This case was last updated from Los Angeles County Superior Courts on 07/05/2019 at 09:13:00 (UTC).

IVAN K STEVENSON VS WAI CHING SHILON ET AL

Case Summary

On 10/22/2015 IVAN K STEVENSON filed a Personal Injury - Other Personal Injury lawsuit against WAI CHING SHILON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DEIRDRE HILL and MICHELLE WILLIAMS COURT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8789

  • Filing Date:

    10/22/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DEIRDRE HILL

MICHELLE WILLIAMS COURT

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

STEVENSON IVAN K

STEVENSON IVAN K.

SHILON ANNE

SHILON MOTI

SHILON WAI CHING

GRAND HALL USA INC.

DOES 1 TO 25

BEST BUILT CONSTRUCTION INC.

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

DOES 1-25

ROE CORPORATION 1-25

SHILON ANNE

SHILON MOTI

SHILON WAI CHING

GRAND HALL USA INC.

SHILON WAI CHING AKA ANNE SHILON

DOES 1 TO 25

ROE CORPORATION 1 TO 25

BEST BUILT CONSTRUCTION INC.

17 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DUNBAR & ASSOCIATES

DUNBAR KEVIN TERRENCE

Defendant and Respondent Attorneys

MACKEY ROBERT T. ESQ.

MACKEY ROBERT THOMAS

KANG SOOJIN

AUROUX FRANCOIS BERNARD

GOLDBY GLENN S

Cross Plaintiff Attorney

SIEGEL GERALD MICHAEL

Cross Defendant Attorneys

COCHRAN SHANNON DEAVER

HAMMONS WALLACE

 

Court Documents

Notice Re: Continuance of Hearing and Order

5/2/2017: Notice Re: Continuance of Hearing and Order

Case Management Statement

6/7/2017: Case Management Statement

Minute Order

6/12/2017: Minute Order

Legacy Document

6/15/2017: Legacy Document

Case Management Statement

8/7/2017: Case Management Statement

Legacy Document

3/6/2018: Legacy Document

Notice of Ruling

4/2/2018: Notice of Ruling

Legacy Document

5/18/2018: Legacy Document

Legacy Document

5/23/2018: Legacy Document

Proof of Service (not Summons and Complaint)

9/10/2018: Proof of Service (not Summons and Complaint)

Request for Judicial Notice

10/24/2018: Request for Judicial Notice

Motion to Compel

11/16/2018: Motion to Compel

Motion to Compel

11/16/2018: Motion to Compel

Notice of Ruling

1/9/2019: Notice of Ruling

Declaration

2/13/2019: Declaration

Answer

5/10/2019: Answer

Minute Order

5/16/2019: Minute Order

SUMMONS

10/22/2015: SUMMONS

160 More Documents Available

 

Docket Entries

  • 06/13/2019
  • Grand Hall USA, Inc.'s Answer to Cross-Complainant Best Built Construction, Inc.'s Cross-Complaint; Filed by Grand Hall USA, Inc. (Cross-Complainant); Grand Hall USA, Inc. (Cross-Defendant); Grand Hall USA, Inc. (Defendant)

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  • 06/06/2019
  • at 10:00 AM in Department B, Deirdre Hill, Presiding; Conference (/Informal Discovery Conference) - Held

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  • 06/06/2019
  • Minute Order ( (Conference /Informal Discovery Conference)); Filed by Clerk

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  • 06/05/2019
  • at 08:34 AM in Department M; Jury Trial - Not Held - Vacated by Court

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  • 05/29/2019
  • at 08:32 AM in Department M; Final Status Conference - Not Held - Vacated by Court

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  • 05/16/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion for Summary Judgment - Not Held - Vacated by Court

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  • 05/16/2019
  • Minute Order ( (Hearing on Motion for Summary Judgment)); Filed by Clerk

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  • 05/10/2019
  • Summons (on Amended Complaint (1st)); Filed by Best Built Construction, INC. (Cross-Defendant)

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  • 05/10/2019
  • Cross-Complaint (Best Built Construction, Inc.s Cross-complaint: 1)Equitable Indemnity 2)Contribution and apportionment 3)Declaratory relief); Filed by Best Built Construction, INC. (Cross-Complainant)

