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

Case Number

23CV03330

Case Type

Hearing Date / Time

Fri, 08/02/2024 - 10:00

Nature of Proceedings

CMC; Demurrer

Tentative Ruling

For all reasons discussed herein, the demurrer of defendant Richard D. Starnes, individually and dba RDA Architecture & Planning, is overruled. Defendant shall file and serve an answer to plaintiff’s first amended complaint on or before August 12, 2024.

Background:

On August 1, 2023, plaintiff J. Blair Pence, II (Pence), filed a complaint naming defendants Richard D. Starnes individually and dba RDS Architecture & Planning (collectively, Starnes); Mark Thomas Ventura individually and dba Ventura Pools (Mark); Ventura Pools, Inc., dba Ventura Pools (Ventura Pools); Scott Joseph Ventura individually and dba Ventura Pools (Scott); Microplasma Ozone Technologies, Inc. (Microplasma); Fluidra Holdco North America, Inc. (Fluidra); and Western Surety Company (Western Surety). (Note: Due to common surnames and to avoid confusion, the Court refers to certain defendants by their first names. No disrespect is intended.)

In the complaint, Pence alleges seven causes of action: (1) breach of contract (against Starnes only); (2) breach of contract (against Mark, Scott, and Ventura Pools); (3) negligence (against Starnes, Mark, Scott, and Ventura Pools); (4) breach of implied warranty (against Starnes, Mark, Scott, and Ventura Pools); (5) breach of implied warranty of merchantability (against Microplasma only); (6) breach of implied warranty of merchantability (against Fluidra only); and (7) recovery on license bond (against Western Surety only). The causes of action alleged in the complaint arise from the construction of a swimming pool and spa at residential real property owned by Pence and located at 132 Middle Road in Montecito, California (the premises). (Compl., ¶¶ 2, 23, 26-35)

Court records reflect that on August 11, 2023, Pence filed a request for dismissal of the complaint, without prejudice, as to Fluidra only. Also on August 11, 2023, the default of Mark, Scott, and Ventura Pools (the Ventura Defendants) was entered as requested by Pence.

Court records further reflect that on December 18, 2023, Starnes filed a motion to strike all references to Starnes alleged in the complaint (the first motion to strike), on the grounds that Pence failed to file the certificate required under Code of Civil Procedure section 411.35. (Dec. 18, 2023, Notice of First Motion To Strike.)

On January 16, 2024, Western Surety filed an answer to Pence’s complaint, generally denying its allegations and asserting seventeen affirmative defenses, and a verified cross-complaint alleging one cause of action for interpleader with respect to the penal sum of a bond issued by Western Surety in which Ventura Pools is named as principal. (Western Surety Cross-Compl., ¶ 6.) The cause of action for interpleader asserted in the verified cross-complaint of Western Surety is alleged against Ventura Pools, Lori Rozenburg (Rozenburg), and Pence.

On January 24, 2024, the default of Microplasma was entered as requested by Pence.

On February 13, 2024, Pence filed a document entitled a “Certificate Of Merit” (the Certificate). The Certificate is signed by Sherry Anne Lear (Lear), who is counsel for Pence in this action. In the Certificate, Lear declares that she has “reviewed the facts of this case, consulted with and received an opinion from at least one professional architect who is licensed to practice, and who does practice in the State of California, in the same discipline as [Starnes] and whom I believe to be knowledgeable in the relevant issues in this case. The person with whom I consulted rendered the opinion that [Starnes] violated the applicable standard of care in rendering professional services for the subject project, which is the design and construction and installation of a lap pool and associated coping, tiling, decking and equipment.” (Certificate at p. 2, ll. 11-19.) Lear further declares that she has concluded, based on her review and consultation, that “there is a reasonable and meritorious cause for filing and service of a Complaint against [Starnes].” (Id. at ll. 20-22.)

On February 23, 2024, Pence filed his verified answer to the verified cross-complaint of Western Surety, responding to its allegations and asserting three affirmative defenses.

On February 26, 2024, Pence filed an opposition to the first motion to strike of Starnes, asserting, among other things, that Pence filed the Certificate and a first amended complaint which, according to Pence, asserts allegations consistent with those set forth in the original complaint.

