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This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 06:12:36 (UTC).

NCC CONSTRUCTION INC VS JOHN C LUKES ET AL

Case Summary

On 02/15/2017 NCC CONSTRUCTION INC filed a Contract - Other Contract lawsuit against JOHN C LUKES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DALILA CORRAL LYONS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0661

  • Filing Date:

    02/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DALILA CORRAL LYONS

 

Party Details

Plaintiffs, Petitioners, Cross Plaintiffs and Cross Defendants

NCC CONSTRUCTION INC.

LUKES JOHN C.

LUKES KATHRYN A.

JASSO CONTSTRUCTION A BUSINESS ENTITY

NCC ELECTRICAL A BUSINESS ENTITY

ROES 1 THROUGH 25

AVILA RAYMOND J. AKA RAYMOND MICHAEL AVILA

Defendants, Respondents and Cross Plaintiffs

DOES 1 THROUGH 20

LUKES JOHN C.

LUKES KATHRYN A.

Not Classified By Court

RAYMOND AVILA AND GEMINI INSURANCE COMPANY ON BEHALF OF SUSPENDED CORPORATION JASSO CONSTRUCTION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SALEK KEITH ESQ.

Defendant Attorney

HEDGES LESLIE J.

Cross Defendant Attorneys

ENGE CHERIE A. ESQ

TARASSOLY VIDA

HARRIS MICHAEL

WOLKIN BRANDT

JACOBS PAUL N.

 

Court Documents

STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATES; ORDER

1/26/2018: STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATES; ORDER

DECLARATION IN SUPPORT OF ATTORNEY?S MOTION TO BE RELIEVED AS COUNSEL?CIVIL

2/9/2018: DECLARATION IN SUPPORT OF ATTORNEY?S MOTION TO BE RELIEVED AS COUNSEL?CIVIL

RULING

3/12/2018: RULING

Minute Order

3/12/2018: Minute Order

Minute Order

9/18/2018: Minute Order

Notice of Related Case

12/31/2018: Notice of Related Case

Motion to Be Relieved as Counsel

1/3/2019: Motion to Be Relieved as Counsel

Proof of Service (not Summons and Complaint)

1/16/2019: Proof of Service (not Summons and Complaint)

Notice of Ruling

1/16/2019: Notice of Ruling

Minute Order

4/18/2019: Minute Order

Objection

4/29/2019: Objection

Ex Parte Application

4/29/2019: Ex Parte Application

Declaration

4/29/2019: Declaration

Minute Order

5/22/2019: Minute Order

PROOF OF SERVICE OF SUMMONS

3/22/2017: PROOF OF SERVICE OF SUMMONS

DECLARATION OF CAITLYN M. HOBBS, IN SUPPORT OF PLAINTIFF'S, NCC CONSTRUCTION, INC., A CALIFORNIA CORPORATION, OPPOSITION TO DEFENDANTS, JOHN C. LUKES, AN INDIVIDUAL; AND, KATHRYN LUKES, AN INDIVIDUAL,

5/8/2017: DECLARATION OF CAITLYN M. HOBBS, IN SUPPORT OF PLAINTIFF'S, NCC CONSTRUCTION, INC., A CALIFORNIA CORPORATION, OPPOSITION TO DEFENDANTS, JOHN C. LUKES, AN INDIVIDUAL; AND, KATHRYN LUKES, AN INDIVIDUAL,

Unknown

5/19/2017: Unknown

FIRST AMENDED CROSS-COMPLAINT OF JOHN C. LUKES AND KATHRYN A. LUKES

10/16/2017: FIRST AMENDED CROSS-COMPLAINT OF JOHN C. LUKES AND KATHRYN A. LUKES

123 More Documents Available

 

Docket Entries

  • 05/22/2019
  • at 08:30 AM in Department 20, Dalila Corral Lyons, Presiding; Hearing on Motion for Leave (to file answer and cross-complaint in Intervention on behalf of Gemini Insurance Company; crs # 41268751620) - Not Held - Taken Off Calendar by Party

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  • 05/22/2019
  • at 08:30 AM in Department 20, Dalila Corral Lyons, Presiding; Hearing on Motion for Leave to File a Cross-Complaint (by cross-defendant, Raymond Avila. CRS# 846907831906) - Not Held - Taken Off Calendar by Party

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  • 05/22/2019
  • at 08:30 AM in Department 20, Dalila Corral Lyons, Presiding; Court Order

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  • 05/22/2019
  • Minute Order ( (MOTION BY CROSS-DEFENDANT (RAYMOND AVILA), FOR AN ORDER FOR L...)); Filed by Clerk

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  • 05/15/2019
  • Proof of Service by Mail; Filed by Raymond Avila and Gemini Insurance Company on behalf of suspended corporation Jasso Construction (Non-Party)

