AMIR YAZDI ET AL VS ELITE COASTAL CONSTRUCTION INC ET AL

Tentative Rulings

Case Number: ****8139 Hearing Date: June 28, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

amir yazdi , et al.; Plaintiffs, vs. elite coastal construction, inc. , et al., Defendants.	Case No.:	****8139
Hearing Date:	June 28, 2022
Time:	10:00 a.m.
[Tentative] Order RE: defendants’ motion for leave to file first amended answer to plaintiffs’ first amended complaint

MOVING PARTIES: Defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian

RESPONDING PARTY: Plaintiffs Amir Yazdi and Hania Yazdi, individually and as trustees of the Amir and Hania Yazdi Living Trust dated April 19, 2005

Motion for Leave to File First Amended Answer to Plaintiffs’ First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian (“Defendants”) move the court for an order allowing Defendants to file their First Amended Answer to the First Amended Complaint filed by plaintiffs Amir Yazdi and Hania Yazdi, individually and as trustees to the Amir and Hania Yazdi Living Trust dated April 19, 2005 (“Plaintiffs”). Defendants request leave to add one statute of limitations affirmative defense under Code of Civil Procedure section 340, subdivision (a) to the Third Defense. (Lauter Decl., 3.)

The court finds it is in the interest of justice to allow Defendants to file their First Amended Answer to assert their statute of limitations defense. Courts may permit a party to amend any pleading in furtherance of justice and on any terms as may be proper. (Code Civ. Proc., 473, subd. (a).) In exercising this power, “courts will be liberal in allowing an amendment to a pleading when it does not seriously impair the rights of the opposite party—and particularly an amendment to an answer.” (Eng v. Brown (2018) 21 Cal.App.5th 675, 701.) Defendants have presented evidence that defense counsel discovered that Defendants’ prior attorney did not assert this defense, and promptly moved to amend their Answer. Plaintiffs have not presented evidence of prejudice, and the court finds that Plaintiffs will not be prejudiced by permitting Defendants to present this defense.

The court therefore grants Defendants’ Motion for Leave to File First Amended Answer to Plaintiffs’ First Amended Complaint. (Code Civ. Proc., 473, subd. (a)(1).)

ORDER

The court grants defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian’s Motion for Leave to File First Amended Answer.

The court orders defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian to file their First Amended Answer (in the form attached to their motion) within 5 days of the date of this ruling.

The court orders defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 28, 2022

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: ****8139 Hearing Date: May 4, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

Amir Yazdi , et al.; Plaintiffs, vs. Elite Coastal Construction, inc. , et al., Defendants.	Case No.:	****8139
Hearing Date:	May 4, 2022
Time:	10:00 a.m.
[Tentative] Order RE: motion for determination of good faith settlement

MOVING PARTIES: Defendants Lawrence A. Woodcraft and Astra Woodcraft

RESPONDING PARTY: Unopposed

Motion for Determination of Good Faith Settlement

The court considered the moving papers filed in support of this motion. Defendants Elite Coastal Construction,. Inc., Anastasiya T. Balikian, and Haik Mike Balikian initially filed an opposition to the motion, but later filed a notice withdrawing their opposition to the motion.

BACKGROUND

Plaintiffs Amir Yazdi and Hania Yazdi, as individuals, and as trustees of the Amir and Hania Yazdi Living Trust Dated April 19, 2005 (collectively “Plaintiffs”) filed this action on October 3, 2017. Plaintiffs filed the operative First Amended Complaint (“FAC”) on August 15, 2019. The FAC alleges causes of action for (1) negligence; (2) breach of contract; (3) statutory recovery of compensation paid; and (4) suretyship, against several defendants, including defendants Lawrence A. Woodcraft and Astra Woodcraft. This is a construction defect case.

Defendants Lawrence A. Woodcraft and Astra Woodcraft (“Settling Defendants”) move the court for an order determining that the settlement entered into between Plaintiffs and Settling Defendants was made in good faith pursuant to Code of Civil Procedure section 877.6.

LEGAL STANDARD

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” (IRM Corp. v. Carlson (1986) 179 Cal.App.3d 94, 104.)