On February 27, 2024, Pence filed a notice submitting and attaching a proposed first amended complaint and summons (the Notice). (Feb. 27, 2024, Notice of Pence & Exh. A.)

On March 8, 2024, the Court ordered the first motion to strike of Starnes off-calendar as moot and ordered Pence to separately file and serve the first amended complaint attached to the Notice no later than March 25, 2024. (Mar. 8, 2024, Minute Order.)

On March 19, 2024, Pence filed his first amended complaint (the FAC), which is the operative pleading. In the FAC, Pence alleges six causes of action: (1) breach of contract (against Starnes only); (2) breach of contract (against the Ventura Defendants); (3) negligence (against Starnes and the Ventura Defendants); (4) breach of implied warranty (same); (5) breach of implied warranty of merchantability (against Microplasma only); and (6) recovery on license bond (against Western Surety only). As alleged in the FAC:

Pence decided to do a remodel of and addition to the premises (the project), which included the installation of a custom in-ground pool and spa (the pool and spa). (FAC, ¶ 17.) Pence retained Starnes to prepare design and construction drawings and to coordinate and obtain permits and approvals for the project. (Id. at ¶ 24.) A copy of a proposal dated September 1, 2017, from Starnes to Pence (referred to herein as the “contract”), regarding the “Pence Residence Addition” is attached to the FAC as exhibit A. (Id. at ¶ 24 & Exh. A.)

Pence and Starnes later agreed to expand Starnes’ role under the contract such that Starnes would act in the capacity of a project manager to oversee construction of, and manage and coordinate the hiring of professionals, subcontractors, and laborers to perform work at, the project. (FAC, ¶ 25.) In exchange for this service, Starnes charged Pence a “Contractor Supervision/Profit/Overhead” rate (the fee) of 20 percent based on the costs for laborers in Starnes’ employment, subcontractors, and materials for the project (Ibid.)

At Starnes’ recommendation, Pence retained Ventura Pools to design and construct the pool and spa. (FAC, ¶ 32.) A “Pool Agreement” attached to the FAC as exhibit B and dated June 11, 2020, anticipated completion of the pool and spa by September 16, 2020. (Id. at ¶ 32 & Exh. B.) Following delays in the permitting, the County of Santa Barbara (the County) issued a construction permit for the pool on August 20, 2021. (Id. at ¶ 33.)

At the recommendation of Mark and Starnes, Pence agreed to multiple change orders to the Pool Agreement which are dated July 6, August 12, and October 12, 2021. (FAC, ¶ 34 & Exh. C.) At Mark’s recommendation, Pence also agreed to install an ozone purification system designed and manufactured by Microplasma. (FAC, ¶ 35.)

There were multiple delays and problems with work overseen and performed for the pool and spa. (FAC, ¶ 36.) Starnes failed in his capacity as the project manager to supervise the construction of the pool to ensure it was performed in a timely and efficient manner. (Id. at ¶ 37.) Starnes, who approved tile specifications for the pool and calculated take-offs for pool tile, approved the use of three-quarter inch tile for coping around the pool and later admitted there should have been 2 inch coping around the pool and over the pool bond beam. (Id. at ¶ 39.) Starnes also miscalculated the amount of tile needed for the pool surround and decking. (Id. at ¶ 40.) After the installation was completed, cracking and settling began to appear. (Id. at ¶ 39) In addition, a number of tiles were broken, chipped, damaged, or otherwise mishandled during installation. (Id. at ¶ 41.) Sufficient tile for repairs can no longer be located. (Id. at ¶ 40.) The negligent design and installation of the pool has resulted in water level being excessively high and substandard and defective plumbing. (Id. at ¶¶ 44-45.) The Ventura Defendants, who were supervised by Starnes, also failed to prepare and provide engineered plans and calculations for the pool and spa. (Id. at ¶¶ 42-43.)

Throughout the project, Starnes used his own laborers supervised by Starnes to perform concrete work for the pool and billed Pence for their work in addition to the fee. (FAC, ¶¶ 28 & 30.) Neither Starnes nor the laborers directly employed by Starnes to work on the pool were licensed contractors. (Id. at ¶¶ 28 & 31.) 