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  • 05/10/2019
  • Answer; Filed by Best Built Construction, INC. (Cross-Defendant)

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270 More Docket Entries
  • 03/01/2016
  • Motion to Strike; Filed by Attorney for Deft/Respnt

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  • 03/01/2016
  • Defendant's Demurrer; Filed by Attorney for Deft/Respnt

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  • 02/02/2016
  • Proof-Service/Summons (COMPLAINT AND RELATED DOCUMENTS ON DEFENDANTS WAI CHING SHILON AND MOTI SHILON ); Filed by Attorney for Plaintiff/Petitioner

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  • 02/02/2016
  • PROOF OF SERVICE OF SUMMONS, COMPLAINT AND RELATED DOCUMENTS ON DEFENDANTS WAI CFIING SHILON AND MOTI SHILON

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  • 02/02/2016
  • Proof-Service/Summons; Filed by Ivan K Stevenson (Plaintiff)

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  • 10/22/2015
  • Complaint; Filed by Ivan K Stevenson (Plaintiff)

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  • 10/22/2015
  • Summons; Filed by null

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  • 10/22/2015
  • Complaint

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  • 10/22/2015
  • COMPLAINT FOR: 1. NEGLIGENCE; ETC

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  • 10/22/2015
  • SUMMONS

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Tentative Rulings

Case Number: BC598789    Hearing Date: July 10, 2020    Dept: M

****THIS A RULING, NOT A TENTATIVE RULING****

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

IVAN K. STEVENSON,

Plaintiffs,

Case No.:

BC598789

vs.

RULING

WAI CHING SHILON, et al.,

Defendants.

Hearing Date: July 10, 2020 (continued from July 8, 2020)

Moving Parties: Defendants Wai Ching Shilon aka Anne Shilon and Moti Shilon

Responding Party: Plaintiff Ivan K. Stevenson

(1) Motion for Summary Adjudication (filed on July 24, 2019)

(2) Motion for Summary Judgment or, in the alternative, for Summary Adjudication (filed on April 10, 2020)

The court considered the moving, opposition, and reply papers and the argument on procedure issues on July 8, 2020..

RULING

The court having heard oral argument on procedural issues on July 8, 2020 has determined to rule on this matter without reaching the merits of the motion.

The Motion for Summary Adjudication filed on July 24, 2019 is taken off calendar for defects in service. The Motion for Summary Judgment or, in the alternative, for Summary Adjudication filed on April 10, 2020 is STRICKEN, with leave to file another one. In light of the age of the case, the court reserves a hearing date for 09-29-20 at 08:30am in this department. Counsel is to serve and file a new motion within the appropriate statutory period.

BACKGROUND

On October 22, 2015, plaintiff Ivan K. Stevenson filed a complaint against Wai Ching Shilon aka Anne Shilon and Moti Shilon for negligence, breach of oral contract, breach of implied contract, fraud, personal injury, and property damage.

On October 18, 2016, plaintiff filed a First Amended Complaint.

On May 1, 2017, plaintiff filed a Second Amended Complaint.

On January 16, 2018, filed amendments designating Doe 1 as Grand Hall USA, Inc. and Doe 2 as Best Built Construction, Inc.

On April 16, 2018, plaintiff filed a Third Amended Complaint.

On October 24, 2018, defendants Wai Ching Shilon and Moti Shilon filed a motion for summary judgment or, in the alternative, summary adjudication.

On December 11, 2018, plaintiff filed a Fourth Amended Complaint.

On April 8, 2019, plaintiff filed a Fifth Amended Complaint.

On May 16, 2019, the court deemed defendants’ motion for summary judgment as moot because it was as to the 2nd amended complaint, which had been superseded by the 3rd, 4th, and 5th amended complaints. The court vacated the hearing.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Motion for Summary Adjudication (filed in July 24, 2019)

On May 16, 2019, the court deemed moot defendants’ (first) Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication filed on October 24, 2018 because it was as to the Second Amended Complaint and the operative complaint was then the Fifth Amended Complaint and vacated the hearing on the MSJ/MSA as moot.

There was no bar for defendants to file another MSA because the first one was not denied, and the court did not address any issues raised in that MSJ/MSA.

