This case was last updated from Los Angeles County Superior Courts on 11/30/2019 at 16:28:11 (UTC).

JAMES FRANK, ET AL. VS AG CONSTRUCTION, ET AL.

Case Summary

On 10/19/2018 JAMES FRANK filed a Contract - Other Contract lawsuit against AG CONSTRUCTION. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    *******0061

  • Filing Date:

    10/19/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs

FRANK JAMES

FRANK ERICA

Defendants, Cross Plaintiffs and Cross Defendants

AG PROPERTIES INC.

SILVER JOHANATHAN

AG PROPERTIES INLC. DBA AG CONSTRUCTION

AG CONSTRUCTION

AG PROPERTIES INC. DBA AG CONSTRUCTION

CHRISTINE LONDON LTD. A CALIFORNIA CORPORATION

H & R CONSTRUCTION AND SURFACING INC. A CALIFORNIA CORPORATION

ULTIMATE INSTALLZ INC. A CALIFORNIA CORPORATION

AIR SUPPLY INC. A CALIFORNAI CORPORATION

BLUE LINE PLUMBING INC. A CALIFORNIA CORPORATION

ISMAEL ALVAREZ A SOLE OWNERSHIP ENTITY

CHOI DAVID

FIREPLACE GUYS INC. A CALIFORNIA CORPORATION

LEISHMAN THOMAS

ECO WORKS LANDSCAPE SERVICES A CALIFORNIA CORPORATION

10 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

COHEN MITCHELL I

Defendant Attorneys

WEBB ERIC LEE

ORD ELEANOR MARIAN

WALKER JOHN JOSEPH

Cross Plaintiff and Cross Defendant Attorneys

SIMKIN MICHAEL

PAIGE ROBERT

CUSTUREA ANDREEA VIRGINIA

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 01/29/2020
  • Hearing01/29/2020 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Case Management Conference

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  • 11/22/2019
  • DocketAnswer; Filed by Christine London, Ltd., a California corporation (Cross-Defendant)

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  • 11/19/2019
  • DocketAnswer; Filed by Ismael Alvarez, a sole ownership entity (Cross-Defendant)

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  • 11/19/2019
  • DocketCross-Complaint; Filed by Ismael Alvarez, a sole ownership entity (Cross-Defendant)

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  • 11/08/2019
  • DocketProof of Personal Service; Filed by AG Properties, Inc. (Cross-Complainant)

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  • 11/08/2019
  • DocketProof of Personal Service; Filed by AG Properties, Inc. (Cross-Complainant)

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  • 11/06/2019
  • DocketAnswer; Filed by Blue Line Plumbing, Inc., a California corporation (Cross-Defendant)

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  • 11/06/2019
  • DocketCross-Complaint; Filed by Blue Line Plumbing, Inc., a California corporation (Cross-Defendant)

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  • 10/24/2019
  • DocketCertificate (Certificate of Merit - Architect); Filed by AG Properties, Inc. (Cross-Complainant)

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  • 10/23/2019
  • DocketProof of Personal Service; Filed by AG Properties, Inc. (Cross-Complainant)

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36 More Docket Entries
  • 11/29/2018
  • DocketDeclaration (OF ERIC L. WEBB PURSUANT TO CAL. CIV. PROC. CODE 340.41 (a)(2)); Filed by AG Construction (Defendant); AG Properties, Inlc. (Defendant); Johanathan Silver (Defendant)

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  • 10/30/2018
  • DocketProof of Personal Service; Filed by James Frank (Plaintiff); Erica Frank (Plaintiff)

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  • 10/30/2018
  • DocketProof of Personal Service; Filed by James Frank (Plaintiff); Erica Frank (Plaintiff)

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  • 10/30/2018
  • DocketProof of Personal Service; Filed by James Frank (Plaintiff)

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  • 10/30/2018
  • DocketProof of Personal Service; Filed by James Frank (Plaintiff); Erica Frank (Plaintiff)

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  • 10/19/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 10/19/2018
  • DocketSummons (on Complaint); Filed by Clerk

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  • 10/19/2018
  • DocketCivil Case Cover Sheet; Filed by James Frank (Plaintiff); Erica Frank (Plaintiff)

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  • 10/19/2018
  • DocketComplaint; Filed by James Frank (Plaintiff); Erica Frank (Plaintiff)

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  • 10/19/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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Tentative Rulings

b"

Case Number: 18SMCV00061 Hearing Date: November 3, 2021 Dept: M

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CASE NAME: James Frank, et al. v. AG\r\nConstruction, et al.

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CASE NUMBER: 18SMCV00061

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MOTION: Christine London,\r\nLtd.’s Motion for Leave to File a Cross-Complaint

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HEARING DATE: 11/3/2021

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Background

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On October 4, 2021, Cross-Defendant\r\nChristine London, Ltd. (“CLL”) filed a motion seeking leave file a cross-complaint. CLL also filed a notice of errata, indicating\r\nthe proposed cross-complaint with the motion failed to include Exhibit A and\r\nrefiled the proposed cross-complaint. This\r\nmotion is unopposed.

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Legal Standard

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Generally, a party must file a\r\ncross-complaint against any of the parties who filed the complaint or\r\ncross-complaint against him or her before or at the same time as the answer to\r\nthe complaint or cross-complaint. (Code Civ. Proc., § 428.50(a).) A party may\r\nobtain leave of court to file a cross-complaint at any time during the course\r\nof a lawsuit, and leave may be granted in the interest of justice. (See Code\r\nCiv. Proc., §§ 426.50, 428.50(c); see also Sidney v. Superior\r\nCourt (1988) 198 Cal.App.3d 710, 718.) \r\n“Permission to file a permissive cross-complaint is solely within the\r\ntrial court's discretion. [citation omitted.]” (Crocker Nat. Bank v. Emerald\r\n(1990) 221 Cal.App.3d 852, 864.) The court may grant leave to file a\r\ncross-complaint if the failure to plead a cause of action for compulsory\r\ncross-complaint was the result of oversight, inadvertence, mistake, neglect, or\r\nother cause. (Code Civ. Proc., § 426.50.) Where the proposed cross-complaint\r\narises out of the same transaction as plaintiff’s claim, the court must grant\r\nleave to file the cross-complaint as long as defendant is acting in good faith.\r\n(Id.)

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ANALYSIS

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CLL\r\nseeks leave to file a cross-complaint asserting claims against Plaintiffs James\r\nFrank and Erika Frank (“Plaintiffs” or “The Franks”), AG Construction, H&R Construction\r\nand Surfacing, Inc. and Loes 1 to 50 for (1) implied contractual indemnity; (2)\r\nequitable indemnity; (3) express contractual indemnity; (4) breach of written\r\ncontract; (5) declaratory relief (duty to defend); (6) declaratory relief; (7)\r\ncontribution, (8) apportionment of fault; and (8) declaratory relief (duty to\r\nindemnify). CLL contends that after\r\nconducting extensive discovery and review of all documents produced by the\r\nparties to date, it has a good faith belief that there is a contractual basis\r\nwherein Plaintiffs are obligated to defend and indemnify CLL. (Custurea Decl. ¶\r\n4.) In addition, CLL contends that given\r\nthe discovery produced in this case, CLL has a good faith belieg that it is\r\nentitled to equitable indemnity, contribution, apportionment of fault and\r\ndeclaratory relief from AG Construction and H&R and proposed Loe\r\nCross-Defendants. CLL argues that these\r\nare compulsory claims since they arise from the same transaction underlying the\r\nPlaintiffs’ complaint. CLL further\r\nargues that the interests of justice also support granting leave to file the\r\ncross-complaint.

