Storesund Construction, Inc. vs Christopher Quinn et al

On September 18, 2025, Storesund filed the operative second amended complaint (“SAC”) against Defendants setting forth causes of action for:

(1) Breach of Implied-In-Fact Contract; (2) Contractual Promissory Estoppel & Detrimental Reliance; (3) Breach of Contract Express and Implied; (4) Anticipatory Repudiation of Contract; and (5) Negligent Misrepresentation.

On November 20, 2025, Defendants filed the motions presently before the court, a demurrer and motion to strike to the SAC. Defendants filed a request for judicial notice in conjunction with the demurrer. Storesund filed written oppositions. Defendants filed reply papers.

A further case management conference is also scheduled for June 17, 2026.

Demurrer to the SAC Defendants raise the following arguments in support of the demurrer to the SAC: (1) the first, second, third, and fourth causes of action do not state a valid claim and are uncertain; (2) the fifth cause of action fails to state a valid claim; and (3) the SAC fails to state a valid claim against defendant Quinn. (Code Civ. Proc., § 430.10, subds. (e), (f).)

Request for Judicial Notice “Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action

without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

In support of the demurrer, Defendants request judicial notice of the following: (1) Storesund’s SAC; (2) Storesund’s July 6, 2022 Performance Bond, attached as an exhibit to Storesund’s FAC; (3) Storesund’s FAC; and (4) the court’s August 20, 2025 Order sustaining the demurrer to the FAC with leave to amend. (See Request for Judicial Notice at Exs. A-D.)

Here, the court declines to take judicial notice of Exhibit A, Storesund’s SAC, as the court must necessarily consider allegations of the challenged pleading in ruling on a demurrer. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1 [Sixth Appellate District denies request for judicial notice as unnecessary as the court must consider allegations in the complaint and attached exhibits in ruling on demurrer].) The court takes judicial notice of the remaining exhibits which constitute records filed in the superior court under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

Accordingly, the request for judicial notice is DENIED as to Exhibit A. The request for judicial notice is GRANTED as to Exhibits B-D.

Failure to State a Cause of Action

“ ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of the cause of action on assumed facts without a trial.’ [Citation.] ‘Conversely, a general demurrer will be overruled if the complaint contains allegations of every fact essential to the statement of a cause of action, regardless of mistaken theory or imperfections of form that make it subject to special demurrer.’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 291-292 (Morris).)

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ [citation] and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’ [Citation.] ‘[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’ [Citation.]” (Morris, supra, 78 Cal.App.5th at p. 292.)

First Cause of Action: Breach of Implied-In-Fact Contract

To prevail on a cause of action for breach of contract, the plaintiff must allege and prove: (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 cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 183.)

“An implied contract ‘consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words.’ [Citations.] In order to plead a cause of action for implied contract, ‘the facts from which the promise is implied must be alleged.’ [Citation.]” (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1134.)

“An implied contact ‘ “... in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively.” ’ [Citation.] It is thus an actual agreement between the parties, ‘the existence and terms of which are manifested by conduct.’ [Citation.] Although an implied in fact contract may be inferred from the ‘conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise.’ [Citation.]” (Friedman v. Friedman (1993) 20 Cal.App.4th 876, 887.)

Here, the first cause of action refers to the formation of a contract via Storesund’s act of listing Defendants in the Project Bid submission for a Public Works project. (See SAC at ¶¶ 66, 70, 81.) But, as pointed out on demurrer, Storesund does not set forth facts demonstrating any breach of this alleged contract. The first cause of action also mentions the parties’ execution of a Master Service Agreement (“MSA”) to formalize terms and conditions between Storesund and Defendants on all projects where Defendants supplied work, including the Vasona Creek Trail Project. (Id. at ¶ 77.) Storesund however does not allege facts showing any breach of the MSA in the first cause of action and thus fails to state a valid claim.

Therefore, the demurrer to the first cause of action is SUSTAINED for failure to state a valid claim.

Second Cause of Action: Contractual Promissory Estoppel & Detrimental Reliance

“[T]he promissory estoppel doctrine makes ‘a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange.’ [Citation.] Put differently, promissory estoppel ‘ “employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced.” ’ [Citation.]” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1007.)

The elements of a promissory estoppel claim are “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Federal Savings & Loan Assn. (1976) 60 Cal.App.3d 885, 890.)

“Because promissory estoppel is an equitable doctrine to allow enforcement of a promise that would otherwise be unenforceable, courts are given wide discretion in its application.” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.)

“A general contractor may recover damages incurred as a result of its reasonable reliance on a subcontractor’s mistaken bid under the theory of promissory estoppel.” (Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 733.) To prevail on a

promissory estoppel claim, a general contractor must plead and prove that it reasonably relied on the subcontractor’s bid to its detriment, and that injustice could be avoided only by enforcing the subcontractor’s promise to perform at the quoted price. (Id. at p. 734.)

