a third party seller.”

To plead a claim for negligence, a plaintiff must allege the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach. Ladd v. County of San Mateo (1996) 12 Cal.4^th 913, 917.

Both defendant Abbey and defendant Nittany Lion Landscaping again argue that plaintiff has failed to sufficiently allege a duty of care owed from each defendant to plaintiff.

The demurrer by Abbey argues that the theory against Abbey is that while remodeling the property Abbey should have foreseen he would encounter financial hardship causing his lender to foreclose on the property, and that by transferring the property to his lender in lieu of foreclosure, plaintiff would purchase the property and be damaged. Defendant Abbey argues that despite plaintiff’s allegations and legal arguments in the SAC with respect to duty, the SAC fails to support the theory that an owner-builder who intended to reside at his personal residence for years prior to losing the home due to financial distress, owes a duty to an unknown future buyer.

As an initial matter, the SAC does not appear to allege that Abbey should have foreseen financial hardship, and a future purchase of the property from the lender. The SAC alleges that all defendants, including Abbey as a general contractor who installed the retaining walls and did other work on the property, owed a duty of care based on allegations that defendants could reasonably foresee that plaintiff would rely on defendants to produce a home reasonably fit for its intended purposes, free of defects and deficiencies, and not to create property damage. [SAC ¶¶ 3, 23].

In any case, defendants both argue that the pleading fails to sufficiently allege that defendants owed a recognized duty to plaintiff, as an unknown future buyer from a third-party seller.

The SAC alleges that there are various factors which give rise to a duty of care on the part of defendants to future homeowners. Specifically, the SAC now alleges that:

“(i) Defendants’ work was intended to benefit any present and future homeowner(s) living in the Property that Defendants helped to construct; (ii) it was foreseeable that these homeowners would be among the limited class of persons harmed by the negligent construction of the Property; (iii) Plaintiff has suffered injury in that the aforementioned construction defects have made the Property unsafe and uninhabitable during certain periods; (iv) there is a close connection between Defendants’ conduct and the injury suffered as Defendants were the contractors and/or subcontractors involved in the various phases on the construction of the Property; (v) Because of Defendants’ unique and well-compensated role in the construction of the Property as well as their awareness that future homeowners, like Plaintiff, would rely on their specialized expertise in construction, significant moral blame attaches to Defendants’ conduct; and (vi) the policy of preventing future harm to homeowners relying on Defendants’ specialized skills supports recognition of a duty of care.”

[SAC ¶ 22].

Plaintiff in both the oppositions and the SAC cites Biakanja v. Irving (1958) 49 Cal.2d 647 and Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4^th 568 (incorrect citation in both SAC and moving papers).

The California Supreme Court in Biakanja allowed recovery against a notary public for negligence in the drafting of a will in an action brought by the intended beneficiary of the will, who was not in privity with the notary in connection with the will preparation. See Biakanja, at 651 (“We have concluded that plaintiff should be allowed recovery despite the absence of privity…”).

The Court in Biakanja set forth the analysis to be applied in such cases:

“The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm. Cf. Prosser, Torts (2d ed. 1955), ss 36, 88, 107, pp. 168, 172, 544-545, 747; 2 Harper and James, Torts (1956), s 18.6, p. 1052.”

Biakanja, at 650.

Plaintiff previously relied on Stewart v. Cox (1961) 55 Cal.2d 857, which affirmed a judgment in favor of property owners who had contracted with a general contractor to construct a swimming pool on their property, and ultimately recovered a judgment against a subcontractor on the project which had installed the concrete in the pool. Stewart, at 859-860. The Court addressed the issue of whether a subcontractor such as defendant in that matter, “may be liable to the owner, with whom he was not in privity of contract, for damage occurring after his work had been accepted by the contractor and the owner.” Stewart, at 861-862. The Court reviewed the rules and historical exceptions applicable to contractors and subcontractors, and concluded:

“In Biakanja v. Irving, 49 Cal.2d 647, 649 et seq. [320 P.2d 16, 65 A.L.R.2d 1358], we recognized that liability for negligence can exist without privity although the risk involved is only damage to property, and we held that the determination whether in a specific case the defendant will be held liable to a third person is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that he suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the policy of preventing future harm. (See also United States v. Rogers & Rogers, 161 F.Supp. 132.) The liability of a contractor or subcontractor must be determined by applying this general test rather than by arbitrarily placing them in a separate category subject to a special rule. (Cf. Garcia v. Soogian, 52 Cal.2d 107, 110 [338 P.2d 433].)”

