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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


McCoy Electric Corporation v. Annette Rubin

Case No: 16CV03591
Hearing Date: Mon Jan 06, 2020 9:30

Nature of Proceedings: Demurrer to Cross-Complaint

CASE:                                     McCoy Electric Corporation v. Annette Rubin, et al., Case No. 16CV03591 (Judge Sterne)


HEARING DATE:                January 6, 2020



Demurrer to Cross-Complaint of Annette Rubin and Stuart Rubin



Barton C. Merrill for Plaintiff McCoy Electric Corporation

Michael J. Kenney for Defendants and Cross-Complainants Annette Rubin and Stuart RubinJoy Chen for Cross-Defendant Monterey Energy Group, Inc.


TENTATIVE RULING:        Monterey Energy Group, Inc.’s demurrer to the cross-complaint of Annette and Stuart Rubin is overruled. Monterey shall file and serve its answer to the cross-complaint on or before January 13, 2020.




This action arises from construction work performed by plaintiff McCoy Electric Corporation (“McCoy Electric”) at real property owned by defendants Annette Rubin and Stuart Rubin (together, “Rubins”), located at 4347 Marina Drive, Santa Barbara, California 92110. On August 15, 2016, McCoy Electric filed its complaint seeking unpaid fees for the work it performed. The Rubins cross-complained back against McCoy Electric and its principal, Richard Ray McCoy, for defective construction, overcharging, and conversion of materials, among other claims. The Rubins also cross-complained against various other contractors on the project for negligence, products liability, and breach of contract.


Monterey Energy Group, Inc. (“Monterey”), one of the cross-defendants in the Rubins’ cross-complaint, demurs to the first cause of action for negligence, the sole cause of action asserted against it, on the grounds that the cross-complaint fails to state facts sufficient to constitute a cause of action and is uncertain. The Rubins oppose the demurrer.    




Request for Judicial Notice


Monterey requests that the court take judicial notice of the complaint filed by McCoy Electric on August 15, 2016. Judicial notice may be taken of the “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Evid. Code §452, subd. (d). Judicial notice, however, does not extend to the truth of any factual assertions appearing in those records. Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483; see also, Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396 (“We can take judicial notice of the fact the pleadings were filed, but not of the truth of the statements contained therein.”). With this understanding, the court will take judicial notice of the complaint.


Demurrer to Cross-Complaint


Code of Civil Procedure Section 430.10 provides, in relevant part:


“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one of the following grounds:


“(e) The pleading does not state facts sufficient to constitute a cause of action.


“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”


A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the complaint that are judicially noticeable. Donabedian v. Mercury Insurance Company (2004) 116 Cal.App.4th 968, 994. This means that a court cannot consider facts asserted in a demurrer which, if true, would disclose a defect in the complaint. Ion Equipment Corporation v. Nelson (1980) 110 Cal.App.3d 868, 881. Moreover, in reviewing the sufficiency of a cause of action against a demurrer, the court assumes the truth of all facts properly pleaded. Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558. The court also assumes the truth of reasonable inferences that may be drawn from the properly pleaded facts. Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.


Monterey challenges the Rubins’ negligence cause of action for failure to state a viable claim. To state a cause of action for negligence, a plaintiff must allege that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff’s damages. John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188. Monterey contends that these elements are not sufficiently pled in the cross-complaint, but the court disagrees. The Rubins allege that Monterey provided professional engineering and design services for the property’s radiant heating system, that Monterey owed a duty of care to the Rubins, as the owners of the property, to perform the professional services within the applicable standard of care, that Monterey breached the duty of care, and that as a result of Monterey’s negligence, the Rubins suffered damages. (Cross-Comp., ¶¶ 21, 22, 23.) These are sufficient allegations to state a prima facie claim for negligence. The Rubins have alleged that Monterey’s design of the radiant heating system was defective.


Monterey next argues that the negligence cause of action is uncertain because the Rubins have failed to specify the type of design defect, i.e., whether latent or patent. They have also failed to provide a date for when the work was completed, making it impossible to determine whether the claim is barred by the statute of limitations. Under California law, the statute of limitations for defects in design to real property is dependent upon the type of defect alleged. Actions for patent defects (defects that can be discovered upon reasonable inspection) must be brought within four years after completion of the work. Code Civ. Proc. §337.1, subd. (a)(1). Actions for latent defects (defects that are not apparent on reasonable inspection) must be brought within three years of when the plaintiff suspects or should reasonably suspect the injury and its cause. Code Civ. Proc. §338; Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1407. Monterey argues that because the cross-complaint fails to allege specific facts relating to the timing of the design work, or when the alleged defects were discovered, the pleading is subject to demurrer.


The court again disagrees. First, the Rubins’ cross-complaint clearly alleges that their discovery of Monterey’s negligence occurred “[w]ithin the past year.” (Cross-Comp., ¶22.) As discussed above, for purposes of demurrer, the allegations of the complaint or cross-complaint are deemed true. Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th 553, 558. Second, while the underlying complaint filed by McCoy Electric alleges that its work on the property began in 2014 (RJN, Ex. 1, Comp., ¶4), the allegations in the complaint are not subject to judicial notice nor are they factually binding on the Rubins. Espinoza v. Calva, supra, 169 Cal.App.4th 1393, 1396. Further, even if the start date for McCoy Electric were true, it has no bearing on Monterey’s work or when the Rubins discovered, or should reasonably have discovered, Monterey’s alleged negligence.


Based on the foregoing, Monterey’s demurrer to the Rubins’ negligence cause of action will be overruled. Monterey shall file and serve its answer to the cross-complaint on or before January 13, 2020.

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