NABORS CORPORATE SERVICES, INC., A DELAWARE CORPORATION VS CITY OF LONG BEACH, A MUNICIPALITY AND CALIFORNIA PUBLIC ENTITY, ET AL.

Tentative Rulings

Case Number: *******0175 Hearing Date: February 1, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 1, 2023 TRIAL DATE: Not set.

CASE: Nabors Corporate Services, Inc. v. City of Long Beach, et al.

CASE NO.: *******0175

(1) DEMURRER TO SECOND AMENDED COMPLAINT

(2) DEMURRER TO SECOND AMENDED COMPLAINT

MOVING PARTY: (1) Defendant City of Long Beach; (2) Defendants California Resources Long Beach, Inc. and Tidelands Oil Production Company, LLC

RESPONDING PARTY(S): (1)-(2) Plaintiff Nabors Corporate Services, Inc.

CASE HISTORY:

05/08/21: Complaint filed.

03/24/22: First Amended Complaint filed.

08/03/22: Second Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff was subcontracted certain work to be performed for Defendant City of Long Beach. Defendants, including the contractors, did not inform Plaintiff that the work was subject to prevailing wage laws. When Plaintiff and Defendants were sued by individuals who worked on the project (as a class action), Defendants refused to indemnify Plaintiff. Plaintiff seeks recovery under Labor Code section 1781 and through quantum meruit, as well as declaratory relief.

Defendants City of Long Beach, California Resources Long Beach, Inc., and Tidelands Oil Production Company demur to the complaint in two separate demurrers.

TENTATIVE RULING:

Defendant City of Long Beach’s demurrer is SUSTAINED without leave to amend.

Defendants California Resources Long Beach, Inc., and Tidelands Oil Production Company’s (jointly “Tidelands”) demurrer is SUSTAINED without leave to amend.

DISCUSSION:

Demurrer by City of Long Beach

Defendant City of Long Beach (“the City”) demurs to the Second Amended Complaint in its entirety on the ground that it fails to state facts sufficient to constitute a cause of action as to the City with respect to both causes of action alleged against it.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., 430.41(a)(4).)

Defendant has provided a declaration which states that defense counsel met and conferred with Plaintiff’s counsel telephonically concerning the substance of the demurrer on September 13, 2022, and that the parties were unable to resolve the objections raised by this demurrer. (Declaration of A. Patricia Ursea ISO Demurrer 2.) The Court therefore finds that the City has satisfied its statutory meet and confer obligations.

First Cause of Action (Quantum Meruit)

Defendant demurs to the first cause of action for quantum meruit on the grounds that quantum meruit is not available against a public entity and the claim is time barred, and therefore fails to state a cause of action. (Code Civ. Proc. 430.10(e).)

Defendant contends that the first cause of action for quantum meruit is essentially unchanged from the First Amended Complaint, and therefore fails to state a cause of action against the City as a matter of law. Plaintiff, in opposition, asserts essentially the same arguments raised in the opposition to the City’s demurrer to the First Amended Complaint, arguing that Labor Code section 1781 imposes a mandatory duty on the City, and that Plaintiff is entitled to relief pursuant to that section under a quasi-contract theory even if no enforceable contract exists. (SAC 26.) This argument was considered and rejected in the Court’s August 1, 2022 ruling on the City’s demurrer to the First Amended Complaint. In that decision, the Court stated:

Labor Code section 1781 is a provision entitling a contractor to recover costs on work that is classified by the decision of an agency, the DIR, or a court as a public work. There is no mandatory duty in that provision. Furthermore, even if there were, Plaintiff has not properly pled such a claim, as Government Code section 815.6 creates statutory liability, not liability at common law. If Plaintiff wished to invoke the provisions of the Government Code to pierce governmental immunity, it should have so pled. (See Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349.)

(August 1, 2022 Ruling on Matter Taken Under Submission p. 11.) Plaintiff is not entitled to relitigate this issue here. Plaintiff does not identify any other basis for its quantum meruit claim against the City.

The Court therefore finds that Plaintiff has failed to state facts sufficient to constitute a cause of action for quantum meruit because Plaintiff has not alleged a valid basis for waiver of governmental immunity to quantum meruit claims, nor has Plaintiff alleged a statutory basis to maintain its quantum meruit claim.

As the Court has found that Plaintiff has failed to state facts sufficient to constitute a cause of action for quantum meruit based on governmental immunity, the Court does not address the issue of whether the statute of limitations has lapsed.

Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED.

Second Cause of Action (Declaratory Relief)

Defendant demurs to the second cause of action for declaratory relief on the ground that it fails to state a cause of action against it. (Code Civ. Proc. 430.10(e).)

The parties agree that this cause of action survives or fails with the first cause of action for quantum meruit. As the Court has sustained Defendant’s demurrer to the first cause of action for the reasons stated above, this cause of action likewise fails.

Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, although Plaintiff requests leave to amend, Plaintiff has not demonstrated how it might amend the complaint to cure the defect in this cause of action. When the Court previously granted leave to amend as to these claims against the City, the Court did so for the express purpose of permitting Plaintiff to explore and allege “a valid statutory basis for a quasi-contractual theory of recovery.” (August 1, 2022 Ruling p. 12.) Instead, Plaintiff asserted the same theory rejected in the August 1 ruling, making no substantive changes to the surviving causes of action. The Court is not inclined to permit leave to amend a second time on these facts. Plaintiff had a fair opportunity to correct the defects in the complaint. That opportunity was squandered.

