This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 04:48:38 (UTC).

ENVIROMENTAL & CHEMICAL CONSULTING VS CLEAN UP AMERICA ET AL

Case Summary

On 01/13/2017 ENVIROMENTAL CHEMICAL CONSULTING filed a Contract - Other Contract lawsuit against CLEAN UP AMERICA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MALCOLM MACKEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7164

  • Filing Date:

    01/13/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MALCOLM MACKEY

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

ENVIRONMENTAL & CHEMICAL CONSULTING INC

DIAZ DENNIS

Defendants, Respondents and Cross Plaintiffs

MERCO LLC

POTTER DONNIE

DOES 1 THROUGH 100

CAL-DORAN REAL ESTATE INC

POTTER DEONTAY D.

CLEAN UP AMERICA INC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MACDONALD KIRK S. ESQ.

RUDMAN BRUCE DAVID ESQ.

MACDONALD KIRK STEWART ESQ.

Defendant Attorneys

BURT STEVEN WAYNE ESQ.

ABRAMSON MICHAEL ALAN ESQ.

Cross Plaintiff Attorney

GRONEMEIER DALE LANARD ESQ.

 

Court Documents

Minute Order

5/11/2018: Minute Order

NOTICE OF MOTION AND MOTION BY CLEAN UP AMERICA, INC. AND DEONTAY POTTER FOR SUMMARY JUDGMENT/ADJUDICATION, SEPARATE STATEMENT OF UNDISPUTED FACTS, SUPPORTING MEMORANDUM, MATTERS JUDICIALLY NOTICED, A

6/14/2018: NOTICE OF MOTION AND MOTION BY CLEAN UP AMERICA, INC. AND DEONTAY POTTER FOR SUMMARY JUDGMENT/ADJUDICATION, SEPARATE STATEMENT OF UNDISPUTED FACTS, SUPPORTING MEMORANDUM, MATTERS JUDICIALLY NOTICED, A

PLAJNTIFF ENVIRONMENTAL & CHEMICAL CONSULTING, INC.'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

8/21/2018: PLAJNTIFF ENVIRONMENTAL & CHEMICAL CONSULTING, INC.'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

ENVIRONMENTAL & CHEMICAL CONSULTING, INC.'S COMPENDIUM OF EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

8/21/2018: ENVIRONMENTAL & CHEMICAL CONSULTING, INC.'S COMPENDIUM OF EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DECLARATION OF DAVID RAINES IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUNC;MFNT

8/21/2018: DECLARATION OF DAVID RAINES IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUNC;MFNT

DECLARATION OF DEONTAY POTTER IN SUPPORT OF CLEAN UP AMERICA, INC.'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

8/30/2018: DECLARATION OF DEONTAY POTTER IN SUPPORT OF CLEAN UP AMERICA, INC.'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

Status Report

4/25/2019: Status Report

Unknown

6/14/2017: Unknown

NOTICE OF TRIAL, ETC.

6/19/2017: NOTICE OF TRIAL, ETC.

DENNIS DIAZ' ANSWER TO CROSS-COMPLAINT FILED BY CLEAN UP AMERICA, INC.

7/12/2017: DENNIS DIAZ' ANSWER TO CROSS-COMPLAINT FILED BY CLEAN UP AMERICA, INC.

AMENDED ANSWER OF DEFENDANT DAVID DIAZ, ERRONEOUSLY IDENTIFIED AS DENNIS DIAZ IN THE CAPTION, TO CROSS-COMPLAINT

8/11/2017: AMENDED ANSWER OF DEFENDANT DAVID DIAZ, ERRONEOUSLY IDENTIFIED AS DENNIS DIAZ IN THE CAPTION, TO CROSS-COMPLAINT

OPPOSITION TO MERCO,LLC'S DEMURRER TO FOURTH CAUSE OF ACTION FOR FORECLOSURE OF MECHANIC'S LIENS; DECLARATION OF BRUCE D. RUDMAN IN SUPPORT THEREOF

11/7/2017: OPPOSITION TO MERCO,LLC'S DEMURRER TO FOURTH CAUSE OF ACTION FOR FORECLOSURE OF MECHANIC'S LIENS; DECLARATION OF BRUCE D. RUDMAN IN SUPPORT THEREOF