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Here,\r\nCLL is seeking to file a cross-complaint against Plaintiffs and the contractors/subcontractors\r\nthat arise from the allegations of Plaintiffs' complaint. Since CLL’s proposed cross-complaint is for compulsory claims, CLL’s\r\nmotion for leave to file a cross-complaint is GRANTED.

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Case Number: 18SMCV00061 Hearing Date: October 6, 2021 Dept: M

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CASE NAME: James\r\nFrank, et al. v. AG Construction, et al.

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CASE NUMBER: 18SMCV00061

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MOTION: 1. \r\nJames Frank and Erika Franks’ Demurrers\r\nto Cross-Complaint of AG Properties, Inc. dba AG Construction\r\nand to the Cross-Complaint of AG Properties, Inc., and AG Construction with Motions\r\nto Strike (Combined)

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2. Choi’s Motion to Strike AG Cross-Complaints (without demurrer)

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HEARING DATE: 10/6/2021

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1. James Frank and Erika Franks’ Demurrers\r\nto Cross-Complaint of AG Properties, Inc. dba AG

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Construction\r\nand to the Cross-Complaint of AG Properties, Inc., and AG Construction with

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Motions\r\nto Strike (Combined)

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Background

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On\r\nMarch 5, 2020, AG Properties, Inc. and AG Construction filed a cross-complaint\r\nfor equitable/implied indemnity, apportionment of fault, declaratory relief,\r\ncontribution and negligence, and breach of contract. Also on March 5, 2021, AG Properties, Inc.\r\ndba AG Construction filed a cross-complaint alleging the same causes of action.\r\nThe Court refers to these parties, specifically as AG Properties, Inc., a\r\nCalifornia Corporation, and AG Construction, a business entity unknown, and AG\r\nProperties, Inc. dba AG Construction, a California Corporation as Cross-Complainants.

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On\r\nApril 9, 2021, Plaintiffs/Cross-Defendants James Frank and Erica Frank filed\r\nfour demurrers (with motions to strike) to the cross-complaint of AG\r\nProperties, Inc. dba AG Construction and to the Cross-Complaint of AG\r\nProperties, Inc., and AG Construction an entity unknown. Aside from the party names, the\r\nCross-complaints make the same allegations, and the demurrers make the same\r\narguments.

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The\r\nFranks demur to the sixth cause of action for breach of contract on uncertainty\r\nand sufficiency grounds.

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Legal Standard

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“Before\r\nfiling a demurrer . . . the demurring party shall meet and confer in person or\r\nby telephone with the party who filed the pleading . . . for the\r\npurpose of determining whether an agreement can be reached that would resolve\r\nthe objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41.)

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A demurrer for sufficiency tests whether the complaint\r\nalleges facts sufficient to constitute a cause of action. (Code\r\nCiv. Proc., § 430.10; Young v. Gannon (2002) 97\r\nCal.App.4th 209, 220. The court may consider all material facts pleaded in the\r\ncomplaint and those arising by reasonable implication therefrom; it may not\r\nconsider contentions, deductions or conclusions of fact or law. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore\r\nv. Conliffe (1994) 7 Cal.4th\r\n634, 638; Montclair\r\nParkowners Assn. v. City of Montclair (1999)\r\n76 Cal.App.4th 784, 790).) The court treats all facts alleged in the\r\ncomplaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.) When considering demurrers, courts “are\r\nrequired to construe the complaint liberally to determine whether a cause of\r\naction has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School\r\nDist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski\r\n(1988) 200 Cal.App.3d 624, 628.)) “The burden is on the plaintiff [or\r\ncross-complainant] to demonstrate the manner in which the complaint can be\r\namended.” (Ross v. Creel Printing & Publishing Co. (2002) 100\r\nCal.App.4th 736, 748.)

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A demurrer for uncertainty attacks a complaint for\r\nbeing uncertain, ambiguous or unintelligible. (See Code Civ. Proc., § 430.10(f).) A demurrer for\r\nuncertainty is strictly construed, even where a complaint is in some respects\r\nuncertain, because ambiguities can be clarified under modern discovery\r\nprocedures. (Khoury v. Maly\'s of California, Inc. (1993) 14 Cal.App.4th\r\n612, 616.) “The objection of\r\nuncertainty does not go to the failure to allege sufficient facts. It goes to\r\nthe doubt as to what the pleader means by the facts alleged. Callahan v.\r\nBroderick, 124 Cal. 80, 83, 56 P. 782; Butler v. Wyman, 128 Cal.\r\nApp. 736, 740, 18 P.(2d) 354.” (Brea v. McGlashan (1934) 3 Cal.App.2d\r\n454, 459–460.) “Generally, the failure\r\nto specify the uncertain aspects of a complaint will defeat a demurrer based on\r\nthe grounds of uncertainty.” (Fenton v. Groveland Community Services Dist.\r\n(1982) 135 Cal.App.3d 797, 809 (citing Code Civ. Proc., § 430.60; 49 Cal. Jur. 3d, Pleading, § 150, pp. 555–556; Coons\r\nv. Thompson (1946) 75 Cal.App.2d 687, 690.)

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ANALYSIS

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Meet and confer

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Cross-Defendants\r\nthe Franks complied with the meet and confer requirements. (See Cohen Decl.)

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Demurrer

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The Franks demur to the cross-complaints arguing that\r\ncertain allegations in the first amended cross-complaints are uncertain and\r\nthat the breach of contract claim fails to state a claim. In the Cross-Complaints, James Frank and\r\nErika Frank are alleged to have breached the construction contract with Cross-Complainants\r\nby failing to make timely payments and by failing to pay for certain change\r\norders.

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Sufficiency

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“A\r\ncause of action for breach of contract requires proof of the following\r\nelements: (1) existence of the contract; (2) plaintiff\'s performance or excuse\r\nfor nonperformance; (3) defendant\'s breach; and (4) damages to plaintiff as a\r\nresult of the breach. (Armstrong Petroleum Corp. v. Tri–Valley Oil &\r\nGas. Co. (2004) 116 Cal.App.4th 1375, 1391, fn. 6, 11 Cal.Rptr.3d 412\r\n[stating elements].)” (CDF Firefighters v. Maldonado (2008) 158\r\nCal.App.4th 1226, 1239, as modified on denial of reh\'g (Feb. 5, 2008).) Each element\r\nof the breach of contract claim must be plead with specificity. (Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150\r\nCal.App.4th 1, 5–6.)

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Relying\r\non Civil Code section 1698(c), the Franks argue that the contract attached to each\r\nof the cross-complaints is subject to the statute of frauds and that any\r\nmodification to the contract must comply with the statute of frauds. Civil Code section 1698(c) provides, “unless\r\nthe contract otherwise expressly provides, a contract in writing may be\r\nmodified by an oral agreement supported by new consideration. The statute of\r\nfrauds (Section 1624) is required to be satisfied if the contract as modified\r\nis within its provisions.” (Civ. Code, § 1698(c).) The contract is for the construction of a\r\nhome (see FACC ¶ 51, Ex. A) and it provides, “change orders and requests or\r\nadditional work may be submitted and/or approved via email or any other form of\r\nwritten communication.” (FACC at pp. 31) The language regarding changes orders\r\nand additional work is permissive.