Code of Civil Procedure 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff . . . and one or more alleged tortfeasors or co-obligors . . . .” “The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., 877.6, subd. (d).)

“A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., 877.6, subd. (c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (Code Civ. Proc., 877, subd. (a).)

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, supra, 38 Cal.3d at 499.) “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” (Id. at p. 499.)

“The party asserting the lack of good faith, who has the burden of proof on that issue ( 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Tech-Bilt, supra, 38 Cal.3d at pp. 499-500.)

“Thus, Tech-Bilt held that in determining whether a settlement was made in good faith for purposes of section 877.6, a key factor a trial court should consider is whether the amount paid in settlement bears a reasonable relationship to the settlor’s proportionate share of liability. (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500 . . . .) This is because one of the main goals of section 877.6 is ‘allocating costs equitably among multiple tortfeasors.’ (Tech-Bilt, supra, 38 Cal.3d at p. 502 . . . .)” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4^th 159, 166.) “Accordingly, a court not only looks at the alleged tortfeasor’s potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis- -vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (Id. at p. 166.)

When a motion for determination of good faith settlement is uncontested, a “barebones” motion that sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case, is sufficient to support a good faith determination. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

DISCUSSION

Settling Defendants move the court for an order, pursuant to Code of Civil Procedure 877.6, determining that the settlement entered into between Plaintiffs and Settling Defendants is in good faith.

Settling Defendants have agreed to pay Plaintiffs $4,999 and release all of their affirmative claims, with a value of approximately $12,108.85, in exchange for a release of all liability from Plaintiffs. Settling Defendants represent that the total settlement value is approximately $17,107.85.

Defendants Elite Coastal Construction,. Inc., Anastasiya T. Balikian, and Haik Mike Balikian initially opposed the motion, but have since withdrawn their opposition.

Settling Defendants have addressed the Tech-Bilt factors in their motion. Pursuant to City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, Settling Defendants have set forth all that is required for the court to determine that the settlement has been entered into in good faith.

The court therefore grants the motion for determination of good faith settlement. The court determines that the settlement entered into by Plaintiff and Settling Defendants is in good faith within the meaning of Code of Civil Procedure 877.6, subdivision (a).

All other joint tortfeasors or co-obligors are barred from any further claims against Settling Defendants for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Code Civ. Proc., 877.6, subd. (c).) The court further orders that the FAC and all cross-complaints against Settling Defendants are dismissed pursuant to Code of Civil Procedure 877.6, subdivision (c) and California Rules of Court, rule 3.1382.

Settling Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 4, 2022

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: ****8139 Hearing Date: April 11, 2022 Dept: 53

Yazdi v. Elite Coastal Construction, Inc. ****8139

Ex Parte Applications (x2) – 4/11/22

First, as to defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian’s ex parte application to special set hearing on motions to compel and to have matters deemed admitted, the court finds that the moving defendants have not satisfied the requirement of California Rules of Court, rule 3.1202, subdivision (c), that an applicant for an ex parte order must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or other statutory basis for granting relief ex parte.

The court also does not find good cause (1) to grant the moving defendants’ request to specially set the hearings on its six motions to compel and two motions to have matters deemed admitted or (2) to grant their request for an order shortening time on the hearings on those motions or to prescribe shorter times for the filing and service of papers than the times specified in Code of Civil Procedure section 1005, subdivision (b). (Cal. Rules of Court, rule 3.1300, subd. (b).)

The court therefore denies that Ex Parte Application.

Second, as to defendants Lawrence A. Woodcraft and Astra Woodcraft’s ex parte application for order shortening time for hearing on motion for determination of good faith settlement, the court finds good cause to grant the ex parte application. (Code Civ. Proc., 877.6, subd. (a)(1).) The court orders that (1) the reserved hearing on defendants Lawrence A. Woodcraft and Astra Woodcraft’s motion for determination of good faith settlement is advanced from September 2, 2022, to May 4, 2022, at 10:00 a.m., in Department 53, (2) defendants Lawrence A. Woodcraft and Astra Woodcraft shall file and electronically serve that motion no later than April 12, 2022, (3) any opposition to the motion shall be filed and electronically served no later than April 26, 2022, (4) any reply to the motion shall be filed and electronically served no later than April 29, 2022, and (5) defendants Lawrence A. Woodcraft and Astra Woodcraft shall file and electronically serve proof of service showing the notice of motion, motion, and this order were served on all other parties in this action no later than April 15, 2022.