Conclusion

Accordingly, Defendant City of Long Beach’s demurrer to the Second Amended Complaint is SUSTAINED without leave to amend.

Demurrer by California Resources Long Beach, Inc. and Tidelands Oil Production Co.

Defendants California Resources Long Beach, Inc., and Tidelands Oil Production Company demur to the First Amended Complaint as to both causes of action.

Meet and Confer

Defendant have provided a declaration which states that defense counsel met and conferred with Plaintiff’s counsel telephonically concerning the substance of the demurrer on September 13, 2022, and that the parties were unable to resolve the objections raised by this demurrer. (Declaration of Hayward J. Kaiser ISO Demurrer 2.) The Court therefore finds that Defendants have satisfied its statutory meet and confer obligations.

Tidelands’ Request for Judicial Notice

Tidelands requests judicial notice of (1) the Court’s June 20, 2022 Minute Order; (2) a redline comparison of the First Amended Complaint with the Second Amended Complaint, and (3) a November 8, 2013 letter by Plaintiff’s counsel to Division of Labor Standard Enforcement re Case Nos. 4036616-120.

Tidelands’ request No. 1. is GRANTED pursuant to Evidence Code section 452(d) (court records). However, as to the remainder of Tidelands’ requests, the Court’s ruling does not rely on these documents. Requests Nos. 2 and 3 are therefore DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

First Cause of Action (Quantum Meruit)

Tidelands demurs to the second cause of action for quantum meruit on the ground that it fails to state a cause of action. (Code Civ. Proc. 430.10(e).) Tidelands argues two bases for this contention: first, that the claim fails as a matter of law because Plaintiff alleges the existence of binding contracts; and second, because the claim is time barred.

First, Tidelands contends that Plaintiff again fails to state a cause of action because quantum meruit is unavailable when there is an express contract.

As a matter of law, a quasi-contract action for unjust enrichment does not lie where, as here, express binding agreements exist and define the parties’ rights. “When parties have an actual contract covering a subject, a court cannot — not even under the guise of equity jurisprudence — substitute the court’s own concepts of fairness regarding that subject in place of the parties’ own contract.”

(Cal. Med. Ass’n v. Aetna U.S. Healthcare of Cal., (2001) 94 Cal.App.4th 151, 172.) A plaintiff may pursue a quantum meruit claim in the alternative, but to do so, the plaintiff must allege both the existence of an enforceable agreement and, in the alternative, the absence of an enforceable agreement. (See Klein v. Chevron USA (2012) 202 Cal.App.4th 1342, 1389-90.)

Tidelands contends that Plaintiff’s claim fails because Plaintiff has alleged the existence of an enforceable contract without alleging the absence of a contract in the alternative. As Tidelands correctly observes, the Second Amended Complaint is substantively unchanged from the First Amended Complaint, and repeatedly alleges a contractual relationship between the parties. (SAC 9-10, 25-29.) As in the opposition to the First Amended Complaint, Plaintiff does not dispute this fact in opposition but contends that it may pursue a quantum meruit claim for extra work outside the scope of the contract, and the prevailing wages constitute extra work sufficient to maintain this claim. The Court rejected this argument in its June 20, 2022 ruling on the corresponding demurrer to the First Amended Complaint, stating:

Plaintiff is correct that a quantum meruit claim lies when extra work is performed outside the scope of a written contract. (See, e.g., Benson Elec. Co. v. Hale Bros. Associates, Inc. (1966) 246 Cal.App.2d 686, 697.) However, as Tidelands points out in its reply, “[e]xtra work . . . means work arising outside of and independent of the contract—something not required in its performance, not contemplated by the parties, and not controlled by the contract.” (C.F. Bolster Co. v. J.C. Boespflug Const. Co. (1959) 167 Cal.App.2d 143, 151-52.) Plaintiff does not allege any extra work performed . . . . Plaintiff merely alleges that it is entitled to extra pay for the same work that was actually performed.

(June 20, 2022 Minute Order pp. 4-5.) Plaintiff is not entitled to relitigate this issue here.

The Court finds that Plaintiff has failed to state facts sufficient to constitute a cause of action for quantum meruit because Plaintiff has alleged the existence of an enforceable contract, which precludes a claim for quantum meruit.

As the Court has found that a separate basis exists to sustain the demurrer, the Court does not reach the issue of whether the second cause of action is time-barred.

Accordingly, Defendants’ demurrer to the first cause of action is SUSTAINED.

Second Cause of Action (Declaratory Relief)

Tidelands demurs to the Second cause of action for declaratory relief on the ground that it fails to state a cause of action against them. (Code Civ. Proc. 430.10(e).)

The parties agree that this cause of action survives or fails with the first cause of action for quantum meruit. As the Court has sustained Defendants’ demurrer to the first cause of action for the reasons stated above, this cause of action likewise fails.

Accordingly, Defendants’ demurrer is SUSTAINED as to the second cause of action for declaratory relief.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, although Plaintiff requests leave to amend, Plaintiff has not demonstrated how it might amend the complaint to cure the defect in this cause of action. Further, when previously presented with the opportunity to amend the complaint, Plaintiff chose to assert the same invalid causes of action with no substantive changes. The Court is therefore not inclined to permit leave to amend a second time on this issue.

Conclusion

Accordingly, the Tidelands Defendants’ demurrer to the Second Amended Complaint is SUSTAINED in its entirety without leave to amend.

