BURTON BUILDERS, LLC vs. MICHAEL HORTA

Cross-Defendant Burton Builders, LLC (“Burton Builders”) Demurrer to the Fourth Amended Cross Complaint (“FACC”) filed by Cross-Complainant Michael Horta (“Horta”) is SUSTAINED with leave to amend in part and OVERRULED in part.

Legal Standard

The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As a general rule, in testing a pleading against a demurrer, the facts alleged in the pleading are deemed to be true, however improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Calif. (1990) 51 Cal.3d 120, 125.)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The face of the complaint includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 317.)

Discussion

Burton demurred to the Second Amended Cross-Complaint in December 2025. (Burton Decl., ¶ 3.) On February 10, 2026, the Court sustained the demurrer with leave to amend. (Burton Decl., ¶ 4.) On February 12, 2026, Horta served a Third Amended Cross-Complaint via e-mail, however, it was not accepted for filing. (Burton Decl., ¶ 5.) Instead, Horta filed the FACC on February 24, 2026. (Burton Decl., ¶ 9.) Burton then demurred to the FACC.

The FACC asserts seven causes of action: (1) breach of contract; (2) breach of express warranty; (3) breach of implied warranty; (4) fraud – intentional misrepresentation; (5) fraud – concealment; (6) fraudulent billing practices; and (7) unjust enrichment. The demurrer is made pursuant to Code of Civil Procedure section 430.10(e) on the ground that the FACC fails to state facts sufficient to constitute any cause of action.

First Cause of Action - Breach of Contract

Establishing a claim for breach of contract requires a showing of “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (D'Arrigo Bros. of California v. United Farmworkers of Am. (2014) 224 Cal.App.4th 790, 800.)

Plaintiff alleges the existence of a contract, the date of formation, the purpose of the contract, the consideration for it and attaches the contract as Exhibit A to the FACC. (See FACC, ¶ 7, Ex. A.) This is sufficient to allege the existence of a contract. Plaintiff alleges that he performed all of his obligations under the contract. (¶ 27.) He further alleges that Burton breached the contract. (See i.e. ¶¶ 13, 17, 20, 28.) Plaintiff also alleges resulting damages. (¶ 29.)

Plaintiff has adequately alleged a cause of action for breach of contract. The demurrer to the First Cause of Action is OVERRULED.

Second Cause of Action - Breach of Express Warranty

To prevail on a breach of express warranty claim, the plaintiff must prove (1) the seller's statements constitute an “ ‘affirmation of fact or promise’ ” or a “ ‘description of the goods' ”; (2) the statement was “ ‘part of the basis of the bargain’ ”; and (3) the warranty was breached. (Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1227, citing Keith v. Buchanan (1985) 173 Cal.App.3d 13, 20.)

The FACC alleges the date the warranty was referenced, the contents of the email, the sender of the email, etc. (See, ¶¶ 12, 30.) Specifically, the promise alleged is that “the invoice covers the roof which will be warrantied.” (Ibid.) The Contract itself also includes a written warranty. (See FACC, Ex. A, ¶ 12.) This is sufficient to establish that it formed part of the basis of the bargain at this stage in the pleadings. The FACC further alleges that the warranty was breached. (¶¶ 13- 15.)

Plaintiff has met the pleading requirements for Breach of Express Warranty. The demurrer to the Second Cause of Action is OVERRULED.

Third Cause of Action - Breach of Implied Warranty

California law establishes an implied warranty that the work performed will be fit and proper for its intended use. (See Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485.) To state such a claim, a Plaintiff must allege that defendant failed to perform its work competently, or failed to provide proper materials for the project and that Plaintiff was harmed by this failure. (See CACI 4510.)

Here, the FACC alleges that Burton failed to perform work in a good and workman like manner and gives examples. (See FACC, ¶¶ 14-20, 33-34.) Plaintiff further alleges he was harmed by this failure. (¶ 35.)

This is sufficient to state a cause of action for Breach of Implied Warranty. The demurrer to the Third Cause of Action is OVERRULED.

Fourth, Fifth, and Sixth Causes of Action - Fraud (Intentional Misrepresentation, Concealment, and Fraudulent Billing)

Fraud must be specifically pleaded. The general pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. Every element of the cause of action must be alleged factually and specifically, and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. (Vaughn v. Certified Life Ins. Co. of Cal. (1965) 238 Cal.App.2d 177, 181–82.)

The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure), (2) knowledge of falsity (or scienter), (3) intent to defraud, i.e., to induce reliance, (4) justifiable reliance, and (5) resulting damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979.) “There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]” ’ (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

Here, Plaintiff alleges that Alvarez stated the roof was “inspected, properly flashed, and warrantied.” (FACC, ¶ 36.) He further alleges that this was false because the roof was not properly flashed, and Alvarez knew or should have known it was false. (¶¶ 37-38.) However, the FACC does not allege intent to defraud aka to induce reliance nor facts supporting such an allegation. Moreover there are no facts pled establishing how Alvarez knew or should have known the statement was false. Both are required to state a cause of action Fraud – Intentional Misrepresentation.

The Fraud – Concealment cause of action fails to allege with the required specificity what was concealed, how it was concealed, intent to defraud, etc.

The Court agrees that a cause of action for Fraudulent Billing Practices is essentially a cause of action for fraud. However, allegations regarding the details of the allegedly fraudulent statements, knowledge of falsity, and intent to defraud are missing.

For these reasons, the Demurrer to the Fourth, Fifth, and Sixth Causes of Action is SUSTAINED with leave to amend.

Seventh Cause of Action - Unjust Enrichment

There is no cause of action in California labeled “unjust enrichment.” (City of Oakland v. Oakland Raiders (2022) 83 Cal.App.5th 458, 477–78, citing De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) However, “[c]ommon law principles of restitution require a party to return a benefit when the retention of such benefit would unjustly enrich the recipient; a typical cause of action involving such remedy is ‘quasi-contract.’ ” (Id., citing Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661; Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230.) In evaluating a cause of action, the court ignores “[e]rroneous or confusing labels ... if the complaint pleads facts which would entitle the plaintiff to relief. [Citation].” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387–88, citing Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.)

Plaintiff here may assert a claim for restitution in the alternative in the event that contract claims are found to be insufficient. “The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’ [Citation.]” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) Plaintiff has sufficiently alleged these elements. (FACC, ¶¶ 47-48; See Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc., supra, 29 Cal.App.5th at p. 242 [California appellate courts have directed trial courts to issue an order overruling demurrers to causes of action for unjust enrichments].)

For these reasons, the Demurrer to the Seventh Cause of Action is OVERRULED.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for May, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1

Meeting ID: 160 526 7272 Passcode: 026935 If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov