On 09/10/2015 ORI ZAIRI filed a Contract - Other Contract lawsuit against FORD E C INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
ECCONO TREE CARE
FARMINGTON CASUALTY COMPANY
FORD E.C. INC.
TRAVELERS CASUALTY AND SURETY COMPANY OF
GILL AND BALDWIN P.C.
FASEN LEO ESQ.
DAGHIGHIAN SEPEHR ESQ.
3/16/2018: DEFENDANT/CROSS-COMPLAINANT'S TRIAL BRIEF
3/16/2018: DEFENDANT/CROSS-COMPLAINANT'S MOTION IN LIMINE NO. 3 NOTICE OF MOTION AND MOTION IN LIMINE TO PROHIBIT INTRODUCTION OF EVIDENCE OF ANY ORAL MODIFICATION TO THE WRITTEN CONTRACT
3/16/2018: DEFENDANT/CROSS-COMPLAINANT'S MOTION IN LIMINE NO. 5 NOTICE OF MOTION AND MOTION IN LIMINE TO PROHIBIT INTRODUCTION OF EVIDENCE OF QUANTUM MERUIT COSTS FOR WHICH PLAINTIFF HAS NOT PROVIDED EVIDENCE
3/16/2018: DEFENDANT/CROSS-COMPLAINANT'S MOTION IN LIMINE NO. 6 NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SELF-SERVING RECORDS INCLUDING "TREE LOGS" AND INVOICES
3/26/2018: NOTICE OF MARCH 22, 2018 FINAL STATUS CONFERENCE
3/29/2018: Minute Order
4/2/2018: Notice of Change of Address
11/19/2018: Stipulation and Order
1/9/2019: Certificate of Mailing for
5/20/2019: Witness List
12/3/2015: ANSWER OF ORI ZAIRI, AN INDIVIDUAL D.B.A. ECCONO TREE CARE TO CROSS-COMPLAINT OF FORD E.C., INC.
2/22/2017: DECLARATION OF MARVIN LEVY, ESQ. ON COURT'S ORDER TO SHOW CAUSE RE: DISMISSAL OF ENTIRE CASE DUE TO FAILURE TO PROSECUTE ACTION
2/28/2017: Minute Order
7/6/2017: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AGAINST PLAINTIFF ORI ZAIRI D.B.A ECCONO TREE CARE
7/6/2017: DECLARATION OF SEPEHR DAGHIGHIAN IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AGAINST PLAINTIFF ORI ZAIRI
9/15/2017: DEFENDANTS' REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION
at 10:00 AM in Department 49; Non-Jury Trial - Not Held - Continued - Court's MotionRead MoreRead Less
Notice (Defendants/Cross Complainants' Notice of May 21, 2019 Trial Call Hearing); Filed by Ford E.C., Inc. (Defendant)Read MoreRead Less
Minute Order ( (Non-Jury Trial)); Filed by ClerkRead MoreRead Less
Exhibit List; Filed by Ford E.C., Inc. (Defendant); Travelers Casualty and Surety Company of (Defendant); Farmington Casualty Company (Defendant)Read MoreRead Less
Reply (IN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO. 4)Read MoreRead Less
Reply (IN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO. 1); Filed by Ford E.C., Inc. (Defendant); Travelers Casualty and Surety Company of (Defendant); Farmington Casualty Company (Defendant)Read MoreRead Less
Witness List; Filed by Ford E.C., Inc. (Defendant); Travelers Casualty and Surety Company of (Defendant); Farmington Casualty Company (Defendant)Read MoreRead Less
Reply (IN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO. 3); Filed by Ford E.C., Inc. (Defendant); Travelers Casualty and Surety Company of (Defendant); Farmington Casualty Company (Defendant)Read MoreRead Less
Reply (IN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO. 5)Read MoreRead Less
Reply (IN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO. 6); Filed by Ford E.C., Inc. (Defendant); Travelers Casualty and Surety Company of (Defendant); Farmington Casualty Company (Defendant)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Notice and Acknowledgment of Receipt; Filed by Ori Zairi (Plaintiff)Read MoreRead Less
NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVILRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
OSC-RE Other (Miscellaneous); Filed by ClerkRead MoreRead Less
Complaint; Filed by Ori Zairi (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR 1. BREACH OF CONTRACT; ETCRead MoreRead Less
Case Number: BC594361 Hearing Date: May 4, 2021 Dept: 49
Superior Court of California
County of Los Angeles
Ford E. C., Inc., et al.
Hearing Date: May 4, 2021
Department 49, Judge Stuart M. Rice
Moving Party: Defendants Ford E.C., Inc., Travelers Casualty and Surety Company of America, and Farmington Casualty Company
Responding Party: Plaintiff Equery, Inc.
Ruling: Defendants’ motion for summary adjudication is granted in part and denied in part. Ori Zairi shall be dismissed from this action as he is not a party-in-interest. The motion for summary adjudication of Plaintiff’s fourth through sixth causes of action is denied.
Defendants Ford E.C., Inc., Travelers Casualty and Surety Company of America, and Farmington Casualty Company (“Defendants”) move for summary adjudication of Plaintiff Equery, Inc. dba Eccono Tree Care’s (“Plaintiff”) First Amended Complaint. (“FAC”).
