Scientific Cages, Inc. v. Banks

Opinion

Plaintiff appeals from a judgment of dismissal following an order sustaining defendants’ demurrer without leave to amend. The basis for the court’s ruling was the failure of Scientific Cages, Inc. (Scientific) to allege it was licensed as a contractor as required by Business and Professions Code section 7031.^[1] We decide the omission of this allegation is not determinative, for Scientific at this stage of the pleadings falls within the exception provided for in Business and Professions Code section 7045,^[2] and, accordingly, reverse the judgment.

Plaintiff sues Wanda Banks as contractor and Balboa Insurance Co., as surety, for the sum of $49,000, plus interest and attorney fees relating to a public work on the University of California, located at La Jolla. The amended complaint alleges the plaintiff was not paid for dog runs, entry doors and resting boards it manufactured and delivered under a written subcontract agreement between it and the defendant Wanda Banks. Plaintiff specifically alleges it did not install or contract for the installation of the materials.

We examine the sole issue on appeal mindful of the following rules: (1) In assessing the sufficiency of plaintiff’s amended complaint against a general demurrer, the demurrer admits all material parts properly pleaded (Scott v. City of Indian Wells, 6 Cal.3d 541 , 549 [ 99 Cal.Rptr. 745 , 492 P.2d 1137 ]) and (2) the allegations must be liberally construed to attain substantial justice. (Youngman v. Nevada Irrigation Dist., 70 Cal.2d 240 , 244-245 [ 74 Cal.Rptr. 398 , 449 P.2d 462 ].)

The licensing requirement of Business and Professions Code section 7031 was enacted to protect the public from risks attendant to

from the Contractors’ Licensing Law. It is a truism of statutory construction that a statute is to receive an interpretation consistent with its own purpose. [Citation.] In Theisen the ‘subcontractor’ concept received a broad interpretation, consistent with the law’s purpose to provide financial security for suppliers who do no installation work themselves, but whose custom-made products have little economic value except as part of the building for which they were designed. The contractors’ law has a different objective, protection of the public from incompetent and unreliable contractors. Interpretation of one statute supplies no talisman for defining the other.

“An eminent authority on statutory construction discusses the use of interpretation by reference to analogous but unrelated statutes. He points out that the device is to be used with caution ‘for the reason that by way of contrast an inclusion or exclusion may show an intent exactly contrary to that expressed by the analogous legislation.’ [Citation.]

“So it is here. Business and Professions Code section 7052 distinctly excludes suppliers who do not themselves fabricate or ‘consume’ their materials in the work of the general contractor. While Theisen supplies an interesting analogy, it cannot overcome section 7052. The latter provision in no uncertain fashion excludes Steinbrenner’s cabinet-making activities from the scope of the licensing law.

“Possibly the 1961 amendment to section 7045 was enacted to demonstrate that Theisen v. County of Los Angeles, supra, supplies no rule for contractors’ licensing requirements... .”^[3]

The judgment is reversed with directions to the trial court to overrule the defendants’ general demurrer and grant leave to defendants to plead.

Brown (Gerald), P. J., and Cologne, J., concurred.

A petition for a rehearing was denied July 5, 1978, and respondents’ petition for a hearing by the Supreme Court was denied August 9, 1978.