Tentative Rulings

Case Number: *******0646 Hearing Date: August 10, 2022 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: August 10, 2022

Case Name: Khurana v. Giat, et al.

Case No.: *******0646

Matter: Demurrer; Motion to Strike

Moving Party: Defendants Guy Giat and S Visions Construction, Inc.

Responding Party: Plaintiff Suny Khurana

Notice: OK

Ruling: The Demurrer is overruled. An answer is to be filed within twenty

days.

The Motion to Strike is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

On May 31, 2022, Plaintiff Suny Khurana filed the operative First Amended Complaint (“FAC”) against Defendants Guy Giat and S Visions Construction, Inc. for (1) breach of contract, (2) breach of contract, (3) disgorgement, (4) common counts, and (5) conversion. The allegations of the FAC are as follows. Plaintiff entered into two contracts with Defendants, who were unlicensed contractors, for electrical work at Plaintiff’s residence. For one contract (second cause of action), Defendants did not properly complete the work such that Plaintiff was forced to hire another contractor to remedy Defendants’ work. For the other contract (first cause of action), Defendants took Plaintiff’s money, but refused to commence work.

1. Demurrer

Defendants Guy Giat and S Visions Construction, Inc. demur to all causes of action for uncertainty, failure to state sufficient facts, and “nonjoinder of parties.”

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “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. 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 v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

The Court previously ruled that the first cause of action “is uncertain as it is unclear what parties specifically entered into this contract. Indeed, Exhibit A seems to relate to Structa – Retail and Restaurant Building Solutions, with Giat’s email simply listed thereon.” The FAC now explains that although Structa is listed on Exhibit A, it was actually the Defendants that at all times dealt with Plaintiff regarding improvements. This is a factual matter, particularly as Exhibits A and B show that Structa and S Visions have the same license number and office location. The Court further notes that Structa could not be located on the California Secretary of State’s website. The Demurrer is overruled as to the first cause of action.

With respect to the second cause of action, the Court previously overruled Defendants’ demurrer. The Demurrer now talks past the Court’s prior ruling. The Demurrer is again overruled as to the second cause of action.

Defendants next argue that the disgorgement claim lacks merit because it is untrue that Defendants were unlicensed. As previously stated, this is a factual matter as Defendants' documents failed to indicate whether there were prior suspensions.

Defendants also argue that no authority is cited for disgorgement. While no statute is specifically cited, it is well known that Bus. & Prof. Code 7031(b) provides that “a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.”

As to the claims for common count and conversion, they are premised on the facts pled in support of the first cause of action. The common count claim is a valid alternative theory for recovery. With respect to conversion, Defendants argue, “Plaintiff does not even allege to have paid Defendants the sum of $21,475.00 anywhere in the Complaint. A ‘generalized claim for money [is] not actionable as conversion.’ ” However, the FAC specifically states that “Plaintiff agreed per said ESTIMATE document (exhibit ‘A’) to pay the amounts recited therein and to date has paid $21,475.00.” (FAC 17.)

In sum, the Demurrer is overruled.

1. Motion to Strike

Defendants Guy Giat and S Visions Construction, Inc. seek to strike the FAC’s references to punitive damages. They also argue that Plaintiff did not have permission to plead two contract claims instead of one.

The latter argument has no merit. There were always two contract claims—they were simply mislabeled as one cause of action.

As to punitive damages, the FAC does plead facts indicating that Defendants intentionally sought to injure Plaintiff by taking his money for their own benefit without having any intent to perform as promised.

The Motion to Strike is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

Case Number: *******0646 Hearing Date: May 11, 2022 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: May 11, 2022

Case Name: Khurana v. Giat, et al.

Case No.: *******0646

Matter: Demurrer; Motion to Strike

Moving Party: Defendants Guy Giat and S Visions Construction, Inc.

Responding Party: Unopposed

Notice: OK

Ruling: The Demurrer is overruled as to the “second” contract claim, but is

otherwise sustained. The Court grants twenty days leave to amend.