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Cross-Complainants\r\nattached Exhibit C, which is the updated contract, with highlights concerning\r\nthe unpaid change orders. The Court\r\nnotes that Exhibit C is dated June 10, 2015. \r\nThis appears to be inaccurate or a typographical error since the change\r\norders presumably occurred after construction on the project began. Overlooking this defect, Exhibit C does not\r\ncontain the dates for each of the change orders or how such change orders were\r\nmade. Cross-Complainants argue that when\r\nthere is an adequate consideration for the oral modification and the party\r\nrelying on it has fully performed, the written contract is to be enforced as\r\nmodified regardless of whether the other party has fully performed.

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The\r\nFranks further argue that the cross-complainants must state verbatim the terms\r\nof the agreement. “If the action is based on alleged breach of a written\r\ncontract, the terms must be set out verbatim in the body of the complaint or a\r\ncopy of the written agreement must be attached and incorporated by reference.”\r\n(Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Here, Cross-Complainants in both\r\nCross-Complaints allege that there were 18 change orders to the construction of\r\nthe home. (See FACCs ¶ 55.) Paragraph 55 in the cross-complaints only\r\ngives a generalized list, with the associated numbers and the cost of each\r\nitem. Cross-complainants do not detail when each of the 18 change orders were\r\napproved or the terms of each change order. \r\nInstead, they allege that they were generally approved by Plaintiffs\r\nErica and James Frank either orally or in writing. (See FACCs ¶ 63.) This allegation is insufficient and also\r\nuncertain. Each of the change orders\r\nconstitutes an amendment to the original contract. Therefore, cross-complainants must allege\r\nspecific facts as to the scope of each amendment, how each amendment was made,\r\nby whom, when the parties agreed to the amendment, as well as allege specific\r\nfacts as to when each breach occurred. In\r\naddition, cross-complainants have not alleged that, as to the change orders\r\nthat were made orally, whether either James or Erica Frank executed those\r\nchange orders. Here, the Franks\r\npresented authority that breach of contract claims must be plead with specificity.\r\n(Levy v. State Farm Mutual\r\nAutomobile Ins. Co. (2007) 150 Cal.App.4th 1.) Since\r\nCross-Complainants allege that there were 18 change orders, Cross-Complainants\r\nmust allege specific facts supporting each modification, detailing whether each\r\nchange order resulted from an oral or written request. Therefore, the demurrer is sustained with\r\nleave to amend.

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Uncertainty

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The\r\nFranks also argue that certain specific allegations in the cross-complaints are\r\nuncertain: (1) shoring; (2) underpaid invoices; and (3) reasonable reliance\r\nclaim. The Franks contend that with respect to the “Shoring” change order #53\r\nin the amount of $79,750, the written contract directly contradicts change\r\norder #53 for shoring, and nothing in the FACC supports any modification of the\r\nexclusions listed in Exhibit A. The\r\nCourt concludes that the Franks are demurring to a portion of the breach of\r\ncontract claim for shoring. The Franks\r\nargue that Shoring was not listed in the invoices. The listed exclusions in Exhibit A are\r\nexpress exclusions. However, Exhibit A\r\nalso does not include a line-itemization for shoring. The Franks have not shown that the breach of\r\ncontract claim is uncertain as to Number 53. \r\n

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The\r\nFranks also argue that the breach of contract claim as to the underpaid change\r\norder invoices in the amount of $26,160.51 (see FACC ¶ 54) is also uncertain\r\nbecause Exhibit D attached to the cross-complaints shows that the\r\nCross-Complainants received a total of $47,280. \r\nHere, the Court agrees that this allegation is confusing, and apparently\r\ncontradicted by Exhibit D, since Cross-Complainants included an attachment\r\nstating that the Franks made payments after August 10, 2017, that would cover\r\nthe $26,160.51. Cross-Complainants will have to explain whether those payments\r\nfollowing August 10, 2017, covered the underpayments. Therefore, the demurrer\r\nas to the breach of contact is also sustained on uncertainty grounds as to the\r\nunderpayments with leave to amend.

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Finally,\r\nthe Franks argue that the reasonable reliance claim is uncertain for the same reasons\r\nthat breach of contract claim is uncertain. \r\nThe Court notes that Cross-Complainants are not making a separate claim\r\nfor reasonable reliance and instead, these allegations are contained within the\r\nbreach of contract claim. The Court\r\nalready found the breach of contract claim to be insufficiently plead. Therefore, the demurrer is overruled on this\r\nbasis.

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Motions to strike

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Motions to strike are used to reach defects or objections to pleadings\r\nthat are not challengeable by demurrer (i.e., words, phrases, prayer for\r\ndamages, etc.). (See Code Civ. Proc., §§ 435, 436 & 437.) “The grounds for a motion to strike shall\r\nappear on the face of the challenged pleading or from any matter of which the\r\ncourt is required to take judicial notice.” (Code Civ. Proc., § 437.) “The court may, upon a motion made pursuant\r\nto Section 435, or at any time in its discretion, and upon terms it deems\r\nproper: (a) Strike out any irrelevant, false, or improper matter inserted in\r\nany pleading. [or] (b) Strike out all or any part of any pleading not drawn or\r\nfiled in conformity with the laws of this state, a court rule, or an order of\r\nthe court.” (Code Civ. Proc., § 436.)

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The Franks filed four\r\nmotions to strike, all seeking to strike 4 items, or Items A – D.

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A. Paragraphs 20 through 27 of AG’s “Common\r\nAllegations;”

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B. The sixth cause of action in its entirety or\r\nalternatively Paragraphs 52, and 54 through 70 of the sixth cause of action;

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C. Paragraph “F” of the prayer for relief on the sixth\r\ncause of action; and

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D. Exhibit “C” to the FACC.

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The motion to strike\r\nitems A – C is moot since they relate to the breach of contract claim. The Franks also seek to strike item D, which\r\nis Exhibit C. The Franks argue that Exhibit\r\nC to the FACC is not supportive of Cross-Complainants’ allegation that either James\r\nor Erika Frank agreed to the modification of the written contract because it is\r\nunsigned. The Franks also note that the\r\nexhibit is dated 2015 and therefore improper since the alleged change orders\r\noccurred well after 2015.

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Here,\r\nExhibit C is an unsigned list of change orders, and as such, it cannot be the\r\nbasis of an agreement between Cross-Complainants and the Franks. Cross-Complainants have not explained why Exhibit\r\nC is necessary or relevant to their claims, especially since they have already\r\nincluded a list of change orders in the cross-complaint, making Exhibit C\r\nredundant. Finally, Exhibit C is dated 2015\r\nand it is also improper on that basis, since Cross-Complainants are not\r\nalleging that the change orders occurred in 2015. Therefore, the motion to strike is GRANTED\r\nas to Item D - Exhibit C.

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2. Choi’s Motion to Strike AG Cross-Complaints (without demurrer)

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Background

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On April 12, 2021,\r\nCross-Defendant David Choi filed a motion to strike the amended\r\ncross-complaints filed by AG Properties, Inc., and the amended Cross-complaint\r\nof AG Construction.