The court orders defendants Lawrence A. Woodcraft and Astra Woodcraft to give notice of this order.

Case Number: ****8139 Hearing Date: March 11, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

amir yazdi , Plaintiff, vs. elite coastal construction, inc. , et al., Defendants.	Case No.:	****8139
Hearing Date:	March 11, 2022
Time:	10:00 a.m.
[Tentative] Order RE: motion for leave to file first amended cross-complaint for interpleader

MOVING PARTIES: Cross-Complainant American Contractors Indemnity Company

RESPONDING PARTY: Unopposed

Motion for Leave to File First Amended Cross-Complaint for Interpleader

The court considered the moving papers filed in connection with this motion. No opposition was filed.

DISCUSSION

Cross-Complainant American Contractors Indemnity Company (“Cross-Complainant”) filed its Cross-Complaint on May 10, 2018, alleging causes of action for (1) breach of contract; (2) indemnity; (3) declaratory relief; and (4) specific performance.

Cross-Complainant now moves for an order (1) authorizing Cross-Complainant to file its First Amended Cross-Complaint for interpleader and injunctive relief; (2) discharging Cross-Complainant from all liability regarding the rights and obligations of the parties to this action arising out of the issuance by Cross-Complainant of a Contractor’s License Bond to which Cross-Defendants have made claims; (3) awarding Cross-Complainant costs and attorney’s fees; and (4) permitting Cross-Complainant to dismiss itself from the cross-complaint without prejudice.

The court grants Cross-Complainant’s motion.

The court exercises its discretion to permit Cross-Complainant to file its First Amended Cross-Complaint in the interests of justice, and therefore grants Cross-Complainant’s motion to file its amended pleading. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) The court orders Cross-Complainant to file its proposed First Amended Cross-Complaint for Interpleader, attached as Exhibit A to its motion, within 5 days from the date of this order.

The court grants Cross-Complainant’s request to discharge it from liability and dismissing it from the action upon its deposit with the clerk of court the amount in dispute relating to the bond. (Code Civ. Proc., 386.5.) Cross-Complainant’s Senior Bond Claims Litigation Representative attests in her declaration that Cross-Complainant made a certain Contractor’s License Bond in the sum of $15,000; that Cross-Complainant has no interest in the bonds funds claimed and alleges that all such bonds funds are demanded by parties to this action; that Cross-Complainant is a mere stakeholder; and that Cross-Complainant cannot determine at this time how many claimants will make a demand upon the bond, and because the competing claims made by cross-defendants exceed the penal sum of the bond, Cross-Complainant cannot determine the amount to be paid to each claimant. (Nu ez Decl., 1, 4, 7, 10.) No party has filed an opposition to the motion.

The court grants Cross-Complainant’s motion requesting an order restraining all parties from instituting or further prosecuting any other proceeding in court affecting the rights and obligations as between the parties in interpleader until further order of the court. (Code Civ. Proc., 386, subd. (f).)

Finally, the court grants Cross-Complainant’s request for attorney fees under Code of Civil Procedure section 386.6. Cross-Complainant requests costs and attorney’s fees in the sum of $2,000.00, although counsel for Cross-Complainant has stated in her declaration that Cross-Complainant has and will incur more than the $2,000.00 requested. (Kim Decl., 6-8.) The court finds that $2,000.00 is a reasonable award of attorney’s fees in this action. The court therefore grants Cross-Complainant’s request for an award of attorney’s fees. (Code Civ. Proc., 386.6, subd. (a) [“A party to an action who follows the procedure set forth in section 386 or 386.5 may insert in his motion…a request for allowance of his costs and reasonable attorney fees incurred in such action. In ordering the discharge of such party, the court may, in its discretion, award such party his costs and reasonable attorney fees from the amount in dispute which has been deposited with the court”].)

ORDER

The court grants Cross-Complainant’s Motion to File First Amended Cross-Complaint.

