Case Number: VC065473??? Hearing Date: July 05, 2016??? Dept: SEC
WnG CONSTRUCTION JV, INC. v. AAA SOLAR ELECTRIC, INC.
CASE NO.: VC065473
HEARING: 07/05/16
#6
TENTATIVE ORDER
Defendant AAA SOLAR ELECTRIC, INC.’s demurrer to the complaint is
SUSTAINED WITH 20 DAYS LEAVE TO AMEND. C.C.P. ? 430.10(e), (f), (g).
Plaintiff WnG Construction JV, Inc. filed its complaint in April 2016 under which it seeks payment for work it did as a subcontractor on various public works contracts. The AAA defendants acted as the direct contractor in relation to those contracts with co-defendant Los Angeles Unified School District. Comp., ??2-3.
Plaintiff contends it completed the work on 15 of the projects, and has completed 75% of the work on the 16th project. ?7. In December 2015, it timely filed stop payment notices with LAUSD. ?4.
Plaintiff seeks payment on the contracts, as well as damages allegedly resulting from the issuance of change orders and the moving defendant?s failure to provide equipment necessary to complete the projects. Comp., ?11. Plaintiff further alleges that because defendants received payments under the prime contracts, they are obligated to pay penalties to plaintiff. See Bus. & Prof. Code ?7108.5; ?13.
As to each of the contracts, plaintiff alleges a cause of action for breach and one for enforcement of the stop payment notices. Each of the causes of action references the alleged amount owed under the agreement (and identifies the agreement according to the facility/school where the work was performed).
Defendant?s demurrer brought on the ground that plaintiff has not pled wither the contracts are written, oral or implied is sustained. Although an inference can be drawn that the public works contracts are written, as they are required to be, plaintiff does not expressly allege that the agreements were in writing. Defendant also argues that the ?formation? of each contract is not alleged, nor are the writings attached (or pled verbatim). Plaintiff alleges the parties entered into the subject agreement; it need not describe the process.
Where a party alleges breach of written contract, the agreement must be attached to the pleading or the terms set forth verbatim within the body of the pleading. See, e.g. Otworth v. Southern Pac. Transp. Co. (1985) 166 Cal.App.3d 452. Defendant?s argument that it cannot address issues such as the statute of limitations or otherwise respond to the allegations is unpersuasive, as plaintiff alleges the contracts were formed in 2015 and also alleges the amount owed on each individual project. It may be burdensome to attach 16 public works contracts to the amended pleading, but plaintiff must do so in order to satisfy the pleading requirements and in response to defendant?s objection. The demurrer is sustained with leave to amend.
Defendant also challenges the causes of action seeking enforcement of the stop payment notices. It argues that plaintiff?s general allegation of statutory compliance is insufficient. The Court finds a general allegation of compliance with Civil Code section 9350 et seq. suffices. However, the stop notices should also be attached to the pleading, since plaintiff is seeking to enforce those notices. Leave to amend is granted.
Defendant?s argument that plaintiff did not comply with the statutory scheme is not properly considered on demurrer. The Court did not review the subject stop notices, which were submitted along with defendant?s counsel?s declaration. Compliance may be an issue of fact not amenable to resolution at the pleading stage.
If defendant elects to demur to the amended pleading, both counsel are instructed to meet and confer in person or telephonically to resolve what appear to be simple pleading issues. C.C.P. ? 430.41.