This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:54:38 (UTC).

DAN SHERLOCK ET AL VS ERMACITY CONSTRUCTION CORP ET AL

Case Summary

On 01/26/2018 DAN SHERLOCK filed a Contract - Other Contract lawsuit against ERMACITY CONSTRUCTION CORP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2058

  • Filing Date:

    01/26/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs, Petitioners and Respondents

SHERLOCK DAN

BLAYLOCK JASON

IMPRESSIONS IN STONE AND TILE

Defendants, Respondents and Petitioners

CALIFORNIA PROPERTY MAINTENANCE

PERMACITY CONSTRUCTION CORP.

IMPRESSIONS IN STONE AND TILE

PERMACITY CORP

PERMACITY SOLAR INC

LUXVUE LTD

PIERRE CONSTRUCTION

PLATINUM ROOFING INC.

BELT GLEN

TORRE ARNULFO GOMEZ DE LA

SIDING PROS CORPORATION DOE 1

BELT GLEN DBA IMPRESSIONS IN STONE & TILE

Defendants and Cross Plaintiffs

BELT GLEN DBA IMPRESSIONS IN STONE & TILE

TORRE ARNULFO GOMEZ DE LA DBA CALIFORNIA PROPERTY MAINTENANCE

Cross Defendants

ROES 1 THROUGH 20

ROES 1-100

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TREYZON BORIS ESQ.

TREYZON BORIS

Defendant Attorneys

LAU WENDY MONICA

SOBEL STEVEN A. ESQ.

RHODES BRIAN W. ESQ.

HOSP GILBERT BERGSTEN & HOUGH

BUCK RICHARD

MOLINARI DAVID GERARD ESQ.

JEFFERY & GROSFELD LLP

O'BRIEN JILLISA L. ESQ.

LASKIN TAMARA A. ESQ.

PARME MICHAEL

LAU WENDY M.

MOLINARI DAVID G.

BERGSTEN ROBERT T.

SOBEL STEVEN A.

RHODES BRIAN W.

O'BRIEN JILLISA L.

HOWETT TIMOTHY MICHAEL

Cross Plaintiff Attorney

BURNETT KATELYN

 

Court Documents

Association of Attorney

8/2/2019: Association of Attorney

Minute Order

8/7/2019: Minute Order

ANSWER OF DEFENDANT LUXVUE, LTD., A CALIFORNIA CORPORATION, TO COMPLAINT OF DAN SHERLOCK AND JASON BLAYLOCK

4/13/2018: ANSWER OF DEFENDANT LUXVUE, LTD., A CALIFORNIA CORPORATION, TO COMPLAINT OF DAN SHERLOCK AND JASON BLAYLOCK

PROOF OF SERVICE SUMMONS

4/24/2018: PROOF OF SERVICE SUMMONS

NOTICE OF POSTING JURY FEES

5/4/2018: NOTICE OF POSTING JURY FEES

PROOF OF SERVICE OF SUMMONS

5/4/2018: PROOF OF SERVICE OF SUMMONS

PLAINTIFFS' NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE

5/8/2018: PLAINTIFFS' NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE

PROOF OF SERVICE SUMMONS

6/12/2018: PROOF OF SERVICE SUMMONS

Minute Order

7/5/2018: Minute Order

NOTICE OF ASSOCIATION OF COUNSEL ON BEHALF OF DEFENDANT AND CROSS-COMPLAINANT, PIERRE CONSTRUCTION

7/10/2018: NOTICE OF ASSOCIATION OF COUNSEL ON BEHALF OF DEFENDANT AND CROSS-COMPLAINANT, PIERRE CONSTRUCTION

CIVIL DEPOSIT

7/11/2018: CIVIL DEPOSIT

CIVIL DEPOSIT

8/16/2018: CIVIL DEPOSIT

GLEN BELT DBA IMPRESSION IN STONE & TILE'S NOTICE OF ASSOCIATION OF COUNSEL

9/20/2018: GLEN BELT DBA IMPRESSION IN STONE & TILE'S NOTICE OF ASSOCIATION OF COUNSEL

Proof of Service by Substituted Service

11/15/2018: Proof of Service by Substituted Service

PLAINTIFFS' NOTICE OF ORDER TO SHOW CAUSE HEARING AND CASE MANAGEMENT CONFERENCE

3/12/2018: PLAINTIFFS' NOTICE OF ORDER TO SHOW CAUSE HEARING AND CASE MANAGEMENT CONFERENCE

PROOF OF SERVICE SUMMONS

3/15/2018: PROOF OF SERVICE SUMMONS

NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

2/27/2018: NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

NOTICE OF CASE MANAGEMENT CONFERENCE

2/5/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

57 More Documents Available

 