Defendants filed a (second) Motion for Summary Adjudication on July 24, 2019 and captioned it “Renewed Notice of Motion and Motion for Summary Adjudication,” although it was not a renewed motion because the first motion was not denied. It was a new motion to the Fifth Amended Complaint. Defendants did not need to seek leave to file it, and there is no procedural requirement to do so.

On October 4, 2019, moving defendants filed notice of continuance of the motion to July 2, 2020, but there is no proof of service of the moving papers on defendant Grand Hall.

According, that motion is taken off calendar for defective service.

Motion for Summary Judgment or, in the Alternative, for Summary Adjudication (filed on April 10, 2020)

On April 10, 2020, defendants filed a “Renewed Notice of Motion and Motion for Summary Judgment or, in the alternative, for Summary Adjudication,” for hearing on July 2, 2020. Defendants confusingly used the word “Renewed” although it was not a renewed motion as no MSJ/MSA had been previously denied. In the opposition, plaintiff points out that the motion is “new” rather than “renewed.” Defendants used the same reservation number as the July 2019 motion and failed to pay a filing fee.

Although not raised in the opposition, at the hearing plaintiff asserted that he was prejudiced and objected to the filing of a “renewed motion” without obtaining leave of court.

The motion is STRICKEN because this motion was improperly filed as there was a pending motion for summary adjudication as to the same causes of action that had been continued to July 2, 2020. The court also notes that this motion was improperly captioned summary judgment as defendants do not appear to be seeking summary judgment, only summary adjudication.

Accordingly, although not required, due to the apparent confusing procedural posture, the court gives leave to moving party for the filing of a new motion for summary adjudication with payment of a filing fee and service on all parties. Plaintiff will have the opportunity to oppose in compliance with the statutory deadlines.

Defendants are ordered to give notice of the ruling.

Case Number: BC598789    Hearing Date: July 08, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

IVAN K. STEVENSON,

Plaintiffs,

Case No.:

BC598789

vs.

[Tentative] RULING

WAI CHING SHILON, et al.,

Defendants.

Hearing Date: July 8, 2020

Moving Parties: Defendants Wai Ching Shilon aka Anne Shilon and Moti Shilon

Responding Party: Plaintiff Ivan K. Stevenson

Renewed Motion for Summary Adjudication (filed on April 10, 2020)

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary adjudication is GRANTED as to the 2nd through 6th causes of action.

BACKGROUND

On October 22, 2015, plaintiff Ivan K. Stevenson filed a complaint against Wai Ching Shilon aka Anne Shilon and Moti Shilon for negligence, breach of oral contract, breach of implied contract, fraud, personal injury, and property damage.

On October 18, 2016, plaintiff filed a First Amended Complaint.

On May 1, 2017, plaintiff filed a Second Amended Complaint.

On January 16, 2018, filed amendments designating Doe 1 as Grand Hall USA, Inc. and Doe 2 as Best Built Construction, Inc.

On April 16, 2018, plaintiff filed a Third Amended Complaint.

On October 24, 2018, defendants Wai Ching Shilon and Moti Shilon filed a motion for summary judgment or, in the alternative, summary adjudication.

On December 11, 2018, plaintiff filed a Fourth Amended Complaint.

On April 8, 2019, plaintiff filed a Fifth Amended Complaint.

On May 16, 2019, the court denied defendants’ motion for summary judgment as moot because it was as to the 2nd amended complaint.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendants request summary adjudication as to the 2nd, 3rd, 4th, 5th, and 6th causes of action and for the claim for punitive damages in the Fifth Amended Complaint on the ground that plaintiff cannot raise a triable issue of any material fact and, as a matter of law, defendants prevail.