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  • 05/15/2019
  • Notice (of Withdrawal of Motion by Gemini Insurance Company for Leave to File Answer and Cross-Complaint in Intervention; CRS#412168751620); Filed by Raymond Avila and Gemini Insurance Company on behalf of suspended corporation Jasso Construction (Non-Party)

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  • 05/15/2019
  • Notice (OF WITHDRAWAL OF CROSS-DEFENDANT RAYMOND AVILA'S MOTION FOR AN ORDER; CRS#846907831906); Filed by Raymond Avila and Gemini Insurance Company on behalf of suspended corporation Jasso Construction (Non-Party)

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  • 05/09/2019
  • Opposition (to Motion File Cross-Complaint); Filed by John C. Lukes (Cross-Complainant)

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  • 05/09/2019
  • Opposition (to Motion for Leave to Intervene); Filed by John C. Lukes (Cross-Complainant)

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  • 05/09/2019
  • Notice of Lien; Filed by Kathryn A. Lukes (Defendant)

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224 More Docket Entries
  • 03/22/2017
  • NOTICE OF PENDENCY OF ACTION

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  • 03/22/2017
  • Proof-Service/Summons; Filed by NCC Construction Inc. (Plaintiff)

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  • 03/22/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 03/06/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 03/06/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/06/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 03/06/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 02/16/2017
  • SUMMONS

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  • 02/15/2017
  • Complaint; Filed by null

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  • 02/15/2017
  • COMPLAINT FOR: 1. BREACH OF CONTRACT ;ETC

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Tentative Rulings

Case Number: BC650661    Hearing Date: May 4, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Date: Tuesday, May 4, 2021

Case Name: NCC Construction, Inc. v. John C. Lukes, et al.

Case No.: BC650661

Motion: Summary Judgment

Moving Party: Cross-Defendant NCC Construction

Responding Party: Cross-Complainant Lukes

Notice: OK


Ruling: The Motion for Summary Judgment is DENIED.

Lukes to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


BACKGROUND

On February 15, 2017, Plaintiff NCC Construction, Inc. filed a Complaint against Defendants John C. Lukes and Kathryn A. Lukes (“the Lukes”), and Does 1-20, stating causes of action for breach of contract, open-book account, account stated, and reasonable value.

On October 16, 2017, the Lukes filed a First Amended Cross-Complaint ("FACC") against NCC Construction, NCC Electrical, Jasso Construction, and Raymond J. Avila, stating causes of action for breach of contract (five counts) and negligence arising out of several agreements for services to the “real property located at 2062 Midwick Dr., Altadena, CA 91001” (the “Property”) and later assignments of those agreements to the Lukes.

On February 1, 2021, NCC Construction filed a Motion for Summary Judgment.

On April 20, 2021, the Lukes filed an Opposition.

On April 30, 2021, NCC filed a Reply.

On May 3, 2021, the Lukes filed a Sur-Reply.[1]

DISCUSSION

Applicable Law

Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no triable issues of material fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of proof by presenting facts to negate or establish an essential element of each claim at issue. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material fact exists. (CCP § 437c(o)(2).) “Materiality is measured by the law applicable to the legal theories put in issue by the complaint [or petition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1094.) Factual issues are immaterial if they are “outside the scope of the pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986) 176 Cal.App.3d 1601, 1065.) The trial court “can find a triable issue of material fact ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1271 (quoting King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.))

Application to Facts

Here, NCC Construction and NCC Electrical seek summary adjudication of the second cause of action for breach of the “January 31, 2016 Contract” and sixth cause of action for negligence insofar as they are stated against NCC Elecrical. (FACC, para. 28-34, 61-67.)

Breach of Contract

The breach claim is based on a January 31, 2016 contract between MKK Capital, LLC and “NCC Electric Construction, Inc.” to perform electrical services on the Property (the “Agreement”). (Tarassoly Decl., Exh. A.) The Agreement is signed by Harry Chan as President of NCC Construction, Inc. (Tarassoly Decl., Exh. A.)  Subsequently, on July 19, 2016, MKK Capital, LLC entered into an "Assignment and Assumption Agreement" with "NCC Electrical, Inc." and the Lukes (the “Assignment”). (Tarassoly Decl., Exh. D.) The Assignment provided that MKK’s interests and rights under an agreement executed January 31, 2016 “for the provision of certain electrical services by Contractor” at the Property—clearly referring to the Agreement—would be reassigned to the Lukes. (Tarassoly Decl., Exh. D.) The Assignment is signed by Chan for “NCC Electrical, Inc.[,] State Lic. 832681.” (Tarassoly Decl., Exh. D.)