DEFENDANT MERCO, LLC'S REPLY TO ENVIRONMENTAL & CHEMICAL CONSULTING, INC.'S OPPOSITION TO DEMURRER TO FOURTH CAUSE OF ACTION ETC

11/15/2017: DEFENDANT MERCO, LLC'S REPLY TO ENVIRONMENTAL & CHEMICAL CONSULTING, INC.'S OPPOSITION TO DEMURRER TO FOURTH CAUSE OF ACTION ETC

39 More Documents Available

 

Docket Entries

  • 05/13/2019
  • at 09:00 AM in Department 55, Malcolm Mackey, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated

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  • 05/03/2019
  • at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Final Status Conference - Not Held - Rescheduled by Court

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  • 05/02/2019
  • at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Final Status Conference - Held - Continued

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  • 05/02/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/25/2019
  • Status Report (REGARDING BANKRUPTCY STAY); Filed by Environmental & Chemical Consulting INC (Plaintiff)

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  • 02/22/2019
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 09/04/2018
  • at 08:30 AM in Department 55; Hearing on Motion for Summary Judgment (Motion for Summary Judgment; Denied) -

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  • 09/04/2018
  • Minute order entered: 2018-09-04 00:00:00; Filed by Clerk

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  • 09/04/2018
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Plaintiff/Petitioner

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  • 09/04/2018
  • Minute Order

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93 More Docket Entries
  • 02/21/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 02/21/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 02/21/2017
  • Proof-Service/Summons; Filed by Environmental & Chemical Consulting INC (Plaintiff)

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  • 02/02/2017
  • NOT FOUND OR NON SERVICE RETURN

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  • 02/02/2017
  • Notice of Non-Service of Sum & Com; Filed by Environmental & Chemical Consulting INC (Plaintiff)

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  • 01/26/2017
  • NOTICE OF PENDING ACTION

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  • 01/26/2017
  • Notice; Filed by Environmental & Chemical Consulting INC (Plaintiff)

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  • 01/13/2017
  • SUMMONS

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  • 01/13/2017
  • Complaint; Filed by Environmental & Chemical Consulting INC (Plaintiff)

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  • 01/13/2017
  • COMPLAINT FOR: 1. BREACH OF CONTRACT; ETC

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Tentative Rulings

b'

Case Number: BC647164 Hearing Date: July 8, 2021 Dept: 55

ENVIRONMENTAL\r\n& CHEM. CONSULTING v. CLEAN UP AMER. BC647164

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Hearing Date: 7/8/21,\r\nDept. 55

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#11: MOTION FOR\r\nSUMMARY JUDGMENT OR SUMMARY ADJUDICATION .

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Notice: Okay

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Opposition

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MP:\r\n Cross-Defendants ENVIRONMENTAL\r\nAND CHEMICAL CONSULTING, INC.

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RP:\r\n Cross-Complainants\r\nCLEAN UP AMERICA, INC., JOY POTTER, and DEONTAY POTTER.

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Summary

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On 1/13/17, Plaintiff ENVIRONMENTAL & CHEMICAL\r\nCONSULTING, INC. (ECC) filed a Complaint.

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On 3/10/20, Plaintiff filed a First Amended\r\nComplaint, alleging that Defendant CLEAN UP AMERICA, INC. (CUA) failed to\r\npay all sums due for professional waste transportation services, in a project,\r\nand defendants MERCO, LLC and/or CAL-DORAN REL ESTATE, INC. are the owners of\r\nthe subject real property.

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Those causes of action are:

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1. BREACH OF WRITTEN CONTRACT

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2. COMMON COUNTS.

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On 6/26/20, Plaintiff filed a request for dismissal of\r\nPlaintiff’s entire action, filed 6/26/20.

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On 6/2/17, a Cross-Complaint was filed by\r\ndefendants/cross-complainants CLEAN UP AMERICA INC. (CUA) and DEONTAY POTTER,\r\nagainst plaintiff/cross-defendant ENVIRONMENTAL & CONSULTING, INC. (ECC) and\r\ncross-defendant DAVID DIAZ, for Breach of Contract, Fraud, Forgery, and Indemnity.

