WILD CHANG VS AIRCOOL INC.,, ET AL.

Tentative Rulings

Case Number: 18STLC13354    Hearing Date: March 25, 2021    Dept: 26

Chang v. AirCool, Inc., et al

LEAVE TO AMEND PLEADING

(CCP §§ 473(a), 576; CRC Rule 3.1324)

TENTATIVE RULING:

Plaintiff Wild Chang’s Motion for Leave to File a First Amended Complaint is DENIED.

ANALYSIS:

Plaintiff Wild Chang (“Plaintiff”) filed the instant action for fraud and unfair business practices against Defendants Johnson Trinh and AirCool, Inc. (“Defendants”) on November 1, 2018. The Complaint arises out of Defendants’ installation of an HVAC system at Plaintiff’s residence.

Defendants filed a Motion for Summary Judgment on December 21, 2020.

On January 11, 2021, Plaintiff filed the instant Motion for Leave to Amend Complaint (“the Motion”), which is now set to be heard concurrently with the Motion for Summary Judgment. No opposition to this Motion has been filed.

Discussion

Plaintiff moves for leave to add allegations regarding events that occurred after the Complaint was filed. (Motion, p. 5:6-7.) Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. Also, a motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (Cal. Rules of Court, Rule 3.1324, subds. (a), (b).)

Plaintiff’s motion complies with Rule 3.1324 with respect to the contents of the motion and inclusion of a supporting declaration. (Motion, Moest Decl.) Plaintiff explains that following the filing of the Complaint, the parties had multiple conversations in which Defendants admitted fault and agreed to repair the HVAC system. (Motion, p. 5:16-27 and Exhs. C-D.) The Motion is further supported by a copy of the proposed First Amended Complaint. (Id. at Exh. A.)  

Despite the liberal standard in allowing amendment, the trial court is authorized to consider any legal defects with the proposed pleading. (See Kilgore v. Younger (1982) 30 Cal.3d 770, 781.) “[I]f the proposed amendment fails to state a cause of action, it is proper to deny leave to amend.” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) Here, Plaintiff seeks to add allegations regarding discussions between the parties after the action was filed that revolved around resolution of the Complaint. Plaintiff seeks to introduce those discussions in order to demonstrate Defendants’ purported admissions of fault and that the admissions somehow “renew” the statute of limitations. As discussed in detail, the statute of limitations is raised in Defendants’ Motion for Summary Judgment/Adjudication.

However, under Cal. Evidence Code section 1152, subdivision (a), it would be improper to use Defendants’ purported admissions to show liability: “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”

Plaintiff’s proposed amendment improperly seeks to introduce inadmissible evidence of liability, would not “renew” the statute of limitations, and, therefore, does not state a viable cause of action.

Conclusion

Plaintiff Wild Chang’s Motion for Leave to File a First Amended Complaint is DENIED.

(CCP § 437c)

TENTATIVE RULING:

Defendants Johnson Trinh and AirCool, Inc.’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED. 

Plaintiff Wild Chang (“Plaintiff”) filed the instant action for fraud and unfair business practices against Defendants Johnson Trinh and AirCool, Inc. (“Defendants”) on November 1, 2018. The Complaint arises out of Defendants’ installation of an HVAC system at Plaintiff’s residence.

Defendants filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication (“the Motion”) on December 21, 2020. Plaintiff filed an opposition to the Motion on March 11, 2021 and Defendants replied on March 16, 2021. 

On January 11, 2021, Plaintiff filed a Motion for Leave to Amend Complaint, which is set to be heard concurrently with the Motion.