In the Fifth Amended Complaint, plaintiff alleges that he resided at the subject property since 1984. Defendants Wai Ching Shilon and Moti Shilon have resided next door to plaintiff since approximately 2007. Upon moving in the Seahill Townhome Homeowners Association (HOA) complex they were advised of rules and regulations that governed the HOA of which they were now members. Part of the rules, which were updated in 2009, included that requirement that they comply with the provisions of the Association Architectural Committee (ACC). This requirement also included the requirement to obtain authority from the ACC and, if denied, from the Board of Directors for the HOA regarding any changes made to their unit. FAC, ¶8. The incident that gives rise to the causes of action occurred as a result of the manufacturing, design, inspection, selection, and/or installation of a tankless water heater by the Shilons, Best Built Construction, Inc., and Grand Hall USA, Inc. from 2009 to October 2013, that after being placed into the stream of commerce, subsequently failed, causing damage to plaintiff’s person and property. Id., ¶9. At the time the Shilons moved into the HOA, M. Shilon represented himself to be a licensed contractor. Based on those representations, the Shilons made various changes to the Shilon unit and assured plaintiff that he knew what he was doing and would do nothing to harm or damage plaintiff’s adjacent property. Id., ¶10.

Plaintiff further alleges that part of the work during the years 2007 to 2013 which the Shilons did was to replace the Shilons’ unit water tank with a tankless water heater manufactured, designed, and/or installed by defendants Best Built Construction and Grand Hall USA. Prior to this modification to their unit, the Shilons were advised by the ACC that a tankless water heater could not be installed in this complex. The reason for that decision was that the water heater tanks currently designed into the complex allowed for a catch basin to force any water from a tank failure to go into a catch pan, into a drainage pipe, and out into the patio and into an exterior drain that led to the street. A tankless water heater had no such catching mechanisms and if it failed, would cause water to spread throughout the unit and into downhill adjacent units in the HOA complex. Id., ¶11. Defendants ignored the order of the ACC and proceeded to install a tankless water heater in direct violation of the orders of the HOA and in direct violation of the representations of defendants that they would do nothing to harm plaintiff for his property. Id., ¶12. After improperly and illegally installing the tankless water heater, on October 13, 2013, the tankless water heater failed in some manner and proceeded to spew hundreds of gallons of water throughout the Shilon residence and eventually the water moved downhill and into and under the residence of plaintiff, causing immense and severe water damage both interiorly, as well as to the soil under the residence, resulting in structural damage in and around plaintiff’s property. Id., ¶13.

Evidentiary objections

The court rules as follows on defendants’ evidentiary objections: OVERRULED as to Nos. 1 through 6; SUSTAINED as to Nos. 7 through 25 (Alan J. Herd decl.).

The court notes that defendants are not seeking summary judgment, despite what plaintiff contends. The caption and notice clearly state that defendants are moving for summary adjudication.

2nd cause of action for breach of oral contract

Under the 2nd cause of action, plaintiff alleges that plaintiff and moving defendants entered into an oral and implied contract that any and all changes to the Shilon residence would be done in compliance with the rules and regulations of the HOA, which both plaintiff and defendants belonged. Further, defendants represented that they would perform all changes to their residence in a proper and legal manner, so as not to cause damage to plaintiff or his property, which is downhill and adjacent to defendants’ property. FAC, ¶21. Defendants represented that any work they undertook with their townhouse would be in a proper and responsible manner, with said contract commencing in 2007 and continuing up to an including October 23, 2013. Id., ¶22. Plaintiff performed all conditions, covenants, and promises required by him or his part to be performed in accordance with the rules of the HOA. Id., ¶23. On October 23, 2013, it was learned that defendants breached the agreement by improperly and/or failing to properly install a tankless water heater in defendants’ unit in contradiction to the decision of the ACC. Said flooding of plaintiff’s property by defendants’ actions or inaction, led to injures and damages to plaintiff and his property. Id., ¶24.

The elements for breach of contract are (1) formation of a contract between plaintiff and defendant; (2) plaintiff’s substantial performance or excuse for failure to perform; (3) all conditions for defendant’s performance had occurred; (4) defendant failed to perform; and (5) plaintiff was harmed by that failure. CACI 202. To satisfy the first element of a breach of contract claim—formation—a plaintiff must prove: (1) the contract’s terms were sufficiently clear to show that both parties understood them; (2) the parties each agreed to give something of value; and (3) the parties agreed to the contract (i.e., offer and acceptance). A valid offer must contain specific contract terms to render it capable of being accepted. Moreover, the party receiving a valid offer must agree to all terms of the offer and must communicate said agreement to the offeror. CACI 309. A promise is not enforceable unless consideration was given in exchange for the promise. Passante v. McWilliams (1997) 53 Cal. App. 4th 1240, 1247. Consideration must be affirmatively pleaded and established by the plaintiff for non-written agreements. Stevenson v. San Francisco Housing Authority (1994) 24 Cal. App. 4th 269, 284.