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On 11/10/20, a First Amended Cross-Complaint\r\nwas filed, for Breach of Contract, Fraud, Forgery, Negligent Hiring and\r\nRetention, and Fraudulent Conveyance, alleging that ECC breached the Waste\r\nTransportation and Disposal Agreement with CUA by ECC\'s negligent disposal of\r\nwastewater, causing CUA to be liable these damages, costs, restitution, fines,\r\nor penalties. Also, allegedly ECC forged\r\nthe signature of CUA\'s President on a Personal Guaranty, at page 2 of the\r\nCustomer Credit Application, such that Potter was required to retain counsel to\r\ndefend himself against the claims ECC asserted against him based on the\r\nforgery, since Deontay Potter had not really agreed to personally guarantee\r\nCUA\'s payments for ECC\'s services, and ECC knew of Diaz\'s modus operandi of\r\nforging signatures, when it negligently hired him. Further, allegedly ECC made a shareholders\r\ndistribution transfer, with the intent to hinder, delay, or defraud the\r\nCross-Complainants.

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MP\r\nPOSITIONS

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First, moving party requests summary judgment, as to\r\nthe First Amended Cross-Complaint, on grounds including the following:

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1.\r\nCROSS-COMPLAINANTS’ FIRST CAUSE OF ACTION HAS NO MERIT.

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THERE IS NO\r\nTRIABLE ISSUE OF MATERIAL FACT AND CROSS-DEFENDANTS ARE ENTITLED TO JUDGMENT AS\r\nA MATTER OF

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LAW.\r\nCROSS-DEFENDANTS DO NOT HAVE ANY EVIDENCE THAT ECC

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WAS\r\nNEGLIGENT IN WASTE DISPOSAL.

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2.\r\nCROSS-COMPLAINANTS’ SECOND CAUSE OF ACTION HAS NO MERIT.

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THERE IS NO\r\nTRIABLE ISSUE OF MATERIAL FACT AND CROSS-DEFENDANTS ARE ENTITLED TO JUDGMENT AS\r\nA MATTER OF LAW. CROSS-DEFENDANTS DID NOT BREACH A WRITTEN CONTRACT

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WITH\r\nCROSS-COMPLAINANTS.

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3.\r\nCROSS-COMPLAINANTS’ THIRD CAUSE OF ACTION HAS NO MERIT.

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THERE IS NO\r\nTRIABLE ISSUE OF MATERIAL FACT AND CROSS-DEFENDANTS ARE ENTITLED TO JUDGMENT AS\r\nA MATTER OF

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LAW. THERE\r\nWAS NO FRAUDULENT CONCEALMENT.

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4.\r\nCROSS-COMPLAINANTS’ FOURTH CAUSE OF ACTION HAS NO MERIT.

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THERE IS NO\r\nTRIABLE ISSUE OF MATERIAL FACT AND CROSS-DEFENDANTS ARE ENTITLED TO JUDGMENT AS\r\nA MATTER OF

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LAW.\r\nCROSS-DEFENDANTS DID NOT FORGE ANY DOCUMENTS. ALSO

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THERE IS NO\r\nCAUSE OF ACTION FOR FORGERY UNDER CALIFORNIA

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LAW.

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5.\r\nCROSS-COMPLAINANTS’ FIFTH CAUSE OF ACTION HAS NO MERIT.

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THERE IS NO\r\nTRIABLE ISSUE OF MATERIAL FACT AND CROSS-DEFENDANTS ARE ENTITLED TO JUDGMENT AS\r\nA MATTER OF

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LAW.\r\nCROSS-DEFENDANTS WERE NOT NEGLIGENT IN HIRING AND

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RETENTION.

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6.\r\nCROSS-COMPLAINANTS’ SIXTH CAUSE OF ACTION HAS NO MERIT.

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THERE IS NO\r\nTRIABLE ISSUE OF MATERIAL FACT AND CROSS-DEFENDANTS ARE ENTITLED TO JUDGMENT AS\r\nA MATTER OF

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LAW. THERE\r\nWAS NO FRAUDULENT TRANSFER.

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(Motion, pp. 2-3.)

