Tarr v. Merco Constr. Engineers, Inc.

• Decision Date: 08 September 1978
• Citation: 148 Cal.Rptr. 813,84 Cal.App.3d 707
• Court: California Court of Appeals Court of Appeals
• Parties: Ernest J. TARR, Plaintiff and Appellant, v. MERCO CONSTRUCTION ENGINEERS, INC., and Safeco Insurance Company of America, Defendants and Respondents. Civ. 52048.

Page 813

148 Cal.Rptr. 813

84 Cal.App.3d 707

Ernest J. TARR, Plaintiff and Appellant, v. MERCO CONSTRUCTION ENGINEERS, INC., and Safeco Insurance Company of America, Defendants and Respondents.

Civ. 52048.

Court of Appeal, Second District, Division 4, California.

Sept. 8, 1978.

Richard L. Turner, Manhattan Beach, for plaintiff and appellant.

Grant & Popovich by Irvin Grant, Santa Monica, for defendants and respondents.

JEFFERSON, Associate Justice.

This is an appeal by plaintiff Ernest J. Tarr from a judgment of dismissal of this third amended complaint following the trial court's sustaining of a demurrer. The defendants who interposed the demurrer to plaintiff's third amended complaint were Merco Construction Engineers, Inc. (hereinafter Merco) and Safeco Insurance Company (hereinafter Safeco).

Plaintiff's third amended complaint set forth three causes of action. The first cause of action was against Merco alone. In the first cause of action plaintiff alleged that, on March 19, 1973, plaintiff and Merco entered into a written contract wherein Merco agreed to construct for plaintiff on premises described as 5734 Ravenspur Drive, Palos Verdes Peninsula, a 21-unit condominium building and garage for a maximum price of $610,605 to be paid by plaintiff. It was alleged that the contract provided for Merco to complete the building within nine months after commencement. It was alleged that defendant did not complete construction of the building by December 21, 1973, which was the end of the nine-month period. Plaintiff alleged that Merco failed to complete the building in accordance with plans and specifications, which was one of the terms of the contract, and set forth various deficiencies and deviations from the plans and specifications. Plaintiff alleged that he wrote a letter dated June 26, 1975, demanding that defendant correct the defects in the building, and attached the letter as exhibit "A" and incorporated it within the complaint by appropriate allegation. Plaintiff stated that the failure of Merco to perform in accordance with the contract caused plaintiff to be damaged in the sum of $500,000.

In addition to defendant Merco, plaintiff named a number of other defendants in the first cause of action, including Beatrice G. Tarr and Leisure Living Residential, Inc. These defendants were alleged to have been made defendants pursuant to Code of Civil Procedure section 389. With reference to these defendants, plaintiff alleged that defendant Beatrice was his wife but was now separated from plaintiff, and that defendant Leisure Living Residential, Inc. might have an interest in the cause of action as a debtor in bankruptcy number 74-12555-MLR, said petition having been filed in the United States District Court for the Central District of California. In addition, plaintiff alleged that he was no longer the owner of the property located on Ravenspur Drive.

In the second cause of action against both defendant Merco and Safeco, plaintiff incorporated most of the paragraphs of the first cause of action, but did not incorporate the paragraph about the letter attached as exhibit "A." In the second cause of action, plaintiff alleged that defendant Safeco was a foreign corporation duly authorized to do business in the state of California and was actually doing business in the state. It was alleged that on March 19, 1973, defendant Merco and Safeco executed and delivered to plaintiff a performance bond guaranteeing the faithful performance of the work provided for in the contract between plaintiff and defendant Merco. A copy of the bond was attached to the complaint as exhibit "B" and incorporated within the allegations of the second cause of action. By way of damages plaintiff alleged that he had suffered damages in the amount of five million dollars, together with loss of rent or sales in the amount of $88,200. In the second cause of action plaintiff also alleged that he had faithfully and fully performed all of the conditions and covenants required of him by the contract.

