AB Landscaping, Inc. vs Andrew J. Fry, et al

Case No. 25CV473100 Demurrer (Line # 7) and Motion to Strike (Line #8)

I. BACKGROUND This construction dispute arises from a Complaint alleging five causes of actions for breach of contract, foreclosure of mechanics lien, common count, quantum meruit, and payment of penalties that was filed on August 19, 2025 by Plaintiff. Defendants/Cross-Complainants Andrew J. Fry and Jin Z. Fry filed a cross-complaint alleging fourteen causes of actions on October 8, 2025.

On January 7, 2026, Cross-Defendants AB Landscaping, Inc. and Victor Arellano (collectively Cross-Defendants) filed this demurrer (Line # 7) to all causes of action (i.e., first through fourth, seventh, ninth through twelfth, and fourteenth causes of action) and motion to strike (Line # 8). The motions are accompanied by proof of electronic service on cross-complainants’ counsel on January 2, 2026.

The motion is unopposed. Per Code of Civil Procedure section 1005(b) opposition papers were due on August 12, 2026. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).

II. LEGAL STANDARD

A. DEMURRER Pursuant to Code of Civil Procedure section 430.10, a party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e)). A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn)). When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078). In ruling on a demurrer, the Court treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank)).

B. MOTION TO STRIKE Under Code of Civil Procedure section 435, “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc., § 435, subd. (b)(1)). Code of Civil Procedure section 436 provides:

“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. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

(Code Civ. Proc., § 436). In ruling on a motion to strike, the court must assume the truth of the properly pleaded facts in the complaint or other pleading. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63).

III. ANALYSIS Here, Cross-Defendants argue that the Cross-Complainant may not amend a challenged cross-complaint after an anti-SLAPP motion is filed in response to the motion. (Cross Defendants’ Demurrer Memorandum of Points and Authorities (“MPA), p. 6, citing, Contreras v. Dowling (2016) 5 Cal.App.5th 394, 411-12). Even if the anti-SLAPP motion was not filed, Cross-Defendants aver that all causes of actions alleged in the Cross-Complaint is deficient.

On August 13, 2026, the Cross-Defendants’ filed a motion to strike the Cross-Complaints’ four causes of actions: (1) fifth cause of action, slander of title (invalid mechanics lien); (2) sixth cause of action, abuse of process/malicious prosecution; (3) eighth cause of action, declaratory relief (invalidity of lien; and (4) thirteen cause of action, quiet title, because appellate courts routinely hold the filing of a mechanics’ lien implicate a party’s right to petition. The motion was unopposed. After a hearing, Cross-Defendants’ anti-SLAPP was granted as to the fifth, sixth, eighth, and thirteenth cause of action after a hearing.

In the present motion, Cross-Defendants’ demurrers all causes of action: (1) first cause of action, breach of contract. Cross-Defendants argue that the first cause of action is pled with insufficient specificity. “Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” Cross- Defendants assert that the cause of action does not state how performing work and providing material for payment constitutes a breach of contract (MPA, p. 6-7, citing, Levy v.

State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4th 1, 5-6); (2) second cause of action, negligence; (3) third cause of action, violation of Business and Professions Code sections 7159 and 7159.5. Cross-Defendants argue that the Cross-Complaint fails to specific with particularity how sections 7159 and 7159.5 are applicable in a private cause of action. (MPA, p. 7-8); (4) fourth cause of action, breach of implied warranty of workmanlike construction; (5) seventh cause of action, enforcement of contractor’s license bond.

Cross-Defendants argue that the Cross-Complaint fails to specific with particularity how section 7071.5 applies. (Id., p. 9); (6) ninth cause of action, fraud and intentional misrepresentation. Cross-Defendants argue that no factual allegations were proffered as to when, where, to whom and by what means the representations were tendered. (Id., at p. 10); (7) tenth cause of action, unjust enrichment. Cross-Defendants aver that Cross-Complainants fail to state an ultimate fact. (Id., at p. 11); (8) eleventh cause of action, violation of Business and Professions Code section 7160.

Cross-Defendants argue that no factual allegations were proffered as to when, where, to whom and by what means the representations were tendered. (Id.); (9) twelfth cause of action, conversion. Cross-Defendants argue that no specific chattel or specific thing or amount of money was alleged. (Id., at p.12); and (10) fourteenth cause of action, breach of covenant of good faith and fair dealing.

The Cross-Defendants has met its burden on demonstrating that the Cross-Complaint does not state facts sufficient to constitute a cause of action. Cross-Complainants have failed to oppose the motion. Per Code of Civil Procedure section 1005(b) opposition papers were due on August 12, 2026. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). // //

IV. CONCLUSION Based on the foregoing, the unopposed demurrer to all causes of action is SUSTAINED with ten (10) days LEAVE TO AMEND.

The Cross-Defendants’ motion to strike each cause of action is DENIED as procedurally improper and MOOT based on the court’s ruling on the demurrer. The Court will provide the formal Order.

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