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Second, cross-defendants\r\nmove in the alternative, for summary adjudication, on the following issues:

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A)\r\nECC did not owe a duty to CUA, its owners and officers to remove all hazardous\r\nwaste from CUA’s Lugo Street site (FACC ¶33)

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B)\r\nECC did not owe a duty to monitor the wastewater flowing out of the debris pile\r\n(FACC ¶14)

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C)\r\nECC did not owe a duty to maintain the containment for the wastewater (FACC\r\n¶14)

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D)\r\nECC did not owe a duty to have an employee on site at the Lugo Street property\r\nat all times to monitor, control, and collect the wastewater runoff. (FACC ¶14)

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E)\r\nECC had no duty to cover any damages by any cross-complainant per ¶8 of the\r\nWaste Transportation and Disposal Agreement, dated 9/24/2016 (hereinafter\r\n“ECC/CUA contract”. (FACC ¶28, 30)

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F)\r\nECC had no duty to collect the wastewater on the south side of the Lugo Street\r\nproperty and had no duty to employ competent measures to monitor and manage the\r\nwastewater runoff and control its proliferation. (FACC ¶26)

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G)\r\nECC did not have a duty to continue transporting and disposing water after it\r\nlearned of anticipatory breach by CUA. (FACC ¶26)

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H)\r\nECC/Diaz do not have a duty to pay prevailing party attorneys fees. (FACC ¶32)

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I)\r\nEmotional distress damages are unavailable in this case (FACC ¶ 36, 45, 54)

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J)\r\nCUA/Potter may not recover any damages for having to file bankruptcy/litigate a\r\nclaim in bankruptcy of having to defend against criminal charges. (FACC ¶37,41)

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K.\r\nPunitive damages are not recoverable in this case (FACC ¶39, 46, 56, 59, 64,\r\n65, prayer for relief C)

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L.\r\nECC/Rains did not owe a duty to investigate Diaz’ criminal history. (FACC ¶44)

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M)\r\n45. ECC/Rains did not owe a duty of care to any cross-complainant not to hire\r\nDIAZ. (FACC ¶45)

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N)\r\n64. No cross-complainant sustained any damages due to ECC transfers in 2020.\r\n(FACC ¶64)

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O)\r\nCross-complainants may not recover any consequential damages. (FACC, Prayer for\r\nrelief A).

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(Motion, pp. 3-4.)

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RP\r\nPOSITIONS

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Opposing parties advocate denying,\r\nfor reasons including the following:

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· \r\nThe motion\r\nrequires admissible evidence to establish that there is no genuine dispute of\r\nmaterial fact, to meet the initial burden of proof. Evidentiary objections were filed as to much inadmissible\r\nevidence.

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· \r\nThere are\r\ntriable issues of material fact, including as to (1) ECC’s negligent services\r\nthat failed to meet its duty to collect all wastewater, and (2) the\r\nforgery of a guaranty or prosecution based on that forged guaranty.

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· \r\nThere is not a\r\nsingle reference to page and line numbers in the Separate Statement.

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· \r\nAs to the First Cause of Action (C/A ),\r\nregarding negligence, Cross-Complainants admit that their work-stoppages\r\ncaused waste-water to escape and pollute adjacent properties.

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· \r\nBecause ECC’s services\r\nadmittedly did not collect anything approaching all of the fire suppression\r\nwastewater, ECC’s motion attempts to rewrite its duties under the WTDA and\r\nECC-CUA contract. The WTDA in its § 3\r\nspecifies that ECC is obligated to “take possession of the Waste” – the “Waste”\r\nbeing wastewater from the fire suppression. The definite and singular article\r\n“the” unambiguously means the whole of the wastewater, not just “some.” Thus, parol evidence is inadmissible.

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· \r\nThere was no\r\nimplied repudiation by any nonpayment, because Mr. Potter was at all times\r\nattempting to obtain insurance coverage, and CUA did nothing prior to ECC’s\r\nfurther performance that could be construed as implicitly repudiating the\r\ncontract. By the time the insurance\r\nproceeds were received, ECC had breached the contract and caused liability\r\ngreater damage. There was no payment due\r\nat the times of demands for payments followed by work stoppages.

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· \r\nThe MSA on the 2nd C/A\r\ndoes not address the entire cause of action, as no reference is made to the breach of the covenant of good faith\r\nand fair dealing based, inter\r\nalia, on the forgery of Mr. Potter’s signature on the guaranty and ECC’s\r\nprosecution of now-dismissed claims against him based on the forged guaranty.