The pool and spa were approved by an inspector for the County on October 10, 2022. (FAC, ¶ 33.) Employees and subcontractors engaged by Starnes continued work on pool construction issues and defects for a number of months thereafter. (Ibid.) Due to issues with the design and installation of the pool, the pool and spa suffer from defects and related problems which have caused damage, including to the coping tile, and which will require repairs. (Id. at ¶¶ 44-47.)

On March 26, 2024, the Ventura Defendants filed their answer to the FAC generally denying its allegations and asserting sixty-four affirmative defenses. Also on March 26, 2024, the Ventura Defendants filed a cross-complaint alleging four causes of action for equitable indemnity, comparative contribution, comparative fault, and declaratory relief against Roe defendants.

On April 2, 2024, Rozenburg filed an answer to the cross-complaint of Western Surety, responding to its allegations and asserting one affirmative defense.

Western Surety filed its answer to the FAC on April 29, 2024, generally denying its allegations and asserting seventeen affirmative defenses.

On May 17, 2024, Starnes filed a demurrer to the first, third, and fourth causes of action alleged in the FAC on the grounds that Pence failed to timely file the Certificate. The demurrer of Starnes to the FAC is opposed by Pence.

Analysis:

The present dispute is effectively directed to whether or not Pence filed the Certificate within the statute of limitations period applicable to the causes of action alleged in the first, third, and fourth causes of action of the FAC. The parties here do not, and cannot reasonably, dispute that Pence alleges in this action that Starnes is an architect licensed by the State of California who, among other things, was retained by Pence to prepare drawings for the project. (See FAC, ¶¶ 3 & 24.)

Subject to exception not relevant under the circumstances present here, Code of Civil Procedure section 411.35 provides that, in every action for damages “arising out of the professional negligence of a person holding a valid architect’s certificate”, the “attorney for the plaintiff shall”, “on or before the date of service of the complaint … on any defendant”, “file and serve the certificate specified by subdivision (b).” (Code Civ. Proc., § 411.35, subd. (a).) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise stated.)

Under subdivision (b) of section 411.35, the required certificate “shall be executed by the attorney for the plaintiff … declaring one of the following:

“(1) That the attorney has reviewed the facts of the case, that the attorney has consulted with and received an opinion from at least one architect, professional engineer, or land surveyor who is licensed to practice and practices in this state or any other state, or who teaches at an accredited college or university and is licensed to practice in this state or any other state, in the same discipline as the defendant or cross-defendant and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action. The person consulted may not be a party to the litigation. The person consulted shall render his or her opinion that the named defendant or cross-defendant was negligent or was not negligent in the performance of the applicable professional services.

“(2) That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint.

“(3) That the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three separate good faith attempts with three separate architects, professional engineers, or land surveyors to obtain this consultation and none of those contacted would agree to the consultation.”

(Code Civ. Proc., § 411.35, subd. (b)(1)-(3).)

“The failure to file a certificate in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.” (Code Civ. Proc., § 411.35, subd. (g).)

In his opposition to the demurrer, Pence does not appear to contend that he was not required to file the certificate required under section 411.35. (See Opp. at p. 3, ll. 7-8 [asserting that the “required” certificate was filed on February 13, 2024].) It is also undisputed that, prior to filing his original complaint in this action, Pence did not file the certificate required under section 411.35, including the “excuse certificate” authorized under subdivision (b)(2) and (3) of that section. (Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 547, fn. 3, & 548 (Curtis) [general discussion of “excuse certificate”].) In addition, under the undisputed facts and circumstances present here, Pence filed the Certificate more than 60 days after Pence filed his original complaint in this action.

Starnes does not contend that the Certificate fails to conform to the requirements of section 411.35, subdivision (b)(1), with respect to its substantive content. Rather, as further noted above, the parties here dispute whether the Certificate was filed within the applicable statute of limitations period. To the extent that Pence failed to file the Certificate within the applicable limitations period, the “proper ruling in this situation is to enter a judgment of dismissal ….” (Curtis, supra, 16 Cal.App.5th at p. 550.)

To determine whether a pleading subject to demurrer states a cause of action, the court reads the pleading “as a whole”, giving it a reasonable interpretation with all its parts in their context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; accord, Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, fn. 1 (Moore).) The court assumes the truth of properly pleaded material allegations including facts which may be inferred from those expressly alleged, but not of contentions, deductions, or conclusions of fact or law. (Moore, supra, 51 Cal.3d at p. 125; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) In addition, “to the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.” (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Further, “[a] general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. [Citation.] The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. [Citation.] If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment....’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325, original italics.)