Docket Entries

  • 10/15/2019
  • Hearingat 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 10/07/2019
  • Hearingat 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/13/2019
  • DocketSubstitution of Attorney; Filed by Arnulfo Gomez De La Torre (Cross-Complainant)

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  • 08/12/2019
  • DocketAnswer (Defendant And Cross-Defendant Siding Pros Corporation's Answer To Plaintiffs' Complaint); Filed by Siding Pros Construction (Defendant)

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  • 08/07/2019
  • Docketat 09:00 AM in Department 61; Post-Mediation Status Conference - Held

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  • 08/07/2019
  • DocketMinute Order ( (Post-Mediation Status Conference)); Filed by Clerk

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  • 08/02/2019
  • DocketAssociation of Attorney; Filed by Arnulfo Gomez De La Torre dba California Property Maintenance Erroneously Sued As California Property Maintenance (Defendant)

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  • 06/24/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Boris Treyzon (Attorney)

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  • 05/07/2019
  • Docketat 09:00 AM in Department 61; Hearing on Motion for Summary Adjudication

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  • 03/20/2019
  • DocketAssociation of Attorney; Filed by Pierre Yaralian dba Pierre Construction Erroneously Sued As Pierre Construction (Defendant)

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113 More Docket Entries
  • 02/14/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/05/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/05/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 02/05/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/05/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 01/26/2018
  • DocketComplaint; Filed by Dan Sherlock (Plaintiff); Jason Blaylock (Plaintiff)

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  • 01/26/2018
  • DocketPLAINTIFFS' NOTICE OF POSTING JURY FEES

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  • 01/26/2018
  • DocketCOMPLAINT FOR DAMAGES: 1. BREACH OF CONTRACT ;ETC

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  • 01/26/2018
  • DocketSUMMONS

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  • 01/26/2018
  • DocketCIVIL DEPOSIT

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Tentative Rulings

Case Number: BC692058    Hearing Date: January 05, 2021    Dept: 61

Plaintiffs Dan Sherlock and Jason Blaylock’s Motion for Summary Adjudication is GRANTED as to Defendants’ Affirmative Defenses No. 12–20, 25–34, and 36–38, and DENIED as to Defense No. 35. Plaintiffs to provide notice.

  1. OBJECTIONS

    Defendants’ Objections[1]

    The court first OVERRULES Defendants’ Objection No. 1, which contends that the deposition transcripts submitted are not authenticated, when they are certified by the reporter as being accurate under Code of Civil Procedure § 273. Objections No. 2, 5, 6, and 7 are likewise OVERRULED, as Plaintiffs may testify as to whether repairs successfully addressed their problem. Objection No. 15 is OVERRULED, since Plaintiffs may testify from personal knowledge as to the appearance of mushrooms in their home. Plaintiffs may also testify as to their lack of funds available to replace the roof, meaning Objections No. 16 and 17 are OVERRULED. Objections No. 12–14 and 24 are OVERRULED, as the statements identified are admissions of Permacity representatives. (See Evid. Code § 1220.) And Objection No. 25 is OVERRULED, since Plaintiffs may testify as to their interactions with Permacity representatives and what they have and have not offered. Finally, Objection No. 21 is OVERRULED in part, as the emails from Plaintiffs to Permacity, although not admissible for the truth of matters stated therein, are admissible as proof that Permacity was on notice of Plaintiffs’ concerns.