Discussion

The Complaint alleges causes of action for fraud and unfair business practices arising out of Defendant’s installation of a HVAC system at Plaintiff’s property (“the Property”) in 2007. (Compl., ¶10.) The Complaint alleges that in 2017, Plaintiff discovered the HVAC system was unable to deliver sufficient air conditioning for the Property. (Ibid.) Defendants allegedly represented in 2007 that the HVAC system would deliver 20-years of reliable, leak-free operation. (Id. at ¶12.) When the problems occurred in 2017, Plaintiff was informed by other professionals that the HVAC system’s leakage could not be repaired because the R-22 Freon needed to refill the system was now illegal. (Id. at ¶11.) In order to remove the HVAC system and install a new one using legal R-410A refrigerant would cost approximately $25,000.00. (Id. at ¶14.)

Legal Standard

A defendant seeking summary judgment must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff is under no evidentiary burden to produce rebuttal evidence until Defendants meet their initial moving burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 839-840.) Additionally, in ruling on the Motion, the Court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)

Evidentiary Objections

Defendants’ evidentiary objections to Plaintiff’s declaration are ruled on as follows:

#1 sustained for lack of personal knowledge;

#s2-6 sustained as inadmissible evidence of settlement negotiations under Cal. Evidence Code section 1152, subdivision (a)

Defendants’ Initial Burden of Proof

Defendants’ Motion is based on the ten-year statute of limitations for construction defects:

No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following:

(1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property.

(2) Injury to property, real or personal, arising out of any such latent deficiency.

(Code Civ. Proc., § 337.15, subd. (a).) In opposition, Plaintiff argues that the statute of limitations for fraud applies and began to run in 2017 when the fraud was discovered. The Court must first resolve which statute of limitations applies to Plaintiff’s Complaint. The statute of limitations under section 337.15 only applies to a “latent deficiency” in construction, which is defined as “a deficiency which is not apparent by reasonable inspection.” (Code Civ. Proc., § 337.15, subd. (b).) Neither party provides evidence that the alleged deficiency in the HVAC system is latent, that is, could not have been discovered by reasonable inspection. In fact, Plaintiff specifically alleges that the problem was identified by professions hired in 2017. Therefore, the defect in the HVAC system was “patent” rather than “latent.” (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1368 [citing Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 762].)

Accordingly, the Court finds that the applicable statute of limitations is three years for a fraud cause of action under Code of Civil Procedure section 338, subdivision (d). “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Code Civ. Proc., § 338, subd. (d).) “Code of Civil Procedure section 338, subdivision (d), effectively codifies the delayed discovery rule in connection with actions for fraud, providing that a cause of action for fraud “is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” In a case such as this, that date is the date the complaining party learns, or at least is put on notice, that a representation was false.” (Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35.)

The fraud alleged in this action was Defendants’ misrepresentation that the HVAC system would operate for the Property reliably, sufficiently and without leakage for 20 years. (Compl., ¶12.) Defendants present evidence that Plaintiff was put on notice that this representation was false in 2007. In a letter dated June 15, 2007, Plaintiff’s attorney informed Defendants that the Property cannot get “balanced and adequate distribution and delivery of heating and air conditioning.” (Motion, Separate Statement, Fact Nos. 3-4; Trinh Decl., ¶2 and Exh. 2.) The letter demonstrates when Plaintiff was aware of the falsity of Defendants’ representation regarding the HVAC system working reliably and sufficiently for 20 years. Despite this knowledge, Plaintiff did not file an action, or taken any other apparent steps regarding the HVAC system, until this case was filed on November 1, 2018.

With respect to the second cause of action, the statute of limitations for a cause of action under Cal. Business & Professions Code section 17200, et seq. is four years. (Code Civ. Proc., § 17208.) Under both statutes of limitation, Defendants’ motion carries their initial burden of proof to show the Complaint is time-barred because it should have been filed within three or four years of 2007.