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· \r\nSummary\r\ndetermination is sought on the 3rd\r\nC/A for fraud on the extremely\r\nthin basis of a 2-sentence assertion by Mr. Diaz, and the 1st sentence an inadmissible conclusory general\r\ndenial of any intent to defraud. Mr.\r\nPotter’s Declaration rebuts the claim with admissible evidence that neither Mr.\r\nDiaz nor ECC disclosed to him that it intended to forge his signature nor sue\r\nhim on a forged guaranty.

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· \r\nThe 4th C/A\r\nis for a prima facie tort through the act of forgery and the baseless prosecution of claims against\r\nDeontay Potter based on that forgery. \r\nThere are conflicting stories in dispute as to whether ECC\r\nVice-President David Diaz was the forger.

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· \r\nThe MSA for the 5th C/A for negligent hiring and retention is based on weak proof. Evidence in dispute exists that Mr. Diaz\r\nforged Mr. Potter’s signature, and that ECC’s decisionmaker, Mr. Rains, was on\r\nnotice that Mr. Diaz had previously been a forger and was the probable person\r\nat ECC who forged Mr. Potter’s signature.

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· \r\nThe 6th Cause of Action for fraudulent transfers rests on the assertions that (1) the fraudulent\r\ntransfers have not harmed Cross-Complainants because the funds are in Mr.\r\nRains’ house or control and (2) that there is no evidence of fraudulent\r\nintent. There is the cost and burden of\r\nretrieving back funds, and uncertainty as to whether funds will be dissipated\r\nbeyond recovery. As to Mr. Rains’\r\nself-serving assertions of honest intent, a hallmark indicium of a wrongful\r\nintent is a party giving a false explanation for his conduct in order to\r\ncover-up the existence of a wrongful motive. \r\nThe conditionally-sealed Gronemeier Declaration and supporting documents\r\ndemonstrate that Mr. Rains expressed rationale for the 2020.

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· \r\nA motion for\r\nsummary adjudication must dispose of an entire cause of action, but this alternative\r\nmotion repeatedly fails to, including the many narrowly worded issues of duty\r\nand damages.

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Tentative\r\nRuling

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The motion for summary judgment is denied.

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The alternative motion for summary adjudication is denied,\r\nas procedurally defective.

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Summary\r\nJudgment

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The Court determines that sufficient competent proof has\r\nshifted the burden, but that there are triable issues of material fact,\r\nincluding those discussed below.

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Negligence\r\nand Contract

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There are\r\ntriable issues regarding whether WTDA contract, as section 3, required ECC to do\r\nthings necessary to collect all site wastewater, as part of the obligation\r\n“take possession of the Waste,” stated ambiguously, without specifying “all”\r\nwaste, or describing the totality of its contents.

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Substantial parol evidence was filed in that regard,\r\nincluding moving parties efforts to control as much wastewater as possible, and\r\nnegotiations about handling an entire waste collection situation, and moving\r\nparties having someone on site (e.g., opposing\r\nDETONAY POTTER decl., ¶¶ 11 (“Mr. Diaz\r\nhad also told me orally and in writing that ECC would have personnel at the\r\nsite at all times to monitor the conditions.”), and 12).

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Cognizable parol evidence includes circumstances\r\nsurrounding the contracting, the object, nature and subject matter of the\r\ncontract, and the parties’ negotiations. \r\nCollins v. Home Sav. & Loan Assoc. (1962) 205 Cal. App. 2d\r\n86, 97; Haggard v. Kimberly Quality\r\nCare (1995) 39 Cal. App. 4th 508, 518. \r\nCognizable parol evidence includes parties’ course of dealing, usage of\r\ntrade and course of performance. Employers\r\nReinsurance Co. v. Sup. Ct. (2008) 161 Cal.App.4th 906, 920-21; Hayter Trucking v. Shell W. E&P\r\n(1993)18 Cal. App. 4th 1, 20. Cognizable\r\nparol evidence includes a “party\'s conduct occurring between execution of the\r\ncontract and a dispute about the meaning of the contract\'s terms….” City of Hope Nat\'l Med. Ctr. v. Genentech\r\n(2008) 43 Cal.4th 375, 393.