The first cause of action for breach of contract alleged in the FAC arises from a purported failure by Starnes to perform architectural services under the contract in a proper, professional, or timely manner and to correct deficiencies in those services. (FAC, ¶¶ 56 & 58-60.) In the third cause of action for negligence, Pence alleges that Starnes breached its duty of care by carelessly and negligently “planning, designing, testing, inspect[ing], selecting materials, constructing, modifying, … managing, and/or performing construction work and services” at the premises. (Id. at ¶ 64.) The fourth cause of action is labeled as breach of implied warranty, in which Pence alleges a theory of recovery based on Starnes’ purported negligence in failing to perform the architectural services in a “skillful and careful” manner. (Id. at ¶¶ 67-69.)

Based on the substance of the allegations further described above and notwithstanding the title of the first and fourth causes of action, the FAC is focused on allegedly negligent acts or omissions by Starnes in performing architectural services related to the pool and spa constructed at the premises. Because the nature of the claims alleged by Pence relate to negligent conduct by Starnes in his capacity as a licensed architect performing architectural services relating to the design and construction of the pool and spa, the causes of action presently at issue are based on the professional negligence of Starnes. (Malott v. Summerland Sanitary District (2020) 55 Cal.App.5th 1102, 1110 [the court must determine the nature and character of a pleading from its allegations]; see also Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 217 [in deciding whether an action is based on professional negligence, courts do not focus on the label or form of action but whether the action originates from a negligent act or omission].)

Generally, the two year statute of limitations under section 339 applies to claims arising from the negligent performance of professional services by an architect. (Roger E. Smith, Inc. v. SHN Consulting Engineers & Geologists, Inc. (2001) 89 Cal.App.4th 638, 645-646 (Smith).) Pence does not contend, and offers no reasoned argument showing, that statute of limitations applicable to causes of action for breach of a contract or warranty apply here. In addition, Pence does not appear to dispute that the two year statute of limitations period under section 339, subdivision (1), applies to the claims alleged in the first, third, and fourth causes of action.

Though Pence does not effectively dispute that the two year limitations period under section 339, subdivision (1), applies to the claims alleged against Starnes, Pence suggests that, to the extent he “may” assert claims for patent defects against Starnes, these claims would be timely under section 337.1, which requires an action to recover damages for patent deficiencies from a person “performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property” to be brought within four years after “substantial completion” of the improvement. (Code Civ. Proc., § 337.1, subd. (a).)

A reasonable interpretation of the FAC shows that the claims alleged in the first, third, and fourth causes of action do not arise solely from alleged patent deficiencies in the design or construction of the project which existed upon substantial completion of and which resulted in defects to the finished project. (See Kralow Co. v. Sully-Miller Contracting Co. (1985) 168 Cal.App.3d 1029, 1035.) Moreover, “section 337.1 is but one prong of a two-pronged limitations scheme applicable to construction-related claims. Section 337.1 merely provides the outer limit of when one of its protected class may be sued for a patent defect: no later than four years after substantial completion of the project. But it does not revive claims that are barred pursuant to other applicable statutes of limitation.” (Smith, supra, 89 Cal.App.4th at p. 647, original italics, fn. omitted; see also Code Civ. Proc., § 337.1, subd. (c) [“[n]othing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any action”].)

Because the nature of the claims alleged in the first, third, and fourth causes of action of the FAC arises from the purported negligence of Starnes in performing professional architect services for all reasons discussed above, the Court finds that the two year statute of limitations under section 339, subdivision (1), governs these causes of action.

Starnes contends that the FAC fails to state facts sufficient to constitute a cause of action against Starnes because the Certificate was filed more than 60 days after the original complaint was filed and after the applicable statute of limitations expired. The parties do not here dispute that the relation-back doctrine, which permits a court to deem an amended pleading to have been filed at the time of an earlier pleading if the amended pleading is based on the same general set of facts, does not apply under the circumstances present here. (Curtis, supra, 16 Cal.App.5th at p. 548 [applying the relation-back doctrine to a certificate required under section 411.35 “would render meaningless the statutory requirement that the certificate be filed ‘on or before the date of service’”].)
 

