MITCHELL BLOCH ET AL VS HAZIE LAZAROF ET AL

Tentative Rulings

Case Number: ****4336 Hearing Date: February 23, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY: Cross-Defendant Scott Marsh dba Marsh Construction (Roe 1)

RESPONDING PARTY: Cross-Complainant Hazie Lazarof

Motion for Summary Judgment as to the Cross-Complaint

MOVING PARTY: Cross-Defendant ADK Construction, Inc. (Roe 3)

RESPONDING PARTY: Cross-Complainant Hazie Lazarof

Motion for Summary Judgment as to the Cross-Complaint

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

EVIDENTIARY OBJECTIONS

The court sustains Cross-Defendants’ evidentiary objections for lack of foundation.

The court overrules Cross-Complainant’s objections to the Supplemental Declarations of Stephen Adkison and Scott Marsh, as the contents of the supplemental declarations do not constitute new evidence.

REQUEST FOR JUDICIAL NOTICE

The court grants Cross-Defendants’ request for judicial notice. (Evid. Code 452, subd. (d).)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., 437c, subd. (c).)

DISCUSSION

1. First Cause of Action for Equitable Indemnity; Second Cause of Action for Partial Indemnity

“The right to indemnity flows from payment of a joint legal obligation on another’s behalf.” (Expressions at Rancho Niguel Association v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.) “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Ibid. [emphasis in original].)

The court finds that Cross-Defendants have met their burden of showing that the first cause of action for equitable indemnity and second cause of action for partial indemnity have no merit because Cross-Defendants have shown that an element of the causes of action (fault) cannot be established.

Cross-Defendants present the following evidence: (1) Plaintiffs allege only that Lazarof’s work was defective (UF Nos. 8-11, 22-26); (2) Cross-Defendants’ work on the property contained no defects and was done according to the certified architectural, structural, and engineering plans and specifications for the property (UF Nos. 28-29-43, 46-48, 50-52); (3) Cross-Defendants’ work on the property in no way contributed to the tile defects alleged by Plaintiffs (UF Nos. 30, 52, 55, 60-65); (4) inspections of the property and Cross-Defendants’ work resulted in no noted defects or required corrections (UF Nos. 48-49); and (5) the parties have not expressed dissatisfaction with Cross-Defendants’ work (UF Nos. 53-54, 57-59).

The court finds that Cross-Complainant has not met his burden to show that a triable issue of material fact exists as to the element of Cross-Defendants’ fault. Lazarof provides the following evidence: (1) Cross-Defendants admitted to deviating from the approved plans (Adkison Decl., 16-17; Marsh Decl., 19); (2) Lazarof’s expert witness found that Cross-Defendants deviated from the plans and specifications regarding the foundation and wood structure (Villalba Decl., 6); and (3) Cross-Defendants’ failure to adhere to the plans caused Plaintiffs’ alleged damages (Villalba Decl., 5-7).

First, Cross-Defendants do not admit wrongdoing in their declarations. In their declarations, Cross-Defendants consistently state that their actions in installing the foundation and floor joists was in accordance with the plans. (E.g., Adkison Decl., 17, 19-20, 22, 32 and Adkison Suppl. Decl., 3-4.)

Second, the court sustained Cross-Defendants’ objections to Villalba’s declaration. “[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770.) “[T]he gatekeeper’s role ‘is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ ” (Ibid.) Villalba states his opinion that Cross-Defendants deviated from the structural plans when installing the foundation and framing. (Villalba Decl., 5-8.) However, among other defects in his opinion, Villalba reviewed only the architectural plans, not the engineering or structural plans. (Villalba Decl., 4.) Villalba’s conclusions lack evidentiary support, and, given the court’s ruling on Cross-Defendants’ objections to the declaration, the relied-upon portions of the declaration are excluded from evidence. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [“an expert’s opinion based on assumptions of fact without evidentiary support [citation] or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citation.]”] (internal quotations and citations omitted).)

Therefore, the court finds that Cross-Defendants’ motion is well-taken as to the first and second causes of action for equitable indemnity and partial indemnity.

1. Third Cause of Action for Contribution and Apportionment

“Where a money judgment has been rendered jointly against two or more defendants in a

tort action there shall be a right of contribution among them as hereinafter provided.” (Code. Civ. Proc., 875, subd. (a).) A party has a right of contribution only when the second party is

culpable as a joint tortfeasor. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 590.)

Cross-Defendants assert that Lazarof’s third cause of action fails on the grounds that neither Marsh nor ADK is a joint tortfeasor or jointly liable with Lazarof for any damages. The analysis regarding the second cause of action is equally applicable to the third cause of action.

For the same reasons discussed above, the court finds Cross-Defendants’ motion is well-taken as to the third cause of action for contribution and apportionment because (1) Cross-Defendants have met their burden of showing that the third cause of action for contribution and apportionment has no merit because Cross-Defendants have shown that an element of the cause of action (Cross-Defendants’ being joint tortfeasors or jointly liable with Lazarof for damages) cannot be established, and (2) Cross-Complainant has not met his burden to show that a triable issue of material fact exists as to that element.

1. Fourth Cause of Action for Declaratory Relief

Code of Civil Procedure 1060 states: “Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, . . . may in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action . . . in the superior court for a declaration of his or her rights and duties in the premise, including a determination of any question of construction or validity arising under the instrument or contract. . . . The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment.”