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Where contract interpretation is an issue, and parol\r\nevidence is admissible and in conflict, summary judgment must be denied. Wolf v. Sup. Ct. (2004) 114\r\nCal.App.4th 1343, 1359 n. 27; Fischer\r\nv. First Internat. Bank (2003) 109\r\nCal.App.4th 1433, 1443; Byrne v.\r\nLaura (1997) 52 Cal. App. 4th 1054, 1066; \r\nMoney Store Inv. Corp. v. S. Cal. Bank (2002) 98 Cal. App. 4th\r\n722, 730; Rogers v. Prudential Ins. Co. \r\n(1990) 218 Cal.App.3d 1132, 1136-37 (policy was ambiguous where there\r\nwas no copy of the policy in the record showing its terms); Butler v. Vons Companies, Inc. (2006)\r\n140 Cal.App.4th 943, 949-50 (triable issues existed based upon parol testimony\r\nas to scope of agreement).

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Also, the duties in negligence can arise out of the\r\ncontract relationship. E.g., Willdan v. Sialic Contractors Corp.\r\n(2007) 158 Cal. App. 4th 47, 57 (contracting parties have a common-law duty to\r\nperform as agreed with care, skill and reasonable expedience, and negligent\r\nfailures to do so constitute a tort in addition to contract breach).

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Concealment\r\nand Negligent Retention

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There are triable issues as to whether cross-defendant\r\nconcealed intent to include a forged contract document leading to prosecution\r\nof claims against Deontay Potter based on forgery (e.g., moving Rains Declaration, ¶4, p. 2,\r\nl.4-6 (denying knowledge of conviction); \r\nopposing Deontay Potter decl., ¶ 9; \r\nopposing ex. , DAVID DIAZ depo., pp. 97-98 (admission of prior\r\nconviction of forgery, and “previous forgeries.”)). See, e.g., LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 (There are\r\n"four circumstances in which nondisclosure or concealment may constitute\r\nactionable fraud: (1) when the defendant is in a fiduciary relationship with\r\nthe plaintiff; (2) when the defendant had exclusive knowledge of material facts\r\nnot known to the plaintiff; (3) when the defendant actively conceals a material\r\nfact from the plaintiff; and (4) when the defendant makes partial\r\nrepresentations but also suppresses some material facts.’”); ibid. at 337 (duty to disclose requires a\r\nfiduciary relationship or another relationship involving some sort of\r\ntransaction between the parties, such as contracts, purchases and services).

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Further, there are disputes as to whether ECC\r\nVice-President David Diaz was the forger, based upon reasonable inferences from\r\nthe evidence reasonably inferring that Mr. Rains perceived information making\r\nhim aware that Mr. Diaz had previously been convicted and a forger, and was a\r\nforgery risk to customers signing agreements with Diaz.

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In deciding whether there are any triable issues,\r\ncourts consider reasonably deducible inferences from the evidence. Sababin v. Sup. Ct. (2006) 144 Cal.\r\nApp. 4th 81, 90 (citing CCP §437c(c)).

\r\n\r\n

Further, forgery need not be a cognizable cause of\r\naction, because the complaint label is not determinative, and summary judgment\r\nmotions must negate even poorly plead claims. \r\nSee, e.g., Hernandez v.\r\nLopez (2009) 180 Cal.App.4th 932,\r\n939 (notwithstanding the label,\r\n“intentional tort,” a court construed the cause of action as being a sufficient\r\none for either conversion or trespass).

\r\n\r\n

For summary judgment purposes, issues framed by\r\ncomplaints and answers, which are to be addressed, may include even those pled\r\ndefectively, yet intelligibly, although not theories completely missing from\r\npleadings. Physicians Comm. For\r\nResponsible Medicine v. McDonald\'s Corp. (2010) 187 Cal.App.4th 554,\r\n568 (“the issues framed by the pleadings\r\nare the only issues a motion for summary judgment must address.”); FPI Development, Inc. v. Nakashima\r\n(1991) 231 Cal. App. 3d 367, 382-383; Jordan-Lyon\r\nProds., ITD., v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th\r\n1459, 1472; Bostrom v. County of San\r\nBernardino (1995) 35 Cal. App. 4th 1654, 1663; 580 Folsom Assocs. v. Prometheus Dev. Co.\r\n(1990) 223 Cal. App. 3d 1, 14, 18\r\n(burden to address theories “reasonably contemplated by the opponent\'s\r\npleading”); Melican v. Regents of\r\nUniv. of Cal. (2007) 151 Cal. App. 4th 168, 182 (not requiring party to\r\nnegate an unstated claim).