Both Pence and Starnes appear to contend that the limitations period under section 339, subdivision (1), commenced upon the date of completion, or substantial completion, of the construction of the pool and spa at the premises. (Demurrer at p. 12, l. 17 – p. 13, l. 7; p. 19, ll. 2-17; Opp. at p. 4, ll. 10-12.) Starnes argues that because the date of substantial completion was not alleged in the original complaint, the FAC is a sham pleading. Starnes further contends that the allegations of both the complaint and FAC show that the Certificate was not filed within 2 years from completion of the pool and spa as shown in the exhibits to each pleading which, Starnes argues, include facts and dates which contradict the allegations. (See Demurrer at p. 19.)

The parties conflate the limitations period applicable to actions based on patent defects under section 337.1 with the limitations period under section 339, subdivision (1). The limitations period under section 337.1 for actions based on patent defects runs “from substantial completion of the improvement, not from discovery of the defect.” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1151.) However, for reasons further discussed above and as argued by Starnes in the demurrer, the limitations period under section 337.1 does not govern the claims alleged in the first, third, and fourth causes of action of the FAC.

“A cause of action for professional negligence does not accrue until the plaintiff (1) sustains damage and (2) discovers, or should discover, the negligence. [Citation.] While ‘[t]he mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm not yet realized does not suffice to create a cause of action for negligence,’ an action accrues, and the statute begins to run, as soon as the plaintiff suffers ‘appreciable harm’ from the breach. [Citation.]” (Smith, supra, 89 Cal.App.4th at pp. 650-651 [also noting that “[s]ituations in which the plaintiff discovers the negligence before he actually sustains damages are ‘unusual’”, and providing examples].) Accordingly, “ ‘[b]oth discovery and appreciable harm are required to commence the statute of limitations in a professional malpractice action.’ [Citation.]” (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 361 (Price).)

As further discussed above, Pence alleges in the first, third, and fourth causes of action that the negligence of Starnes resulted in defects and deficiencies with respect to the pool and spa which Starnes failed to correct. (See, e.g., FAC, ¶¶ 50-52, 63-64, & 68-70.) However, there are no facts expressly alleged on the face of the complaint setting forth any dates on which Pence first discovered any defects in the pool or spa. Therefore, on its face, the FAC includes no allegations which clearly or affirmatively set forth when Pence had any reason to suspect that any negligent act or omission by Starnes in providing professional architect services caused any defects in the pool or spa. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807; see also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 [“the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim”].)

Notwithstanding that Pence does not allege any specific date on which he discovered any purported defects in the pool or spa, Pence expressly alleges that a permit for the pool was issued on August 20, 2021. It can be reasonably inferred from this allegation that construction of the pool and spa did not commence until sometime on or after August 20, 2021. In addition, though the allegations of the FAC, including facts appearing in its exhibits, indicate that Pence retained Starnes in September 2017, there are no allegations to suggest or indicate that any architectural services were performed by Starnes prior to August 20, 2021, notwithstanding whether the contract includes a handwritten notation projecting a time for construction totaling 6 months. (See FAC, Exh. A at PDF p. 24 [“Projected Construction Schedule”].) In addition, Starnes fails to explain the manner in which the allegations of the FAC necessarily show or infer that Starnes performed any architectural services prior to August 20, 2021.

The allegations of the FAC also show that Pence retained Ventura Pools to construct the pool and spa, per construction drawings, under the “Pool Agreement” which is dated June 11, 2020. (See FAC, ¶ 32 & Exh. B.) These allegations suggest that the construction of the pool could not have commenced until on or after June 11, 2020. Furthermore, there are no allegations to suggest that the construction of pool commenced prior to the date Pence retained Ventura Pools under the “Pool Agreement”. For these reasons, it can be reasonably inferred from the express allegations of the FAC, including facts appearing in the exhibits thereto, that Pence could not have discovered any defects in the pool or spa, or any negligent conduct by Starnes with respect to defects in the pool and spa, until sometime after the date of the “Pool Agreement”. (See FAC, Exh. B.)

