Demurrer to Cross-Complaint
13 24-01438676 1) Demurrer to Amended Complaint 2) Motion to Strike Portions Of Complaint Parker vs. General Motors, LLC Defendant General Motors, LLC’s Demurrer and Motion to Strike Portions of the Second Amended Complaint (SAC) are CONTINUED to __________.
Plaintiff failed to file the SAC with the Court. Plaintiff is ORDERED to file the SAC with 5 days of this order. 14 24-01421074 Demurrer to Cross-Complaint
Robertson's Ready Mix, Complaint of Cross-Complainant We R Builders (WRB) is Ltd. vs. We R Builders SUSTAINED with leave to amend.
The City’s request for judicial notice of the absence of a request to initiate a meet and confer process or attend mediation under the Public Contracts Code is granted. (Evid. Code § 452(c), (h); Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-1753 [taking judicial notice of lack of government claim in government records].) “If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.) WRB’s Cross-Complaint filed on 4/21/25 alleges the City breached the parties’ contract by failing to pay for additional material and labor related to a sidewalk improvement project.
In the Demurrer, the City contends WRB “failed to fully comply with the applicable claim presentation requirement for a Public Works Contract under Public Contract Code § 9204.” (Motion, p. 2.) The City cites an “elaborate claims presentation and administrative remedy process regarding Public Works contracts was added by the California Legislature in 2016,” including the requirement that the parties to the dispute meet and confer and attend non-binding mediation prior to filing suit. (Pub. Contracts Code § 9204(d).) Although those rights can be waived, the City asserts that here, WRB only filed a claim and the City responded, but WRB failed to take the next steps of demanding an informal conference or attending mediation. Therefore, the City asserts WRB did not fully exhaust the mandatory administrative process.
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In opposition, WRB contends the request for judicial notice is improper, but WRB fails to cite case law contrary to Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-1753 and Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376, which allow the Court to take judicial notice of the absence of compliance with government tort claims requirements. WRB next argues it adequately alleged exhaustion of administrative remedies at paragraph 8 of the Cross-Complaint, which states the following:
“Plaintiff timely served its claim under the contract documents, which was denied. Plaintiff submitted a formal claim on September 3, 2024
that went unresolved. On October 24, 2024, Plaintiff timely served a claim under Public Contract Code Section 9204. Also, on October 24, 2024, Plaintiff timely served its claim pursuant to Government Code Section 910 and the City’s provided claim form. The CITY responded to Plaintiff on or about December 11, 2024, disputing the claim amount. Under Section 910, the claim is deemed rejected and under Section 945.6, Plaintiff has two (2) years from the accrual of its claim to file suit.”
WRB further alleges that because the City’s position was firm, further exhaustion of remedies would have been futile.
1. WRB has not adequately pled its compliance with the mandatory claims process under the Public Contracts Code, including demanding an informal conference and pursuing mediation. WRB has failed to cite legal authority excusing its admitted noncompliance. Therefore, the demurrer is sustained.