Stewart, at 863.

The Court then reviewed the factors in connection with the case before it and found a duty was sufficiently established in that case.

Plaintiff has now alleged facts in connection with each of the Biakanja factors, as set forth above, and as contemplated by the court’s previous minute order.

Plaintiff now further relies on Beacon Residential Community Association, in which it was recognized that an architect as a design professional in that case had a duty to a homeowners association consisting of individual owners which were sold housing units by a third party, regardless of any lack of privity, pursuant to broad common law principles.

Specifically, the California Supreme Court in Beacon found that the court of appeal had properly reversed the trial court’s order sustaining a demurrer in favor of defendant architectural firms, reviewing the case law as it had developed in connection with such a duty analysis, as well as those pertaining to alleged negligence in construction, and design professionals such as architects, and specifically the Biakanja factors, and found that key considerations in that case, “counsel in favor of recognizing a duty of care that design professionals owe to future homeowners” in circumstances such as those alleged in that case. Beacon, at 578.

Defendants argue that this case is distinguishable from Biakanja on the ground the case involved the breach of a contractual duty, which is evident from the first factor which measures “the extent to which the transaction is intended to affect the plaintiff.” However, the cases cited did not limit recovery to contractual causes of action, but recognized claims in negligence based on the duty evaluation. In Aas v. Superior Court (2000) 24 Cal.4^th 627, (noted to have been superseded by statute on other grounds in Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4^th 1070, 1079-1080), the California Supreme Court recognized that, “[s]peaking very generally, tort law provides a remedy for construction defects that cause property damage or personal injury…” Aas, at 635.

The SAC here alleges that defendants owed a negligence duty to plaintiff, and that the duty included a duty “not to create property damage.” [SAC ¶ 23].

Defendants also argue that this case with respect to the factors concerning the principal purpose of the transaction, the foreseeability of harm, and the availability of alternative remedies, is in contrast to Beacon, which involved a plaintiff comprised of condominium owners who were intended beneficiaries of the architectural work, as defendants built the project knowing the units would be sold to members of the public within two years of the completion of the project, so it was foreseeable that future owners would be affected by the work performed, and that in that case the future owners had no real alternative to seek redress other than a negligence action against defendants.

Defendants argue that here, in contrast, the work was done solely for the benefit of Abbey, with no direct or immediate connection to a subsequent purchaser, or knowledge of an inevitable sale to purchasers such as the general public in Beacon, and that plaintiff here is not in the nature of a consumer without ready remedy (presumably, against the seller) if this lawsuit is dismissed.

The Court in Beacon found that a claim had been sufficiently stated despite the fact that the units were sold by a developer to the future buyers, despite similar arguments made by defendants in that case:

“Nor do we find persuasive defendants' claim that the connection between their conduct and plaintiff's injury is “attenuated because ... when the developer sold the units two years after construction, it was aware of, and concealed, the alleged defects.” This specific allegation, if true, may inform whether defendants' conduct was the proximate cause of plaintiff's injury. (See, e.g., Gonzalez v. Derrington Evangelatos v. Superior Court ; Greystone, supra, .) There is no reason to think in this case or in general that the developer and other major players have “left the scene” via bankruptcy, as is often the case with auditor liability suits. (Bily, supra, .) But because the developer's alleged misdeeds are themselves derivative of defendants' allegedly negligent conduct, they do not diminish the closeness of the connection between defendants' conduct and plaintiff's injury for purposes of determining the existence of a duty of care.”

Beacon, at 583.

Moreover, as argued in the oppositions, it is alleged in support of the foreseeability factors that defendant Abbey was in fact a real estate developer who is constantly buying lots, building new homes and then selling them. [SAC ¶¶ 2, 3].