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Legal standard

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Motions to strike are used to reach defects or objections to pleadings\r\nthat are not challengeable by demurrer (i.e., words, phrases, prayer for\r\ndamages, etc.). (See Code Civ. Proc., §§ 435, 436, & 437.) “The grounds for a motion to strike shall\r\nappear on the face of the challenged pleading or from any matter of which the\r\ncourt is required to take judicial notice.” (Code Civ. Proc., § 437.) “The court may, upon a motion made pursuant\r\nto Section 435, or at any time in its discretion, and upon terms it deems\r\nproper: (a) Strike out any irrelevant, false, or improper matter inserted in\r\nany pleading. [or] (b) Strike out all or any part of any pleading not drawn or\r\nfiled in conformity with the laws of this state, a court rule, or an order of\r\nthe court.” (Code Civ. Proc., § 436.)

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ANALYSIS

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Choi seeks to strike the first amended cross-complaints pursuant to Code\r\nof Civil Procedure section 430.10(b) and (c). \r\nCode of Civil Procedure section 430.10 provides: “The party against whom\r\na complaint or cross-complaint has been filed may object, by demurrer or\r\nanswer as provided in Section 430.30, to the pleading on any one or\r\nmore of the following grounds: . . . (b) The person who filed the pleading does\r\nnot have the legal capacity to sue[;] (c) There is another action pending\r\nbetween the same parties on the same cause of action” among others (Code Civ.\r\nProc., § 430.10 (b),(c) [emphasis added].) \r\nChoi\r\nargues that the identical FAXCs should be stricken as duplicative, the\r\nappearance by a non-registered entity in one of them cannot stand, and also\r\nsupports striking the FAXC pleadings.

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In opposition, AG Properties,\r\nInc., a California Corporation, and AG Construction, a business entity, form\r\nunknown (collectively "AGP") argue that the motion to strike is\r\nuntimely. AGP argue that the time limit\r\nof filing a response to a pleading is thirty days, (Code Civ. Proc., §§412.20(a)(3), 586(a)(l)) and\r\nthat if a party is served by electronic service, the additional two days should\r\nbe extended pursuant to Code of\r\nCivil Procedure section 1010.6 (a)(4)(B), making the deadline to file a\r\nmotion to strike on April 9, 2021.

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In reply, Choi argues\r\nthat that the motion to strike is timely because service of the first amended\r\ncross-complaints was effectuated both by mail and electronic service. (See Proof of Service, Ex. 1, pp. 84 of 94 of\r\nChang Opp. Decl.) Here, while the cross-complaint was served both\r\nelectronically and by mail, the shorter 2-day extension applies because the cross-complaint\r\nwas served electronically. Therefore,\r\nsince the motion to strike is untimely and DENIED.

\r\n\r\n

In\r\naddition, the motion to strike would also fail on the merits because Choi\r\nimproperly seeks to strike the cross-complaint based on objections that should\r\nbe raised on demurrer. Choi argues that “a\r\nmotion labeled as a motion to strike a pleading, based upon the ground it fails\r\nto state facts sufficient to constitute a cause of action, may also be treated\r\nas a motion for judgment on the pleadings. (See American Airlines, Inc. v.\r\nCounty of San Mateo (1996) 12 Cal.4th 1110, 1118; Pierson v. Sharp\r\nMemorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342–343.) In American Airlines, Inc., the\r\nSupreme Court construed a motion for summary judgment as a motion for judgment\r\non the pleadings, because the moving party was only testing the sufficiency of\r\nthe complaint. (American Airlines,12 Cal.4th at 1118.) As such, American Airlines is inapplicable.\r\n In Pierson, the Court of Appeal\r\nopted to treat a trial court’s order granting a motion to strike as an order\r\ngranting judgment on the pleadings. (Pierson,\r\n216 Cal.App.3d at 342–343.) There, the\r\nmoving party had argued in its motion to strike that the complaint failed to\r\nstate sufficient facts to state a cause of action, which is a ground for a general\r\ndemurrer. (Id. at 342.)

\r\n\r\n

Here,\r\nChoi has not requested that the Court treat the defective motion to strike as a\r\nmotion for judgment on the pleadings. Choi\r\ncites Code of Civil Procedure\r\nsection 430.10(b) and (c) which are not general demurrers. Legal capacity to\r\nsue cannot be raised by ‘general’ demurrer. \r\n(Friendly Village Community Assn., Inc. v. Silva & Hill Constr.\r\nCo. (1973) 31 Cal.App.3d 220, 223.) A party demurring on the basis that “There is another action pending between\r\nthe same parties on the same cause of action” seeks a plea in abatement, and\r\nnot dismissal of an action. (Code Civ. Proc.,\r\n§ 430.10(c); Plant Insulation Co. v. Fibreboard Corp. (1990) 224\r\nCal.App.3d 781, 788.) Therefore, since these\r\nchallenges are inappropriate on a motion to strike, the motion to strike is\r\ndenied.

\r\n\r\n'b"

Case Number: 18SMCV00061 Hearing Date: October 1, 2021 Dept: M

\r\n\r\n

CASE NAME: James\r\nFrank, et al. v. AG Construction, et al.

\r\n\r\n

CASE NO.: 18SMCV00061

\r\n\r\n

MOTION: Determination\r\nof Good Faith Settlement

\r\n\r\n

HEARING DATE: 10/1/2021

\r\n\r\n

BACKGROUND

\r\n\r\n

On July 11, 2019, plaintiffs James and Erika Frank\r\nfiled a First Amended Complaint (FAC) against defendant AG Construction, AG\r\nProperties and Does 1-50 for breach of contract and negligence. On March 5, 2021, AG Properties and AG\r\nConstruction filed First Amended Cross-Complaints (FACC) against Plaintiffs and\r\nseveral subcontractors, including Blue Line, for (1) equitable/implied\r\nindemnity; (2) apportionment of fault; (3) declaratory relief; (4)\r\ncontribution; (5) negligence; and (6) breach of contract.

\r\n\r\n

LEGAL STANDARD

\r\n\r\n

“Any party to an action in which it\r\nis alleged that two or more parties are joint tortfeasors or co-obligors on a\r\ncontract debt shall be entitled to a hearing on the issue of the good faith of\r\na settlement entered into by the plaintiff or other claimant and one or more\r\nalleged tortfeasors or co-obligors, upon giving notice in the manner provided\r\nin subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6 (a)(1).) “The issue of the good faith of a settlement\r\nmay be determined by the court on the basis of affidavits served with the\r\nnotice of hearing, and any counteraffidavits filed in response, or the court\r\nmay, in its discretion, receive other evidence at the hearing.” (Code Civ.\r\nProc., § 877.6(b).) “The party asserting\r\nthe lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., § 877.6(d).)