Plaintiff’s Burden to Demonstrate the Existence of a Triable Issue of Material Fact

Plaintiff’s opposition fails to provide evidence to dispute these facts. Instead, Plaintiff argues the fraud was Defendants’ failure to explain of the “pros and cons” of installing a HVAC system that runs on R-22 Freon, including the fact that R-22 Freon would be outlawed by 2010. (Citing Compl., ¶16.) Plaintiff contends that this is essentially a cause of action for fraudulent concealment and he was unaware of the R-22 Freon issue until 2017. (Opp., p. 2:22-24; Separate Statement, Fact No. 6; Chang Decl, ¶6.) Fraudulent concealment, however, requires an allegation that the defendant had a duty to disclose the withheld information to the plaintiff. (Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 96.) The Complaint does not allege that Defendants were under a duty to disclose that R-22 Freon would be outlawed in 2010, nor does it allege facts that would support the existence of such a duty.

Plaintiff also argues that the motion for leave to amend the Complaint defeats the statute of limitations issue. Notably, the opposition cites to no legal authority showing that Defendants’ conduct after this action was filed somehow “renewed” the statute of limitations. (Opp., pp. 4:7-5:6.) Also, as discussed in the ruling on that motion, Plaintiff has not demonstrated that leave to amend to add the parties’ settlement negotiations should be granted. Plaintiff’s opposition, therefore, does not demonstrate the existence of triable issues of material fact regarding the statute of limitations bar to this action.

Conclusion

Defendants Johnson Trinh and AirCool, Inc.’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED.

Defendant to give notice.

Case Number: 18STLC13354    Hearing Date: February 02, 2021    Dept: 26

Chang v. AirCool, Inc., et al.

MOTION TO COMPEL RESPONSES TO INTERROGATORIES;

(CCP § 2030.290)

TENTATIVE RULING:

Plaintiff Wild Chang’s (1) Motion For Order Compelling Defendant Johnson Trinh’s Responses To Special Interrogatories, Set Two; Request For Sanctions; And (2) Motion For Order Compelling Defendant Aircool, Inc.’s Responses To Special Interrogatories, Set Two; Request For Sanctions are DENIED. PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY DEFENSE COUNSEL SANCTIONS OF $980.00 WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiff Wild Chang (“Plaintiff”) filed the instant action for fraud against Defendants Johnson Trinh and AirCool, Inc. (“Defendants”) on November 1, 2018. On March 6, 2019, an Answer was filed but it is not clear on behalf of which Defendant. (Answer, filed 3/6/19.) The Answer is signed only by Defendant Trinh and could not have properly been made on behalf of a corporation. (Ibid.)

It was not until August 29, 2019 that Defendant AirCool obtained legal counsel. (Substitution of Counsel, filed 8/30/19.) Defendant filed the instant Motions to Compel Responses to Special Interrogatories and Request for Sanctions on October 14, 2020. Defendant AirCool filed an opposition on December 22, 2020 and Plaintiff replied on January 11, 2021.

On January 13, 2021, Defendants filed amended Answers.

Discussion

The Motion against Defendant Trinh is not supported by proper evidence. The declaration of Plaintiff’s counsel—only two paragraphs long—does not lay a foundation for or authenticate any of the exhibits attached to the Motion. (Motion, Moest Decl., ¶¶1-2.) Therefore, the Court finds there is insufficient evidence to grant the Motion to Compel Defendant Trinh’s responses to the special interrogatories.

With respect to the Motion against Defendant AirCool, the Opposition admits that Defendant AirCool was served with two sets of interrogatories. (Opp., Benham Decl., ¶3 and Exhs. 1-2.) Upon obtaining counsel who determined that both sets of interrogatories were identical (which Plaintiff admits) Defendants served responses. (Id. at ¶5 and Exh. 3.)

Plaintiff now brings the Motion on the grounds that Defendant AirCool only served responses to the first set of special interrogatories, which Plaintiff had withdrawn prior to the appointment of defense counsel, but has yet to serve responses to the second set of special interrogatories. The Court does not approve of this gamesmanship by Plaintiff. Despite having received responses to the interrogatories, Plaintiff seeks to compel responses based on the irrelevant distinction between the first and second sets.

