12 GAUGE ELECTRIC INC. VS. LESLIE GAIL

Tentative Rulings

Case Number: ****6686    Hearing Date: October 28, 2019    Dept: 74

****6686 12 GAUGE ELECTRIC INC. VS. LESLIE GAIL

Plaintiff’s Motion to Compel Further Responses to Special Interrogatories and for Sanctions and Motion to Compel Further Responses to Special Interrogatories and for Sanctions

TENTATIVE RULING: The motions are granted. Ronan and Xlart are to provide further responses to special interrogatories within 20 days. Ronan is to pay plaintiff sanctions of $1740 and Xlart is to pay plaintiff sanctions of $1345 within 30 days.

Gail argues that the oppositions were untimely. She waived any issue as to the timeliness of the opposition by addressing it on the merits. (Carlton v. Quint (2000) 77 Cal. App. 4th 690, 697.)

In the replies, Gail referenced issue preclusion sanctions. They have not been considered as they were not stated in the notice of motion.

Ronan

The response to interrogatory number 15 states that a construction manager manages construction. It then details the duties of a general contractor. This is not sufficient, as “manages construction” is not a specific description fo what a construction manager is responsible for. A specific description of how construction is managed is required. Further response is ordered.

The response to interrogatory number 16 states that they discussed that she was the owner/builder and Xlart the construction manager, but no specifics of the discussion are stated. That discussion needs to be stated in detail. Further response is ordered.

Xlart

Interrogatory number 38 requests Xlart state its understanding of its responsibilities under the contract. Stating that the contract speaks for itself is not sufficient. A detailed statement of what Xlart understood its obligation to be is required. That some of the information is available in the responses to other interrogatories does not excuse the failure to properly respond to this interrogatory. Further response is ordered.

Sanctions

Gail is entitled to sanctions on both motions. Ronan is ordered to pay sanctions of $1740. Xlart is ordered to pay sanctions of $1345.

Case Number: ****6686    Hearing Date: October 24, 2019    Dept: 74

****6686 12 GAUGE ELECTRIC INC. VS. LESLIE GAIL

Defendants Mr. Green Electric, Inc., Gary Iraev, and American Contractors Indemnity Company’s Demurrer to the Second Amended Complaint

TENTATIVE RULING: The demurrer to the first cause of action is sustained with leave to amend as to defendants Mr. Green Electric, Inc. and Gary Iraev only. The demurrer to the third cause of action is sustained without leave to amend as to defendant American Contractors Indemnity only. Plaintiff may file an amended complaint within 20 days.

Demurrer to the First Cause of Action for Breach of Contract

Defendants Mr. Green Electric, Inc. and Gary Iraev argue that it cannot be determined whether the contract is oral, written or implied, who the parties to the contract are, and which defendant committed which breaches, and that there is no allegation that plaintiff performed or was excused from performance.

The elements of breach of contract are the existence of contract; plaintiffs’ performance or excuse for nonperformance; defendants’ breach and resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) The cause of action must state whether the contract is oral, written or implied. (Code Civ. Proc., ; 430.10, subd. (g).)

The cause of action only alleges a single construction contract. It is unclear who the parties to that contract are. There are pages of breaches, the breaching parties are not identified, nor is the specific contract breached. There is no allegation that plaintiff did not breach the contract, or as a third party beneficiary of a contract between these defendants and another party, that the other party did not breach the contract.

There is no allegation as to whether the contract or contracts alleged were oral, written or implied in fact. The demurrer is sustained with leave to amend.

Third Cause of Action for Negligence

American Contractor Indemnity Company argues that it is a surety, and not involved in construction and cannot be sued for negligence as the defendants’ surety. Plaintiff has provided no authority that a surety can be sued directly in the causes of action against its insured. The demurrer is sustained without leave to amend.