\r\n\r\n

\r\n\r\n

Courts consider the following\r\nfactors when determining whether a settlement has been reached in good faith:\r\nthe “[1)]rough approximation of plaintiffs' total recovery and the settlor's\r\nproportionate liability, [2)] the amount paid in settlement, [3)] the allocation\r\nof settlement proceeds among plaintiffs, and a [4)]recognition that a settlor\r\nshould pay less in settlement than he would if he were found liable after a\r\ntrial.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38\r\nCal.3d 488, 499.) “Other relevant\r\nconsiderations include: [5)] the financial conditions and insurance policy\r\nlimits of settling defendants, as well as [6)] the existence of collusion,\r\nfraud, or tortious conduct aimed to injure the interests of nonsettling\r\ndefendants.” (Id.) It is also\r\nimportant to consider “whether the amount of the settlement is within the\r\nreasonable range of the settling tortfeasor's proportional share of comparative\r\nliability for the plaintiff's injuries.” (Id.) Courts are empowered to consider settling\r\ndefendants’ wealth or lack thereof. (City of Grand Terrace v. Superior Court\r\n(1987) 192 Cal.App.3d 1251, 1264.)

\r\n\r\n

\r\n\r\n

ANALYSIS

\r\n\r\n

On August 27, 2021, Cross-Defendant Blue Line\r\nPlumbing, Inc. filed a motion for the determination of a good faith settlement\r\npursuant to Code of Civil Procedure section 877.6(a)(1). Blue Line Plumbing argues that the proposed\r\nsettlement meets all of the Tech-Bilt factors, is “within the ballpark”\r\nof a reasonable good faith settlement, and should be approved by the Court.

\r\n\r\n

As part of\r\ntheir motion, Blue Line notes that the breach of contract claim filed by Plaintiffs\r\nis not alleged against Blue Line. Blue\r\nLine also notes that there is no contract between AG and Blue Line. AG Construction and AG Properties, Inc., dba\r\nAG Construction (collectively “AGP”) argue in opposition that the proposed\r\nsettlement fails to meet the ballpark of the settling tortfeasor's proportional\r\nshare of comparative liability. AGP further\r\nargues that discovery has demonstrated that Plaintiffs identified many more\r\ndefects in the property than Blue Line is presenting to the Court. (See e.g., Ex.\r\n K [plumbing defects list], Ex. D [scope\r\nof work] to Walker Decl.)

\r\n\r\n

\r\n\r\n

As part of\r\ntheir motion, Blue Line provided the declaration of Temre L. Fisher, which\r\nattached the settlement agreement. (See\r\nEx. 3 to Fisher Declaration.) The\r\ndeclaration provided by Fisher, however, is conclusory. While Fisher provides that the amount to be\r\npaid is $9,000, Blue Line has not provided the Court with evidence produced by Plaintiffs\r\nthat shows how much Plaintiffs are claiming that Blue Line is responsible for\r\nin this matter. Moreover, AGP claims\r\nseparate damages as a result of Blue Line’s alleged negligence in the FACC. As part of their opposition, AGP provided the\r\ndeclaration of their expert, Arnold Rodio, who presents evidence of 47 plumbing\r\nrelated issues/defects attributable to Blue Line, along with evidence that Blue\r\nLine’s potential liability is far in excess of the $11,461 claimed by Blue\r\nLine. In light of AGP’s equitable\r\nindemnity claims, the analysis encompasses not only AGP’s FACC, but also\r\nPlaintiff’s allegations in their FAC.

\r\n\r\n

\r\n\r\n

The Court identifies a number of deficiencies\r\nwith the motion, which prevents approval at this time. For instance, while Blue Line states that the\r\nsettlement is funded through insurance, Blue Line does not provide evidence as to\r\nwhether the settlement is for its policy limits. Blue Line also did not present evidence as to\r\nits financial condition. In addition,\r\nwhile Blue Line argues that the settlement amount is reasonable given Blue\r\nLine’s affirmative defenses, Blue Line fails to provide any analysis of its\r\naffirmative defenses for the Court to draw any reasonable conclusions as to\r\nthis statement. Most importantly, Blue\r\nLine fails to explain to the Court how this settlement is fair or does not\r\ninjure the interests of non-settling defendants or cross-defendants, and fails\r\nto take into consideration claims set forth in Plaintiff’s FAC. Therefore, the motion for a good faith\r\nsettlement is denied without prejudice.

\r\n\r\n"b"

Case Number: 18SMCV00061 Hearing Date: July 13, 2021 Dept: M

\r\n\r\n

CASE NAME: James Frank, et al. v. AG Construction, et al.

\r\n\r\n

CASE NUMBER: 18SMCV00061

\r\n\r\n

MOTION: Cherry Hill’s Motion for Summary Judgment as AG\r\nProperties and AG Construction’s Cross-Complaints

\r\n\r\n

HEARING DATE: 07/13/2021

\r\n\r\n

\r\n\r\n

Background

\r\n\r\n

\r\n\r\n

This is a construction defects case.\r\nOn February 5, 2020, AG Properties, Inc., and AG Construction filed a\r\ncross-complaint for equitable/implied indemnity, apportionment of fault,\r\ndeclaratory relief, contribution, and negligence against various contractors\r\nand subcontractors, including Cherry Hill. \r\n

\r\n\r\n

\r\n\r\n

Legal\r\nStandard

\r\n\r\n

\r\n\r\n

The purpose of a motion for\r\nsummary judgment or summary adjudication “is to provide courts with a mechanism\r\nto cut through the parties’ pleadings in order to determine whether, despite\r\ntheir allegations, trial is in fact necessary to resolve their\r\ndispute.” (Aguilar v. Atl. Richfield Co. (2001)\r\n25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c,\r\nsubdivision (c), requires the trial judge to grant summary judgment if all the\r\nevidence submitted, and ‘all inferences reasonably deducible from the evidence’\r\nand uncontradicted by other inferences or evidence, show that there is no\r\ntriable issue as to any material fact and that the moving party is entitled to\r\njudgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992)\r\n7 Cal.App.4th 1110, 1119.)

\r\n\r\n

\r\n\r\n

“The supporting papers shall include a separate\r\nstatement setting forth plainly and concisely all material facts which the\r\nmoving party contends are undisputed. \r\nEach of the material facts stated shall be followed by a reference to\r\nthe supporting evidence. The failure to\r\ncomply with this requirement of a separate statement may in the court's\r\ndiscretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c(b)(1); see also Cal.\r\nRules of Court, rule 3.1350(c)(2) & (d).) \r\n

\r\n\r\n

“The\r\nopposition papers shall include a separate statement that responds to each of\r\nthe material facts contended by the moving party to be undisputed, indicating\r\nif the opposing party agrees or disagrees that those facts are undisputed. The\r\nstatement also shall set forth plainly and concisely any other material facts\r\nthe opposing party contends are disputed. Each material fact contended by the\r\nopposing party to be disputed shall be followed by a reference to the\r\nsupporting evidence. Failure to comply with this requirement of a\r\nseparate statement may constitute a sufficient ground, in the court's\r\ndiscretion, for granting the motion.”\r\n(Code Civ. Proc., § 437b(b)(3) (emphasis added).)

\r\n\r\n

“On a motion for summary judgment,\r\nthe initial burden is always on the moving party to make a prima\r\nfacie showing that there are no triable issues of material\r\nfact.” (Scalf v. D. B. Log Homes, Inc. (2005)\r\n128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary\r\njudgment if they can show that there is no triable issue of material fact or if\r\nthey have a complete defense thereto. (Aguilar v. Atlantic Richfiend Co. (2001)\r\n25 Cal.4th 826, 843.)

\r\n\r\n

\r\n\r\n

Evidentiary\r\nobjections

\r\n\r\n

AG Construction’s objection is overruled.

\r\n\r\n

\r\n\r\n

Cherry Hill’s objections to AG’s evidence.

