CHAYA PRASAD VS PROVIDENT RESOURCES GROUP INC

Tentative Rulings

Case Number: ****9816    Hearing Date: January 10, 2020    Dept: J

HEARING DATE: Friday, January 10, 2020

NOTICE: OK[1]

RE: Prasad v. Provident Resources Group, Inc. (****9816)

______________________________________________________________________________

Cross-Defendant Sundt Construction, Inc.’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Cross-Complainant, Provident Resources Group, Inc.

Tentative Ruling

Cross-Defendant Sundt Construction, Inc.’s Motion for Summary Judgment is

DENIED.

Background

Plaintiffs Chaya Prasad (“Chaya”) and Rama Prasad (“Rama”) (collectively, “Plaintiffs”) were tenants at the Daumier Apartment Complex (“Daumier”), which is owned and operated by Defendant Provident Resources Group, Inc. (“Provident”). Plaintiffs allege that on or about August 12, 2016 an electrical malfunction occurred in the Daumier complex, which caused Plaintiffs and other residents at Daumier to be exposed to various toxic fumes. Plaintiffs and other residents on the first floor were evacuated on August 15, 2016. Plaintiffs did not return to their apartment until August 21, 2016. Plaintiffs allege that Rama was hospitalized on two separate occasions, and that both Plaintiffs suffered from, and continue to suffer from, breathing trouble, throat and eye irritation and headaches from being exposed to toxic fumes.

On November 17, 2017, Plaintiffs filed a complaint, asserting causes of action against Provident and Does 1-30 for:

1. Negligent Maintenance of Premises

2. Breach of Warranty of Habitability

3. Breach of Warranty of Habitability

4. Tortious Breach of Warranty of Habitability

5. Breach of Covenant of Quiet Enjoyment

6. Nuisance

On January 5, 2018, Provident filed a cross-complaint, asserting causes of action against Roes 1-100 for:

1. Indemnity

2. Contribution

3. Apportionment of Fault

On June 18, 2018, Provident filed a “Roe Amendment,” wherein Sundt Construction, Inc. (“Sundt”) was named in lieu of Roe 1 and HP Pomona Ventures, LLC was named in lieu of Roe 2.

On September 10, 2018, Sundt filed a cross-complaint, asserting causes of action against Moes 1-100 for:

1. Equitable Indemnity and Contribution

2. Declaratory Relief

3. Express Contractual Indemnity

On March 27, 2019, Sundt filed an Amendment to Complaint, wherein TAD Consulting, Inc. (“TAD”) was named in lieu of Moe 1. On May 16, 2019, Provident filed another “Roe Amendment,” wherein LDI Mechanical, Inc. was named in lieu of Roe 3 and TAD was named in lieu of Roe 4.

On July 18, 2019, TAD filed a First Amended Cross-Complaint, asserting causes of action against Myers Power Products, Inc. (“Myers”) and Zoes 1-50 for:

1. Equitable Indemnity

2. Contribution

3. Apportionment of Fault

On August 8, 2019, Provident filed a “Roe Amendment,” wherein Myers was named in lieu of Roe 5.

On September 20, 2019, Myers filed a cross-complaint, asserting causes of action against Foes 1-50 for:

1. Equitable/Implied Indemnity

2. Apportionment and Contribution

3. Declaratory Relief

A Case Management Conference is set for January 10, 2020.

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.4^th 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.4^th 1110, 1119 [emphasis theirs].)

“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.4^th 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 of a defense thereto.” (CCP ; 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4^th 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 467; CCP ; 437c(c).)

Discussion

Sundt moves for an order granting summary judgment or, in the alternative, summary

adjudication of issues, in its favor and against Provident.

Procedural Issues

Per California Rules of Court (“CRC”) Rule 3.1350(b), “[i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” The separate statement does not comply with CRC Rule 3.1350(b); as such, the court elects to treat the motion as a motion for summary judgment only. (See Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498 [“Summary judgment is a device for narrowing issues for trial, not a trap for an unwary opponent. If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion”].)

