Hassan Shami v. The CompCodes, Inc., et al

Case Number

25CV01556

Case Type

Hearing Date / Time

Wed, 10/01/2025 - 10:00

Nature of Proceedings

1. Defendant Karen Wilkins’ Demurrer to Plaintiff’s Complaint; 2. Defendant Karen Wilkins’ Motion to Strike Portions of Plaintiff’s Complaint

Tentative Ruling

For Plaintiff Hassan Shami: Mark Charles Bowman

For Defendants The CompCodes, Inc. and Christian Cortes: Christopher J. Weber

For Defendant Karen Wilkins: Jean A. Dalmore, Neil G. MacMillan

                    

RULING

For the reasons set forth below:

1. Defendant Karen Wilkins’ demurrer to the entirety of Plaintiff’s complaint, and to the first, second, and fourth causes of action individually, is sustained with leave to amend.
2. Defendant Karen Wilkins’ motion to strike portions of Plaintiff’s complaint is taken off-calendar as moot.
3. Plaintiff shall file and serve his first amended complaint no later than October 15, 2025.

Background

This action commenced on March 12, 2025, by the filing of the complaint by Plaintiff Hassan Shami (Shami), against Defendants The CompCodes, Inc. (CompCodes), Christian Cortes (Cortes), and Karen Wilkins (Wilkins) for: (1) Breach of Contract, (2) Fraud, (3) General Negligence, and (4) Negligent Infliction of Emotional Distress.

As alleged in the complaint:

Shami owns, and owned, real property located at 1015 7th Street, Modesto at all relevant times. (Compl., ¶ 1.)

On November 23, 2021, Shami entered into a contract with Defendants for architectural services, including preparation and revision of building plains that would be in compliance with the City of Modesto’s permitting requirements for an old home in downtown Modesto. (Compl., ¶ 7.) Plaintiff paid approximately $13,300.00 for the plans. (Id. at ¶ 8.)

Defendants prepared a first set of plans and submitted the plans to the City of Modesto in June 2022, wherein the plans were partially reviewed and deemed to be incomplete. (Compl., ¶ 9.) Defendants agreed to prepare revised plans. (Id. at ¶ 10.)

On May 2, 2023, the City of Modesto called a Teams Meeting at the request of Defendants to review the project. (Compl., ¶ 11.) The meeting was attended by Modesto City Planning, Building, and Fire Departments, and requirements were reviewed with Defendants to ensure that the Defendants understood what the City of Modesto required for resubmission of the plans. (Ibid.)

On May 9, 2023, Defendants demanded an additional deposit of approximately $6,000.00 to prepare corrected plans, which Shami reluctantly paid. (Compl., ¶ 13.) Defendants took the money but did not prepare, or intend to prepare, the revised plans for Shami. (Id. at ¶ 14.)

Since November 2023, Defendants have ignored or otherwise failed to respond to all communications from Shami. (Compl., ¶ 16.) Defendants’ website is no longer accessible, and their business listing was removed from “Thumbnail,” with no contact information. (Id. at ¶ 17.) Shami believes that the business was unsuccessful, or otherwise unable to continue operating, or was potentially used as a sham business that was never intended to functionally operate. (Ibid.)

As the result of Defendants’ failure to prepare revised plans and submit them to the City of Modesto, Shami was cited and incurred costs and expenses in defending the code enforcement fines in an amount exceeding $29,000.00, and Shami was compelled to retain legal counsel to oppose the fines and work with the City of Modesto to provide time for Shami to find another architect. (Compl., ¶ 18.)

On May 16, 2025, CompCodes and Cortes answered the complaint with a general denial and 19 affirmative defenses.

On July 31, 2025, Wilkins filed the present demurrer to the entire complaint and to each of the first, second, and fourth causes of action.

On July 31, 2025, Wilkins also filed the present motion to strike “Punitive Damages” from the complaint.

Shami filed a single opposition to address both the demurrer and the motion to strike. [Note: For any future oppositions, or other responses to motions, separate documents should be filed to address each one.]

Analysis

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).) “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.)

“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.)

Wilkins’ first argument is that all of Plaintiff’s causes of action are barred due to Plaintiff counsel’s failure to file a Certificate of Merit.