    Objection No. 3 is SUSTAINED as to the testimony of Mark Savel, Plaintiff’s expert, apportioning causation of water damage to defects in the roof and solar panel array (Bederman Decl. Exh. E at pp. 55–57) and his testimony that the source of water intrusion that led to fungal growths was “[t]he general installation of the roofing system, which includes the flashing and the unsealed penetrations made by the fasteners or anchors used with the . . . panel systems” (Bederman Decl. Exh. E at pp. 90–92), as the basis for these conclusions is not stated with the excerpted testimony that Plaintiffs provide. Although Plaintiffs do present another portion of Savel’s testimony stating that he witnessed the performance of a test wherein a garden hose was used to run water over the surface of the roof, there is no testimony connecting the results of that test to the conclusions that Plaintiffs present. Although Plaintiffs in reply submit a supplemental declaration containing Savel’s testimony of his own qualifications, they do not rectify the sparseness of his reasoning.

    Objection No. 4 is SUSTAINED as to Blaylock’s characterization of Permacity’s repairs as a “band-aid, but not as to his description of Permacity’s many visits to the property. Objections No. 8 and 9 are SUSTAINED, since Plaintiffs may not testify as experts concerning the cause of their secondary water damage issues. Nor may Plaintiffs intraduce the hearsay conclusions of a mold report into evidence by their own testimony, meaning Objections No. 10, 11, 23, and 26 are SUSTAINED. Objections No. 18 and 19 are SUSTAINED, as Plaintiffs’ attorney cannot authenticate the existence of a contract merely by its inclusion in their file. Objections No. 20 and 27 are SUSTAINED for hearsay, and the court declines to take judicial notice of the assertions made in a newspaper article regarding another company’s bankruptcy. Objection No. 22 is SUSTAINED, as Plaintiffs cannot testify as medical experts that the symptoms they experience are the result of mold exposure.

    Plaintiffs’ Objections

    Plaintiffs’ Objections No. 1–3 to the Jonathan Port declaration are SUSTAINED, as he testifies to the character of the work performed on the property without establishing his personal knowledge of the matters explained. He also cannot authenticate the truth of the matters asserted in the exhibit he attaches regarding damage caused to the roof by the general contractor.

    Plaintiffs further object to the expert declaration of Bradley W. Hughes submitted by Defendants in opposition. Objections No. 5 and 6 are SUSTAINED, as Hughes does not specify the materials that he relies upon, and expressly admits that he did not attend a testing conducted by Plaintiff’s expert, but rather relies upon a description of the test provided by a member of his office. Although experts may in certain circumstances rely upon otherwise inadmissible evidence in formulating their opinions, when the facts relied upon relates to the specific facts of the case, those facts must be founded upon competent evidence. (See People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 33–34 [“Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.”].)

    Objections No. 8 and 9 are likewise SUSTAINED. Although Hughes may testify as to the standard of care applicable to general contractors, his testimony that there is “strong evidence” that the general contractor in this matter, Pierre Construction, improperly sequenced the construction is made without foundation. The only evidence cited is “photographic evidence that Pierre Construction was in the process of doing roof framing work during or after the roofing material . . . had been applied to the roof.” (Hughes Decl. ¶ 10.) Yet the only photographic evidence before the court is a photograph submitted by Jonathan Port, authenticated solely by a hearsay message to him from another contractor. (Port Decl. Exh. 3.) Objection No. 10 is also SUSTAINED, first because it facially relies once more upon the secondhand and case-specific observances of a roof-water inspection that Hughes did not attend, and secondly because Hughes states that the pooling phenomenon observed in that inspection “could plausibly be due to a failure of sequencing,” without explaining why. (Hughes Decl. ¶ 11.) Objection No. 11 and 13 are also SUSTAINED, as Hughes contends that Plaintiff’s expert could not make any diagnosis from a roof-water test, once more without explaining why that is the case. (Hughes Decl. ¶ 14.)

    Objections No. 12, 14, and 15 must also be SUSTAINED for similar reasons. Hughes relies on photographs that are not authenticated and an inspection he did not witness to conclude that Pierre’s workmanship was a contributing factor to the water damage suffered by Plaintiffs. Yet his chain of reasoning is not that any particular phenomenon observed indicates Pierre’s responsibility for Plaintiffs’ damages. His reasoning proceeds in two ways: Either Pierre’s failure to sequence work properly (itself a conclusion drawn from incompetent evidence) “could plausibly” contribute to pooling on the roof, and this pooling “can be considered a contributing factor of water intrusion,” (Hughes Decl. ¶¶ 6, 11), or the failure of sequencing is an indication of Pierre’s general lack of “workmanship,” and further testing upon the roof might reveal that other areas — for which Pierre, not Permacity, was responsible — are “compromised” in ways that Hughes does not specify. (Hughes Decl. ¶ 17.) These conclusions are purely speculative and inadmissible. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770 [“[A]n expert opinion based on speculation or conjecture is inadmissible.”].)