CONCLUSION:

Accordingly, Defendant City of Long Beach’s demurrer is SUSTAINED without leave to amend.

Defendants Tidelands’ demurrer is SUSTAINED without leave to amend.

Moving parties to give notice.

IT IS SO ORDERED.

Dated: February 1, 2023

Theresa M. Traber

Judge of the Superior Court

Case Number: *******0175 Hearing Date: June 20, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: June 20, 2022 TRIAL DATE: Not set.

CASE: Nabors Corporate Services, Inc. v. City of Long Beach, et al.

CASE NO.: *******0175

(1) DEMURRER TO FIRST AMENDED COMPLAINT

(2) DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY: (1) Defendant City of Long Beach; (2) Defendants California Resources Long Beach, Inc. and Tidelands Oil Production Company, LLC

RESPONDING PARTY(S): (1)-(2) Plaintiff Nabors Corporate Services, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff was subcontracted certain work to be performed for Defendant City of Long Beach. Defendants, including the contractors, did not inform Plaintiff that the work was subject to prevailing wage laws. When Plaintiff and Defendants were sued by individuals who worked on the project (as a class action), Defendants refused to indemnify Plaintiff. Plaintiff seeks recovery under Labor Code section 1781 and through quantum meruit, as well as declaratory relief.

Defendants City of Long Beach, California Resources Long Beach, Inc., and Tidelands Oil Production Company demur to the complaint in two separate demurrers.

TENTATIVE RULING:

Defendant City of Long Beach’s demurrer is SUSTAINED without leave to amend as to the first cause of action and SUSTAINED with leave to amend as to the second cause of action.

Defendant City of Long Beach’s demurrer is OVERRULED as to the third cause of action.

Defendants California Resources Long Beach, Inc., and Tidelands Oil Production Company’s (jointly “Tidelands”) demurrer is SUSTAINED with leave to amend as to the second cause of action and OVERRULED as to the third cause of action.

Plaintiff shall have 30 days leave to amend from the date of this order.

DISCUSSION:

Demurrer: City of Long Beach

Defendant City of Long Beach (“the City”) demurs to the First Amended Complaint in its entirety on the ground that it fails to state facts sufficient to constitute a cause of action as to the City with respect to each of the three causes of action alleged against it.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., 430.41(a)(4).)

The Declaration of Attorney A. Patricia Ursea states that defense counsel met and conferred with Plaintiff’s counsel telephonically concerning the substance of the demurrer on April 18, 2022, and that the parties were unable to resolve the objections raised by this demurrer. The Declaration reflects that the meet-and-confer requirement of CCP 430.41 was satisfied.

The City’s Request for Judicial Notice

The City requests judicial notice of six documents: (1) a District Court Order confirming arbitration award in Ridgeway v. Nabors Completion & Prod. Servs. Co., 2021 WL 2646902, at *2 (C.D. Cal. June 25, 2021) (re claimant Ridgeway); (2) a District Court Order confirming arbitration award in Ridgeway v. Nabors Completion & Prod. Servs. Co., No. 15-CV-3436-DDP-JPR, 2021 WL 3184226, at *2 (C.D. Cal. June 25, 2021) (re claimant Smith); (3) a District Court Order confirming arbitration award in Frank Ronquillo v. Nabors Completion and Production Services Co., No. 2:21-cv-05535-DDPJPR; (4) Portions of the legislative history of Labor Code section 1781 cited in the demurrer; (5) Charter, City of Long Beach, Article XVIIII, Section 1800; and (6) Municipal Code, City of Long Beach, section 2.87.070.

Requests Nos. (1) – (3) are GRANTED per Evidence Code section 452(d) (court records. Request No. (4) is GRANTED per Evidence Code section 452(h) (facts and propositions not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.) Requests Nos. (5) and (6) are GRANTED per Evidence Code section 452(b) (legislative enactments).

First Cause of Action (Labor Code Section 1781)

The City demurs to the first cause of action for recovery under Labor Code 1781 on the ground that it fails to state a cause of action against it. (Code Civ. Proc. 430.10(e).)

Notwithstanding any other provision of law, a contractor may, subject to paragraphs (2) and (3), bring an action in a court of competent jurisdiction to recover from the body awarding a contract for a public work or otherwise undertaking any public work any increased costs incurred by the contractor as a result of any decision by the body, the Department of Industrial Relations, or a court that classifies, after the time at which the body accepts the contractor's bid or awards the contractor a contract in circumstances where no bid is solicited, the work covered by the bid or contract as a “public work,” as defined in this chapter, to which Section 1771 applies, if that body, before the bid opening or awarding of the contract, failed to identify as a “public work,” as defined in this chapter, in the bid specification or in the contract documents that portion of the work that the decision classifies as a “public work.”

(Lab. Code 1781(a)(1), bold emphasis added.) Here, Plaintiff does not allege that it directly bid on the project or entered into a contract with the City. Instead, Plaintiff alleges that it subcontracted a portion of the work that Tidelands was performing for the City and that several arbitrators found in a series of employees’ arbitrations that the work Plaintiff performed was public work. (FAC 10, 14-19, 28.) Plaintiff alleges that the arbitration awards were confirmed by the United States District Court for the Central District of California. (Id. 20-22.)

Defendant contends that Labor Code section 1781 does not apply to arbitration awards, because liability under this section is limited to decisions made by a public agency, DIR, or “a court,” and not an arbitration. Defendant also argues that section 1781 cannot be construed to apply to arbitrations through a court order confirming an arbitration award because that order is not a decision on the merits as required by the statute. Finally, Defendant contends that, assuming arguendo that the language of section 1781 is ambiguous, legislative history demands a narrow interpretation. Plaintiff disputes each of these contentions.

