Timber and Wool Custom Floors Inc vs Catherine Stout et al
Timber and Wool Custom Floors Inc vs Catherine Stout et al
Case Number
24CV05146
Case Type
Hearing Date / Time
Fri, 01/16/2026 - 10:00
Nature of Proceedings
CMC; Demurrer and Motion to Strike
Tentative Ruling
For the reasons set forth herein, cross-defendants Timber and Wool Custom Floors and Cynthia Baker’s demurrer to the fifth cause of action for intentional misrepresentation and the seventh cause of action for false promise is overruled. The motion to strike portions of the cross-complaint is denied. Cross defendants shall file and serve their answers to the cross-complaint no later than January 30, 2026.
Background:
This action commenced on September 17, 2024, by the filing of the verified complaint by plaintiff Timber and Wool Custom Floors, Inc. (plaintiff) against defendants Catherine Stout and Arthur Stout (collectively “defendants”) for: (1) Foreclosure of Mechanics Lien, (2) Breach of Contract, and (3) Quantum Meruit.
As alleged in the complaint:
Defendants are the owners of real property located at 315 Elderberry Drive, Goleta (the “property”). (Compl., ¶¶ 2, 3.)
On January 25, 2024, plaintiff provided an estimate to defendants to provide hardwood flooring, installation and related services to the property, including: (1) replacement of all hardwood flooring, (2) removal and disposal of all existing baseboards, existing glued-down hardwood flooring over concrete subfloor, (3) grinding and preparing concrete for new glue down installation, and (4) providing and installing new baseboards (the “contract”). (Compl., ¶ 10 & Exh. A.) The estimate total was $103,869.49. (Id. at ¶ 11.) Soon thereafter, plaintiff and defendants agreed to the services and costs contained in the contract and, at the direction of defendants, plaintiff began performing the contract. (Id. at ¶ 12.)
By agreement between the parties, some of the services contained in the contract were removed creating a new total amount for labor and services of $91,742.18. (Compl., ¶ 13.)
On February 1, 2024, defendants paid plaintiff $51,545.49 to cover material that plaintiff had ordered to install into the property. (Compl., ¶ 16.) Between March 4, 2024, and March 5, 2024, plaintiff removed the defendants’ flooring to install new flooring. (Id. at ¶ 17.) By April 13, 2024, plaintiff completed the installation of the new flooring. (Id. at ¶ 18.) Defendants owed plaintiff a remaining balance of $40,196.69, which they attempted to collect from defendants, but they were ignored. (Id. at ¶¶ 19, 20.)
On June 27, 2024, before 90 days after completion of the improvement work, plaintiff filed a Mechanics Lien on the property in the amount of $40,196.69. (Compl., ¶ 21 & Exh. B.) On the same day, plaintiff served defendants with the Mechanics Lien and Notice of Mechanics Lien. (Id. at ¶ 22.)
On January 10, 2025, defendants filed their verified answer to the complaint, admitting some allegations, denying some allegations, partially admitting some allegations, and claiming a lack of information to either admit or deny other allegations. In addition, defendants asserted 20 affirmative defenses. As relevant to the present motion, defendants assert as their twentieth affirmative defense that the contract is illegal because it is in violation of Business & Professions Code section 7159, et seq.
On May 27, 2025, defendants filed a cross-complaint (sometimes “CC”) against plaintiff, as well as Cynthia Baker and E&Q Floors, LLC for: (1) Violation of Business and Professions Code section 7159, (2) Breach of Contract, (3) Recission, (4) Negligence – Construction Defect, (5) Intentional Misrepresentation, (6) Negligent Misrepresentation, and (7) False Promise.
As alleged in the cross-complaint:
On August 20, 2023, Ms. Stout found a leak in her primary bedroom closet and called a plumber who discovered extensive water intrusion and mold. (CC, ¶ 5.) Ms. Stout made a claim to her homeowner’s insurance carrier and, ultimately, substantial demolition of the home was required to address the mold infestation, including the floors of the home. (Ibid.)
Between August 2023, and January 2024, there was demolition and reconstruction of drywall and insulation along with mold remediation and clearance testing. (CC, ¶ 6.)
On January 25, 2024, Baker, as CEO on behalf of plaintiff, provided Ms. Stout with an estimate for new hardwood floors to be installed at the home. (CC, ¶ 7.) Plaintiff claims the estimate is a contract by way of its complaint. (CC, ¶ 8.) The estimate, even if considered a contract, is noncompliant with the required terms of Business and Professions Code section 7150, et seq., which requires, among other things, notices of cancellation rights, mechanic’s lien disclosure, and liability insurance disclosure. (CC, ¶ 9.) The estimate is unsigned by either party. (CC, ¶ 11.)
Around the time the estimate was provided to Ms. Stout, Baker told her that she would make sure her best worker handled the job, who had 30 years of experience. (CC, ¶ 12.) On February 2, 2024, although the estimate calls for the hardwood flooring material to cost $46,453.50, Baker forced Ms. Stout to pay $51,545.49. (CC, ¶ 13.)
On March 7, 2024, plaintiff began installing the hardwood floors. (CC, ¶ 17.) Baker was rarely on the site of the project and had a worker named Enrique handle the project. (CC, ¶ 18.) Around the time of the installation of the hardwood floors, Enrique told Ms. Stout that he had nothing like 30 years’ experience and it became clear that Enrique was not competent in installing flooring. (CC, ¶ 20.)