    The court also SUSTAINS Objections No. 16 and 17 to the declaration of Miachel Parme, as Parme purports to authenticate emails that he did not send or receive.

    The court OVERRULES Plaintiffs’ Objection No. 4, as the document identified in Port’s declaration is not being admitted for its truth. Objection No. 7 is also OVERRULED, as the Pierre scope of work is available via competent evidence, such as the Yaralian deposition testimony included with the Parme declaration.

  2. MOTION FOR SUMMARY JUDGEMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(1).)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) The defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiffs bring this motion to adjudicate several of Defendants Permacity Construction Corp., Permacity Solar, Inc., and Permacity Corp.’s (collectively Permacity) affirmative defenses listed in their answer. Plaintiffs argue that the 35th affirmative defense for “no breach of any agreement” fails because it relies on an exculpatory clause in the construction agreement between the parties that cannot by its terms relieve the parties’ from their active negligence. (Motion at p. 1.) Plaintiffs further argue that Defendants have failed to produce evidence in discovery to support affirmative defenses No. 12–20, 25–34, and 36–38.

The relevant contractual language reads as follows under a heading of “Limitation of Liability”:

TO THE MAXIMUM EXTENT PERMITTED BY LAW CONTRACTOR SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING FROM THIS AGREEMENT OR CONTRACTOR’S PERFORMANCE HEREUNDER, UNDER ANY CAUSES OF ACTION, WHETHER UNDER COMMON LAW OR BY STATUTE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONTRACTOR’S LIABILITY SHALL BE SOLELY LIMITED TO THE AMOUNT ACTUALLY PAID TO CONTRACTOR BY CUSTOMER UNDER THIS AGREEMENT.

(Bederman Decl. Exh. C.)

Plaintiffs rely on case law discussing exculpatory language in contracts, such as clauses that require one party to indemnify another and hold it harmless for the latter party’s negligence (City of Oakland v. Oakland Unified School Dist. of Alameda County (1956) 141 Cal.App.2d 733, 736) or clauses that release a party from liability from their own future negligence. (See Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 316.) Specifically, Plaintiffs argue that any such exculpatory language “must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.” (Id. at p. 318.)

“The well established rule in this state is that where the language of an instrument purporting to exculpate one of the parties for its future negligence, was prepared entirely by the party relying on it, words clearly and explicitly expressing that this was the intent of the parties are required. (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 518.)

For an agreement to be construed as precluding liability for ‘active’ or ‘affirmative’ negligence, there must be express and unequivocal language in the agreement which precludes such liability. An agreement which seeks to limit generally without mentioning negligence is construed to shield a party only for passive negligence, not for active negligence. But the active-passive dichotomy is not wholly dispositive of the issue. Whether an exculpatory clause covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.

(Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1066, internal citations and quotation marks omitted.)

Plaintiffs argue that the limitation on liability clause here contains no reference to negligence, passive or otherwise, and must therefore be limited to apply only to passive negligence. (Motion at p. 9.)

Defendants respond by reference to the case Markborough California Inc. v. Superior Court (1991) 227 Cal.App.3d 705, in which the court upheld a clause in a construction agreement between a developer and an engineer limiting the engineer’s exposure “for professional negligent acts, errors, and omissions in the amount of $67,640.” (Id. at p. 709.) The court interpreted Civil Code § 2782, which declares that provisions indemnifying a contractor “against liability for damages” by the contractor’s sole negligence or willful misconduct “are against public policy and void and unenforceable.” (Civ. Code § 2782, subd. (a).) The court interpreted this provision in conjunction with Civil Code § 2782.5, which specifically provides an exception to section 2782, which allows owners and other parties to the construction contract to “negotiat[e] and expressly agree[] with respect to the allocation, release, liquidation, exclusion, or limitation as between the parties of any liability . . . of the promisee to the promisor arising out of or relating to the construction contract.” (Civ. Code § 2782.5.) When the developer challenged the engineer’s liability limitation under this latter statute because it had not been specifically negotiated over, the court rejected the argument, holding that the agreement was valid under the statute unless it was unconscionable or otherwise contrary to public policy. (Markborough, supra, 227 Cal.App.3d at p. 714–15.) Defendants argue therefore that the provision in the present case is both lawful and applies to all forms of negligence because it was provided in a negotiated, arms-length agreement that is not unconscionable. (Opposition at pp. 15–16.)