Code of Civil Procedure section 411.35 provides:

“(a) In every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect’s certificate issued pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code, or of a person holding a valid registration as a professional engineer issued pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, or a person holding a valid land surveyor’s license issued pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code on or before the date of service of the complaint or cross-complaint on any Defendant or cross-Defendant, the attorney for the Plaintiff or cross-complainant shall file and serve the certificate specified by subdivision (b).

“(b) A certificate shall be executed by the attorney for the Plaintiff or cross-complainant 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.

“(c) Where a certificate is required pursuant to this section, only one certificate shall be filed, notwithstanding that multiple Defendants have been named in the complaint or may be named at a later time.

“(d) Where the attorney intends to rely solely on the doctrine of “ ‘res ipsa loquitur,’ ” as defined in Section 646 of the Evidence Code, or exclusively on a failure to inform of the consequences of a procedure, or both, this section shall be inapplicable. The attorney shall certify upon filing of the complaint that the attorney is solely relying on the doctrines of “res ipsa loquitur” or failure to inform of the consequences of a procedure or both, and for that reason is not filing a certificate required by this section.

“(e) For purposes of this section, and subject to Section 912 of the Evidence Code, an attorney who submits a certificate as required by paragraph (1) or (2) of subdivision (b) has a privilege to refuse to disclose the identity of the architect, professional engineer, or land surveyor consulted and the contents of the consultation. The privilege shall also be held by the architect, professional engineer, or land surveyor so consulted. If, however, the attorney makes a claim under paragraph (3) of subdivision (b) that he or she was unable to obtain the required consultation with the architect, professional engineer, or land surveyor, the Court may require the attorney to divulge the names of architects, professional engineers, or land surveyors refusing the consultation.

“(f) A violation of this section may constitute unprofessional conduct and be grounds for discipline against the attorney, except that the failure to file the certificate required by paragraph (1) of subdivision (b), within 60 days after filing the complaint and certificate provided for by paragraph (2) of subdivision (b), shall not be grounds for discipline against the attorney.

“(g) 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.

“(h) Upon the favorable conclusion of the litigation with respect to any party for whom a certificate of merit was filed or for whom a certificate of merit should have been filed pursuant to this section, the trial Court may, upon the motion of a party or upon the Court’s own motion, verify compliance with this section, by requiring the attorney for the Plaintiff or cross-complainant who was required by subdivision (b) to execute the certificate to reveal the name, address, and telephone number of the person or persons consulted with pursuant to subdivision (b) that were relied upon by the attorney in preparation of the certificate of merit. The name, address, and telephone number shall be disclosed to the trial judge in an in-camera proceeding at which the moving party shall not be present. If the trial judge finds there has been a failure to comply with this section, the Court may order a party, a party’s attorney, or both, to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of the failure to comply with this section.

“(i) For purposes of this section, “ ‘action’ ” includes a complaint or cross-complaint for equitable indemnity arising out of the rendition of professional services whether or not the complaint or cross-complaint specifically asserts or utilizes the terms “ ‘professional negligence’ ” or “ ‘negligence.’ ” ”

“When the ground of demurrer is based on a matter of which the Court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice, except as the Court may otherwise permit.” (Code Civ. Proc., § 430.70.) Wilkins requests that the Court take judicial notice of Karen Wilkins’ status as a licensed architect in the State of California. Wilkins attaches licensing details showing that her architectural license was issued on October 20, 1999, and expires on April 30, 2027. Shami does not oppose the request for judicial notice, nor does he dispute that Wilkins was at all relevant times a licensed architect. The Court will take judicial notice, as requested, pursuant to Evidence Code section 452, subdivisions (c) and (h).

Shami does not dispute that no certificate of merit was filed pursuant to Code of Civil Procedure section 411.35. Rather, Plaintiff argues that one was not required because the causes of action against Wilkins are unrelated to architectural designs. Rather, Shami argues that Wilkins engaged in fraudulent and tortious conduct by allowing CompCodes to use Wilkins’ email address and stamping their plans with Wilkins’ license.

The only time Wilkins’ name is used in the complaint, other than in the caption, is at paragraph 4 and simply states: “On information and belief, DEFENDANT KAREN WILKINS (“Wilkins”) is and was a resident of San Luis Obispo County and her residence address is 8250 San Clemente Avenue, Atascadero, CA 93422-3704.”

