BABALOO LOUNGE PALM DESERT LLC VS H&H GENERAL CONTRACTING, INC.

1. CASE # CASE NAME HEARING NAME DEMURRER ON COMPLAINT OF BABALOO LOUNGE PALM DESERT LLC AS TO CAUSE(S) OF ACTION; DEMURRER AS TO BABALOO LOUNGE PALM ENTIRE COMPLAINT AND 2ND CVPS2501129 DESERT LLC VS H&H CAUSE OF ACTION FOR GENERAL CONTRACTING, INC. NEGLIGENT HIRING AND 3RD CAUSE OF ACTION FOR NEGLIGENT SUPERVISION BY CITY OF PALM DESERT Tentative Ruling: Sustained.

Plaintiff granted one additional opportunity for leave to amend in compliance with the limitations set in this order. Plaintiff has 10 days to file their 1st Amended Complaint. If Plaintiff does not file their 1st Amended Complaint within 10 days of this order becoming final, moving Defendant city is to file their proposed judgment within 20 days of this order becoming final.

Moving party to provide notice pursuant to CCP 1019.5.

Plaintiffs Babaloo Lounge Palm Desert LLC and Gustavo Ungo allege that in July 2021, Defendant City hired Defendant H&H to conduct renovations to a parking lot at the President’s Palace, which was the only viable source of parking for the merchants. Defendant H&H General Contracting, Inc. commenced work, rendering it unusable, and then ceased work for 8 months, leaving the parking lot closed to the public. The dust and dirt generated from the construction caused damage to Plaintiffs’ air conditioning system, requiring a replacement. Defendant H&H also demolished and replaced portions of the sidewalk adjacent to Plaintiffs’ property.

The operative complaint was filed 2/13/25, asserts: (1) negligence (against H&H); (2) negligent hiring (against City); and (3) negligent supervision (against City).

Defendant City demurs to the complaint on the grounds that it fails to state facts sufficient. Defendant asserts that there is no allegation of compliance with the Government Claims Act, and there are no statutory basis for liability. It argues that Plaintiff fails to plead the claims with particularity.

In opposition, Plaintiffs contend that Government Code section 815.4 applies to impose liability. They argue that they alleged that City hired H&H and knew that the parking lot was the primary source of parking, and failed to monitor the project. They argue the omission of the claims can be pled. They contend that inverse condemnation can also be pled. They assert that they have identified the bases for leave to amend.

In reply, Defendant argues Plaintiffs admit to not pleading compliance with the Act. It argues that there is no statutory basis of liability. They contend any amendment should be limited to cure the defects outlined in the demurrer rather than a broad leave to amend.

Demurrer

A demurrer tests the legal sufficiency of the pleading, but not the truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Id.)

Government Claims Act

Under the Government Claims Act (the “Act”), a plaintiff bringing suit for monetary damages against a public entity or employees must first present a claim to the public entity (“government claim”) which must be acted upon or deemed rejected by the public entity. (Gov. Code §§ 945.4, 950.2, 950.6(a).) It is an element of a cause of action against a public entity. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) The purpose is to provide sufficient information to the public entity to enable it to adequately investigate claims and settle, if appropriate, without the expense of litigation. (Ibid.)

It is required irrespective of the public entity’s actual knowledge of the circumstances. (Ibid.) A plaintiff must allege compliance, or an exception or excuse for not compliance exists. (Id.) Failure to plead compliance with the claims statute subjects the complaint to a demurrer. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

Here, there are no allegations of compliance.

Statutory Liability

“Tort claims may not be maintained against a public entity unless they are based on a statute or are required by the federal or state constitutions.” (Lundeen Coatings Corp. v. Department of Water & Power (1991) 232 Cal.App.3d 816, 832.) Unless provided by statute, a public entity is not liable for an injury. (Govt. Code § 815(a).) There is no common law tort liability for public entities—only statutory. (Green Valley Landowners Association v. City of Vallejo (2015) 241 Cal.App.4th 425, 441-442.) To state a cause of action against a government entity, every fact essential to the existence of statutory liability must be pled with particularity. (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.)

Here, there is no statutory basis of liability.

Leave to Amend

As explained by one court:

Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.

(Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) A new cause of action must directly respond to the court’s reason for sustaining an earlier demurrer.

(Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) “The granting of leave to amend after a demurrer is sustained on one ground does not give the plaintiff a license to add any possible cause of action that might not be subject to dismissal on that ground. Otherwise, there would be virtually no limitation on amendments following the sustaining of a demurrer.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456 [trial court granting leave to add quantum meruit did not allow plaintiff to add promissory estoppel to avoid statute of limitations].)

Here, leave to amend is limited to the reasons stated for sustaining the demurrer.

2. CASE # CASE NAME HEARING NAME ROBLES CALVILLO VS HEARING RE: MOTION FOR CVPS2508997 GENERAL MOTORS, LLC ATTORNEYS FEES Tentative Ruling: Granted.

Granted in reduced, but reasonable amount of $17,292.00 payable by Defendant to Plaintiff within 30 days of this order becoming final.

Moving party to provide notice pursuant to CCP 1019.5.

Plaintiff Juvencio Robles Calvillo brings this Song-Beverly action regarding a 2023 Chevrolet Traverse that contained various defects. The complaint, filed 11/12/25, asserts: (1) breach of implied warranty of merchantability; (2) breach of implied warranty of fitness; (3) breach of express warranty; (4) failure to promptly repurchase product; and (5) failure to commence repairs within a reasonable time and to complete them within 30 days.

Plaintiff moves for attorney fees of and costs of $28,852.40 ($18,655 [lodestar]; $9,327.50 [1.5 multiplier]; $869.90 [costs]). Plaintiff contends that he is the prevailing party. Counsel spent 28.7 hours at a rate of $650. Plaintiff contends a multiplier is warranted.

In opposition, Defendant contends this was a routine lemon law case. It argues that $650 is not the prevailing market rate, rather than $450. It asserts that Plaintiff improperly billed for clerical and administrative work, and that certain tasks are excessive. It contends that there is no basis for a multiplier. It requests the court award $10,237.50 and $719.90 in costs and expenses.

Song Beverly Attorney Fees

Under Civil Code § 1794(d) (Song-Beverly Act), “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”

Here, the parties settled with the court to decide fees.