Defendants misunderstand the relevant authority. The Markborough case did not purport to interpret any particular contractual provision, but rather held that a limitation on liability clause survived a challenge based on unconscionability when the contract was negotiated by the parties at arms-length. This argument does not address Plaintiffs’ motion, which concerns less the enforceability of the release in general than the interpretation of its language, specifically whether its language is so express and clear as to apply to all forms of negligence, or merely “passive” negligence. Defendants’ reliance on Markborough indicates that they desire this court to make a distinction between clauses that totally exculpate a party for future harm and those that, as here, merely limit damages to the contract price. But there is no basis for such a distinction in the relevant authority. The Markborough court expressly acknowledged the clause’s exculpatory character and cited authority applicable to exculpatory clauses in general. (Markborough, supra, 227 Cal.App.3d at p. 714–715, citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92.)

Moreover, other courts faced with contractual language limiting one party’s recourse to damages have held that the standard rules for interpreting exculpatory contracts apply. The court in Basin Oil Co. of Cal. v. Baash-Ross Tool Co. (1954) 125 Cal.App.2d 578, addressed contractual language stating, “Under no circumstances are we responsible for any damages beyond the price of the goods. No damages or charges of any kind, either for labor, expenses or otherwise, suffered or incurred by the customer in repairing or replacing defective goods, or occasioned by them will be allowed.” (Id. at p. 589.) The court held that this was an exculpatory clause, properly interpreted against its drafter, and further held that the language did not apply to limit damages against the drafter for violations of its own duty of care. (Id. at pp. 595–96.)

Here, that same interpretation is appropriate. Although the language in the limitation at issue is broad, as in Basin Oil, there is no “express and unequivocal” language precluding liability for active negligence. (See Burnett, supra, 123 Cal.App.4th at p. 1066.) This is a strong indication that the parties did not intend to preclude Permacity’s liability (or damages) for active negligence, and it satisfies Plaintiffs’ intitial burden on this motion for summary adjudication on this point. Defendants in opposition present no evidence for a contrary contractual interpretation, but rather focus on showing that the circumstances of the contract’s execution were fair. (Opposition at pp. 16–17.) This may be true, but it does not grant the clause greater applicability than its language allows.

Plaintiffs next argue that it is proper to summarily adjudicate the viability of Defendants’ 35th affirmative defense for “no breach of any agreement” because the clause discussed above does not preserve Defendants from suit for active negligence, because there are no triable issues as to whether Defendants engaged in active negligence. (Motion at pp. 10–13.)

“[O]ne is passively negligent in merely failing to act in fulfillment of a duty of care imposed by law, while one is actively negligent by participating in some manner in the conduct of omission that caused the injury.” (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 519.)

Passive negligence is found in mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty imposed by law. Active negligence, on the other hand, is found if an indemnitee has personally participated in an affirmative act of negligence, was connected with negligent acts or omissions by knowledge or acquiescence, or has failed to perform a precise duty which the indemnitee had agreed to perform. The crux of the inquiry is to determine whether there is participation in some manner by the person seeking indemnity in the conduct or omission which caused the injury beyond the mere failure to perform a duty imposed upon him by law.

Whether conduct constitutes active or passive negligence depends upon the circumstances of a given case and is ordinarily a question for the trier of fact; active negligence may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree.

Passive negligence has been found or assumed from the failure to discover a defective condition created by, failure to exercise a right to inspect certain work and specify changes, and failure to exercise a supervisory right to order removal of defective material Active negligence has been found in digging a hole which later caused an injury, knowingly supplying a scaffold which did not meet the requirements of a safety order, creating a perilous condition that resulted in an explosion, and failing to install safety nets in violation of a contract.

(Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 629–630, internal quotation marks and citations omitted.)