The Declaration of Brenda K. Radmacher filed December 31, 2019 and the Notice of Lodgment filed January 2, 2019 by Provident both reflect non-compliance with California Rules of Court (“CRC”) Rule 3.1116(b) (i.e., “[o]ther than the title page, the exhibit must contain only the relevant pages of the transcript. . .”) and (c) (i.e., “[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.”) The court admonishes counsel in this regard.

Evidentiary Objections

The court rules on Provident’s evidentiary objections made to the Declaration of Thomas Oliver (“Oliver”) as follows: OVERRULED in their entirety.

The court rules on Sundt’s evidentiary objections made to the Declaration of Peter Vail as follows: SUSTAINED in their entirety.

Provident’s “Objection to and Request to Strike. . . Filing Entitled ‘separate Statement in Support of Cross-Complainant Sundt Construction, Inc.’s Supplemental Brief Re: Motion for Summary Judgment or in the Alternative, Summary Adjudication” is OVERRULED as untimely.

Merits

On November 17, 2017, Plaintiffs filed a complaint against Provident for Negligent Maintenance of Premises, Breach of Warranty of Habitability, Breach of Warranty of Habitability, Tortious Breach of Warranty of Habitability, Breach of Covenant of Quiet Enjoyment and Nuisance. Again, Plaintiffs allege that they were tenants at the Daumier Apartment Complex (“Daumier”), which is owned and operated by Provident. (Complaint, ¶7.) Plaintiffs allege that on or about August 12, 2016 an electrical malfunction occurred in the Daumier complex, which caused Plaintiffs to be exposed to various toxic fumes and sustain injury. (Id., ¶¶8, 10 and 12.) Plaintiffs allege that they and other residents on the first floor were evacuated on August 15, 2016 and that Plaintiffs did not return to their apartment until August 21, 2016. (Id., ¶9.) On January 5, 2018, Provident filed a cross-complaint against Roes 1-100 for Indemnity, Contribution and Apportionment of Fault. On June 18, 2018, Provident filed a “Roe Amendment,” wherein Sundt was named in lieu of Roe 1.

Sundt argues that it is entitled to summary judgment, on the basis that (1) Sundt did not design the ventilation system for the inverter room and thus cannot be vicariously liable for the engineer’s design and that (2) the project was completed and accepted by the owner.

There can be no causes of action for indemnity, contribution and apportionment of fault without liability. “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass’n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4^th 1135, 1139.) “[T]here can be no indemnity without liability, that is, the indemnitee and the indemnitor must share liability for the injury. (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4^th 559, 573 [internal quotations and citation omitted].) Likewise, “[a]pportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiff’s injuries.” (Wilson v. Ritto (2003) 105 Cal.App.4^th 361, 369.) Contribution arises “[i]n situations where two or more parties are jointly liable on an obligation and one of them makes payment of more than his share;” there, “the one paying possesses a new obligation against the others for their proposition of what he has paid for them.” (Borba Farms, Inc. v. Acheson (1988) 197 Cal.App.3d 597, 601.)

Contractors that follow a project plans and specifications without deviation are not liable for any damages caused by design defects. In Barnthouse v. California Steel Buildings Co. (1963) 215 Cal.App.2d 72, the general contractor constructed a grandstand in accordance with the plans and specifications furnished by the County of Madera (“County”). Plaintiff fell through a gap while attempting to seat herself on the tope row of seats. The Fifth District Court of Appeal determined that the general contractor could not be liable for plaintiff’s injuries because it simply followed the plans and specifications furnished by the County. (See also Johnson v. City of San Leandro (1960) 179 Cal.App.2d 794, 801.)

Here, on or about May 1, 2013, Provident entered into a development agreement with HP Pomona Ventures (“HP Pomona”) wherein HP Pomona would serve as the developer of the Daumier Project (“the Project”). (Fact 3.) On or about April 30, 2013, Sundt entered into a Standard Form of Agreement Between Owner and Construction Manager with HP Pomona. (Fact 4.) On or about March 8, 2011, Hanover Pacific, LLC (“Hanover”) (HP Pomona’s member)[2] entered into a Professional Consulting Agreement with TAD for heating, ventilation, and air conditioning (“HVAC”) and plumbing engineering services for the project, including complete ventilation/HVAC design, (Fact 5.)