Defendants argue that plaintiff cannot establish the elements of breach of an oral or implied contract because plaintiff cannot show the formation of a contract. Defendants present plaintiff’s deposition testimony where he was asked the basis and terms for his breach of contract claims. He responded: “That they would do nothing to harm my property as represented by Mr. Mati Shilon and the conformation acknowledgment that Mr. Shilon was allowed to do the construction by Mrs. Shilon.” When asked, “2007 was when you told him you—when he told you he wouldn’t do anything to hurt your property or that—no, that’s not what he said. That’s not what you said. You said he would only work in his unit.” Plaintiff stated: “And not cause an inferred by his statement that he would not cause any damages within the unit. Also, just so that we’re clear, you have to remember that Mrs. Shilon was also a member of the board, she was also a real estate broker, she knew the rules and regulations of the homeowners association have to be complied with by all members. Okay. So, based on the fact that she was a real estate agent coming in and buying into an HOA her position and subsequent thereto, so it’s not just one incident, it’s a continual of conduct, clearly indicating she had duty and obligation, not just to me but to every member of the association.” When asked, “when was the oral contract breached?”, plaintiff responded, “It was a continuum of conduct from 2007 clear up to and including today by the fact that they still have based on her testimony a tankless water heater still sitting in that unit.” Plaintiff’s depo., 196-197.

Defendants argue that plaintiff has provided no evidence of any specific contract terms to render it capable of being accepted, no evidence of any offer, no evidence of any acceptance, and no evidence of plaintiff agreeing to all terms of the offer and communicating the agreement to the offeror. Defendants assert that at the very most, there might have been a discussion between fellow owners of the HOA that Mr. Shilon would do some work on his unit and not cause any damage inside of the unit. Further, defendant contends, no consideration was ever alleged or established.

In opposition, plaintiff asserts that the contract at issue is the HOA’s CC&Rs and the HOA’s Rules and Regulations, although plaintiff fails to cite to any specific provisions, only referring but not providing evidence of a decision by the ACC that defendants purportedly did not follow.

The court finds that defendants have met their burden of showing that plaintiff cannot establish the formation of an oral agreement between the parties based on lack of consideration and in light of plaintiff’s assertion that the agreements at issue are the written HOA’s CC&Rs and the HOA’s Rules and Regulations.

The motion is GRANTED as to the 2nd cause of action.

3rd cause of action for breach of implied contract

Under the 3rd cause of action, plaintiff alleges that defendants impliedly contracted and warranted that they were in the business of selling and repairing homes, including to the townhouse adjacent to plaintiff’s property. Defendants, based on their oral representations as to their background and abilities, implied that they would be able to comply with the rules and regulations of the HOA and to perform work on their home in a proper and workmanlike manner so not to cause any damage to adjacent properties, including that of plaintiff. Id., ¶27. Defendants breached the implied contract by not properly working on their townhouse by proceeding to install a tankless water heater after they were told by the AC that they were not granted permission to do so. Id., ¶28. Defendants affirmed and promised that the quality of work, the repairs, and replacements of home components would be and had been done correctly, which they were not as evidenced by the subsequent flooding. Id., ¶29.

“Conduct will create a contract if the conduct of both parties is intentional and each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into a contract.” CACI 305.

Defendants make the same arguments as under the 2nd cause of action.

In opposition, plaintiff contends that he is a third party beneficiary of the HOA governing documents. Further, he asserts that as a homeowner, he can enforce the HOA governing documents, citing to Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal. 4th 361.

In Nahrstedt, the court stated, “[o]ne significant factor in the continued popularity of the common interest form of property ownership is the ability of homeowners to enforce restrictive CC&R’s against other owners . . . of project units. Generally, however, such enforcement is possible only if the restriction is sought to be enforced meets the requirements of equitable servitudes or of covenants running with the land.” Id. at 375 (citations omitted).