\r\n\r\n

Objection nos. 1, 3-11 and 23-24 are sustained.

\r\n\r\n

Objection nos. 2, 22 and 25 are overruled.

\r\n\r\n

Objection nos. 12-21 are moot.

\r\n\r\n

\r\n\r\n

ANALYSIS

\r\n\r\n

\r\n\r\n

Cherry Hill[1]\r\nargues that it is entitled to summary judgment on the AG Construction and AG\r\nProperties cross-complaints because Cherry Hill was a design consultant that\r\nwas not in contractual privity with AG and therefore did not owe a duty to AG\r\nor Plaintiffs relying on, amongst other cases, Weseloh Family Ltd.\r\nPartnership v. K.L. Wessel Construction (2004) 125 Cal.App.4th 152.

\r\n\r\n

In Weseloh, the engineers, Randle and Owen produced\r\nundisputed evidence showing they did not owe plaintiffs (the property owners) or\r\nthe general contractor a duty of care in designing the retaining walls for an automobile\r\ndealership. (Weseloh, supra, 125 Cal.App.4th at 164.) The trial\r\ncourt and the Court of Appeal specifically identified the following undisputed\r\nfacts that carried the engineers burden on summary judgment: (1) the plaintiffs\r\ncontracted with the general contractor to construct automobile dealership\r\nfacilities at the property; (2) one of the engineers performed design services\r\nfor the subcontractor; (3) the subcontractor built the retaining walls at the\r\nproject; (4) a portion of the retaining walls failed; (5) neither engineer had\r\na “role in the construction” of the retaining walls; (6) neither engineer\r\nentered into a contract with the plaintiffs; (7) neither engineer entered into\r\na contract with the general contractor; and (8) neither engineer were ever\r\ncompensated by the plaintiffs or the general contractor for any work performed\r\nfor the project. (Id.)

\r\n\r\n

Cherry Hill\r\nargues that the undisputed facts as well as the factors set forth in Biakanja\r\nv. Irving (1958) 49 Cal.2d 647, warrant a finding of no duty. Cherry Hill\r\npresents evidence that (1) Plaintiffs James and Erika Frank contracted with AG\r\nConstruction, the general contractor, to construct a single-family residence (UMF\r\n2); (2) Atomic Irrigation performed irrigation design services for Christine\r\nLondon, who had contracted directly with Plaintiffs for landscape architectural\r\nservices (UMFs 5 and 6); (3) a separate contractor built the irrigation system\r\nat the project (UMF 10) and a contractor hired by AG waterproofed the retaining\r\nwalls (UMF 4); (4) the retaining walls have experienced water intrusion as\r\nalleged by Plaintiffs; (5) Atomic did not have a “role in the construction” of\r\nthe irrigation system or retaining walls (UMFs 2-6, 9-10); (6) Cherry Hill did\r\nnot enter into a contract with Plaintiffs (UMFs 5-6, 13, 15); (7) Cherry Hill did\r\nnot enter into a contract with AG the general contractor (UMF 6, 12, 14); and\r\n(8) Cherry Hill was never compensated by Plaintiffs or AG for any work\r\nperformed for the project. (UMF 11).

\r\n\r\n

\r\n\r\n

Cherry Hill\r\nalso argue that the factors set forth in Biakanja and Bily v.\r\nArthur Young Co. (1992) 3 Cal. 4th 370, weigh in favor of\r\nfinding no duty. Cherry Hill presents arguments and evidence that 1) the extent\r\nto which the transaction was intended to affect the plaintiff, (2) the\r\nforeseeability of harm to plaintiff, (3) the degree of certainty that the\r\nplaintiff suffered injury, (4) the closeness of the connection between the\r\ndefendant's conduct and the injury suffered, (5) the moral blame attached to\r\nthe defendant's conduct, and (6) the policy of preventing future harm weigh in\r\nfavor against finding a duty.

\r\n\r\n

\r\n\r\n

The Supreme Court in Biakanja\r\nexplained, “The determination whether in a specific case the defendant will be\r\nheld liable to a third person not in privity is a matter of policy and\r\ninvolves the balancing of various factors[.]” (Biakanja v. Irving (1958)\r\n49 Cal.2d 647, 650 [emphasis added].) These factors include (1) the extent to which\r\nthe transaction was intended to affect the plaintiff, (2) the foreseeability of\r\nharm to plaintiff, (3) the degree of certainty that the plaintiff suffered\r\ninjury, (4) the closeness of the connection between the defendant's conduct and\r\nthe injury suffered, (5) the moral blame attached to the defendant's conduct,\r\nand (6) the policy of preventing future harm. (Id.) The Court of Appeal\r\napplied these factors in Weseloh, supra, 125 Cal.App.4th\r\nand found that the opposing parties failed to raise an issue of material fact\r\nthat would warrant imposing a duty of care.

\r\n\r\n

For the first factor, Cherry Hill presents evidence\r\nthat there was a lack of contractual privity between Cherry Hill and the homeowner\r\nPlaintiffs or AG, the general contractor. (UMF 6.) Cherry Hill did not\r\nparticipate in the construction of the irrigation system or perform any onsite\r\nservices. (UMFs 9 and 10.). Cherry Hill\r\nalso argues that there is no evidence of a beneficiary clause in their contract\r\nwith London, identifying Plaintiffs or AG as the intended beneficiary of work\r\nperformed by Cherry Hill.

\r\n\r\n

For\r\nthe second factor, Cherry Hill concedes that it is generally foreseeable\r\na design defect could result in water intrusion, however, it further argues\r\nthat such foreseeability is not enough to impose a legal duty. Cherry Hill\r\nargues that the homeowner plaintiffs in this case are not alleging that the\r\nirrigation system was defectively designed, instead, Plaintiffs are alleging “the\r\nwaterproofing of the subterranean walls on the north and south sides of the\r\nhouse has failed, allowing water to leak through the walls causing staining on\r\nthe walls and water to collect at the base of the walls.” (See Pl.’s FAC ¶ 15.)\r\n

\r\n\r\n

For the third factor, Cherry Hill does not dispute\r\nthat Plaintiffs sustained damage as a result of water intrusion. However, for\r\nthe fourth factor, Cherry Hill argues there is no evidence to show a connection\r\nbetween Cherry Hill’s design services and the damages sustained. Cherry Hill\r\nreiterates that Plaintiffs do not even contend that the irrigation design was\r\ndefective, and instead, it is only AG, the general contractor, who claims a\r\ndefect. Cherry Hill presents AG’s discovery\r\nresponses that demonstrate AG does not possess evidence showing a defect in the\r\ndesign services caused the damages sustained. (Ainslie Decl., ¶¶ 7-8, see\r\ngenerally Exs. G and H, see, e.g. RFA No. 17 [subject to various\r\nobjections, “Cannot admit or deny”].) Cherry Hill presents evidence that that\r\nit never contracted for or otherwise agreed to perform on-site construction\r\nrelated services such as oversight and attending meeting. (UMF 9.) Cherry Hill did not perform any onsite\r\nservices, including construction of the irrigation system. (UMF 10.) Here,\r\nCherry Hill has shown that there is no evidence to link Cherry Hill’s design\r\nservices with the injury Plaintiffs have suffered.