Plaintiff in opposition also relies on Sumitomo Bank v. Taurus Developers, Inc. (1986) 185 Cal.App.3d 211, 223, in which the court of appeal reversed a trial court order sustaining a demurrer without leave to amend to a negligence cause of action alleged by a bank which had loaned money to a builder of a condominium project, and later acquired the project at a trustee’s sale after the builder defaulted on its payments. The court of appeal observed, “As a general rule, a builder must exercise reasonable care toward those who purchase a housing structure,” and that “[p]rivity of contract between the builder and the purchaser is not an essential requirement,” citing the Biakanja factors. Sumitomo Bank, at 223 (citations omitted). The court of appeal concluded that there was nothing in the nature of a foreclosure sale which should cut of a builder’s potential liability for negligent construction and that the identity of the purchaser as a beneficiary lender in the real estate project was similarly not dispositive. Sumitomo Bank, at 224. The court of appeal expressly concluded that “a third party purchaser at a foreclosure sale is not barred from bringing an action against a builder for negligent construction….” Id.

Plaintiff argues that this case similarly involves a third party purchaser, and despite a similar lack of privity in the foreclosure context, the Biakanja factors now alleged are sufficient to state a negligent construction claim.

Overall, plaintiff has now submitted legal authority under which a duty to future homeowners sold by a third party may be recognized, and has alleged facts in connection with the pertinent factors sufficient to survive demurrer on this ground. The demurrers now are overruled.

RULING:

Nittany Lion Landscaping, Inc.’s Demurrer to Plaintiff’s Second Amended Complaint is OVERRULED.

Ten days to answer.

Donald G. Abbey’s Demurrer to Plaintiff’s Second Amended Complaint is OVERRULED.

Ten days to answer.

UNOPPOSED Request for Judicial Notice in Support of Oppositions is GRANTED.

GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED, DEPARTMENT D WILL ALLOW APPEARANCES ONLY BY COURTCALL.

Please make such arrangements in advance if you wish to appear via CourtCall at (888) 882-6878 (or www.courtcall.com). Counsel and parties (including self-represented litigants) are not to personally appear, absent a compelling emergency reason. If none of the litigants on a matter set up a CourtCall appearance, then the Court will assume the parties are submitting on the tentative.

Case Number: *******0898    Hearing Date: February 07, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 7

Date: 2/7/20

Case No: 19 GDCV00898 Trial Date: None Set

Case Name: Hua Star Capital USA, LLC v. Abbey, et al.

DEMURRERS (2)

[CCP ;430.10 et. seq.]

Moving Party: Defendant Nittany Lion Landscaping, Inc.

Defendant Donald G. Abbey

Responding Party: Plaintiff Hua Star Capital USA, LLC

RELIEF REQUESTED:

Sustain demurrer to First Amended Complaint

CAUSES OF ACTION: from First Amended Complaint

1) Negligence

2) Breach of Implied Warranty

3) Strict Liability

SUMMARY OF FACTS:

Plaintiff Hua Star Capital USA, LLC alleges that it is the owner of real property in Bradbury. Plaintiff alleges that defendant Donald G. Abbey purchased the subject property in the 1990s, and periodically performed and hired others to perform various construction work on the property, through May of 2011, when Abbey obtained the Certificate of Occupancy for the subject property. The FAC alleges that defendant Abbey was the general contractor who installed the retaining walls and performed other work in the main house, that defendant Pacific Mechanical Contractors acted as the mechanical contractor, that defendant Aaron Anthony, Inc. was the pool deck contractor, that defendant Nittany Lion Landscaping, Inc. was the electrician and roofer, and that defendant Extreme Fire Protection, Inc. was the fire sprinkler installer at the subject property. Plaintiff alleges that in June of 2016, defendant Abbey transferred his ownership interest in the subject property to his lender, Second Step Asset Management, and that in September 2017, plaintiff purchased the subject property from Second Step.

The FAC alleges that subsequent to plaintiff’s purchase of the subject property, plaintiff discovered and continues to discover problems with the property, and alleges that the design and construction work is substandard, and the subject property has suffered problems such as water seepage in the downstairs basement causing interior damage to drywall in the main home and pool house, windows leaking causing damage to the interior, premature failure of boiler system components, and omission of proper drainage collection systems at lower level entrances from exterior staircases. The FAC alleges that defendants failed to assure the work was completed properly, in breach of the duty of care, and breached their implied warranty that the home had been built in accordance with generally accepted and current construction practices, without defects, and in compliance with all building codes, industry standard and ordinances.