This case is inapplicable because plaintiff is not seeking to enforce the CC&Rs; rather, he appears to be seeking damages for alleged breach of them. He has not provided any case authority to support that proposition.

In any event, defendants have shown that plaintiff cannot establish the elements for breach of an implied contract, including the formation of a breach of an implied contract.

Plaintiff fails to present sufficient evidence to raise a triable issue of material fact. Plaintiff does not cite to any provision in the CC&Rs or the ACC’s rules and regulations that bars tankless water heaters or that was purportedly breached. Neither of these documents even refer to tankless water heaters. The CC&Rs dated in 1980 state, under Article XIV at page 37, under “Architectural Control” that “No building, fence, wall, obstruction, balcony, screen, patio, patio cover, tent, awning, carport, carport cover, improvement, or structure of any kind shall be commenced, erected, painted, or maintained upon the property, nor shall any alternation or improvement of any kind be made thereto until the same has been approved in writing by the board, or by an architectural control committee appointed by the board.” Plaintiff’s Compendium of Exhibits, Exh. H. Plaintiff also presents the Architectural Control Packet, amended February 11, 2010, which states, “Submission of Plans and an Application are required before making any exterior modifications to your home. This includes landscape and hardscape installation. This submission process would also be required for interior changes that involve the common wall with the abutting unit, changes to weight bearing walls, or alterations to gas, water, and/or electric lines.” Exh. I.

Further, even if defendants purportedly did not abide by an ACC decision, plaintiff has not provided any evidence or authority that he can recover damages under a breach of contract theory.

The motion is GRANTED as to 3rd cause of action.

4th cause of action for fraud

Plaintiff alleges that defendants committed numerous fraudulent acts from the time they moved to Seahill HOA in 2006/2007 to the current date. Defendants claimed to have properly performed work and repairs in their townhome from 2006/2007, through 2011, and again in 2013, 2014, but did not. Said representations were made orally to plaintiff directly at various times from 2006 to 2014. Defendants failed to follow the ACC and HOA’s decision in 2010, when they proceeded to improperly install and illegally install a tankless water heater in 2011. They again disregarded the ACC’s denial in 2013/2014 when they put in another tankless water heater. FAC, ¶35. By signing a purchase and escrow agreement, defendants acknowledged that they were buying a piece of property in an HOA. They made oral statements that they would comply with the HOA rules, but they knew that the representations were false. Plaintiff relied on the representation of defendants that they had either properly installed the tankless water heater and/or they had repaired and/or replaced the previously installed tankless water heater such that when water continued to seep into and around plaintiff’s property, plaintiff expended money to hire various contractors and companies to determine the source of water only to be informed that there was no water leak on plaintiff’s property. Id., ¶37.

The elements of fraud are: ( 1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. See Civil Code §1709; Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 173. “’Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.’ (Citation omitted). The elements of promissory fraud (i.e., of fraud or deceit based on a promise made without any intention of performing it) are (1) a promise made regarding material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promise to enter into a transaction; (4) reasonable reliance by the promise; (5) nonperformance by the party making the promise; and (6) resulting damage.” Behnke v. State Farm General Ins. Co. (2011) 196 Cal. App. 4th 1443, 1453. Mere failure to perform is not sufficient to establish promissory fraud. Tenzer v. Superscope (1985) 39 Cal. 3d 18, 30-31 (“’something more than nonperformance is required to prove the defendant’s intent not to perform his promise. . . . [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury”) (citation omitted).

Defendants argue plaintiff cannot establish the elements for fraud because plaintiff has never provided such evidence and that the cause of action is barred by the three-year statute of limitations under CCP §338(d). In a special interrogatory no. 258, plaintiff was asked to specify each piece of evidence which supported his contention that defendants defrauded him and he responded, in part, that Defendant Anne Shilon was a real estate broker when she purchased her unit and had knowledge that buying into the HOA meant that she greed to comply with the rules and regulations, CC&Rs, and ACC requirements; act of installing the water heater was a deliberate conscious disregard of plaintiff’s rights as a homeowner; defendant has remained in violation of the ACC rules and requirements before, during, and after the flooding incident; defendant knew or should have known of the propensity of tankless water heaters to fail; their failure to install an escape mechanism for the water from the failed water heater clearly indicates a total disregard of the welfare and safety of their downhill neighbors; and defendants on several occasions made oral promises to plaintiff that they would not do work that would cause harm to plaintiff’s unit. In response to No. 200, plaintiff responded that plaintiff believed that defendants would comply with the agreements they entered into by purchasing into a complex controlled by an HOA and the rules applicable thereto. Their failure to comply constituted a false representation in that they did not comply with those very rules and regulations.