The question of whether section 1781 of the Labor Code applies to arbitrations has not been litigated at the appellate level. Therefore, absent case law to provide guidance on this matter, the Court applies the doctrines of statutory interpretation. Defendant’s argument raises three issues: (1) whether the plain language of section 1781 supports an interpretation that permits liability for arbitration awards; (2) whether a court order confirming an arbitration award is sufficient to create liability under the state; and (3) if the language of section 1781 is ambiguous, whether the legislative history of the statute supports an interpretation permitting liability for arbitration awards.

1. Plain Language

In interpreting a statute, a court must first examine the statutory language for its plain meaning. (McGroarty v. Los Angeles Unified School District (2021) 61 Cal.App.5th 258, 266.) Where statutory language has a well-known, definite legal meaning, it must be given that meaning in construing the statute. (Brown v. Superior Court (2016) 63 Cal.4th 335, 351.) When the language is unambiguous, the plain meaning of the language governs. (McGroarty, supra, 61 Cal.App.5th at 266.) If the language permits multiple interpretations, the Court may consider other factors such as the statute’s purpose, legislative history, and public policy. (Id.)

Defendant argues that the language of section 1781, which limits liability to decisions by a public agency, the DIR, or “a court” is unambiguous and cannot be construed to apply to arbitration awards. Defendant relies on Woodard v. S. Cal. Permanente Med. Group (1985) 171 Cal.App.3d 656, in which the Court of Appeal held that Civil Code section 3291 and Code of Civil Procedure section 998, which refers to a judge and a court, and not arbitration, did not apply to arbitration. (Id., at p. 664.) Defendant contends that “court” and “arbitration” are mutually exclusive terms, citing the extensive body of precedent establishing that arbitration exists outside the judicial system (E.g., Moncharsh v. Heily & Blas (1992) 3 Cal.4th 1, 10-11.) Defendant also cites Labor Code section 1128, governing attorney’s fees for arbitration of collective bargaining agreements, as an example showing that when the Legislature intended for a provision to apply to arbitration, it explicitly said so.

In opposition, Plaintiff contends that Woodard is distinguishable because it was addressing a denial of prejudgment interest by an arbitrator under Civil Code section 3291. Plaintiff cites Caro v. Smith (1997) 59 Cal.App.4th 725, in which the Court of Appeal affirmed a prejudgment award by an arbitrator, holding that a trial court’s judgment pursuant to Code of Civil Procedure section 1287.4 confirming the award rendered the award valid under section 3291 through the court’s judgment. (Id., at pp. 728, 736.) Caro distinguished Woodard based on the arbitrator’s denial of section 3291 prejudgment interest which, the Caro court stated, left the court powerless to redetermine the issue since there was no confirming judgment to bring the award under the statute. (Id. at p. 737.) Plaintiff also argues that California’s well-settled policy favoring arbitration compels a liberal construction of section 1781. (E.g. Hightower v. Superior Court (2006) 86 Cal.App.4th 1415, 1431.) Plaintiff similarly contends that the Prevailing Wage Law should be liberally construed to apply to arbitrations in light of its purpose to protect and benefit workers on public works projects. (Oxbow Carbon & Minls., LLC v. Dept’t. of Indus. Rels., (2011) 194 Cal.App.4th 538, 547 [stating the purpose of the Prevailing Wage Law]; Cinema W., LLC v. Baker, (2017) 13 Cal.App.5th 194, 205 [Prevailing Wage Law is to be liberally construed].)

In reply, Defendant contends that a literal application of section 1781 would not undermine the policy favoring arbitrations or the purpose of the prevailing wage laws. Defendant argues that it is well established that a party choosing arbitration does not have all the same rights as in a judicial forum. (See, e.g., First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 942 [“A party who has not agreed to arbitrate will normally have a right to a court’s decision about the merits of its dispute…But, where the party has agreed to arbitrate, he or she, in effect, has relinquished much of that right’s practical value.”]) Further, Defendant argues that the purpose of the Prevailing Wage law is to protect workers, not contractors, and therefore interpreting section 1781 to only grant a limited right to a contractor to recover certain increased costs incurred does not conflict with the statutory purpose.

Although the parties do not raise this argument, the Court observes that Plaintiff cannot complain about the limited enforcement prospects that may be available via an arbitration proceeding. When confronted with a class action court proceeding brought by its employees, Plaintiff compelled the cases to arbitration under its standard arbitration clause and even pursued a successful appeal to the Ninth Circuit Court of Appeal when its initial motion to compel was denied. (Ridgeway v. Nabors Completion & Prod. Servs. Co. (C.D. Cal. June 25, 2021) No. 15-CV-3436-DDP-JPR, 2021 WL 2646902, at *1.) Thus, it cannot be said that Plaintiff was forced into arbitration with its attendant limitations, but rather that the arbitration proceeding was affirmatively chosen and enforced by Plaintiff. Similarly, the City comes to this dispute complicit in the effort to put the underlying matter before an arbitrator, as it too filed a motion to compel the employees’ wage dispute to arbitration. (Ridgeway v. Nabors Completion & Prod. Servs. Co. (9th Cir. 2018) 725 F. App'x 472.) Although the record does not reflect whether the City’s motion to compel was calculated to provide it with an argument against application of section 1781, the City’s prior litigation strategy has placed it in a position to resist Plaintiff’s effort to seek costs because of the arbitration proceeding all parties sought to enforce.