\r\n\r\n

For the fifth factor on moral blame, Cherry Hill\r\nargues that there is no reason to assign it any moral blame because it had no\r\nrole in the physical construction of the irrigation system. (UMF 9 and\r\n10.). Furthermore, Cherry Hill did not contract with Plaintiffs or AG for the\r\nirrigation design services, (UMF 6) and never had any communications with AG\r\nregarding the Project or the Subject Property. (UMF 12.) For the sixth factor, Cherry Hill argues that\r\nthere is no evidence supporting any argument that greater care in design\r\nservices would result from expanded liability.

\r\n\r\n

Under Weseloh, the Court concludes that Cherry\r\nHill has met its initial burden on this motion and therefore, the burden has\r\nshifted to AG to show that there is a dispute of fact that would warrant\r\nimposing a duty on Cherry Hill.

\r\n\r\n

In opposition to the motion, AG relies on Beacon\r\nResidential Cmty. Assn. v. Skidmore, Owings & Merrill LLP (2014)\r\n59 Cal.4th 568, in support of its position that Cherry Hill owes a duty to AG. AG argues that the Supreme Court held in Beacon\r\nthat an architect owes a duty of care to third parties, including future\r\nhomeowners, where the architect is providing principal design services and is\r\nnot subordinate to any other design professional, even if the architect does\r\nnot actually build the project or exercise ultimate control over construction\r\ndecisions. (Beacon, supra, 59 Cal.4th 568, 581.) However, Beacon\r\nis factually distinguishable. There, the\r\narchitects were the only architects and therefore the principal architects on\r\nthe entire residential construction project, consisting of 595 condominium units\r\nfor which they were allegedly paid more than $5 million. (Beacon, 59 Cal.4th at 571-72.) \r\nHere, Cherry Hill provided limited services to the main landscape\r\narchitect, who was the principal landscape architect.

\r\n\r\n

AG further argues that in Beacon,\r\nthe Supreme Court found that “Weseloh merely suggests that an\r\narchitect's role in a project can be so minor and so subordinate to the role or\r\njudgment of other design professionals as to foreclose the architect's\r\nliability in negligence to third parties” (Id. at 587.) While Beacon distinguished\r\nWeseloh on the facts, it cited Weseloh favorably\r\nthroughout the decision, and did not question the continued validity of Weseloh\r\nor its underpinnings. (Beacon, 59 Cal.4th at 586–587.)\r\n In fact, the Supreme Court expressly\r\nacknowledged the holding from Weseloh but concluded it did not\r\napply to the facts of the case before it since “the defendants in Weseloh\r\nplayed a materially different role in the construction project” and separately\r\nnoted that Beacon was on demurrer and Weseloh was on\r\nsummary judgment. (Id. at 586,\r\n587.) Here, Beacon does not\r\nsupport a finding of a duty, given that Cherry Hill is not alleged to be the\r\nprincipal architect on the entire landscape project as well as the fact\r\nthat Plaintiff has not alleged that Cherry Hill’s conduct harmed Plaintiff.

\r\n\r\n

AG further argues that there is a duty under Civil Code section\r\n896. In reply, Cherry Hill argues that\r\nCivil Code section 896 does not apply because Plaintiffs have not brought a\r\nclaim under the Repair Act, but a common law claim as to construction defects. The Court agrees that Civil Code section 896\r\ndoes not apply.

\r\n\r\n

AG also argues that the Biakanja factors support the\r\nimposition of a duty. For the first factor,\r\nAG contends that Cherry Hill knew that the irrigation plans it was designing\r\nwere going to be used to support the installation of an irrigation system in a\r\nresidence, and that ultimately its plans would be relied upon by other\r\ncontractors in performing the work in question. \r\nIn reply, Cherry Hill argues that these were the same factors that were\r\npresent in Weseloh, and the Court still found that the\r\nwork was not intended to benefit Plaintiffs. \r\nHere, Cherry Hill was\r\nhired by London to prepare irrigation designs as part of London’s overall\r\nlandscape architectural services. (UMFs 5\r\nand 6.) The plans that were\r\nprepared by Cherry\r\nHill are on London’s\r\ntitle block. (Susser Decl., at ¶ 4, Ex. B.) \r\n

\r\n\r\n

AG contends that Cherry Hill has conceded foreseeability for\r\na design defect. This argument appears\r\nto overstate Cherry Hill’s concession. \r\nAG further argues with respect to duty:

\r\n\r\n

the court's task “is not to decide whether a particular\r\nplaintiff's injury was reasonably foreseeable in light of a particular\r\ndefendant's conduct, but rather to evaluate more generally whether the category\r\nof negligent conduct at issue is sufficiently likely to result in the kind of\r\nharm experienced that liability may appropriately be imposed on the negligent\r\nparty.”

\r\n\r\n

(Laabs\r\nv. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1273.) While\r\nAG argues that Cherry Hill’s specific conduct with respect to Plaintiffs’\r\ninjuries, Plaintiffs have not claimed that Cherry Hill’s conduct via design of\r\nthe irrigation system caused Plaintiffs’ injuries.

\r\n\r\n

For the fourth factor, AG argues that Plaintiffs\r\nclearly suffered injury as a result of Cherry Hill’s conduct. AG also disputes\r\nthat its discovery responses were factually devoid of facts demonstrating\r\nliability because they set forth its theory that the irrigation was\r\nplaced in such a position pursuant to plans of Cherry Hill such that Plaintiffs\r\nsustained damages. AG also points to the declarations of its experts that\r\nsupport its theory. The Court notes\r\nhowever, that it sustained a majority of the objections to the expert\r\ndeclarations.

\r\n\r\n

For the fifth factor, AG argues that Cherry Hill’s\r\nconduct shows moral blame. AG argues\r\nthat Cherry Hill had knowledge that its plans would be used by others in\r\nconstructing the residence and that Cherry Hill did not obtain copies of the\r\npertinent documents to establish the height of the waterproofing versus the finish\r\ngrade for the irrigation system at the Project. AG further argues that Cherry Hill\r\nfailed to specify the finish grade for the waterproofing at the project which\r\nin turn caused other subcontractors, who were relying on Cherry Hill’s plans, to\r\ninstall additional soil and the irrigation system at a height which was\r\nincompatible with the height of waterproofing membrane installed at the\r\ncompleted residence. AG’s arguments,\r\nhowever, do not support a finding of moral blame. AG has not provided evidence showing\r\nthat Cherry Hill intended or planned the harmful result, had actual or constructive\r\nknowledge of the harmful consequences of its behavior, or that Cherry Hill acted\r\nin bad faith or with reckless indifference to the results of its conduct.

\r\n\r\n

Finally, AG argues that the policy of preventing\r\nfuture harm is served by imposing a duty on Cherry Hill. AG reasons that landscape professionals like\r\nCherry Hill, who certify and stamp their plans, will know that where their\r\nplans are drawn with missing and/or incomplete information, they can be held\r\nresponsible by general contractors and others who rely upon those plans in\r\nbuilding a single-family residence. To\r\nthe extent that imposing a duty would lessen future harm, the undisputed facts\r\nof this case would not warrant such a duty.