Defendants have met their burden of showing that plaintiff cannot establish the elements of fraud, including that a misrepresentation was made or that plaintiff relied to his detriment. Plaintiff has not provided clear and convincing evidence to raise a triable issue of material fact. This cause of action is based on defendants’ purported violation of the CC&Rs but plaintiff does not explain how the alleged failure constitutes a representation, false or otherwise, to plaintiff. There is no evidence plaintiff acted in reliance on defendants’ acceptance of the CC&Rs. Whether defendants disregarded the CC&Rs does not constitute an affirmative misrepresentation.

See court’s ruling on defendants’ objections to Herd’s declaration.

The motion is GRANTED as to the 4th cause of action.

5th cause of action for personal injury and 6th cause of action for property damage

Defendants contend that these claims are not causes of action but rather an element of negligence. Plaintiff does not provide any contrary argument, except that defendants assertion was contained on in the notice of motion.

The court finds that the “causes of action” are merely an element of negligence. Plaintiff cannot establish the elements because there are no elements.

The motion is GRANTED as to the 5th and 6th causes of action.

Claim for punitive damages

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“’Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code §3294(c)(1).

As the Court noted in College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

Defendants argue that there is no basis for punitive damages because plaintiff does not meet the heightened burden to establish such damages.

Defendants have shown that plaintiff cannot establish a claim for punitive damages as there is no evidence that defendants acted with oppression, fraud, or malice.

Plaintiff has failed to present sufficient evidence to raise a triable issue.

The motion is GRANTED as to this claim.

Accordingly, the motion for adjudication is GRANTED in its entirety.

Case Number: BC598789    Hearing Date: January 23, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

IVAN K. STEVENSON,

Plaintiff,

Case No.:

BC598789

vs.

[Tentative] RULING

WAI CHING SHILON, et al.,

Defendants.

Hearing Date: January 23, 2020

Moving Parties: Defendant Grand Hall USA, Inc.

Responding Party: Plaintiff Ivan K. Stevenson

(1) Motion to Compel Further Responses to Special Interrogatories, Set Two

(2) Motion to Compel Further Responses to Request for Production of Documents, Set Two

The court considered the moving, opposition, and reply papers.

RULING

The motions are GRANTED. Plaintiff is ordered to provide further responses to Grand Hall’s Special Interrogatories, Set Two, Nos. 47, 50, and 68 and to Request for Production of Documents, Set Two, No. 39 and to produce responsive documents, within 15 days.

BACKGROUND

On October 22, 2015, plaintiff Ivan K. Stevenson filed a complaint against Wai Ching Shilon aka Anne Shilon and Moti Shilon for negligence, breach of oral contract, breach of implied contract, fraud, personal injury, and property damage.

On October 18, 2016, plaintiff filed a First Amended Complaint.

On May 1, 2017, plaintiff filed a Second Amended Complaint.

On January 16, 2018, filed amendments designating Doe 1 as Grand Hall USA, Inc. and Doe 2 as Best Built Construction, Inc.

On April 16, 2018, plaintiff filed a Third Amended Complaint.

On October 24, 2018, defendants Wai Ching Shilon and Moti Shilon filed a motion for summary judgment or, in the alternative, summary adjudication.

On December 11, 2018, plaintiff filed a Fourth Amended Complaint.

On April 8, 2019, plaintiff filed a Fifth Amended Complaint.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP § 1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand. CCP §§2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP §§2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Interrogatories

CCP §2030.300 states: “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .”

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. CCP § 2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP § 2031.220. “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” CCP § 2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” CCP § 2031.310(b)(1). “To establish ‘good cause,’ the burden is on the moving party to show both: [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted). “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Id. at 8:1495.7 (citation omitted). “The declarations may be on information and belief, if necessary. However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.” Id. at 8:1495.8 (citation omitted). “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.” Id. at 8:1495.9.