Additionally, Plaintiff failed to meet and confer prior to the filing of the Motion against AirCool, blindsiding defense counsel. (Opp., Behnam Decl., ¶6.) While no meet and confer requirement exists for a motion to compel initial responses, Plaintiff has essentially already been served with initial responses to the discovery at issue. If Plaintiff took issue with the responses, a meet and confer effort should have been made and then a motion to compel further responses brought. (See Code Civ. Proc., § 2030.300, subd. (a).) Plaintiff’s filing of a motion to compel initial responses after receipt of Defendant AirCool’s responses was disingenuous.

Therefore, the Court awards Defendant AirCool, Inc. sanctions pursuant to Code of Civil Procedure section 2030.290, subdivision (c) in the amount of $980.00. (Opp., Behnam Decl., ¶13.)

Conclusion

Plaintiff Wild Chang’s (1) Motion For Order Compelling Defendant Johnson Trinh’s Responses To Special Interrogatories, Set Two; Request For Sanctions; And (2) Motion For Order Compelling Defendant Aircool, Inc.’s Responses To Special Interrogatories, Set Two; Request For Sanctions are DENIED. PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY DEFENSE COUNSEL SANCTIONS OF $980.00 WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Defendants to give notice.

Case Number: 18STLC13354    Hearing Date: January 20, 2021    Dept: 26

Chang v. AirCool, Inc., et al.

MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION AND SANCTIONS

(CCP §§ 2031.300, 2023.010)

TENTATIVE RULING:

Plaintiff Wild Chang’s (1) Motion For Order Compelling Defendant Johnson Trinh’s Responses To Request For Production Of Documents; Request For Sanctions; And (2) Motion For Order Compelling Defendant Aircool, Inc.’s Responses To Request For Production Of Documents; Request For Sanctions are DENIED.

ANALYSIS:

Plaintiff Wild Chang (“Plaintiff”) filed the instant action for fraud against Defendants Johnson Trinh and AirCool, Inc. (“Defendants”) on November 1, 2018. On March 6, 2019, an Answer was filed but it is not clear on behalf of which Defendant. (Answer, filed 3/6/19.) The Answer is signed only by Defendant Trinh and could not have properly been made on behalf of a corporation. (Ibid.)

It was not until August 29, 2019 that Defendant AirCool obtained legal counsel. (Substitution of Counsel, filed 8/30/19.) Defendant filed the instant Motions to Compel Responses to Request for Production and Request for Sanctions on October 14, 2020. Defendant AirCool filed an opposition on December 21, 2020 and Plaintiff replied on January 11, 2021.

On January 13, 2021, Defendant Trinh filed an Answer and Defendant AirCool filed a First Amended Answer.

Discussion

The Motion is not supported by proper evidence. The declaration of Plaintiff’s counsel—only two paragraphs long—does not lay a foundation for or authenticate any of the exhibits attached to the Motion. (Motion, Moest Decl., ¶¶1-2.) In fact, Defendant AirCool disputes that it was ever served with the Request for Production. (Opp., Behnam Decl., ¶¶3-5.) Nor did Plaintiff’s counsel respond to the meet and confer effort by re-serving the Requests for Production prior to filing these Motions. (Id. at ¶4.) Therefore, the Court finds the Motions lack sufficient basis to be granted.

To the extent the opposition treats these motions as motions to compel further responses under Code of Civil Procedure section 2031.300 and seek sanctions under the same, the request is denied. The Motions are brought to compel original responses under Code of Civil Procedure section 2031.300. (Motions, pp. 4:27-5:3.)

Conclusion

Plaintiff Wild Chang’s (1) Motion For Order Compelling Defendant Johnson Trinh’s Responses To Request For Production Of Documents; Request For Sanctions; And (2) Motion For Order Compelling Defendant Aircool, Inc.’s Responses To Request For Production Of Documents; Request For Sanctions are DENIED.

Moving party to give notice.