The Cross-Complaint alleges: “the claims herein and those by Plaintiffs arise out of the same transactions or occurrences, and determination of both in one proceeding is necessary and appropriate in order to avoid the multiplicity, of actions that would result if Cross-Complainant is required now to defend against the claims of Plaintiffs and then bring a separate action against Cross-Defendants for indemnification of sums that Cross-Complainant may be compelled to pay as the result of any damages, judgment, or other awards recovered by Plaintiffs or any other party against Cross -Complainant.” (X-Compl., 23.) In essence, Lazarof seeks a determination of Cross-Defendants’ culpability in causing the alleged harm to Plaintiffs. (X-Compl., 23.)

As discussed above, Cross-Defendants have met their burden of showing they are not culpable, and Lazarof has not met his burden of showing there is a triable issue of fact regarding Cross-Defendants’ culpability. Thus, the court has made the determination that Lazarof is not entitled to relief as a matter of law. Accordingly, declaratory relief is not necessary or proper. (General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 471.)

Therefore, the court finds that Cross-Defendants’ motion is well-taken as to the fourth cause of action for declaratory relief.

ORDER

The court grants Cross-Defendant Scott Marsh dba Marsh Construction’s motion for summary judgment as to the Cross-Complaint filed by Cross-Complainant Hazie Lazarof.

The court grants Cross-Defendant ADK Construction, Inc’s motion for summary judgment as to the Cross-Complaint filed by Cross-Complainant Hazie Lazarof.

The court orders Cross-Defendants to lodge and serve a proposed judgment with the court within 10 days of the date of this order.

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

IT IS SO ORDERED.

DATED: February 23, 2022

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: ****4336    Hearing Date: December 08, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY: Defendant Hazie Lazarof

RESPONDING PARTIES: Plaintiffs Mitchell Bloch and Daniella Bloch

1. Motion for an Order Establishing Admissions by Plaintiff Mitchell Bloch;

2. Motion for an Order Establishing Admissions by Plaintiff Daniella Bloch

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

BACKGROUND

Plaintiffs Mitchell Bloch and Daniella Bloch (“Plaintiffs”) filed this action on September 1, 2017, against defendant Hazie Lazaorof, an individual dba Hazie Lazarof Marble & Granite (“Defendant”).

On January 13, 2020, Defendant served his Requests for Admissions, Set One, on each plaintiff. (Ross Decls., filed July 2, 2020, ¶¶ 2.) Neither plaintiff has served his or her response despite efforts by Defendant’s counsel to meet and confer regarding Plaintiffs’ failure to respond. (Id. at ¶¶ 3-4.)

Defendant now moves for (1) an order that the truth of the matters specified in Defendant’s Requests for Admissions, Set One, to plaintiff Mitchell Bloch, are deemed admitted, and (2) an order that the truth of the matters specified in Defendant’s Requests for Admissions, Set One, to plaintiff Daniella Bloch, are deemed admitted. Defendant also requests monetary sanctions against Plaintiffs in connection with each motion. Plaintiffs filed a joint opposition to Defendant’s motions.

DISCUSSION

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

In opposition to the motion, Plaintiffs submit the Declaration of Glenn T. Rosen, Plaintiffs’ counsel, in which Mr. Rosen states that, on October 15, 2020, Plaintiffs served their verified responses without objections to Defendant’s Requests for Admissions, Set One. (Rosen Decl., filed November 4, 2020, ¶ 4.) Plaintiffs request that the court deny Defendant’s request for monetary sanctions.

In reply, Defendant concedes that Plaintiffs served their verified responses to Defendant’s Requests for Admissions, Set One, but contends that an award of monetary sanctions is mandatory under Code of Civil Procedure section 2033.280, subdivision (c). Because Plaintiffs have served their responses to Defendant’s Requests for Admissions, Set One, before the hearing on the motion, the court denies Defendant’s motions for an order that the truth of the matters specified in the requests be deemed admitted. (Code Civ. Proc., ; 2033.280, subd. (c).)

ORDER

For the reasons set forth above, the court orders as follows.

The court denies defendant Hazie Lazarof’s motion for an order that the truth of the matters specified in his Requests for Admission, Set One, to plaintiff Mitchell Bloch be deemed admitted.

The court denies defendant Hazie Lazarof’s motion for an order that the truth of the matters specified in his Requests for Admission, Set One, to plaintiff Daniella Bloch be deemed admitted.

It is “mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2012.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., ; 2033.280, subd. (c).) Defendant requests monetary sanctions in the total amount of $1,045 against Plaintiffs and Plaintiffs’ counsel in connection with both motions. The court finds that $1,045 (5 hours x $185 per hour = $925 in attorney’s fees + $120 filing fee for two motions) is a reasonable amount of sanctions to impose against Plaintiffs. The court therefore orders that plaintiffs Mitchell Bloch and Daniella Bloch shall pay monetary sanctions in the amount of $1,045 to defendant Hazie Lazarof within 30 days of the date of service of this order. (Code Civ Proc., ; 2033.280, subd. (c).)

The court orders defendant Hazie Lazarof to give notice of this order.

IT IS SO ORDERED.

DATED: December 8, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court