The Court agrees with Defendant that the phrase “a court” is not ambiguous. Both case law and the common meaning of the word “court” draw a distinction between courts and arbitration. Even though arbitration proceedings may, in some circumstances, be so quasi-judicial as to be nearly indistinguishable from a court proceeding as a practical matter, they are legally separate affairs. However, the Court reaches a different conclusion with respect to the entire phrase. “[A]ny decision . . . that classifies . . . the work covered by the bid or contract as a public work.” (Lab. Code 1781 [emphasis added].) The use of the phrase “any decision” arguably suggests a broad interpretation of the provision. Further, the phrase “classifies” is similarly ambiguous, and not well-defined by the statute. Although Defendant argues that a court order confirming an arbitration award, which is not a decision on the merits, is not contemplated by the statute, there is a plausible interpretation that an order confirming an arbitration award that classifies the work as a public work is “a decision” by a court that “classifies” the work as a public work for the purposes of the statute. At the very least, the Court finds sufficient ambiguity to consider legislative history and public policy.

2. Legislative History

As the City observes, the original draft of section 1781 in the February 21, 2003 draft of SB 966 authorized a contractor to recover increased costs incurred as a result of “any decision that classifies, after the time at which the awarding body accepts the contractor’s bid, a project as a ‘public work.’” (Defendant’s RJN Exh. 4.) According to the legislative history cited by the City, the Legislature amended SB 966 in April of 2003 to narrow the breadth of this language, based on concerns by constituents that the original version of the bill imposed liability on public agencies for decisions over which they had no control. However, the example cited by the City is concerned with whether a public agency might be held liable as a result of a later decision by another entity classifying the work as public work, such as the contractor themselves or the DIR. (Id. at p. City-RJN-0027.) The revised version of the statute that was ultimately adopted narrowed the provision by adding the currently operating language. In so doing, the Legislature plainly curtailed the ability for a contractor to reclassify work as public work so as to create liability. However, the legislature, in expressly authorizing recovery of costs following a determination by the DIR classifying the work as a public work, rejected the notion that a public entity should not be held liable as a result of later decisions by another public entity, at least with respect to subsequent decisions made by DIR.

Critically, nowhere in any of the legislative history cited by the City is there any reference to arbitration. The City contends that, because the legislature chose specific language in its amendment and did not include arbitration in those provisions, section 1781 should not be construed to include the omitted provision. (People v. Hunt (1999) 74 Cal.App.4th 939, 948.) In opposition, Plaintiff contends that Hunt stands for the provision that, where the legislature rejects language in a previous draft in favor of narrower language, the statute should not be construed to include the omitted provision. Plaintiff is correct that Hunt only precludes construction of a statute to include language expressly omitted, and that here, arbitration was not expressly omitted as a basis for liability. (Id., at p. 947.)

The Court agrees with the City that, considering the legislative history section 1781 does not encompass arbitration. At the time section 1781 was adopted in September of 2003, arbitration was well established as a method of alternative dispute resolution. If the Legislature had wished to include arbitration proceedings as a method by which liability in connection with a public works project might be created, the Legislature was more than capable of doing so explicitly. Although the evidence before the Court does not expressly show that the Legislature rejected arbitration as a type of proceeding that could create liability under section 1781, the pointed absence of arbitration from the legislative history and analysis, at a time when arbitration was widely accepted as a method of alternative dispute resolution, suggests that the Legislature did not contemplate arbitration decisions as a valid means of establishing section 1781 liability.

The Court is not blind to the practical implications of this decision. In adopting this position, the Court foresees that subcontractors such as Plaintiff may stop including arbitration provisions in their employment contracts. While there are undoubtedly many who would support such an outcome, it cannot be fairly said that this result would conform with the strong public policy favoring arbitration. However, although there is a strong policy favoring arbitrations, that policy cannot override the apparent intent of the Legislature to disregard that policy in this instance.

3. Confirmed Arbitration Order

Section 1781 establishes liability only when there is a decision “that classifies . . . the work covered by the bid or contract as a ‘public work.” (Lab. Code 1781(a)(1).) Defendant contends that a confirmed arbitration award does not meet this requirement. Defendant argues that a confirmed arbitration award is purely ministerial under the Federal Arbitration Act, and cannot review the merits of the decision, only whether the award must be vacated on one of the expressly enumerated grounds. (9 U.S.C. 10; Hall St. Associates, LLC v. Mattel, Inc. (2008) 552 U.S. 576, 586 [stating grounds to vacate an arbitration award]; Collins v. D.R. Horton, Inc. (9th Cir. 2007) 505 F.3d 874, 879 [Federal Arbitration Act “does not sanction judicial review of the merits.”]) Therefore, Defendant argues, since the orders confirming the arbitration awards do not, as a matter of law, address the merits of the arbitration, they do not classify the work as a public work.

In opposition, Plaintiff argues that a judgment confirming an arbitration award is a judgment on the merits. Under Code of Civil Procedure section 1287.4, a judgment confirming an arbitration award has the same force and effect as any other civil judgment. However, liability under section 1781 is not triggered by a judgment, as in Caro. (59 Cal.App.4th at 736.) Instead, section 1781 requires a decision classifying the work to be done as a public work. As Defendant has pointed out, the Federal Arbitration Act and supporting case law expressly preclude an evaluation of the merits of an arbitration award. The Court agrees with Defendant that the judgments confirming the arbitration award are not, as a matter of law, decisions classifying the work as a public work.