\r\n\r\n

\r\n\r\n

Fraudulent\r\nTransfer

\r\n\r\n

There are triable issues of material facts as to\r\nwhether any past shareholder distributions constituted fraudulent transfers, sufficiently\r\ninferring a pattern of fraudulently diverting funds away from potential\r\nliability, and whether expense was caused in avoiding such transfers (e.g., \r\nmoving Rains Declaration, ¶11, p. 2, l.27- p. 3, l. 3 (stating distributions based on yearly\r\nprofits and minor deviation in amount); opposing Rains Depo. 5/25/21, p. 91, l. 5 -\r\npage 92, l. 5 (lack of knowledge of\r\nreasons for making distributions determinations); attorney Dale Gronemeier decl. (expert opinion\r\non expenses to recover fraudulent transfers)). \r\nSee, generally, e.g., See\r\nalso Filip v. Bucurenciu (2005) 129 Cal. App. 4th 825, 834 ("There is no minimum number of factors\r\nthat must be present before the scales tip in favor of finding of actual intent\r\nto defraud."); Annod Corp. v.\r\nHamilton & Samuels (2002) 100 Cal. App. 4th 1286, 1298 (proof of\r\nfraudulent intent in conveyances often is inferences from the surrounding\r\ncircumstances); CC §§3439.07(a)(1),\r\n3439.08(a) (fraudulent transfers may be avoided as against transferees who did\r\nnot take property in good faith for adequate consideration).

\r\n\r\n

\r\n\r\n

\r\n\r\n

Summary\r\nAdjudication

\r\n\r\n

The narrow issues of various duties and damages are\r\nnot authorized for piecemeal summary adjudication.

\r\n\r\n

“[A] party may move for summary adjudication of a\r\nlegal issue or a claim for damages other than punitive damages that does not\r\ncompletely dispose of a cause of action, an affirmative defense, or an issue of\r\nduty…. This motion may be brought only upon the stipulation of the parties\r\nwhose claims or defenses are put at issue by the motion and a prior\r\ndetermination and order by the court that the motion will further the interests\r\nof judicial economy, by reducing the time to be consumed in trial, or\r\nsignificantly increase the ability of the parties to resolve the case by\r\nsettlement.” CCP §437c(s)(1) (effective\r\n1/1/12).

\r\n\r\n

Before the above statutory provision had been\r\nimplemented, there was a split of authority whether defendants may seek summary\r\nadjudication of issues of duty without seeking to resolve an entire cause of\r\naction. Public Utilities Com. v. Sup.\r\nCt. (2010) 181 Cal. App. 4th 364, 380; \r\nLinden Partners v. Wilshire\r\nLinden Assocs. (1998) 62 Cal.App.4th\r\n508, 519. But see Regan Roofing Co. v. \r\nSup. Ct. (4th Dist. 1994) 24 Cal.App.4th\r\n425, 436 (split of authority), disapproved\r\non other grounds by Crawford v.\r\nWeather Shield Mfg. Inc. (2008) 44 Cal. 4th 541, 563.

\r\n\r\n

Additionally, an\r\nissue of damages must dispose of an entire cause of action. DeCastro West Chodorow & Burns,\r\nInc. v. \r\nSup. Ct. (1996) 47 Cal.App.4th 410, 422.

\r\n\r\n

Further, an issue of punitive damages must dispose of\r\nthe entire claim for them. Catalano\r\nv. Sup. Ct. (2000) 82 Cal. App. 4th 91, 97-98.

\r\n\r\n

\r\n\r\n

Objections

\r\n\r\n

As to summary judgment or adjudication motions, judges\r\nneed only rule on evidentiary objections deemed material to the\r\ndisposition. CCP §437c(Q).

\r\n\r\n

Here, after considering all the many evidentiary\r\nobjections, the Court readily determines that sufficient (albeit sometimes\r\nborderline), evidence survives to shift the burden of proof, and that the\r\ninadmissible parts of evidence do not make any material difference in this\r\nruling.

\r\n\r\n

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