PENINSULA SIDING COMPANY, INC. AND SEA CONSTRUCTION, INC.’S DEMURRER TO COMPLAINT
June 9, 2026 Law and Motion Calendar PAGE 19 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
2:00 PM LINE 10 25-CIV-09065 WILLIAM PITNEY, ET AL. VS. MARK CHUEN CHEUNG ZAU, ET AL.
WILLIAM PITNEY ASSAAD M. STEPHAN MARK CHUEN CHEUNG ZAU DAVID M. HAMERSLOUGH
PENINSULA SIDING COMPANY, INC. AND SEA CONSTRUCTION, INC.’S DEMURRER TO COMPLAINT
TENTATIVE RULING:
Defendants Peninsula Siding Company, Inc. and Sea Construction, Inc.’s Demurrer to the Eighth Cause of Action for Breach of Contract and Tenth Cause of Action for Breach of Express Warranty in the Complaint of Plaintiffs William Pitney and Sheri Pan, as Trustee of the Sheri Pan Living Trust dated May 23, 2020 is ruled upon as follows:
Background
In this case, plaintiffs sue for alleged construction work performed by contractors hired by the sellers of the property now owned by plaintiffs.
Legal Standard
“ ‘[I]t is well settled that a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.).’ ” (John's Grill, Inc. v.
The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003, 1013.) The “ ‘demurrer tests the sufficiency of the plaintiff’s complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based.’ (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1469, 49 Cal.Rptr.3d 227.)” (
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Mirda, (2007) 147 Cal.App.4th 740, 747) and whether the complaint sets “ ‘forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.’ ” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157 [Citation omitted].)
June 9, 2026 Law and Motion Calendar PAGE 20 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Discussion
Third Party Beneficiary Standing/Contractual Privity
Defendants demurrer on the basis that “The Complaint fails to allege facts establishing contractual privity between Plaintiffs and Defendant, or facts sufficient to support Plaintiffs’ claim of third-party beneficiary standing;[.]”
“A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” (Civ. Code, § 1559.) A court determining whether a third party may enforce a contract looks to the following three elements, each of which must be established to permit the action to go forward: (1) whether the third party would in fact benefit from the contract; (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties. (Goonewardene v.
ADP, LLC (2019) 6 Cal.5th 817, 829-830 (“Goonewardene”.) In contrast, an incidental beneficiary is one who would benefit from the contract's performance but for whom the contract was not made and has no right to enforce it. (Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 400.)
This action pertains to issues arising following Plaintiffs’ purchase of a single-family dwelling located at 605 Santa Catalina Lane, Foster City, California 94404 (the “Property.”) Plaintiffs allege that the sellers entered into a written contract with the demurring Defendants concerning siding, windows, door installation, and related services at the Property in approximately 2020. (Complaint, ¶¶28, 91.) Contractors were allegedly engaged to perform repair, maintenance, and improvement work at the Property prior to its sale. (Id., at ¶4.)
Plaintiffs’ Eighth Cause of Action for Breach of Contract alleges that “PLAINTIFFS contend that they are the intended and foreseeable beneficiaries of PSC / SEA Contract, as the siding, windows and sliding door work was performed for the purpose of enhancing and preserving the Property's value and integrity in connection with its sale.” (Id., at ¶92.) It further alleges on information and belief that Plaintiffs are third-party beneficiaries or assignees under the contract on the basis that they purchased the Property. (Id.)
Taking the Complaint’s factual allegations that the demurring Defendants were contracted to prepare the property for sale as true for purposes of demurrer, as this Court must do, there is not a sufficient factual basis to establish Goonewardene elements of a motivating purpose to benefit Plaintiffs and the objectives of the contract and the reasonable expectations of the contracting parties being consistent with Plaintiffs’ action. Plaintiffs do not allege direct contractual privity. The Complaint alleges on information and belief the alternative theory that Plaintiffs are assignees under the contract, but no facts have been alleged in support of the assignee theory.
The demurrer to Plaintiffs’ Eighth Cause of Action for Breach of Contract on the basis of lack of privity or third-party beneficiary standing is accordingly SUSTAINED with leave to amend.
June 9, 2026 Law and Motion Calendar PAGE 21 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Express Warranty Claim
Defendants demurrer on the basis that “The Complaint fails to plead the existence, material terms, or breach of any express warranty enforceable by Plaintiffs, who are subsequent purchasers of the Property and were not parties to the alleged agreements.” Plaintiffs allege that Defendants issued a 10-year warranty beginning September 8, 2020 “against any defect in workmanship for siding, windows and sliding door installation and expressly warranted that all work performed would be free from defects and performed in accordance with industry standards.” (Complaint, ¶104.)
The entity issuing the warranty, the precise terms, and facts showing transferability of the warranty to Plaintiffs are not alleged. As discussed above with respect to the breach of contract claim, facts demonstrating that Plaintiffs are third-party beneficiaries have not been alleged to demonstrate that a subsequent purchaser of the property may enforce the warranty.
The demurrer on this basis to Plaintiffs’ Tenth Cause of Action for Breach of Express Warranty is accordingly SUSTAINED with leave to amend.
Statute of Limitations
Defendants demurrer on the basis “The eighth and tenth causes of action are barred on the face of the Complaint by the applicable statute of limitations, and Plaintiffs fail to allege facts sufficient to support delayed discovery, tolling, or other exception.” In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315–1316.)
A four year statute of limitations is applicable to Plaintiffs’ claims for breach of contract and express warranty pursuant to Code of Civil Procedure section 337. The statute begins to run from the time the defect is discovered or would be discoverable by reasonable inspection and, in no event, can be more than ten years. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 368.)
Plaintiffs allege latent defects and delayed discovery. The Complaint alleges that these defects were latent, that the Plaintiffs could not reasonably have discovered these defects through inspection, and that these defects were discovered by Plaintiffs only after Plaintiffs purchased and took possession of the Properly in December 2023. (See Complaint ¶¶ 18,21,72.) That is when the various water intrusions manifested. The Complaint also alleges that the seller defendants misrepresented and concealed the true condition of this work on the Property.
Plaintiffs allege that the seller defendants represented to Plaintiffs that the Property had new siding and windows and that this work was in good condition, but also that the sellers wrongfully failed to disclose and actively concealed known defects in the construction. (Id., at ¶¶ 16-19,33,35-37,40,41- 42,49'50,54-55, 58, 62-63,65,70-74,80.) They also allege that Defendants had exclusive knowledge of the defects, and Plaintiffs could not reasonably have discovered them through inspection. (Id., at ¶72.)
These allegations are sufficient to allege delayed discovery. The complaint was filed within four years of when plaintiffs purchased the property. Thus, it does not appear clearly and affirmatively on the face of the Complaint that Plaintiffs’ claims are barred by
June 9, 2026 Law and Motion Calendar PAGE 22 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ the applicable statute of limitations since they allege discovery less than four years prior to the November 12, 2025 filing of this action.
The demurrer to the Eighth and Tenth Causes of Action on this basis are accordingly OVERRULED.
Plaintiffs have ten (10) days from service of written notice of entry of order to file and serve a First Amended Complaint. (Cal. Rules of Court, rule 3.1320(g); Code Civ. Proc., § 472b.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.