For the foregoing reasons, the Court finds that Plaintiff has failed to state a cause of action for relief under section 1781 of the Labor Code. The Court previously sustained a demurrer to this cause of action with leave to amend for Plaintiff to allege a court decision classifying the work as a public work. Plaintiff has demonstrated that it cannot do so. Accordingly, the demurrer to the first cause of action is SUSTAINED without leave to amend.

Second Cause of Action (Quantum Meruit)

Defendant demurs to the second cause of action for quantum meruit on the grounds that quantum meruit is not available against a public entity and the claim is time barred, and therefore fails to state a cause of action. (Code Civ. Proc. 430.10(e).)

1. Public Entity

Defendant first contends that quantum meruit is not available against it as it is a public entity.

Government Code section 815(a) states “Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” It is well settled that contracts not sanctioned by a city’s charter are unenforceable.

It is . . . settled that the mode of contracting, as prescribed by the municipal charter, is the measure of the power to contract; and a contract made in disregard of the prescribed mode is unenforceable. [Citations]. And even though the person with whom the contract was made has supplied labor and materials in the performance of the contract and the public agency has received the benefits thereof, he has no right of action to recover in quantum meruit the reasonable value thereof.

(Miller v. McKinnon (1942) 20 Cal.2d 83, 88.)

Here, the City of Long Beach’s Charter provides:

“The City shall not be and is not bound by any contract, except as otherwise provided herein, unless the same is made in writing, by order of the City Council, and signed by the City Manager or by another officer authorized to do so….”.

(Charter, Long Beach 1800; Long Beach RJN Exh. 5.) Further, section 2.87.070 of the Long Beach Municipal Code states that the City is not contractually liable to subcontractors.

The City contends that, first, the explicit language of the Charter precludes a claim for quantum meruit because the City expressly disclaims liability under a contract not in writing. The City also contends that the claim for quantum meruit is based on the same facts as the Labor Code section 1781, alleging that Plaintiff is entitled to relief under Labor Code section 1781 under a quasi-contract theory, even if no enforceable contract exists. (FAC 28, 36.) Quantum meruit is a common count. (Zumbrun v. Univ. of S. California, (1972) 25 Cal.App.3d 1, 8.) “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 459-60.)

In opposition, Plaintiff contends that its quantum meruit claim is viable under section 815.6 of the Government Claims Act, which creates an exception to immunity when a public entity fails to discharge a “mandatory duty imposed by an enactment that is designed to protect against the risk of particular kinds of injuries.” Plaintiff contends that section 1781 imposes a mandatory duty and thereby waives immunity under Government Code section 815.6. The Court disagrees. As the City points out in its reply, “[t]o construe a statute as imposing a mandatory duty on a public entity, the mandatory nature of the duty must be phrased in explicit and forceful language.” (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689.) Labor Code section 1781 is a provision entitling a contractor to recover costs on work that is classified by the decision of an agency, the DIR, or a court as a public work. There is no mandatory duty in that provision. Furthermore, even if there were, Plaintiff has not properly pled such a claim, as Government Code section 815.6 creates statutory liability, not liability at common law. If Plaintiff wished to invoke the provisions of the Government Code to pierce governmental immunity, it should have so pled. (See Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349.)

The Court finds that Plaintiff has failed to state facts sufficient to constitute a cause of action for quantum meruit because Plaintiff has not alleged a valid basis for waiver of governmental immunity to quantum meruit claims, nor has Plaintiff alleged a statutory basis to maintain its quantum meruit claim.

2. Statute of Limitations

As the Court has found that Plaintiff has failed to state facts sufficient to constitute a cause of action for quantum meruit based on governmental immunity, the Court does not address the merits of the demurrer raising the statute of limitations.

Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED with leave to amend to allege a valid statutory basis for a quasi-contractual theory of recovery.

Third Cause of Action (Declaratory Relief)

Defendant demurs to the third cause of action for declaratory relief on the ground that it fails to state a cause of action against it. (Code Civ. Proc. 430.10(e).)

Defendant argues that this cause of action fails because it is wholly derivative of the causes of action above, which Defendant argues are without merit. However, as discussed above, the Court has granted leave to amend as one of the causes of action discussed above.

Accordingly, the demurrer is OVERRULED as to the third cause of action for declaratory relief.

Demurrer: California Resources and Tidelands

Defendants California Resources Long Beach, Inc., and Tidelands Oil Production Company demur to the First Amended Complaint as to the second and third causes of action.

Meet and Confer

The Declaration of Attorney Hayward J. Kaiser states that the parties’ counsels met and conferred telephonically on April 18, 2022 regarding the substance of the issues in this demurrer, and the parties were unable to reach a resolution regarding this dispute. The Declaration reflects that the meet-and-confer requirement of CCP 430.41 was satisfied.

Tidelands’ Request for Judicial Notice

Tidelands requests judicial notice of a November 8, 2013 letter by Plaintiff’s counsel to Division of Labor Standard Enforcement re Case Nos. 4036616-120.

Tidelands’ request for judicial notice is GRANTED per Evidence Code section 452(h) (facts not reasonably subject to dispute) and Cody F. v Faletti, (2001), 92 Cal.App.4th 1232, 1236, permitting judicial notice of documents on file with state agencies. In doing so, the Court takes judicial notice only of the existence of this document, and not the truth of its contents.