Moreover, change orders attached as exhibit C to the FAC indicate that work at the project with respect to the pool and spa was ongoing as of October 12, 2021. Even if the Court could infer that Starnes had breached a professional duty as of the dates of the change orders alleged in the FAC, and the Court does not for present purposes infer that any duty was breached as of these dates, there exist no allegations (and Starnes fails to cite any allegations) that would necessarily support an inference that Pence was or should have been aware of any purported defects on these dates or had or should have discovered any negligent acts or omissions by Starnes as of the dates of the change orders attached to the FAC.

The allegations of the FAC also show that Starnes and the Ventura Defendants “continued” to work on pool issues and defects after the County issued its approval for the pool and spa on October 10, 2022. (FAC, ¶ 33.) It can be inferred from these express allegations that, as of October 10, 2022, Pence either was or may have been aware of the existence of defects in the pool. Assuming without deciding that these allegations are sufficient to infer that Starnes had breached a professional duty as of October 10, 2022 (and the Court presently makes no findings in this regard), these allegations also do not necessarily support an inference that Pence had or should have discovered any negligent conduct by Starnes with respect to the defects in the pool and spa as of this date. For example, there are no allegations which show, expressly or by inference, that only Starnes was responsible for any defects that may have existed as of October 10, 2022.

Furthermore, assuming the truth of the allegation that Starnes and the Ventura Defendants “continued” to work on defects after October 10, 2022, to the extent this allegation is sufficient to show that Pence knew or should have known of any negligent conduct by Starnes as of October 10, 2022, and that Pence suffered appreciable harm as of this date, the two year limitations period under section 339, subdivision (1), would not run until October 10, 2024. Under these circumstances, Starnes has failed to show that the Certificate was not filed within the statute of limitations period.

Starnes further argues that the FAC constitutes a “sham” pleading because it omits reference to the time frame within which Starnes purportedly breached the contract in an attempt to plead around the statute of limitations. Starnes contends that the allegations of the original complaint which were removed from the FAC allege that “within the four years last past”, Starnes breached the contract. (See Compl., 39.)

Whether or not the FAC is a “sham” pleading as Starnes contends (and the Court presently makes no findings in this regard), the same reasoning and analysis applies with respect to the allegations of the original complaint. At best, the omitted allegations show that at some time within four years prior to the filing of the original complaint, Starnes breached a professional duty. However, for reasons further discussed above, the breach of a professional duty by itself is not sufficient to give rise to a cause of action for negligence. In addition, the allegations cited by Starnes that were removed from the FAC do not, expressly or by inference, assert any specific date or time period within which Pence discovered or should have discovered any negligent conduct by Starnes or suffered appreciable harm.

In addition, the complaint attaches the same exhibits which set forth the same dates further discussed above. The complaint and its exhibits include no allegations from which the date Pence discovered or should have discovered any alleged negligent conduct by Starnes can be determined or inferred. The complaint also alleges no dates from which it can be inferred that Pence suffered appreciable harm more than two years prior to its filing. Further, Pence alleges in the complaint that he retained Starnes in 2020, from which it can be inferred that the services performed by Starnes, and the construction of the pool and spa, were not completed within 6 months after September 1, 2017, the date of the contract, as Starnes appears to suggest. (See Compl., ¶¶ 24 & 26.)

For all reasons discussed above, the running of the statute of limitations under section 339, subdivision (1), prior to the date Pence filed the Certificate does not clearly or affirmatively appear on the face of either the complaint or the FAC. Moreover, the allegations of the complaint and the FAC demonstrate that the Certificate was filed within the applicable statute of limitations. (See, e.g., Price, supra, 92 Cal.App.4th at pp. 361-362 [permitting leave to amend when defective certificate was filed within limitations period].) Therefore, Starnes has failed to meet his burden to show that the FAC fails to state a cause of action based on any failure by Pence to timely file the Certificate. For these reasons, and as the Certificate was filed and ostensibly served on Starnes before Pence filed the FAC, the Court will overrule the demurrer.

Pence’s request for judicial notice:

Pence requests judicial notice of the Certificate, the Notice, the FAC, and the summons on the FAC. (Pence RFJN at p. 2 & Exhs. 1-4.) Though not necessary, the Court will grant the request of Pence for judicial notice of these court records. (Evid. Code, § 452, subd. (d)(1).) Judicial notice of these court records does not extend to the truth of any factual assertions appearing in the records. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483.)