\r\n\r\n

The undisputed evidence presented by the parties\r\nsupports a finding that, under Weseloh Family Ltd. Partnership v. K.L.\r\nWessel Construction (2004) 125 Cal.App.4th 152, Cherry Hill lacked a\r\nduty to either AG or Plaintiffs. Cherry\r\nHill did not contract with either Plaintiffs or AG, but instead was hired by Christine\r\nLondon, Ltd. as a consultant and was paid $2,900 for irrigation design\r\nservices. Cherry Hill’s role in this\r\nproject was subordinate to Christine London, Ltd. Cherry Hill also did not agree to perform\r\non-site construction related services, and in fact, provided no such onsite\r\nservices. Furthermore, AG has not\r\nproduced evidence demonstrating “how and the extent to which their damages were\r\ncaused by the asserted design defects,” with the harm alleged by Plaintiffs being\r\ninadequate waterproofing of certain walls. \r\n

\r\n\r\n

Here, Cherry Hill met its initial burden on this\r\nmotion for summary judgment and shifted that burden to AG. AG failed to meet its burden. Therefore, the\r\nCourt grants Cherry Hill’s motion for summary judgment as to the AG\r\ncross-complaints.

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1] Cherry\r\nHill Design, LLC doing business as Atomic Irrigation is the moving party. The Court refers to moving party Atomic as\r\nCherry Hill throughout.

\r\n\r\n
\r\n\r\n
\r\n\r\n"

Case Number: 18SMCV00061    Hearing Date: February 24, 2021    Dept: M

CASE NAME: James Frank, et al. v. AG Construction, et al.

CASE NUMBER: 18SMCV00061

MOTION:  Demurrer to Cross-Complaint of AG Properties and AG Construction

HEARING DATE: 2/24/2021

Background

This is a construction defects case. On February 5, 2020, AG Properties, Inc., and AG Construction filed a cross-complaint for equitable/implied indemnity, apportionment of fault, declaratory relief, contribution and negligence and named various contractors and subcontractors as defendants.

Legal Standard

“Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading . . . for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41.) A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220. The court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law.  (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore v. Conliffe Montclair Parkowners Assn. v. City of Montclair The court treats all facts alleged in the complaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.) When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.)) “The burden is on the plaintiff to demonstrate the manner in which the complaint can be amended.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748.)

ANALYSIS

Meet and confer

Cross-Defendant met and conferred with Cross-Complainants prior to filing this demurrer.

Basis of demurrer

On June 15, 2020, Cross-Defendant Cherry Hill Design DBA Atomic Irrigation filed a demurrer to the cross-complaint filed by Cross-Complainants AG Properties, Inc., and AG Construction. Cross-Defendant was sued as a Roe Defendant.

Cross-Defendant demurs to each of the causes of action in the complaint arguing that Cross Defendant was a design consultant and therefore did not owe a duty to Cross-Complainant because it was not in contractual privity with the Cross-Complainants. In opposition, Cross-Complainants argue that Atomic improperly argues facts outside of the cross-complaint.

In support of their demurrer, Atomic cites law applicable to design consultants, however, it does not make any arguments indicating that Cross-Complainants alleged that Atomic was a design consultant. In ruling on a demurrer, the Court is restricted to the four comers of the pleadings and any judicially noticeable documents. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Cross-Defendant Atomic advances arguments based on facts outside of the cross-complaint. Cross-Defendant cites the first amended complaint throughout its demurrer in support of its sufficiency argument. While the Cross-Complaint references the first amended complaint throughout, there is no allegation in the cross-complaint indicating that Cross-Complainants incorporated by reference any of those allegations. Since Atomic has failed to show how the cross-complaint is defective based upon the four corners of the complaint, the demurrer is overruled.

2.  AG Properties and AG Construction’s Motion for Leave to File an Amended Cross-Complaint

On November 11, 2020, Cross-Defendant/Cross-Complainants AG Properties, Inc., and AG Construction (“AG Construction” or “Moving parties”) filed a motion seeking leave to amend the cross-complaint. On January 7, 2021, Moving parties filed a notice of errata and correction to the proposed first amended cross-complaint.

ANALYSIS

California Rules of Court, Rule 3.1324 deals with motions to amend pleadings. (See CRC Rule 3.1324.) In general, such motions must be supported by a declaration. (CRC Rule 3.1324(b).) Generally, a party must 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. (Code Civ. Proc., § 428.50(a).) A party may obtain leave of court to file a cross-complaint at any time during the course of a lawsuit, and leave may be granted in the interest of justice. (See Code Civ. Proc., §§ 426.50, 428.50(c); see also Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.) “Permission to file a permissive cross-complaint is solely within the trial court's discretion. [citation omitted.]” (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) The court may grant leave to file a cross-complaint if the failure to plead a cause of action for compulsory cross-complaint was the result of oversight, inadvertence, mistake, neglect, or other cause. (Code Civ. Proc., § 426.50.) Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint as long as defendant is acting in good faith. (Id.)

California courts are required to permit liberal amendment of pleadings in the interest of justice between the parties to an action. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.) Generally, amendment must be permitted unless there is unwarranted delay in requesting leave to amend or undue prejudice to the opposing party. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) Even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself—be a valid reason for denial. (Emerald Bay Community Association v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.)

Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit and discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 929.)

Moving parties argue that these are compulsory claims since they arise from the same transaction underlying the cross-complaint. Moving parties seeks to add facts supporting causes of action against James Frank and Erika Frank (“The Franks”). The Franks argue that this motion should be denied for various reasons. The Franks argue that the motion is not supported by a declaration from someone who has personal knowledge, and that Cross-Defendants’ have not explained their delay in bringing this motion. The Franks also argue that the breach of contract cause of action is defective for failure to include the contract. The Franks argue that the proposed cause of action for quantum meruit is barred by the statute of limitations because that claim needed to have been brought by November 2019. 

California Rules of Court, Rule 3.1324 deals with motions to amend pleadings. (See CRC Rule 3.1324.) In general, such motions must be supported by a declaration. (CRC Rule 3.1324(b).). The Court agrees with Cross-Complainants that the declaration provided by its counsel is sufficient.

Cross-Complainants did not meaningfully defend their quantum meruit cause of action. Instead, on reply, they argue that the breach of contract cause of action still survives. [Q]uantum meruit does not require a contract.” (Maglica v. Maglica (Sept. 28, 1998).) The statute of limitations for a claim based on quantum meruit is two years. (Id. at 452 [citing Code Civ. Proc., § 339].) A proposed amendment fails to state a cause of action as a matter of law if the proposed amendment is barred by the statute of limitations. “Of course, if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend. (5 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 1125, p. 541.)” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.). The Court agrees that the quantum meruit claim is barred by the statute of limitations. Therefore, the motion for leave to amend is denied as to the quantum meruit cause of action.

The Franks argue that Cross-Complainants have not alleged a valid breach of contract claim because the change orders are not signed. These arguments are better suited on demurrer.[1] Denying leave to amend is most appropriate when the proposed cause of action fails as a matter of law and could not be cured by further amendment (See California Casualty Gen. Ins. Co. v. Superior Court by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, fn. 11, on other grounds.) Cross-Complainants have shown that the proposed breach of contract claim is a compulsory claim in that it arises from the same transaction or occurrence – the work done by Cross-Complainants on the home subject to this litigation. Since this is a compulsory claim and since Plaintiffs have failed to show that they would be prejudiced, the Court grants the motion for leave to amend as to the breach of contract cause of action.


[1] The court expresses no opinion on the merits of these arguments.

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