The Motion to Strike is granted, with twenty days leave to amend.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

On January 6, 2022, Plaintiff Suny Khurana filed the operative Complaint against Defendants Guy Giat and S Visions Construction, Inc. for (1) breach of contract, (2) disgorgement, (3) common counts, and (4) conversion. The allegations of the Complaint are as follows. Plaintiff entered into two contracts with Defendants, who were unlicensed contractors, for electrical work at Plaintiff’s residence. For one contract, Defendants did not properly complete the work such that Plaintiff was forced to hire another contractor to remedy Defendants’ work. For the other contract, Defendants took Plaintiff’s money, but refused to commence work.

1. Demurrer

Defendants Guy Giat and S Visions Construction, Inc. demur to all causes of action for uncertainty and failure to state sufficient facts.

Plaintiff did not file an Opposition.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “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. 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 v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

Defendants argue that Plaintiff did not properly allege alter ego liability. While specificity is not provided, the ultimate facts have been pled. (See Rutherford Holding, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236.)

With respect to the claim for breach of contract, Defendants argue “it is unclear as to whether the alleged contract is with Plaintiff, on the one hand, and either Defendant Giat or S Visions Construction, on the other hand. Secondly, Exhibit A to Plaintiff’s Complaint is from ‘Structa – Retail and Restaurant Building Solutions,’ an entity which is nowhere addressed in the Complaint. Thirdly, the purported contract is not a contract, but an estimate, evidenced by the name ‘Estimate # 003043’ readily ascertainably by Exhibit A. Fourthly, the purported contract is not a contract for home improvement services and is therefore not governed by the applicable Business & Professions Code. As evidenced by the purported contract itself, the estimate is for nothing more than electrical components such as receptacles, branch circuits, relays, and switches. (Compl. Ex. A.)”

The first cause of action is actually two causes of action for breach of contract. The “first” contract is attached as Exhibit A and the “second” is attached as Exhibit B. The claim relating to the first contract is uncertain as it is unclear what parties specifically entered into this contract. Indeed, Exhibit A seems to relate to Structa – Retail and Restaurant Building Solutions, with Giat’s email simply listed thereon.

With respect to the second contract, Defendants argue, “the second August 2017 purported contract is also not a valid contract because it is not signed by any party and is just an ‘estimate.’ (Compl. Ex. B.) Here, Plaintiff does not allege that Defendants made any acknowledgment or promise in writing ‘signed by the party to be charged’ which respect to either alleged contracts. (Code Civil Procedure 360.) Moreover, no specific mention is made as to how Defendants, if at all, breached the August 2017 contract to adequately put Defendants on notice of Plaintiff’s harm.”

The issue of whether Exhibit B is merely an estimate or the parties’ final agreement is factual. Further, the Court does not see why Exhibit B must be signed, such that oral assent is insufficient. Additionally, breach is alleged to the extent it is stated that the parts mentioned in Exhibit B were not properly installed. What exactly that means is a topic for discovery. In sum, the Demurrer is sustained as to the “first” claim for breach of contract, but is overruled as to the “second” contract claim.

Defendants next argue that “the court should categorically dismiss Plaintiff’s claim for disgorgement because Defendants were at all times herein, properly licensed and insured. (Request for Judicial Notice, Ex. A.)”

While Defendants may ultimately be correct, the Court finds this issue to be factual. Specifically, it is not apparent that the license screenshot provided by Defendants indicates prior suspensions of the license.

As to the claims for common count and conversion, they are premised on the “first” contract. The Court likewise finds these claims uncertain as discussed above.

Finally, Defendants argue, “[a] portion of the invoices sued upon by Plaintiff are beyond the four year statute of limitations. More specifically, [Exhibit B] is dated April 18, 2017. Four years from that date is April 18, 2021 and Plaintiff’s lawsuit was filed on January 6, 2022.”

Plaintiff’s claim on the “second” contract would apparently accrue upon the completion of the services. Exhibit B states that would be “roughly” July 25, 2017. It is otherwise unclear when exactly such services were completed. Therefore, the face of the Complaint does not indicate a statute of limitations problem.

In sum, the Demurrer is overruled as to the “second” contract claim, but is otherwise sustained. The Court grants twenty days leave to amend. The Request for Judicial Notice is granted.

1. Motion to Strike

Defendants Guy Giat and S Visions Construction, Inc. seek to strike the Complaint’s references to punitive damages.

Given the ruling on the Demurrer, only a contract claim remains. Therefore, the Motion to Strike is granted, with twenty days leave to amend.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.