Sundt raised concerns of overheating in the inverter room in the academic building through a Request for Information (“RFI”) process. (Fact 9.) On or about September 5, 2013, Sundt submitted an RFI to TAD recommending implementation of air-conditioned cooling in the inverter room in the academic offices location where the August 15, 2016 incident occurred. (Oliver Decl., ¶¶ 7-8, Exh. H.) On September 9, 2013, Huey Cao of TAD answered the RFI by directing that the inverter room in the academic offices location be cooled/ventilated with louvered doors rather than mechanical air-conditioning recommended by Sundt. (Id., ¶8, Exh. H.) Sundt had no decision-making authority in the design of the ventilation at the Project or authority in the decision to use louver doors instead of air-conditioning for the inverter room in the academic offices. (Id., ¶9.) On or about August 15, 2016, Sundt was notified that an odor emanating from the inverter room was coming from an inverter that had overheated due to a lack of ventilation and air-conditioning. (Fact 14.) Shortly after the incident, Provident had a ductless air-conditioning unit installed in the inverter room. (Fact 15.)

The court, in its initial tentative ruling, determined that Sundt met its initial burden. The court noted that Provident, in opposition, claimed that Sundt’s RFI to TAD was actually a request for a “re-design” and that TAD’s louver door response constituted a “change order” which Sundt was obligated to run by Provident[3] prior to making any change. The court further noted that Provident claimed that “[i]n accepting the new design, SUNDT ignored (a) the relevant Project General Conditions [i.e., the 2007 Edition of AIA Document A201] which demanded “Owner” involvement in the re-design, and (b) SUNDT’s in this re-design effort breached its contractor professional standard of care by (c) cutting out the “Owner” from the decision making process.” (Opposition, 4:7-10.) AIA Document A201-2007 ; 7.2 Change Order states that “ [a] Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect. . .” The court stated in its initial tentative ruling that “Provident, however, has not provided the court with any admissible evidence that the decision by TAD to use louver doors was a change in the context of the contract. Provident gives no reasoning for why TAD’s decision to use louver doors constituted a project re-design requiring a change order. Provident, then, has failed to raise a triable issue of material fact in this regard.”

On October 17, 2019, the court, in lieu of granting the motion at that time, continued the hearing to January 10, 2020, to enable the parties to conduct Oliver’s deposition no later than 12/13/2019. Both parties were permitted by the court to submit additional briefs no later than January 2, 2020.

The additional evidence and investigation by Provident demonstrates that summary judgment is inappropriate at this juncture. Oliver testified, in relevant part, that the response to the RFI (referred to as “RFI 0105”) was to provide an alternate design (Notice of Lodgment [“NOL”], Exh. B., 46:22-47:4: “Q. Was the response to leave it as it’s currently designed? A. As written in the response, no. Q. So did they provide an alternate design? A. Yes.”), and that a change order was required for the louver doors (Id., 52:12-22: “Q. Do you know if air conditioning was eventually put in the two inverter rooms in the building? A. Yes. Q. Do you know if the louver doors were eventually put in? A. Yes. Q. Were change orders required for those changes? A. Everything, yes. Q. So for the air conditioning units and for the louver doors? A. Yes.”) A triable issue of fact exists as to whether any valid Change Order was issued with the owner’s approval for the louver doors. Although Oliver initially testified that a change order for the RFI 0105 changes was included in Change Order No. 1 between Sundt and HP Pomona (NOL, Exh. 2), he subsequently conceded that there was no reference to the louver doors on Change Order No. 1. (NOL, Exh. B, 55:3-6; 55:14-57:1; 6059:16-21; 59:23-61:18) Oliver also conceded that a person could not tell from payments made by the owner to the contract whether the louver door payment meant that the work was within the change order issued. (Id., 86:22-87:19).

Sundt’s motion for summary judgment, then, is DENIED.