The third cause of action was stated to be against defendant Safeco alone. Plaintiff incorporated by reference most of the allegations set forth in the first cause of action. Plaintiff reiterated the allegation set forth in the second cause of action that on March 19, 1973, defendant Safeco had executed and delivered to plaintiff the performance bond by which defendant Safeco agreed to pay to plaintiff all damages suffered by plaintiff because of the failure of the contractor in a sum not to exceed $610,305. A photostatic copy of the bond was again alleged to be attached to the complaint and marked exhibit "B" and made a part of the allegations of the third cause of action. Plaintiff further alleged that, in compliance with the condition of the bond, on or about June 26, 1973, plaintiff gave defendant Safeco notice of the failure of defendant Merco to perform in accordance with the agreement and of the damages suffered by plaintiff as a result thereof and made demand on defendant Safeco for payment of those damages. The plaintiff alleged that a photostatic copy of the notice and demand was attached to the complaint, marked as exhibit "A," and made a part of the allegations of the third cause of action. It is to be noted that exhibit "A" is the letter referred to by plaintiff in the first cause of action as being a letter from plaintiff to defendant Merco. The letter reveals, however, that a copy of this letter was sent to defendant Safeco.

Defendants Merco and Safeco demurred to plaintiff's third amended complaint by demurring separately to each cause of action. The first cause of action was demurred to on the grounds (1) that it did not state facts sufficient to state a cause of action against Merco (Code Civ.Proc., § 430.10, subd. (e)); (2) that plaintiff did not have the capacity to sue on the claim alleged in the first cause of action because the claim had passed to plaintiff's trustee in bankruptcy (Code Civ.Proc., § 430.10, subd. (b)); and (3) that the first cause of action was uncertain in specified respects. The second cause of action was demurred to on the ground that it failed to state facts sufficient to constitute a cause of action against either defendant and, also, that the plaintiff lacked legal capacity to sue and that the complaint was uncertain in various respects. In addition, the two defendants demurred to the second cause of action on the ground that plaintiff had failed to file his complaint within the one-year period following completion of the building as provided in paragraph 6 of the performance bond executed by Safeco and which was incorporated as exhibit "B" to the complaint by the allegations in paragraph 12 of the second cause of action.

The third cause of action was demurred to on all of the same grounds of demurrer set forth by defendants in the demurrer to the second cause of action.

On this appeal, plaintiff contends that the trial court erred in two respects in sustaining defendants' general demurrer to plaintiff's third amended complaint. First, that plaintiff did not lack capacity to sue; and second, that plaintiff's cause of action against defendant Safeco was not barred by the one-year statute of limitation provision as set forth in the performance bond

in accordance with the provisions of Civil Code section 3086. The Question of Appellants' Lack of Standing To Sue in Light of Plaintiff's Bankruptcy Proceedings

As a part of defendants' memorandum of points and authorities in support of the demurrer to plaintiff's third amended complaint, defendants requested that the trial court take judicial notice of the fact that plaintiff had filed a petition in bankruptcy on September 30, 1974. Attached as an exhibit to the memorandum of points and authorities was a copy of the notice of filing by plaintiff of a petition in bankruptcy. This request for judicial notice was appropriately made pursuant to section 453 of the Evidence Code, which provides: "The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (P) (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (P) (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter."

The matter requested was an appropriate subject of judicial notice under Evidence Code section 452, subdivision (d), which provides for judicial notice of the "(r)ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States." Plaintiff made no objection to either "the propriety of taking judicial notice of the matter" or "the tenor of the matter to be noticed," as authorized by Evidence Code section 455.

The trial court, therefore, properly took judicial notice in accordance with the information supplied by defendants the exhibit attached to the memorandum of points and authorities supporting the demurrer that on September 30, 1974, plaintiff filed a petition in the United States District Court for the Central District of California, a "petition" for relief under chapter XI of the Bankruptcy Act.

The doctrine is well settled that, in measuring the validity of a pleading in the face of a demurrer, both the trial court and the appellate court are entitled to consider the impact of information that has surfaced by reason of invocation of the doctrine of judicial notice. (Contractor's etc. Assn. v. Cal. Comp. Ins. Co. (1957) 48 Cal.2d 71, 307 P.2d 626.)

It thus appears that plaintiff had filed a petition in bankruptcy prior to December 17, 1975, the date on which, in the case at bench, plaintiff filed the original complaint against defendants Merco and Safeco. Defendants' assertion that plaintiff lacked capacity to sue, which we interpret to mean lack of standing to sue under the circumstances presented, is...