Defendant Abbey filed a demurrer in response to the original complaint, which was rendered moot upon the filing of the First Amended Complaint.

Defendant Abbey and defendant Nittany Lion Landscaping now challenge the sufficiency of the FAC.

ANALYSIS:

First Cause of Action—Negligence

To plead a claim for negligence, a plaintiff must allege the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach. Ladd v. County of San Mateo (1996) 12 Cal.4^th 913, 917.

Both defendant Abbey and defendant Nittany Lion Landscaping argue that plaintiff has failed to sufficiently allege a duty of care owed from each defendant to plaintiff.

The demurrer by Abbey argues that the theory against Abbey is that while remodeling the property Abbey should have foreseen he would encounter financial hardship causing his lender to foreclose on the property, and that by transferring the property to his lender in lieu of foreclosure, plaintiff would purchase the property and be damaged. Defendant Abbey argues that there is no law supporting the proposition that an owner-builder who intended to reside at his personal residence for several years owes a duty to an unknown future buyer.

The opposition argues that the pleading is not based on Abbey’s mere ownership of the property but alleges clearly that Abbey himself performed work on the property in addition to the work performed by others he hired, and that Abbey was the general contractor who installed the retaining walls and performed other work on the property and owed a duty to act reasonably in the construction undertaken at the property. [FAC ¶¶ 12, 13, 21]. This recitation does appear to be plaintiff’s theory of liability against this defendant, not the theory urged by the demurrer.

On the other hand, as discussed below, the opposition, while arguing that a contractor’s duties extend to third persons who foreseeably may be endangered by a party’s negligence, does not cite to any case law under which a contractor such as Abbey, performing work at property, owes a duty to a subsequent purchaser from a different seller to have completed the work in a workmanlike manner. Plaintiff relies on Stewart v. Cox (1961) 55 Cal.2d 857, which affirmed a judgment in favor of property owners who had contracted with a general contractor to construct a swimming pool on their property, and ultimately recovered a judgment against a subcontractor on the project which had installed the concrete in the pool. Stewart, at 859-860. The Court addressed the issue of whether a subcontractor such as defendant in that matter, “may be liable to the owner, with whom he was not in privity of contract, for damage occurring after his work had been accepted by the contractor and the owner.” Stewart, at 861-862. The Court reviewed the

rules and historical exceptions applicable to contractors and subcontractors, and concluded:

“In Biakanja v. Irving, 49 Cal.2d 647, 649 et seq. [320 P.2d 16, 65 A.L.R.2d 1358], we recognized that liability for negligence can exist without privity although the risk involved is only damage to property, and we held that the determination whether in a specific case the defendant will be held liable to a third person is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that he suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the policy of preventing future harm. (See also United States v. Rogers & Rogers, 161 F.Supp. 132.) The liability of a contractor or subcontractor must be determined by applying this general test rather than by arbitrarily placing them in a separate category subject to a special rule. (Cf. Garcia v. Soogian, 52 Cal.2d 107, 110 [338 P.2d 433].)”

Stewart, at 863.

The Court then reviewed the factors in connection with the case before it and found a duty was sufficiently established in that case.

This may suggest that plaintiff in this matter should be required to allege facts to establish this duty in connection with each of the Biakanja factors.

Plaintiff also relies on Aas v. Superior Court (2000) 24 Cal.4^th 627, in which the California Supreme Court recognized that “Speaking very generally, tort law provides a remedy for construction defects that cause property damage or personal injury…” Aas, at 635. The issue in Aas was whether plaintiffs, homeowners of mass produced homes and the homeowners association, could recover in negligence from the developer, contractor and subcontractor who built their dwellings for construction defects that had not caused property damage. The Court found that they could not and discussed Stewart and the application of the Biakanja factors in establishing liability in construction cases. The Aas case does not appear to have involved the scope of a duty owed to subsequent owners of property purchasing the property from a third party. Aas has since been noted to have been superseded by statute with respect to newly constructed housing and residences originally sold on or after January 1, 2003. See Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4^th 1070, 1079-1080.

The court sustains the demurrer with leave to amend to more clearly allege the basis for the claimed duty here.

