Case Number: 24SMCV02732 Hearing Date: August 20, 2025 Dept: 207
TENTATIVE RULING
| DEPARTMENT | 207 |
| HEARING DATE | August 20, 2025 |
| CASE NUMBER | 24SMCV02732 |
| MOTION | Demurrer to Complaint |
| MOVING PARTY | Defendant Progressive Business Corp dba Progressive Insulation & Windows |
| OPPOSING PARTY | Plaintiff Batyah Capital LLC |
MOTION
This case arises from construction defects to real property.
On June 7, 2021, the owner of the subject real property obtained an arbitration award against Plaintiff Batyah Capital LLC (“Plaintiff”). On June 7, 2025, Plaintiff filed the instant lawsuit seeking (1) implied contractual indemnity; (2) express indemnity; (3) implied indemnity; (4) equitable indemnity; (5) contribution and equitable apportionment; (6) breach of contract; and (7) declaratory relief against Defendants Kass Marble an Stone Consulting, Inc. (“Kass”); Daryoush Construction, Inc. (“Daryoush”); All Surface Waterproofing and Dec, Inc. (“All Surface”); C.G.S. Custom Glass Specialists (“CGS”); Diamond Construction & Waterproofing Inc. (“Diamond”); The Gatemaster JP, Inc. (“Gatemaster”) SDS Empire Construction, Inc. (“SDS”); Progressive Business Corp dba Progressive Insulation & Windows (“Progressive”); Jaime Sanchez Landscaping (“Sanchez”); Precise Demolition and Grading Co. (“Precise”); and The Agency IP Holdco, LLC (“The Agency”). Bonnar Construction, Inc. (“Bonnar”) was also added as a defendant via Doe Amendment.
Daryoush also filed suit against Roes 1 through 20 for (1) equitable indemnity; (2) partial equitable indemnity; (3) implied indemnity; (4) contribution; and (5) declaratory relief.
Progressive now demurs to all seven causes of action alleged in Plaintiffs’ complaint for failure to state facts sufficient to constitute a cause of action, pursuant to Code of Civil Procedure, section 430.10, subdivision (e). Plaintiff opposes the demurrer and Progressive replies.
REQUEST FOR JUDICIAL NOTICE
Progressive requests judicial notice of the Notice of Completion of the Subject Property, recorded on December 13, 20181 in the Los Angeles County Recorder’s Office as Document 20181280200.
Courts can take judicial notice of the existence and recordation of real property records, if authenticity is not reasonably disputed. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) “The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.” (Ibid.) Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions. (Ibid.) Therefore, the Court takes judicial notice of the Notice of Completion.
ANALYSIS
- DEMURRER
“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)
Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.” (See Code Civ. Proc., § 452.) “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.)
In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
- FAILURE TO STATE A CAUSE OF ACTION
Progressive argues that all causes of action are time barred, by virtue of a term in the subcontract between itself and SDS, limiting Progressive’s liability for any claim, loss, or cost, to a period of five (5) years from the date of completion, “which shall not be extended by any law including but limited to California Code of Civil Procedure section 337.15.” (Ex. G to Complaint.)
“Where the complaint discloses that the statute of limitations bars the action, the general demurrer has long been held an appropriate means to assert such a facial defect.” (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 299, fn. 2.)
Parties to construction contracts may generally contract for a private statute of repose, limiting the time in which the parties may assert a claim for latent defects. (Brisbane Lodging, L.P. v. Webcor Builders, Inc. (2013) 216 Cal.App.4th 1249, 1264.)
Here, the contract attached as Exhibit G to the Complaint indicates that claims shall be time barred after five (5) years from the date of completion. Further, the recorded Notice of Completion, of which the Court takes judicial notice, indicates that SDS completed the work on December 10, 2018. Yet, Plaintiff did not file suit until over five years later, on June 7, 2024.
As such, pursuant to the face of Exhibit G attached to the complaint, and the Notice of Completion, of which the Court can properly take judicial notice, the action against Progressive is time-barred.
Plaintiff argues in opposition that there are multiple versions of the contract at issue, that the provision was added a month after the contract was signed, and therefore, the operative contract does not contain any such provision limiting the time in which the parties may sue each other. But the potential existence of another version of the contract does not change the fact that on the face of the version Plaintiff attached to the Complaint, the action is time-barred.
“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint. This principle means that if the pleading sufficiently states a cause of action the demurrer cannot be granted on the basis of a showing of extrinsic matters by inference from attached exhibits, affidavits, or otherwise except those matters which are subject to judicial notice.” (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499 [cleaned up].)
Therefore, the Court sustains Progressive’s demurrer.
- LEAVE TO AMEND
A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int’l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int’l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)
Here, Plaintiff has submitted evidence demonstrating that there are multiple versions of the agreement at issue, and the true operative agreement does not contain any such provision limiting the statute of repose. Therefore, the Court grants Plaintiff leave to amend the Complaint accordingly.
CONCLUSION AND ORDER
For the reasons stated, the Court sustains Progressive’s demurrer to the Complaint with leave to amend.
Plaintiff shall file and serve a First Amended Complaint on or before September 12, 2025.
Progressive shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.
DATED: August 20, 2025 ____/s/_______________________
Michael E. Whitaker
Judge of the Superior Court
1. The Request for Judicial Notice contains a typographical error indicating it was recorded on December 18, but the face of the document itself demonstrates it was recorded on December 13.