J Blair Pence, II vs Richard D. Starnes et al

Case Number

23CV03330

Case Type

Hearing Date / Time

Fri, 03/08/2024 - 10:00

Nature of Proceedings

Motion to Strike

Tentative Ruling

For the reasons set forth herein, the motion of defendant Richard D. Starnes, individually and dba RDS Architecture & Planning, to strike portions of plaintiff’s complaint is taken off-calendar as moot.

Plaintiff shall separately file and serve his first amended complaint no later than  March 25, 2024.

No attorneys’ fees or costs will be awarded.

Background:

This action commenced on August 1, 2023, by the filing of the complaint by plaintiff J. Blair Pence II against several defendants including Richard D. Starnes, individually and dba RDS Architecture & Planning (collectively “Starnes”), Mark Thomas Ventura, individually and dba Ventura Pools, Ventura Pools, Inc., dba Ventura Pools, Scott Joseph Ventura, individually and dba Ventura Pools, Microplasma Ozone Technologies, Inc., Fluidra Holdco North America, Inc., and Western Surety Company. As relevant to the present motion, the complaint allege causes of action against Starnes for: (1) Breach of Contract; (2) Negligence; and (3) Breach of Implied Warranty.

As alleged against Starnes:

Starnes is an architect licensed by the State of California. (Complaint, ¶ 3.) In 2017, Pence began planning for a remodel and addition to his residence including the installation of a custom in-ground pool and spa. (Complaint, ¶ 23.)

In 2020, Pence retained Starnes to “prepare design and construction drawings for the Project, to coordinate obtaining permits and approvals, to oversee the construction of the Project, and to coordinate the hiring of professionals including subcontractors to perform work on the Project.” (Complaint, ¶ 24.) “Starnes represented that he had the requisite experience, skills, and knowledge to perform the duties required of him by virtue of the agreement with Pence and to act, in essence, as a General Contractor for the Project, although subcontractors would be entering into agreements and receiving payment directly from Pence.” (Complaint, ¶ 25.)

Upon Starnes’ recommendation, Pence consulted with and hired Ventura Pools to design and construct a new inground pool and spa pursuant to a design-built construction drawing. (Complaint, ¶ 26.)

There have been multiple delays and problems with the pool and spa project. (Complaint, ¶¶ 29, 30.) The plumbing design for the pool and spa is defective and substandard. (Complaint, ¶ 31.) Pence has “made repeated requests to Starnes and the Ventura Defendants for engineered plans and hydrologic calculations of the pool and spa, which have not been provided.” (Complaint, ¶ 32.)

Starnes breached the remodel contract by “failing to properly design the desired pool and spa for the east yard of the Premises or to otherwise manage and/or oversee the design to ensure its desired performance and function.” (Complaint, ¶ 38.) Starnes breached their professional and contractual obligations to Pence under the remodel contract be recommending services of an unqualified pool contractor and be failing to properly manage and supervision the project in a proper and workmanlike manner so that the defects would not have occurred. (Complaint, ¶ 39.) Starnes has failed and refused to correct the deficiencies in the work. (Complaint, ¶ 40.)

Starnes now moves to strike the following portions of the complaint: “All references to Richard D. Starnes, individually and dba RDS Architecture & Planning as set forth within the Complaint at page 1, lines 14-15; page 2, lines 2-6; page 5, lines 2-23; page 6, lines 16-18; page 8, lines 5-28; page 9, lines 1-5; page 10, lines 20, 26; page 11, line 3, line 11, line 17, line 25; page 12, line 5, line 18, line 24; page 13, line 2.”  (Notice of Motion, p. 2, ll. 1-6.) Starnes’ argument is that because he is a California licensed architect, Pence was required to file a certificate of merit, as required by Code of Civil Procedure section 411.35

Plaintiff opposes the motion.

Analysis:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322, subd. (a).)

Starnes’ notice of motion to strike does not comply. It does not quote in full the portions sought to be stricken nor are the items to be stricken numbered consecutively. Additionally, as was done in the cases cited by both parties, defendants should have proceeded by way of demurrer rather than a motion to strike. What defendant is in fact arguing by the motion is that there is a complete defense to the action rather than that the complaint contains irrelevant, false, or improper matter.

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

Despite the above deficiencies in Starnes’ motion, Pence has implicitly acknowledged that the motion has merit and has submitted a proposed first amended complaint (“FAC”) which he claims address the issues raised by Starnes.

Both Pence’s opposition and Starnes’ reply attempt to address things such as the statute of limitations and the relation back doctrine. The court cannot rule on those arguments as the motion before the court is not directed at the proposed FAC.

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” (Code Civ. Proc. § 472, subd. (a).)

Pence submitted and served his proposed FAC timely. As such, the motion to strike is moot and will be taken off calendar. However, Pence will be ordered to separately file and serve the FAC.