Second Cause of Action (Quantum Meruit)

Tidelands demurs to the second cause of action for quantum meruit on the ground that it fails to state a cause of action. (CCP 430.10(e).) Tidelands argues two bases for this contention: first, that the claim fails as a matter of law because Plaintiff alleges the existence of binding contracts; and second, because the claim is time barred.

1. Express Contract

First, Tidelands contends that Plaintiff fails to state a cause of action because quantum meruit is unavailable when there is an express contract.

“As a matter of law, a quasi-contract action for unjust enrichment does not lie where, as here, express binding agreements exist and define the parties’ rights. ‘When parties have an actual contract covering a subject, a court cannot — not even under the guise of equity jurisprudence — substitute the court’s own concepts of fairness regarding that subject in place of the parties’ own contract.’”

(Cal. Med. Ass’n v. Aetna U.S. Healthcare of Cal., (2001) 94 Cal.App.4th 151, 172.) A plaintiff may pursue a quantum meruit claim in the alternative, but to do so, the plaintiff must allege both the existence of an enforceable agreement and, in the alternative, the absence of an enforceable agreement. (See Klein v. Chevron USA (2012) 202 Cal.App.4th 1342, 1389-90.)

Tidelands contends that Plaintiff’s claim fails because Plaintiff has alleged the existence of an enforceable contract without alleging the absence of a contract in the alternative. The FAC repeatedly alleges a contractual relationship between the parties. (FAC 9-10, 30-34.) Plaintiff does not dispute this fact in opposition but contends that it may pursue a quantum meruit claim for extra work outside the scope of the contract, and the prevailing wages constitute extra work sufficient to maintain this claim.

Plaintiff’s contentions are not well taken. Plaintiff is correct that a quantum meruit claim lies when extra work is performed outside the scope of a written contract. (See, e.g., Benson Elec. Co. v. Hale Bros. Associates, Inc. (1966) 246 Cal.App.2d 686, 697.) However, as Tidelands points out in its reply, “[e]xtra work . . . means work arising outside of and independent of the contract—something not required in its performance, not contemplated by the parties, and not controlled by the contract.” (C.F. Bolster Co. v. J.C. Boespflug Const. Co. (1959) 167 Cal.App.2d 143, 151-52.) Plaintiff does not allege any extra work performed in in the First Amended Complaint. Plaintiff merely alleges that it is entitled to extra pay for the same work that was actually performed. The Court finds that Plaintiff has failed to state facts sufficient to constitute a cause of action for quantum meruit because Plaintiff has alleged the existence of an enforceable contract, which precludes a claim for quantum meruit.

2. Statute of Limitations

As the Court has found that a separate basis exists to sustain the demurrer, the Court does not reach the issue of whether the second cause of action is time-barred.

3. Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, although Plaintiff requests leave to amend, Plaintiff has not demonstrated the means by which it might amend the complaint to cure the defect in this cause of action. However, as Plaintiff has only amended the complaint once, and this is the first time that Plaintiff has brought this cause of action in this matter, the Court chooses to exercise its discretion to permit Plaintiff leave to amend the Complaint as to this cause of action.

Accordingly, the demurrer to the second cause of action is SUSTAINED with leave to amend.

Third Cause of Action (Declaratory Relief)

Tidelands demurs to the third cause of action for declaratory relief on the ground that it fails to state a cause of action against them. (Code Civ. Proc. 430.10(e).)

Tidelands argues that this cause of action fails because it is wholly derivative of the cause of action above, which Defendants argue are without merit. However, as discussed above, the Court has granted leave to amend as to the cause of action discussed above.

Accordingly, the demurrer is OVERRULED as to the third cause of action for declaratory relief.

CONCLUSION:

Accordingly, Defendant City of Long Beach’s demurrer is SUSTAINED without leave to amend as to the first cause of action and SUSTAINED with leave to amend as to the second cause of action.

Defendant City of Long Beach’s demurrer is OVERRULED as to the third cause of action.

Defendants California Resources Long Beach, Inc., and Tidelands Oil Production Company’s demurrer is SUSTAINED with leave to amend as to the second cause of action and OVERRULED as to the third cause of action.

Plaintiff shall have 30 days leave to amend from the date of this order.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 20, 2022

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: *******0175 Hearing Date: March 24, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 23, 2022 TRIAL DATE: NOT SET

CASE: Nabors Corporate Services, Inc. v. City of Long Beach, et al.

CASE NO.: *******0175

MOTION FOR RECONSIDERATION

MOVING PARTY: Plaintiff Nabors Corporate Services, Inc.

RESPONDING PARTY(S): Defendants City of Long Beach, California Resources Long Beach, Inc. and Tidelands Oil Production Company, LLC

CASE HISTORY:

05/28/21: Complaint filed.

08/19/21: Dismissal entered as to Defendant Occidental Oil and Gas Corporation.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff entered into a subcontract to perform certain work to be performed for Defendant City of Long Beach. Defendants, including the contractors, did not inform Plaintiff that the work was subject to prevailing wage laws. When Plaintiff and Defendants were sued by individuals who worked on the project (as a class action), Defendants refused to indemnify Plaintiff. Plaintiff filed a complaint on May 28, 2021, seeking equitable indemnity, recovery under various Labor Code provisions, and declaratory relief.

Plaintiff moves for clarification and reconsideration of the Court’s final ruling of February 22, 2022, sustaining the demurrer filed by Defendants California Resources Long Beach, Inc. and Tidelands Oil Production Company, LLC.