The court will sign and file the proposed order lodged by Cross-Complainant on December 7, 2021, as modified by the court.

The court orders Cross-Complainant American Contractors Indemnity Company to give notice of this ruling.

IT IS SO ORDERED.

DATED: March 11, 2022

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: ****8139 Hearing Date: February 23, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

amir yazdi , et al.; Plaintiffs, vs. elite coastal construction , et al., Defendants.	Case No.:	****8139
Hearing Date:	February 23, 2022
Time:	10:00 a.m.
[Tentative] Order RE: (1) motion for summary judgment filed by valley custom tile & granite inc. (2) motion for summary judgment filed by hudson insurance and wesco insurance

MOVING PARTY: Defendant Valley Custom Tile & Granite Inc. (“Valley”)

RESPONDING PARTIES: Plaintiffs Amir Yazdi and Hania Yazdi, individually and as

Trustees of the Amir and Hania Yazdi Living Trust dated

April 19, 2005 (“Plaintiffs”)

(1) Motion for Summary Judgment

MOVING PARTY: Defendants Hudson Insurance and Wesco Insurance (“Surety Defendants”)

RESPONDING PARTIES: Plaintiffs Amir Yazdi and Hania Yazdi, individually and as

Trustees of the Amir and Hania Yazdi Living Trust dated

April 19, 2005

(2) Motion for Summary Judgment

The court considered the moving, opposition, and reply papers filed in connection with each motion.

REQUEST FOR JUDICIAL NOTICE

Moving Defendants request the court take judicial notice of documents posted on the Website of the California Department of Consumer Affairs Contractors State License Board concerning information about being an owner/builder. Plaintiffs oppose the request. Documents posted on websites are not proper subjects of judicial notice. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [“The contents of the Web sites and blogs are ‘plainly subject to interpretation and for that reason not subject to judicial notice.’”].)

Accordingly, the court denies judicial notice of those documents.

EVIDENTIARY OBJECTIONS

The court rules on Defendants’ evidentiary objections as follows:

The court sustains Objections Nos. 2, 3, 4, and 13.

The court overrules Objections Nos. 1, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, and 16.

LEGAL STANDARD

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 or cross-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.” (Code Civ. Proc., 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., 437c, subd. (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.” (Id. at p. 467; Code Civ. Proc., 437c, subd. (c).)

DISCUSSION

1. Valley’s Motion for Summary Judgment

Defendant Valley brings this motion for summary judgment on the grounds that Plaintiffs lack standing to bring claims for negligence and breach of contract against Valley, that Plaintiffs’ negligence claim has no merit, and that Plaintiffs’ breach of contract claim has no merit.

A. Standing

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., 367.)

The court finds that Valley has not met its burden of showing that Plaintiffs’ action is barred for lack of standing. The evidence in Valley’s papers shows that Valley contracted directly with Plaintiffs, and these contracts provide standing to pursue their claims. (Squillante Decl., Ex. D, E.)

The court finds that Valley did not meet its burden of showing that there is a complete defense (lack of standing) to the cause of action. (Cal. Civ. Proc. section 437c(p)(2)).

B. First Cause of Action for Negligence

‘“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.’” (Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 777.)

The court finds that Valley has met its burden of showing that the first cause of action for negligence has no merit because Valley has shown that the elements of causation and damages cannot be established. A party “may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2).” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 537. 590.) Valley relies on the Plaintiffs’ discovery responses because they are factually devoid with regard to the elements of causation and damages. (Compendium of Exhibits, Exhibit G, page 2: 16-23, response to Special Interrogatory No. 1.)

The court finds that Plaintiffs have met their burden to show that a triable issue of material fact exists as to the elements of causation and damages. (Rule Decl., paragraphs 8-12).

As to the argument that Plaintiffs assumed the role of an owner/builder, Valley does not meet its burden. The evidence that Plaintiffs pulled permits is insufficient to show plaintiff Hania Yazdi is the owner/builder and wholly responsible. (Response to Undisputed Material Facts 6.) Moreover, Valley offers no competent evidence that Valley can escape liability for negligent work on the theory that the Plaintiffs pulled permits for the project.

The court therefore denies Valley’s motion for summary judgment.