The demurrer filed by Nittany Lion Landscaping argues more directly that there is no duty owed to a plaintiff by a defendant as a contactor to a subsequent purchaser of the property. The argument is that Nittany Lion owed a duty to Abbey, the owner for the property at the time Nittany Lion performed its work, and that no court has extended a contractor’s duty of care to subsequent purchasers of property. Nittany Lion argues that Civil Code ; 895, et seq. for example, provides for actions for construction defects with respect to new construction, and the original purchasers.

Again, in opposition, plaintiff relies on Stewart and Aas, and argues that duty is sufficiently stated here.

Nittany Lion in reply argues that the cases at best support an argument that Abbey could sue Nittany Lion or its subcontractors but does not support an argument that plaintiff can plead a cause of action against those parties. Nittany Lion concedes it has been unable to find a case in California or elsewhere that allowed, or disallowed, the subsequent purchaser of property to sue a prior owner who did not sell the property to it, or to sue the prior owner’s subcontractors for construction defect. The reply then examines the foreseeability factors, and concludes they dictate against duty here, and further argues that plaintiff, as the current owner of the subject property, has remedies against the seller of the property, which is not named as a party here, but not directly against the contractors or subcontractors.

The demurrer is sustained on this ground and as to both moving defendants. The plaintiff required to more clearly allege the facts supporting imposition of a duty in this circumstance, and the parties required to more fully brief this issue on any further demurrer.

Second Cause of Action—Breach of Implied Warranty

Both defendants argue that this cause of action fails because there is no privity of contract between the moving defendants and plaintiff.

Defendants rely on case law in which it is generally held that implied warranty claims require contractual privity. In Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, the California Supreme Court observed:

“The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.”

Burr, at 695, citations omitted.

Accordingly, in Anthony v. Kelsey-Hayes Co. (1972) 25 Cal.App.3d 442, the Second District held that the trial court had properly dismissed a claim based on implied warranty after sustaining a demurrer without leave to amend:

“It is settled law in California that privity between the parties is a necessary element to recovery on a breach of an implied warranty of fitness for the buyer's use, with exceptions not applicable here. (Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 695-696 [268 P.2d 1041].) A demurrer is properly sustainable in an action predicated upon a breach of an implied warranty when lack of privity between plaintiff and defendant is disclosed on the face of the complaint. (Thomas v. Olin Mathieson Chem. Corp., supra, 255 Cal.App.2d 806, 810.)”

Anthony, at 448.

The FAC here alleges that the house was sold to plaintiff from a seller that was not either of the moving defendants. [FAC ¶ 16]. There is no contractual privity with respect to the construction alleged between defendants and plaintiff, the current owner. This lack of privity is accordingly disclosed on the face of the FAC.

Plaintiff in opposition seems to argue that there can be exceptions in cases such as in connection with third party beneficiaries. No such theory is alleged in the FAC. Plaintiff then seems to argue that there may be some other applicable theory, that this case is only at the pleading stage and discovery is just beginning and it would not prejudice defendants if the demurrer is overruled at this juncture. This argument is backward; if plaintiff does not yet have facts to support this cause of action, the demurrers should be sustained, without leave to amend, but without prejudice to plaintiff seeking leave to allege such a claim if facts develop during discovery which support it. The demurrers are sustained to this cause of action, without leave to amend.

Third Cause of Action—Strict Liability

Plaintiff concedes in the oppositions that this cause of action will be dismissed without prejudice as to each of the moving defendants. The demurrers to this cause of action are accordingly sustained without leave to amend at the concession of plaintiff.

RULING:

Nittany Lion Landscaping, Inc.’s Demurrer to Plaintiff’s First Amended Complaint:

The court notes that it has reluctantly considered the opposition papers and reply papers, despite the failure of the parties to submit to the court timely courtesy copies. See First Amended General Order, filed May 3, 2019 by the Superior Court of the State of California for the County of Los Angeles, and signed by Presiding Judge Kevin C. Brazile, requiring, that “a printed courtesy copy (along with proof of electronic submission) is required for the following documents… iii) Pleadings and motions that include points and authorities;” and “Demurrers.” [First Amended General Order ; 9 (b)(iii) and (iv)]. The order expressly states that, “Nothing in this General Order precludes a Judicial Officer from requesting a courtesy copy of additional documents.” [First Amended General Order ; 9 (c)]. Department D has in place a written policy requesting courtesy paper copies lodged with Department D of “ALL REPLIES, OPPOSITIONS, AND OBJECTIONS, FOR THE MATTERS THE COURT HEARS ON FRIDAYS FOR ITS LAW AND MOTION CALENDAR.” The court may in the future refuse to consider papers efiled and submitted without the required printed courtesy copies.