Defendant Ford contracted with the City of Los Angeles Bureau of Engineering on or about April 12, 2013 to provide approximately $16,000,000.00 in construction services relating to the Wilmington Drain Multiuse Project, Project No. W.O.E40021F. (UMF 1.) The Project included the rehabilitation and repair of the Wilmington storm drain system and rehabilitation and improvements to the surrounding parks and forest area. (UMF 2.) The Project included, as approximately 1% of the work, extensive clearing, grubbing, and tree removal throughout several acres of forested area within the Wilmington Drain project. (UMF 3.) The Ford-Eccono contract was executed on or about June 12, 2013.
Ori Zairi as a Party-in-Interest
Fourth, Fifth & Sixth Causes of Action for Fraud
“The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)
(i) that the CITY has approved PLAINTIFF as a subcontractor for the PROJECT with an approved compensation of $ 160,000; (ii) that PLAINTIFF would be paid the total amount of One Hundred Sixty Thousand Dollars ($ 160,000), for the removal of all trees, an approximate total of 464 trees, as indicated on bid documents from the CITY; (iii) that PLAINTIFF would be paid by Defendants in monthly progress payments of at least Ninety Percent (90%) of labor and material with funds received by FORD from the CITY from the work performed by PLAINTIFF as reflected in FORD's application for payment to the CITY.
(FAC ¶ 59.)
Plaintiff alleges that Defendants induced it to enter into the agreement with said representations, and that Defendant Ford failed to disclose that the City’s approved compensation for Plaintiff was only $73,600.
[a]s to the second issue, Plaintiff argues the $50,000-$58,000 constitutes a breach of contract, where the contract price for cutting 464 trees was $160,000. [Citation.] Defendant argues that this $50,000-$58,000 payment represents 90% of the work approved by the City of Los Angeles, pursuant to Section 4 of the agreement, and thus satisfied the terms of the contract and Plaintiff was paid in full. [Citation.] Plaintiff fails to submit evidence disputing this fact. By failing to submit evidence disputing these facts, Plaintiff impliedly concedes that he was only entitled to 90% of the amount the City approved and that he received 90% of what the City approved. [Citation.] Plaintiff does not raise a triable issue of material fact as to whether Defendant failed to fulfill its obligations under the agreement, and therefore, Defendant is entitled to summary adjudication as to breach of contract.
(10/4/2017 MSJ Ruling.)
The court determined that Plaintiff failed to meet its burden on the first cause of action for breach of contract and summarily adjudicated this claim in favor of the Defendant (this ruling was made by a different Superior Court Judge but it has no less import on this judicial officer). Based on the evidence before the court, which included the parties’ agreement and the letter to the City for approval of work, Plaintiff was entitled to payment somewhere between $50,000 and $58,000 as it represented 90% of what the City approved pursuant to Section 4 of the Agreement. Accordingly, Plaintiff had no claim premised on a defendant’s failure to perform under the terms of the subcontract.
Finally, Defendants contend that the fraud claims are barred by the economic loss rule because they seek the same damages as the breach of contract claims. “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. (Chelini v. Nieri (1948) 32 Cal.2d 480, 487, 196 P.2d 915 [“tort of deceit” adequately pled where plaintiff alleges “defendant intended to and did induce plaintiff to employ him by making promises . . . he did not intend to (since he knew he could not) perform.” (Lazar v. Superior Ct. (1996) 12 Cal. 4th 631, 638.)
“The restrictions on contract remedies serve purposes not found in tort law—they protect the parties’ freedom to bargain over special risks and they promote contract formation by limiting liability to the value of the promise.” (Harris v. Atlantic Richfield (1993) 14 Cal.App.4th 70, 77.) This encourages efficient breaches, resulting in increased production of goods and services at a lower cost to society. (Id.) Because of these overriding policy considerations, the California Supreme Court has proceeded with caution in carving out exceptions to the traditional contract remedy restrictions. (Id.)
The most widely recognized exception is when defendant’s conduct constitutes a tort as well as a breach of contract. (Harris, 14 Cal.App.4th at p. 78.) When one party commits fraud during the contract formation or performance, the injured party may recover in both contract and tort. (Id.) Defendants argue that “Plaintiff cannot demonstrate distinct damages for its tort causes of action. Indeed, its damages for fraud are identical to those being sought for common counts; specifically, monies not paid on the contract and monies not paid for change orders.” (MSJ 12:25-27.) So long as double recovery does not occur, the fact that the actual amount of damages sought is identical does not bar Plaintiff from bringing claims under both theories and contract where it is alleged that fraud induced assent to a contract.
The public policy of allowing parties to freely bargain over special risks because parties who are deprived of material facts governing their decision to enter into a contract do not “freely” enter into such contract would be hindered by barring Plaintiff’s fraud claim simply because it arises from the same transaction as the contract claim. Here, Defendants have not demonstrated the facts underpinning Plaintiff’s fraud claims are unavailing, and thus have not met their burden of establishing that the economic loss rule bars these claims.
The motion for summary adjudication is denied on this ground.
Date: May 4, 2021
Honorable Stuart M. Rice
Judge of the Superior Court
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