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).” Id. at 8:1496 (citation omitted).

DISCUSSION

Defendant Grand Hall USA, Inc. requests that the court order plaintiff Ivan K. Stevenson to provide further, verified responses to Grand Hall’s Special Interrogatories, Set Two, Nos. 47, 50, and 68 and to Request for Production of Documents, Set Two, No 39.

Defendant served its discovery requests on July 29, 2019. On September 12, 2019, plaintiff served responses, which defendant contends were deficient. On October 2, defense counsel sent a letter to plaintiff’s counsel requesting further responses. On October 11, plaintiff’s counsel stated that he was working with plaintiff to provide further responses. On October 22, defense counsel sent another letter, requesting responses by October 25. On November 1, plaintiff served further responses. On December 4, defense counsel sent a letter to meet and confer as to four of the responses. To date, plaintiff has not served further responses.

Defendant argues that the information is relevant to assess plaintiff’s claim that he lost over $500,000 in earnings because he was unable to work as a lawyer and mediator from October 2013 to January 2015 because he was occupied dealing with water damage at his home.

In opposition, plaintiff contends that he has sufficiently answered the requests and that he provided code-compliant responses and valid objections.

Special Interrogatories

No. 47 – State your monthly gross income for each month from October 2008 through the present.

Plaintiff responded that he estimates that his work generated at least an average gross income of between $15,000 per month and $25,000 per month. In a supplemental response, he stated that the requesting party should refer to CCP §2030.230 as the information provided to the requesting party includes time sheets showing the amount of time spent by plaintiff away from his practice; the number of mediations performed each year from 2008 to the present; the hourly rate charged by plaintiff for legal work; and the daily rate plaintiff charged for mediations. Plaintiff contends that the information is sufficient for defendant to prepare its own compilation and summary to calculate plaintiff’s lost earnings and loss of earning capacity damages.

CCP §2030.230 states: “If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is as sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. . . . The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.”

As argued by defendant, plaintiff cannot invoke this section unless plaintiff has provided all of the documents necessary to create such a compilation. Plaintiff had originally responded that he had not located and retrieved all of his records of income dating back to 2008. In a supplemental response, he states that he had completed the retrieval of the “mediation files.” Defendant asserts that plaintiff improperly equivocates the two. Further, the information that plaintiff states he provided is insufficient and incomplete. It is missing the amount of time spent on each mediation or the amount earned for each mediation, for example.

No. 50 – State the monthly gross income of the Law Offices of Ivan K. Stevenson/Confidential Mediation & Dispute Resolution for each month from October 2008 through the present.

See response to No. 47. The court finds the response deficient.

No. 68 – Identify each employee of the Law Offices of Ivan K. Stevenson/Confidential Mediation & Dispute Resolution, including their job title and job responsibilities, from October 2008 through the present.

Plaintiff responded that as of 2008 he did not employ full time staff to assist him in the operation of his law and/or medication practice and he refused to produce “said information since it would subject responding party to civil and possible criminal penalties pursuant to Federal and State law.” He did not serve a supplemental response to this interrogatory.

Plaintiff contends that in other responses he stated that he was a sole proprietor and identified over 14 witnesses who could support his loss of earning claims. Thus, he argues, his response was code-compliant.

Defendant argues that this response is insufficient and that plaintiff fails to provide any information with respect to part-time staff, if any.

The court finds that plaintiff’s response is insufficient because the interrogatory requested information as to any employee, not only whether an employee was full-time. Further, plaintiff’s objections lack merit.

The motion is therefore GRANTED.

Request for Production of Documents

No. 39: All calendars, diaries, notes, or other documents showing the dates on which you worked as a mediator from October 2008 through the present.

Defendant argues that such records are especially important in evaluating plaintiff’s claim of loss of income. As defendant contends, the dates of mediation are not protected from disclosure. Plaintiff’s list of dates is insufficient and not code-compliant.

The motion is therefore GRANTED.

Sanctions

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP §2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Defendant requests monetary sanctions against plaintiff and his counsel in the amount of $1,912.50 for each motion. Plaintiff acted with substantial justification; thus, the request is denied.

Defendant is ordered to give notice of this ruling.