C. Second Cause of Action for Breach of Contract

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4^th 1150, 1173.)

First, Valley’s notice of motion shows that it moved for summary judgment, and not summary adjudication. Since the court has found that a triable issue of material facts exists as to the first cause of action, the court must deny Valley’s motion for summary judgment in full. (Homestead Sav. v. Sup.Ct. (Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494, 498 [the court may not summarily adjudicate claims unless requested in the notice of motion.])

Second, even if Valley had moved for summary adjudication in the alternative, the court would deny the motion because there is a triable issue of material fact as to that cause of action.

The court finds that Valley has met its burden of showing that the second cause of action for breach of contract has no merit because Valley has shown that the elements of breach of duty and damages cannot be established. A party “may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2).” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 537. 590.) Valley relies on the Plaintiffs’ discovery responses because they are factually devoid with regard to the elements of breach of contract and damages. (Compendium of Exhibits, Exhibit G, page 3: 6-13, response to Special Interrogatory No. 4.)

The court finds that Plaintiffs have met their burden to show that a triable issue of material fact exists as to the elements of breach of contract and damages. (Rule Decl., paragraphs 8-12).

The court therefore denies Valley’s motion for summary judgment.

2. Surety Defendants’ Motion for Summary Judgment

A. Standing

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., 367.)

As discussed above in section 1, subd. A, the court finds that the evidence shows that Valley contracted directly with Plaintiffs, and these contracts provide standing for the Plaintiffs to pursue their claims. (Squillante Decl., Ex. D, E.) The Plaintiffs’ claim against the Surety Defendants arises out of the allegations that Valley, as the Surety Defendants’ contractor, was negligent in its construction and breached its contract with the Plaintiffs. Since there is evidence showing that the Plaintiffs have standing to bring the claims against Valley, this same evidence shows that the Plaintiffs have standing to bring the claims arising out of the claims against Valley against the Surety Defendants.

Thus, the court finds the Surety Defendants did not meet their burden of showing that there is a complete defense (lack of standing) to the cause of action. (Cal. Civ. Proc. section 437c(p)(2)).

B. Fourth Cause of Action for Suretyship

“A surety or guarantor is one who promises to answer for the debt, default, or miscarriage of another, or hypothecates property as security therefor.” (Cal. Civ. Code 2787.)

Surety Defendants argue that Plaintiffs’ fourth cause of action fails because the allegations arise solely out of the allegations that Valley, as Surety Defendants’ contractor, was negligent in its construction of the Subject Property and breached its contract with Plaintiffs. The Surety Defendants rely on the same evidence discussed above to show that (1) the elements of causation and damages cannot be established in the first cause of action for negligence and (2) the elements of breach of duty and damages cannot be established in the second cause of action for breach of contract.

The court finds that the Surety Defendants have met their burden of showing that the first cause of action for negligence cannot be established because Surety Defendants have shown that the elements of causation and damages cannot be established. A party “may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2).” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 537. 590.) The Surety Defendants rely on the Plaintiffs’ discovery responses because they are factually devoid with regard to the elements of causation and damages in the claim for negligence against Valley. (Compendium of Exhibits, Exhibit G, page 2: 16-23, response to Special Interrogatory No. 1.)

Further, the court finds that the Surety Defendants have met their burden of showing that the second cause of action for breach of contract cannot be established because Surety Defendants have shown the elements of breach of duty and damages cannot be established. Surety Defendants rely on the Plaintiffs’ discovery responses because they are factually devoid with regard to the elements of breach of contract and damages in the claim for breach of contract against Valley. (Compendium of Exhibits, Exhibit G, page 3: 6-13, response to Special Interrogatory No. 4.)

The court finds that Plaintiffs have met their burden to show that a triable issue of material fact exists as to the elements of causation and damages in the first cause of action for negligence and as to the elements of breach of duty and damages in the second cause of action for breach of contract. (Rule Decl., paragraphs 8-12).

The court therefore denies Surety Defendants’ motion for summary judgment.

ORDER

The court denies Defendant Valley Custom Tile & Granite Inc.’s motion for summary judgment.

The court denies Defendants Hudson Insurance and Wesco Insurance’s motion for summary judgment.

The court orders Plaintiffs to give notice of this ruling.