Here, Storesund alleges it reasonably relied on Defendants’ clear and definite bid for the flatwork and trail grading, which Defendants gave to Plaintiff on the morning of June 1, 2022. (SAC at ¶¶ 94, 96, Ex. E.) Defendants contend there is no reasonable reliance to support promissory estoppel as Storesund admits it DocuSigned its bid amount on May 31, 2022, which is a day before Bay Area Paving sent “numbers” on June 1, 2022. (Id. at ¶¶ 44, 95.) But, as the pleading points out, the fact that Storesund self-signed documents on May 31, 2022, is not indicative as to when the documents were submitted. (Id. at ¶ 44.)

In fact, Storesund specifically alleges that it initiated an electronic DocuSign on its own behalf and for recordation purposes in preparation for its bid submission on June 1, 2022. (Id. at ¶ 24.) Storesund thereafter alleges it reasonably relied on the bid submitted on June 1, 2022 which must be accepted as true for purposes of demurrer. (See Olson v. Toy (1996) 46 Cal.App.4th 818, 823 [for purposes of demurrer, we accept these allegations as true].)

Consequently, the demurrer to the second cause of action for failure to state a valid claim is OVERRULED.

Third Cause of Action: Breach of Contract Express and Implied

The third cause of action is a claim for breach of express and implied contract. Defendants assert there are no facts to support an actual breach of an express or implied contract. The court however is not persuaded as Storesund, at a minimum, alleges facts supporting breach of the MSA, an express contract, to state a valid cause of action. (See SAC at ¶¶ 106-107; see also Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“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.”].)

Accordingly, the demurrer to the third cause of action for failure to state a valid claim is OVERRULED.

Fourth Cause of Action: Anticipatory Repudiation of Contract

“Anticipatory breach occurs when one of the parties to a bilateral contract repudiates the contract. The repudiation may be express or implied. An express repudiation is a clear, positive, unequivocal refusal to perform [citations]; an implied repudiation results from conduct where the promisor puts it out of his power to perform so as to make substantial performance of his promise impossible [citations].” (Taylor v. Johnston (1975) 15 Cal.3d 130, 137 (Taylor).)

“When a promisor repudiates a contract, the injured party faces an election of remedies: he can treat the repudiation as an anticipatory breach and immediately seek damages for breach of contract, thereby terminating the contractual relation between the parties, or he can treat the repudiation as an empty threat, wait until the time for performance arrives and exercise his remedies for actual breach if a breach does in fact occur at such time. [Citation.] However, if the injured party disregards the repudiation and treats the contract as still in force, and the repudiation is retracted prior to the time of performance, then the repudiation is nullified and

the injured party is left with his remedies, if any, invocable at the time of performance. [Citations.]” (Taylor, supra, 15 Cal.3d at pp. 137-138.)

Defendants argue the fourth cause of action fails to allege facts to support any breach of the MSA. The court has considered and rejected this argument for reasons articulated above in overruling the demurrer to the third cause of action.

Therefore, the demurrer to the fourth cause of action for failure to state a valid claim is OVERRULED.

Fifth Cause of Action: Negligent Misrepresentation

“The elements of a negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ [Citation.]” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1252.)

Defendants contend the fifth cause of action fails as Storesund does not allege facts to establish reasonable reliance on a misrepresentation. The court considered and rejected this contention for reasons explained above in overruling the demurrer to the second cause of action. Defendants also argue that the claim for negligent misrepresentation has not been pled with specificity. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166 [“Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.”].) The court disagrees and finds sufficient allegations have been pled with specificity to state a claim for negligent misrepresentation. (See SAC at ¶¶ 122-128.)

Consequently, the demurrer to the fifth cause of action for failure to state a valid claim is OVERRULED.

Uncertainty

“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Here, the arguments supporting a special demurrer for uncertainty are intertwined with the arguments on general demurrer for failure to state a valid claim. While there is some degree of uncertainty regarding the alleged breach-of-implied contract, the court does not find these ambiguities to warrant sustaining a demurrer on the ground of uncertainty. Also, given the

arguments raised on general demurrer, it appears Defendants are on notice of the claims being raised in this action. Moreover, to the extent that any ambiguity exists, Defendants can seek clarity through instruments of civil discovery. (See Davies v. Super. Ct. (1984) 36 Cal.3d 291, 299 [purpose of civil discovery is to take game element out of trial preparation and assist parties in obtaining facts and evidence necessary for expeditious resolution of their dispute].)

Accordingly, the demurrer to the SAC on the ground of uncertainty is OVERRULED.