TENTATIVE RULING:

Plaintiff’s motion for clarification is GRANTED as follows: The Court’s February 22, 2022 order does not bar Plaintiff from seeking leave to amend the Complaint pursuant to Code of Civil Procedure 473 and California Rule of Court 3.1324 to assert new causes of action separate from those on which the Court has already ruled.

Plaintiff’s motion for reconsideration is DENIED.

DISCUSSION:

Motion for Clarification and Reconsideration

Plaintiff seeks clarification or reconsideration of the Court’s final ruling of February 22, 2022 on the demurrer filed by Defendants California Resources Long Beach, Inc. and Tidelands Oil Production Company, LLC (collectively “Contractor Defendants.”) In Plaintiff’s view, the Court ruling sustained the demurrer as to the third and sixth causes of action without leave to amend and “sustain[ed] [the City of Long Beach’s] demurrer in part and arguably limit[ed] the claims Plaintiff can re-plead against the City.” (Notice, at p. 1.)

Clarification of Previous Ruling

Code of Civil Procedure, section 128 provides the court with the authority to amend and control its process and orders so as to make them conform to law and justice. (Code Civ. Proc., 128, subd. (a).) Pursuant to Code of Civil Procedure section 473, subdivision (d), the court may “correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed.” (Code Civ. Proc., 473(d).) Motions to clarify have been used where necessary to cover a point or issue left unaddressed or uncertain on a prior hearing. (See, e.g., Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 789.) A court has “inherent power to clarify its order.” (Bodega Bay Concerned Citizens v. County of Sonoma (2005) 125 Cal.App.4th 1061, 1067, fn. 5.)

The Court’s February 22, 2022 minute order sustained the demurrer of Contractor Defendants without leave to amend specifically with respect to Plaintiff’s claims under Labor Code section 1784. Contractor Defendants’ demurrer was sustained in its entirety because all remaining causes of action against those Defendants were dismissed or demurred to without leave to amend. The Court’s ruling does not extend beyond the causes of action addressed in the demurrers and does not bar Plaintiff from seeking leave to amend the Complaint per code. The Court declines to rule on the merits of any new causes of action at this time.

Reconsideration of Previous Ruling to Permit Filing of First Amended Complaint

The Court notes, at the outset, that Plaintiff did not request that the Court amend its previous ruling to permit filing and service of the First Amended Complaint in its notice of motion. However, Defendants have not objected to the motion on this basis. Accordingly, the Court will consider the motion on its merits.

Code of Civil Procedure 1008 provides, in relevant part:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

* * *

(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(Code Civ. Proc. 1008(a), (d), (e) (bold emphasis added).)

In connection with a motion for reconsideration, there must be “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 [“With regard to new facts, ‘the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.’”].)

Here, Plaintiff does not raise any “new or different facts, circumstances, or law.” Plaintiff argues that the “amended pleading itself constitutes a ‘different state of facts’ to permit reconsideration.” (Motion p.7:7-8.) Plaintiff relies principally on two cases which precede the 1992 amendments to section 1008: Rains v. Superior Court (Center Foundation) (1984) 150 Cal.App.3d 933, and Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371.

In opposition, Contractor Defendants argue that Plaintiff’s principal cases are outdated, and that Plaintiff fails to present any new or different facts, circumstances, or law. Contractor Defendants argue that, under current law, any facts known to the party seeking reconsideration at the time of the original ruling are not “new or different.” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.) Contractor Defendants also argue that the failure to present facts to the court in connection with the prior motion standing alone does not mean that they are “new or different facts” under the statute.” (Garcia v. Hejmadi, supra, 58 Cal.App.4th at 688-89.) Contractors contend that Plaintiff has conceded that there are no new facts other than the existence of a proposed First Amended Complaint, and the facts alleged therein are not new and previously unknown. (Opposition of Contractor Defendants p. 11:13-19.)

The Court agrees with Contractor Defendants that Plaintiff offers no explanation for what new or different facts would require the Court to amend its previous ruling to permit Plaintiff to file and serve the proposed First Amended Complaint. Even if a proposed First Amended Complaint did constitute new or different facts, Plaintiff has not established why those facts would necessitate amending the previous ruling to permit Plaintiff to file and serve the proposed First Amended Complaint. As the Court has clarified, the February 22, 2022 ruling did not address claims that were not pled in the Complaint that was subject to demurrer and does not preclude Plaintiff from properly seeking leave to amend the Complaint, pursuant to Code of Civil Procedure section 473 and California Rule of Court 3.1324. A motion for reconsideration is not the proper vehicle for such a request.

Defendant City of Long Beach also opposes the motion for reconsideration to the extent that it applies to the Court’s previous January 3, 2022 minute order. Plaintiff does not seek reconsideration of that minute order.

All Defendants oppose the motion for reconsideration on the basis of various claimed defects with respect to Plaintiff’s proposed cause of action for quantum meruit. The Court declines to address the merits of this proposed cause of action at this time.

Plaintiff’s motion for reconsideration is DENIED.

CONCLUSION:

Accordingly, Plaintiff’s motion for clarification is GRANTED as follows. The Court’s February 22, 2022 order does not bar Plaintiff from seeking leave to amend the Complaint pursuant to Code of Civil Procedure 473 and California Rule of Court 3.1324 to assert new causes of action distinct from those on which the Court has already ruled.

Plaintiff’s motion for reconsideration is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 24, 2022

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.