IT IS SO ORDERED.

DATED: February 23, 2022

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: ****8139 Hearing Date: February 4, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

amir yazdi , et al.; Plaintiffs, vs. elite coastal construction, inc. , et al., Defendants.	Case No.:	****8139
Hearing Date:	February 4, 2022
Time:	10:00 a.m.
[Tentative] Order RE: demurrer TO CROSS-COMPLAINT

MOVING PARTIES: Cross-Defendant Elite Coastal Construction, Inc.

RESPONDING PARTY: Cross-Complainant Valley Custom Tile & Granite, Inc.

Demurrer to Cross-Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

BACKGROUND

This is a construction defect action. Plaintiffs Amir Yazdi and Hania Yazdi initiated this action in court on October 3, 2017. Plaintiffs filed the operative First Amended Complaint against, inter alia, Elite Coastal Construction, Inc., and Valley Custom Tile & Granite, Inc. on August 15, 2019.

On December 12, 2017, Valley Custom Tile & Granite, Inc. (“Valley”) filed its Cross-Complaint against ROE defendants 1 through 15 for (1) implied indemnity; (2) comparative equitable indemnity; and (3) declaratory relief. On August 6, 2021, Valley filed its ROE Amendment to identify ROE defendants 1 and 2 to be Hania Yazdi and Elite Coastal Construction, Inc., respectively.

On August 25, 2021, Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian filed a Cross-Complaint against, inter alia, Valley.

Cross-Defendant Elite Coastal Construction, Inc. (“Elite”) has filed the pending demurrer to Valley’s Cross-Complaint.

REQUEST FOR JUDICIAL NOTICE

Elite requests the court take judicial notice of the following: (1) Plaintiffs’ Complaint, filed in this action on October 3, 2017; (2) Valley’s Cross-Complaint filed on December 12, 2017 in this action; and (3) Valley’s Roe Amendment to its Cross-Complaint.

The court grants Elite’s request for judicial notice pursuant to California Evidence Code sections 452, subdivision (d), and 453.

DEMURRER

Elite demurs to each cause of action in Valley’s Cross-Complaint on the ground that the Cross-Complaint has a misjoinder or defect of parties. Elite argues that amending a cross-complaint to allege the true name of a fictitiously named cross-defendant is improper if the cross-complainant—as Valley here—knew of the identity and facts giving rise to the claims against the cross-defendant at the time it filed its cross-complaint.

The court overrules Elite’s demurrer to Valley’s Cross-Complaint because it finds no allegation showing that, when Valley filed the Cross-Complaint, it knew sufficient facts giving rise to a cause of action and that the law gave it a cause of action against Elite specifically. (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946.) The court finds no defect or misjoinder of the parties. (Code Civ. Proc., 430.10, subd. (d.))

ORDER

The court overrules Elite’s demurrer to Valley’s Cross-Complaint.

The court orders Cross-Complainant Valley to give notice of this ruling.

IT IS SO ORDERED.

DATED: February 4, 2022

Robert B. Broadbelt III

Judge of the Superior Court

b'

Case Number: ****8139 Hearing Date: August 18, 2021 Dept: 53

Superior Court of California

County of Los Angeles – CENTRAL District

Department 53

amir yazdi , et al.; Plaintiffs, vs. elite coastal construction, inc. , et al.; Defendants.	Case No.:	****8139
Hearing Date:	August 18, 2021
Time:	10:00 a.m.
[Tentative] Order RE: MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
AND RELATED CROSS-ACTIONS

MOVING PARTY: Defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian

RESPONDING PARTY: None

Motion for Leave to File Cross-Complaint

The court considered the moving papers. No opposition was filed.

BACKGROUND

This is a construction defect case arising out of homeowners retaining certain companies to remodel a home, but the remodel work contained construction defects.

Plaintiffs Amir Yazdi, Hania Yazdi, and Amir and Hania Yazdi as Trustees of the Amir and Hania Yazdi Living Trust Dated April 19, 2005 (collectively “Plaintiffs”), filed this action on October 3, 2017. Plaintiffs filed the operative First Amended Complaint (“FAC”) on August 15, 2019.

There have been several other Cross-Complaints filed.

Defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian (“Moving Defendants”) now move for leave to file a cross-complaint against several proposed cross-defendants: Gary Metbakian; Lawrence Woodcraft & Associates; Lawrence A. Woodcraft; Astra Woodcraft; Quality Pool and Spa Service; Robert Aleksanyan; Quijada Roofing, Inc.; Juan Carlos Quijada; Omar Vasquez; A&O Electric; Luis Hernandez; Nelson Abarca; Pete King Plastering; Valley Custom Tile & Granite, Inc.; O&B Pavers; Ornamental Luxuries; Alex Arciga; Tremco, Inc.; and Zoes 1 through 100. The proposed cross-complaint alleges four causes of action: (1) equitable indemnity; (2) negligence; (3) contribution and apportionment; and (4) declaratory relief.

No opposition to the motion has been filed.

LEGAL STANDARD

Code of Civil Procedure section 428.50 provides:

(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.

A cross-complaint is compulsory when a related cause of action existed at the time of serving the defendant’s answer to the complaint. (Code Civ. Proc., ; 426.30, subd. (a).) A related cause of action is “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Code Civ. Proc., ; 426.10, subd. (c).) The court must grant leave to file a compulsory cross-complaint when the party who failed to file it acted in good faith. (Code Civ. Proc., ; 426.50.)

“Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38.)

DISCUSSION

The court finds Moving Defendants’ proposed cross-complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as Plaintiffs’ FAC. Moving Defendants are seeking recovery of losses from proposed cross-defendants in the event Moving Defendants are found liable for Plaintiffs’ claims.

The court finds the proposed cross-defendants will not be prejudiced by the granting of this motion because little discovery has been conducted (at least at the time the motion was filed) and trial is now set for May 11, 2022. In addition, many of the proposed cross-defendants have been parties to this action since this action’s inception.

In light of the lack of an opposition, there is no evidence before the court that this motion was filed in bad faith. Based on the evidence presented, the court finds that Moving Defendants have acted in good faith with respect to filing their proposed cross-complaint.

ORDER

For the reasons set forth above, defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian’s motion for leave to file a cross-complaint is granted.

The court orders that defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian have leave to file their cross-complaint within 7 days of the date of this order.

The court orders defendants Elite Coastal Construction, Inc., Anastasiya T. Balikian, and Haik Mike Balikian to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 18, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

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Case Number: ****8139 Hearing Date: August 3, 2021 Dept: 53

Superior Court of California

County of Los Angeles – CENTRAL District

Department 53

amir yazdi , et al.; Plaintiffs, vs. elite coastal construction, inc. , et al.; Defendants.	Case No.:	****8139
Hearing Date:	August 3, 2021
Time:	10:00 a.m.
[Tentative] Order RE: (1) motion to deem the truth of matters specified in requests for admissions to plaintiff hania yazdi (set one) admitted and conclusively established, and request for monetary sanctions; (2) motion for order compelling responses, without objections, to requests for production to plaintiff hania yazdi (set one), and request for MONETARY SANCTIONS; (3) motion to compel answers, without objections, to special interrogatories to plaintiff hania Yazdi (Set one), and request for monetary sanctions; and (4) motion to compel answers, without objections, to form interrogatories to plaintiff Hania Yazdi (set one), and request for monetary sanctions
AND RELATED CROSS-ACTIONS

MOVING PARTY: Defendant Elite Coastal Construction, Inc.

RESPONDING PARTY: Plaintiff Hania Yazdi

1. Motion to Deem the Truth of Matters Specified in Requests for Admissions to Plaintiff Hania Yazdi (Set One) Admitted and Conclusively Established, and Request for Monetary Sanctions;

2. Motion for Order Compelling Responses, Without Objections, to Requests for Production to Plaintiff Hania Yazdi (Set One), and Request for Monetary Sanctions;

3. Motion to Compel Answers, Without Objections, to Special Interrogatories to Plaintiff Hania Yazdi (Set One), and Request for Monetary Sanctions; and

4. Motion to Compel Answers, Without Objections, to Form Interrogatories to Plaintiff Hania Yazdi (Set One), and Request for Monetary Sanctions

The court considered the moving, opposition, and reply papers filed in connection with each motion.