Despite the arguments in Shami’s opposition, it is not possible to tell from the complaint the basis of the claims against Wilkins. It is entirely unclear from the complaint whether the nature of the claims against Wilkins is derived from her work as an architect or something entirely different. Shami will be required to plead facts that show either compliance with the requirement of filing a certificate of merit or to plead sufficient facts to demonstrate that one was not required under the circumstances. The demurrer to the entire complaint, as against Wilkins, will be sustained, with leave to amend, pursuant to Code of Civil Procedure section 430.10, subdivision (f), as uncertain. The complaint provides Wilkins no information regarding the basis of the claims against her.

The individual demurrers to the first, second, and fourth causes of action will also be sustained, with leave to amend, for the following reasons:

No details regarding the basis for Shami’s action against Wilkins are given for any cause of action. Following the initial identification of the parties, Shami solely uses “Defendants” when setting forth allegations.

“Each separately stated cause of action, count, or defense must specifically state:

“(1) Its number (e.g., “ ‘first cause of action’ ”);

“(2) Its nature (e.g., “ ‘for fraud’ ”);

“(3) The party asserting it if more than one party is represented on the pleading (e.g., “ ‘by Plaintiff Jones’ ”); and

“(4) The party or parties to whom it is directed (e.g., “ ‘against Defendant Smith’ ”).” (Cal. Rules of Court, rule 2.112.)

“[A] complaint must specify against which Defendant or Defendants each claim is directed. [Citations.]” (Sass v. Cohen (2019) 32 Cal.App.5th 1032, 1044.)

Shami’s failure in identification of the parties is problematic for each cause of action in the complaint demurred to by Wilkins.

The first cause of action is for breach of contract.

“A contract is an agreement to do or not do a certain thing.” (Civ. Code, § 1549.)

“It is essential to the existence of a contract that there should be:

              “1. Parties capable of contracting;

              “2. Their consent;

              “3. A lawful object; and,

              “4. A sufficient cause or consideration.” (Civ. Code § 1550.)

The essential elements of a cause of action for breach of contract are “(1) the contract; (2) the Plaintiff’s performance of the contract or excuse for nonperformance; (3) the Defendant’s breach; and (4) the resulting damage to the Plaintiff.” (Richman v Hartley (2014) 224 Cal. App. 4th 1182, 1186.)

“A contract is either express or implied.” (Civ. Code, § 1619.) “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.)

Implied contractual terms ordinarily stand on equal footing with express terms. (See, e.g., Kahsmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 829.)

Typically, in a breach of contract action, Plaintiffs either set out the terms of a contract verbatim, or, more frequently, include a copy of the contract as an exhibit to the complaint. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972 (Heritage), addresses this often-argued issue. Heritage does not require Plaintiffs to plead all terms of the contract verbatim or to include a copy of the contact as an exhibit to the complaint. Heritage specifically holds that a contract may be pleaded by its legal effect. “In order to plead a contract by its legal effect, Plaintiff must allege the substance of its relevant terms.” (Id., at p. 993.)

Here, Plaintiff’s complaint fails to allege sufficient facts to even show the basic element of the existence of a contract between Shami and Wilkins, let alone the legal effect of the contract and the substance of its relevant terms.

The second cause of action is for fraud.

“[F]raud must be pled specifically; general and conclusory allegations do not suffice. . . . This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

“Less specificity should be required of fraud claims “ ‘when ‘it appears from the nature of the allegations that the Defendant must necessarily possess full information concerning the facts of the controversy,’ ” [citation]; “ ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party. . . .’ ” [Citation.] (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)

Even though some of the information regarding the facts of the controversy would likely be with the Defendants, Shami’s allegations are severely lacking. Besides the allegations set forth above, in the actual cause of action for fraud, Shami does nothing more that set forth, in a generic and conclusory manner, the elements of fraud. Shami is required to set forth specific facts regarding each of the elements but has failed to do so.

The fourth cause of action is for negligent infliction of emotional distress.

“Negligent infliction of emotional distress “ ‘ “is not an independent tort, but the tort of negligence,” ’ ” to which “ ‘ “traditional elements of duty, breach of duty, causation, and damages apply.” ’ ” [Citations.]” (Downey v. City of Riverside (2024) 16 Cal.5th 539, 547.) Since Shami’s third cause of action is for negligence, the fourth cause of action is redundant.

Motion to Strike

“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.)

As the demurrer is being sustained with leave to amend, the motion to strike will be taken off-calendar as moot.