There were numerous problems with the installation that were not properly addressed by plaintiff or Baker which resulted in a defective installation of the flooring which resulted in additional costs and delays. (CC, ¶¶ 23-34.)
Additional allegations will be discussed below where appropriate.
E&Q Floors filed their answer to the cross-complaint on July 3, 2025. Plaintiff and Baker now demur to the fifth and seventh causes of action in the cross-complaint and move to strike portions of the cross-complaint that refer to punitive damages.
Defendants and cross-complainants have not filed opposition or any other response to the demurrer or the motion to strike.
Analysis:
Initial Concerns
For both the demurrer and the motion to strike, the memorandum of points and authorities far exceeds the allowable pages. California Rules of Court, rule 3.1113(d) mandates that, except for motions for summary judgment or summary adjudication, no opening memorandum may exceed 15 pages. Cross-defendants did not seek leave to file longer memorandums. Additionally, neither document contains a table of contents or a table of authorities as required by rule 3.1113(f).
The court considered exercising its discretion and disregarding the non-compliant points and authorities. However, because both will fail on their merits, the court will consider the documents this time.
Counsel is reminded of the obligation to comply with the California Rules of Court, the Santa Barbara County Local Rules, and all other relevant legal authority for any future filings, and bear in mind the potential consequences of ignoring these obligations.
Demurrer
“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).)
“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 or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(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.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)
“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
Fifth Cause of Action for Intentional Misrepresentation
Intentional misrepresentation is recognized as a fraud cause of action based on deceit.
“A deceit, within the meaning of the last section, is either:
“1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
“2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
“3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,
“4. A promise, made without any intention of performing it.” (Civ. Code, § 1710.)
“ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘ “scienter” ’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
Cross-defendants argue that no intentional misrepresentations of material fact occurred. In doing so, they argue the merits of their case and rely on extrinsic evidence such as the estimate for the flooring replacement. The court cannot weigh evidence in ruling on a demurrer as the demurrer only tests the sufficiency of the pleading.
“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action [citation].” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)
Although fraud causes of action must be pled with specificity: “Such things as knowledge, intent, and scienter may be pleaded generally . . .” (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1244.)
In addition to the allegations set forth above, cross-complainants allege:
Cross-defendants intentionally made the false representations that: (1) The hardwood flooring would cost $46,453.50 when it actually cost at least $51,545.49; (2) The professional cleaning services would cost $850.00 when it actually cost $4,000.00; (3) Timber and Wool’s best worker would be involved and that this worker was a 30-year veteran of the flooring industry, when neither of the workers were the best as demonstrated by workers that were later brought on the job after damage had been done; (4) Timber and Wool workers would be on site from 9am to 5pm every day, when they were not and left early every day; (5) Timber and Wool would address improper color variations by the end of the job when they did not; and (6) The glue and other damage left on the flooring would be resolved by proper cleaning when it was not. (CC, ¶¶ 63, 64.)
Baker knew that the representations were false when she made them or she made them recklessly and without regard for their truth. (CC, ¶ 65.)
Baker intended that Ms. Stout rely upon the representations. (CC, ¶ 66.) Ms. Stout reasonably relied on the representations because Baker was the CEO of Timber and Wool, which is a licensed contractor. (CC, ¶ 67.)
Ms. Stout was harmed and her reasonable reliance on the false representations was a substantial factor in causing the harm. (CC, ¶ 68.)
Taking the CC as a whole, cross-complainants have pled the cause of action with the requisite specificity, including who, how, when, and by what means the representations were made. Cross-defendants demurrer appears to completely ignore the general and background allegations that are contained at the beginning of the CC.
Cross-defendants have failed to meet their burden of establishing that fifth cause of action fails to state facts sufficient to constitute a cause of action. The demurrer to the fifth cause of action will be overruled.
Seventh Cause of Action for False Promise
A cause of action for false promise is closely related to a cause of action for intentional misrepresentation.
“ ‘ “Promissory fraud” ’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.’ ” [Citation.] The elements of promissory fraud (i.e., of fraud or deceit based on a promise made without any intention of performing it) are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise. [Citation.]” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1453.)
The allegations regarding the seventh cause of action are substantially similar to those for the fifth cause of action. It can be viewed as an alternative theory of liability. Alternative theories of liability are permissible. (see Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)
Cross-defendants’ demurrer to the seventh cause of action fails for the same reasons as it fails for the fifth cause of action. For pleading purposes, the CC is sufficient to withstand the demurrer.
Motion to Strike
Cross-defendants seek to strike: “For exemplary and punitive damages in order to punish Timber Wool and Cynthia Baker.” The allegations are contained on Page 14 of the CC at lines 14-15 and 26-27 and are part of the relief sought on the fifth and seventh causes of action.
“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.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “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).)
“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)
“[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.)
“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)
“As used in this section, the following definitions shall apply:
“(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
“(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c).)
Punitive damages are recoverable for fraud actions involving intentional misrepresentation. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1241.) “[F]raud alone is an adequate basis for awarding punitive damages.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 135.)
“A fraud cause seeking punitive damages need not include an allegation that the fraud was motivated by the malicious desire to inflict injury upon the victim. The pleading of fraud is sufficient.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610.)
If cross-complainants prevail on their fraud-based causes of action, they may be entitled to punitive damages. As such, the motion to strike will be denied.