BACKGROUND

Plaintiffs Amir Yazdi and Hania Yazdi (collectively, “Plaintiffs”) filed this action on October 3, 2017, against defendant Elite Coastal Construction, Inc. (“Elite”) and other defendants. Plaintiffs filed the operative First Amended Complaint on August 15, 2019.

Elite now moves for orders compelling plaintiff Hania Yazdi to serve responses to Elite’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production, Set One, as well as an order that the truth of the matters specified in Elite’s Requests for Admission, Set One, be deemed admitted.

Elite served those discovery requests on plaintiff Hania Yazdi on July 24, 2020, and despite a representation from plaintiff Hania Yazdi’s counsel that responses were forthcoming, as of the date the motions were filed, plaintiff Hania Yazdi had not served responses to any of the discovery requests. (Lauter Decl., ¶¶ 3-20.) Elite also requests that the court award it $582.50 in monetary sanctions for each motion against plaintiff Hania Yazdi.

In opposition to the motions, plaintiff Hania Yazdi has provided evidence that, after the motions were filed, she served verified responses to each of Elite’s discovery requests. (Retz Decl., ¶¶ 2-5, Exs. A-D.)

LEGAL STANDARD

If a party to whom interrogatories or an inspection demand are directed fails to serve a timely response, the propounding party may move for an order compelling responses without objections. (Code Civ. Proc., ;; 2030.290(b); 2031.300(b).) Where a motion seeks only a response to an inspection demand, no showing of “good cause” is required. (Compare Code Civ. Proc., ; 2031.300(b) with Code Civ. Proc., ; 2031.310(b)(1).)

Pursuant to Code of Civil Procedure section 2033.280(b), if a party to whom requests for admissions are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under ; 2023.010 et seq.” (Weil & Brown, Civ. Proc. Before Trial, ¶ 8:1370, citing Code Civ. Proc., ; 2033.280(b).) The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., ; 2033.280(c).)

DISCUSSION

Because plaintiff Hania Yazdi has now served responses to Elite’s request for production, special interrogatories, and form interrogatories, the court denies Elite’s motions to compel responses to those discovery requests as moot. However, the court does not find that plaintiff Hania Yazdi acted with substantial justification or that other circumstances make the imposition of sanctions unjust. The court therefore grants Elite’s requests to impose monetary sanctions against plaintiff Hania Yazdi on Elite’s three motions to compel responses to those discovery requests. (Code Civ. Proc., ;; 2030.290, subd. (c), 2031.300, subd. (c).)

The court finds that plaintiff Hania Yazdi has served, before the hearing on Elite’s motion, responses to Elite’s requests for admission that are in substantial compliance with Code of Civil Procedure section 2033.220. The court therefore denies Elite’s motion for an order that the truth of any maters specified in Elite’s requests for admissions be deemed admitted. (Code Civ. Proc., ; 2033.280, subd. (c).) However, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., ; 2033.280, subd. (c).)

ORDER

For the reasons set forth above, (1) the court denies defendant Elite Coastal Construction, Inc.’s motions for orders compelling plaintiff Hania Yazdi to serve responses to Elite’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production, Set One, and (2) the court denies defendant Elite Coastal Construction, Inc.’s motion for an order that the truth of the matters specified in Elite’s Requests for Admission, Set One, be deemed admitted.

The court grants defendant Elite Coastal Construction, Inc.’s requests for monetary sanctions against plaintiff Hania Yazdi on each of the four motions. The court finds that $582.50 (2.75 hours x $190 per hour = $522.50 attorney’s fees, plus $60 motion filing fee) is a reasonable amount of sanctions to impose against plaintiff Hania Yazdi on each of the four motions, for a total of $2,330 in monetary sanctions on all four motions ($582.50 per motion x 4 motions = $2,330 total). The court therefore orders that plaintiff Hania Yazdi shall pay monetary sanctions in the total amount of $2,330 to defendant Elite Coastal Construction, Inc. (Code Civ. Proc., ;; 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

The court orders defendant Elite Coastal Construction, Inc. to give notice of this order.

IT IS SO ORDERED.

DATED: August 3, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

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