Plaintiffs present the following evidence on Defendants’ negligence. Plaintiffs entered into a contract with Defendant Permacity in October 2011 to construct a solar-powered roof. (Defendants’ Separate Statement of Undisputed Material Facts (DUMF) No. 3, 4.) PCC installed the roofing material, solar panels, fascia, and the equipment that runs the solar panel system. (DUMF No. 10.) Permacity recommended the use of Soltecture brand solar panels based on Plaintiffs’ desire for a panel that would sit parallel to the roof line. (DUMF No. 11.) Plaintiffs testify that in a 2017 visit by Permacity president Jonathan Post in 2017, Post stated that the panels were of the “bad kind” and indicated surprise at the extent of the leaks, despite Permacity’s prior efforts at remediation. (Bederman Exh. A at pp. 133–34.) Port disputes ever having made such statements. (Port Decl. ¶ 21.)

Plaintiffs first complained to Permacity about roof leaks on December 2, 2013. (DUMF No. 15, Port Decl. Exh. 4.) Plaintiffs present the deposition testimony of Mark Savel, a licensed contractor and architect with years of managing the construction of homes, who testifies that the cause of the water intrusion, at least that portion that prompted a fungal assessment to be taken, was the result of the “general installation of the roofing system,” including the installation of the solar panel system. (Supp. Bederman Decl. Exh. A, B; Bederman Decl. Exh. E at p. 91.) Plaintiffs also present their own testimony relating their many unsuccessful attempts, from 2013 to 2017, to have Permacity redress the cause of their leaking roof, as evidence of negligence. (Bederman Decl. Exh. B at pp. 202–203, 207–209.)

This evidence is insufficient for the court to conclude that Defendants were negligent as a matter of law, or that their actions constituted “active” negligence for the purposes of the exculpatory clause in the operative contract. The court reiterates its analysis of the Savel testimony discussed in relation to Defendants’ objections: Although Savel opines that as to the cause of the water intrusion being the result of the general installation of the roofing system, the reasoning whereby he reaches that conclusion is not presented to the court and cannot be the grounds for summary disposition of Defendants’ defenses, especially on so fact-fraught a basis as the existence of negligence. (See Hines v. Milosivich (1945) 68 Cal.App.2d 520, 522.) Also absent from the Savel deposition is any specific apportionment of responsibility to Permacity for the defects identified, a discussion of the standard of care applicable to Permacity, or of Permacity’s purported breach thereof. Triable issues thus remain as to Permacity’s responsibility for Plaintiffs’ water damage and as to whether their actions were negligent — active or otherwise.

Plaintiffs’ evidence as to the quality of the solar panels themselves likewise furnishes no basis to grant the motion. Plaintiffs present evidence that the panels delaminated as time wore on, but they present no evidence as to the functional impact of this development and scant evidence of Defendants’ fault for same. Although Port’s statements concerning the “bad kind” of panels is admissible against his company, Port’s statements are disputed. (See Port Decl. ¶ 21.) The panel manufacturer’s bankruptcy has no necessary bearing on the quality of the panels, and the newspaper evidence that Plaintiffs submit for same is inadmissible.

Accordingly, the motion for summary adjudication is properly DENIED as to the 35th affirmative defense.

Adjudication is warranted, however, as to Defendants’ affirmative defenses No. 12–20, 25–34, and 36–38. This is because Defendant Permacity Construction Corp. in responding to Plaintiffs’ discovery specifically conceded that they are “not aware of facts that specifically support affirmative defenses” No. 12–20, 25–34, and 36, and further neglected to provide any supporting facts for defenses No. 37 and 38. (Bederman Decl. Exh. G at pp. 26–31.) Defendants Permacity Solar and Permacity Corp., meanwhile, provided no facts in support of these same defenses, instead basing their responses on their general denial that they lacked any contractual relationship with Plaintiffs and performed no work on the property at issue. (Bederman Decl. Exhs. H, I, No. 15.1.) Defendants do not provide any evidence to show that these defenses have value, but rather ask the court for leave to amend. (Motion at pp. 19–20.) Defendants offer no reason why leave to amend should be granted to allege defenses for which there exists no evidence.

Accordingly, the motion for summary adjudication is GRANTED as to Defendants’ Affirmative Defenses No. 12–20, 25–34, and 36–38.