Demurrer to the first cause of action for negligence is SUSTAINED WITH LEAVE TO AMEND for the reasons stated in the moving papers and reply. The FAC does not sufficiently allege facts supporting the existence of a duty on the part of moving defendant owed to plaintiff. The court on amendment expects facts to be alleged addressing the duty foreseeability factors, and on any further demurrer expects thorough briefing on the issue of whether a duty is owed by a contractor to a subsequent owner of real property which purchased the real property from a third-party seller.

Demurrer to the second cause of action for breach of implied warranty is SUSTAINED WITHOUT LEAVE TO AMEND. The FAC discloses on its face that there is no privity of contract between plaintiff and the moving defendant. [FAC ¶ 16]. The opposition appears to concede that plaintiff currently has no facts to support a theory to avoid this bar but anticipates uncovering such facts in discovery. The demurrer is accordingly sustained without leave to amend, but without prejudice to plaintiff bringing an appropriate motion to amend the pleading to state such a cause of action if such facts are in fact disclosed through discovery.

Demurrer to the third cause of action for strict liability is SUSTAINED WITHOUT LEAVE TO AMEND, at the concession of plaintiff in the opposition papers.

Ten days leave to amend the first cause of action only.

The parties are ordered to meet and confer in full compliance with CCP ; 430.41 before any further demurrer may be filed.

Donald G. Abbey’s Demurrer to Plaintiff’s First Amended Complaint:

The court notes that it has reluctantly considered the opposition papers, despite the failure of the parties to submit to the court timely courtesy copies. See First Amended General Order, filed May 3, 2019 by the Superior Court of the State of California for the County of Los Angeles, and signed by Presiding Judge Kevin C. Brazile, requiring, that “a printed courtesy copy (along with proof of electronic submission) is required for the following documents… iii) Pleadings and motions that include points and authorities;” and “Demurrers.” [First Amended General Order ; 9 (b)(iii) and (iv)]. The order expressly states that, “Nothing in this General Order precludes a Judicial Officer from requesting a courtesy copy of additional documents.” [First Amended General Order ; 9 (c)]. Department D has in place a written policy requesting courtesy paper copies lodged with Department D of “ALL REPLIES, OPPOSITIONS, AND OBJECTIONS, FOR THE MATTERS THE COURT HEARS ON FRIDAYS FOR ITS LAW AND MOTION CALENDAR.” The court may in the future refuse to consider papers efiled and submitted without the required printed courtesy copies.

Demurrer to the first cause of action for negligence is SUSTAINED WITH LEAVE TO AMEND on the ground the FAC does not sufficiently allege facts supporting the existence of a duty on the part of moving defendant owed to plaintiff, even as an alleged contractor directly performing construction work. The court on amendment expects facts to be alleged addressing the duty foreseeability factors, and on any further demurrer expects thorough briefing on the issue of whether a duty is owed by a owner/contractor to a subsequent owner of real property which purchased the real property from a third party seller.

Demurrer to the second cause of action for breach of implied warranty is SUSTAINED WITHOUT LEAVE TO AMEND. The FAC discloses on its face that there is no privity of contract between plaintiff and the moving defendant. [FAC ¶ 16]. The opposition appears to concede that plaintiff currently has no facts to support a theory to avoid this bar but anticipates uncovering such facts in discovery. The demurrer is accordingly sustained without leave to amend, but without prejudice to plaintiff bringing an appropriate motion to amend the pleading to state such a cause of action if such facts are in fact disclosed through discovery.

Demurrer to the third cause of action for strict liability is SUSTAINED WITHOUT LEAVE TO AMEND, at the concession of plaintiff in the opposition papers.

Ten days leave to amend the first cause of action only.

The parties are ordered to meet and confer in full compliance with CCP ; 430.41 before any further demurrer may be filed.