Defendant Quinn

The demurrer is SUSTAINED as to defendant Quinn as Storesund fails to allege sufficient facts to state a valid claim against Quinn under an alter ego theory of liability. (See Leek v. Cooper (2011) 194 Cal.App.4th 399, 415 [“To recover on an alter ego theory, a plaintiff need not use the words ‘alter ego,’ but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.”]; Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235 [plaintiff sufficiently alleged unity of interest by alleging corporate entity was inadequately capitalized, failed to “abide by the formalities of corporate existence,” and was dominated, controlled, and used by defendant as a “mere shell and conduit”]; see also Associated Vendors, Inc. v.

Oakland Meat Co. (1962) 210 Cal.App.2d 825, 839-840 [factors supporting alter ego].)

Leave to Amend

Should the court sustain any part of the demurrer, Storesund requests further leave to amend.

“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff “must show in what manner he (or she) can amend his (or her) complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw, supra, 81 Cal.App.4th at pp. 43-44.)

Here, the court sustained the demurrer as to the first cause of action and to defendant Quinn. Storesund has already been given an opportunity for leave to amend and failed to correct the deficiencies to the first cause of action and defendant Quinn. Nor does Storesund, in opposition, articulate how it intends to amend to state a valid cause of action. That said, the court finds the aforementioned defects to be easily correctable and will afford one more opportunity for leave to amend. (See Angie M. v. Super. Ct. (1995) 37 Cal.App.4th 1217, 1227 [“The remaining pleading deficiencies regarding the nature and severity of the alleged emotional distress were easily corrected and leave to amend was granted.”].)

Therefore, the court GRANTS 10 days leave to amend.

Storesund’s Request for Fees and Costs

In opposition, Storesund requests costs and fees spent filing the opposition to the demurrer. Storesund however fails to cite any legal authority supporting its request for fees and costs. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [court need not consider point unsupported by legal authority].) And, as Storesund did not prevail in opposing the demurrer, any request for fees and costs is not warranted.

Consequently, Storesund’s request for fees and costs is DENIED.

Motion to Strike Request for Attorney’s Fees

Defendants separately move to strike the request for attorney’s fees in the prayer for relief in the SAC.

Request for Judicial Notice

In support of the motion, Defendants again request judicial notice of the SAC. The court declines to take judicial notice of the SAC as it must necessarily consider the operative pleading in ruling on a motion to strike.

Accordingly, the request for judicial notice is DENIED.

Request for Attorney’s Fees

“In the absence of some special agreement, statutory provision, or exceptional circumstances, attorney’s fees are to be paid by the party employing the attorney.” (Howard v. Schaniel (1981) 113 Cal.App.3d 256, 266; Code Civ. Proc., § 1021.)

Here, Storesund requests attorney’s fees in part under the MSA. Civil Code section 1717 provides in relevant part:

“In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).)

The MSA however does not contain any provision for an award of attorney’s fees and costs.

In the alternative, Storesund requests attorney’s fees under Code of Civil Procedure section 1021.5 which states in pertinent part:

“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the

award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (Code Civ. Proc., § 1021.5)

As one appellate court explained:

“The private attorney general theory recognizes citizens frequently have common interests of significant societal importance, but which do not involve any individual’s financial interests to the extent necessary to encourage private litigation to enforce the right. [Citation.] To encourage such suits, attorneys fees are awarded when a significant public benefit is conferred through litigation pursued by one whose personal stake is insufficient to otherwise encourage the action. [Citation.] Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest. [Citations.]” (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 114, emphasis in bold added.)

Here, Storesund fails to allege facts demonstrating that this lawsuit is being brought to enforce rights affecting the public interest. Any benefit obtained from this lawsuit would be coincidental at best. If Storesund prevails, its motivated solely by its own pecuniary interest. Thus, the request for attorney’s are properly stricken. While amendment appears unlikely, the court will afford Storesund an opportunity for leave to amend. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [with respect to motion to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].)

Therefore, the motion to strike the request for attorney’s fees is GRANTED WITH 10 DAYS LEAVE TO AMEND.

Disposition

The demurrer to the first cause of action in the SAC is SUSTAINED WITH 10 DAYS LEAVE TO AMEND for failure to state a valid claim.

The demurrer to the second, third, fourth, and fifth causes of action on the ground that they fail to state a valid claim is OVERRULED.

The demurrer to the entire SAC as to defendant Quinn is SUSTAINED WITH 10 DAYS LEAVE TO AMEND for failure to state a valid claim.

The demurrer to the SAC on the ground of uncertainty is OVERRULED.

Storesund’s request for fees and costs is DENIED.

The motion to strike the request for attorney’s fees is GRANTED WITH 10 DAYS LEAVE TO AMEND.

The court will prepare the Order.

- oo0oo -