[1] Defendants’ objections No. 1–17 are directed against the contentions in Plaintiffs’ separate statement and all or most of the evidence supporting each contention identified. The contentions in a separate statement are not evidence and are not subject to evidentiary objections. If Defendants contend that the evidence submitted does not support a particular contention, they can dispute the contention in their responsive separate statement. (CRC Rule 3.1350, subd. (f).) Evidentiary objections must otherwise be offered to “specific evidence.” (CRC Rule. 3.1354, subd. (b).)

Case Number: BC692058    Hearing Date: July 22, 2020    Dept: 61

Defendant and Cross-Complainants Pierre Yaralian, Siding Pros Corporation, and Glen Belt’s Motion for Determination of Good Faith Settlement is GRANTED.

  1. GOOD-FAITH SETTLEMENT

Code of Civil Procedure § 877.6(a)(1) provides:

Code of Civil Procedure § 877(c) in turn provides:

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.

A good faith settlement determination also reduces the claims against the nonsettling defendants in the amount stipulated by the settlement. (See Code Civ. Proc. § 877(a).)

Where a motion for determination of good faith settlement is uncontested, a "barebones" motion which 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. (See City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261.)

Defendants Pierre, Siding Pros, and Glen Belt have reached a settlement with Plaintiffs in this action. The total settlement amount is $810,000 of which $450,000 comes from Pierre, $250,000 comes from Siding Pros, and $110,000 comes from Glen Belt. (Motion at p. 4.) Pierre argues that Plaintiffs’ expert will testify to about $1,002,088.15 in cost of repair damages, $32,087.47 in Stearman costs, $60,000 for home content manipulation, and loss of rent damages in $496,000, for a total damages estimate amounting to $1,590,175.62. (Motion at p. 6.) Pierre argues that their $810,000 settlement, about 51% of this total, is within the ballpark of their proportionate share of potential liabilities, given the limited scope of the work that Pierre performed. (Motion at pp. 6–7.) Defendants claim to have reached this figure following an arms-length negotiation in good faith with Plaintiffs. (Motion at p. 7.)

The above evidence is sufficient to support the unopposed application for the determination sought. Pierre submits a background of the case and sufficient basis for the court to find that the settlement was reached in good faith.

Accordingly, the motion is GRANTED.

Case Number: BC692058    Hearing Date: March 11, 2020    Dept: 61

Plaintiffs Dan Sherlock and Jason Blaylock’s Motions to Compel Responses to Form Interrogatories and Requests for Production, Set One, and Deem Requests for Admission, Set One, Admitted Against Defendants Permacity Solar, Inc., Permacity Construction Corp., and Permacity Corp. are GRANTED. Sanctions are awarded against Defendants and their counsel in the amount of $4,590.

Plaintiffs to provide notice.

  1. MOTION TO COMPEL

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Likewise, “[a]ny party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code Civ. Proc., § 2033.010.) If a party fails to serve a timely response to requests for admissions, “[t]he 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” (Code Civ. Proc., § 2033.280 subd. (b).)

A party who fails to timely respond to requests for admission waives all objections to the requests. (Code Civ. Proc. § 2033.280, subd. (a).)

Plaintiffs contend that they served Requests for Production, Set One, on Defendants Permacity Solar, Inc., Permacity Construction Corp., and Permacity Corp. on April 23, 2018, but that no responses have been received. (Bederman Decl. ¶¶ 2–4.) Plaintiffs have also received no responses to Requests for Admission and Form Interrogatories, Set One, served on these same defendants on August 12, 2019. (Bederman Decl. ¶¶ 2–4.) No opposition has been served.

If code-compliant and objection-free responses are not served by the hearing on this motion, the motions to compel and deem admitted will be GRANTED.

  1. SANCTIONS

The prevailing party on a motion to compel is generally entitled to monetary sanctions, 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.” (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).) Plaintiffs seek $510 in sanctions in connection with each motion, representing one hour of attorney work per motion at $450 per hour, plus a $60 filing fees, multiplied by nine motions. (Bederman Decl. ¶ 5.) Plaintiffs also seek $1,350.00 for three hours anticipated attending the hearing on these motions, making for a total request of $5,940.00. (Bederman Decl. ¶ 5.) The court awards sanctions against Defendants and their counsel in the amount of $4,590.

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