The Lukes allege they “performed all their obligations under the January 31, 2016 NCC Electric Contract, except those which were excused by NCC"s breach.” (FACC, para. 31.) The FACC alleges NCC Electrical failed to complete the work or provide competent and professional construction services, particularly by failing to install a ground-fault circuit interrupter, improperly installing electrical fixtures, panels and wires, leaving a garage door "non-operational," accepting payment for work not performed, and hiring unlicensed or incompetent employees. (FACC, para. 32.) As the moving Cross-Defendant, NCC bears the burden of “negat[ing] . . . an essential element of each claim at issue.” (Scalf, supra, 128 Cal.App.4th at 1520.) The elements of breach of contract are “(1) a contract between the parties, (2) the complaining party’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) damage to the complaining party therefrom.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

NCC attacks the first element, arguing no contract was ever formed between NCC Electrical and MKK. NCC contends NCC Electrical is “not even named in the MKK Service Agreements or any of the Assignment Agreements” and contends all invoices for payment were submitted by NCC Construction and requested payment to NCC Construction, even after assignment, and contends all payments were indeed made out to NCC Construction—not NCC Electrical. On that basis, NCC Electrical argues it was not a party to the contract, whether or not it actually performed services at the Property (which it denies). (Motion, p. 9.) By extension, NCC Electrical argues there was no valid assignment of the MKK Agreement to the Lukes because there was no valid contract with MKK to assign, thereby arguing the Lukes lack standing.

The Lukes argue there is a triable issue of fact as to whether the references to "NCC Electric Construction, Inc." in the Agreement and "NCC Electrical, Inc." in the Assignment were truly mistakes, as NCC claims.[2] Lukes argues a reasonable person could conclude that the real party in interest is NCC Electrical, pointing out that in addition to these references to NCC Electrical, the Assignment also expressly refers to CSLB No. 832681, the specialty electrical license possessed by NCC Electrical/Chan. In response, NCC argues there is no triable issue of fact as to “mistake” because (1) the MKK contracts were with NCC Construction only such that NCC Electrical had no right to assign those contracts, and (2) the parties’ conduct further showed that NCC Construction was the proper party because NCC Construction performed the work on the property, sent invoices and received payment for the work—not NCC Electrical.

The Court concludes the Lukes have adduced sufficient evidence to create triable issues of fact as to whether these references were mistakes or intended references to NCC Electrical. The Court can find a triable issue of fact “‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Falcon, supra, 244 Cal.App.4th at 1271.)

The Lukes provided evidence that NCC Construction and NCC Electrical maintain separate licenses with the CSLB; CSLB No. 953751 for the former and No. 832861 for the latter. (Hedges Decl., Exh. 1, p. 13-14.) The Lukes provided evidence that the initial proposal to MMK Capital was made by "NCC Electrical lic. 832861" and signed by Harry Chan as President of "NCC Electrical." (Hedges Decl., Exh. 1, p. 15.) The Lukes provided evidence that Chan obtained permits for electrical work on the property by applying on behalf of "Contractor: N C C Electrical Contractor." (Hedges Decl., Exh. 1, p. 19.)) The reference to “NCC Electrical, Inc.” in the Assignment also references CSLB No. 832861 rather than CSLB No. 953751, which is included in the other two Assignments. (Tarassoly Decl., Exh. E, p. 3 (“NCC Construction, Inc. State Lic. 953751”); Exh. F, p. 3 (same); see also Tarasolly Decl., Exh. B (plumbing contract between MKK and “NCC Construction, Inc. (Contractor) Lic: 953751”))

In particular, the Lukes also provided Chan’s deposition testimony wherein he testified that the "name of [his] company that has a licensed electrical contract" is "NCC Electrical." (Chan Depo., p. 53:13-25.) Chan testified that he "use[s] NCC Construction, Inc." for contracts because "[t]hat's the one that [he has] Worker's Comp," presumably referring to workers' compensation insurance. (Chan Depo., p. 110:10-111:4.) When asked whether the reference to "NCC Electric Construction, Inc." in the Agreement was in error, Chan testified that he uses NCC Electrical for jobs requiring electrical work only but that he "use[d] the NCC Construction, Inc." moniker for this job because he was acting as a general contractor. (Id. at p. 110:22-111:4.) (“Q: So NCC Electric Construction, Inc., is that some company that is in error? A [Chan]: Some company sometime I use it in case I take a job. Electrical only, then I use it. But at this job, I'm a general contractor. So I use the NCC Construction, Inc.”)) The distinction Chan makes in using NCC Electrical and NCC Construction appears to hinge the nature of the job and potentially whether workers’ compensation could be required.

The foregoing evidence creates a triable issue of fact as to whether NCC Electrical is a party to the Agreement and Assignment. The Agreement and Assignment executed by Chan both reference “NCC Electrical,” and the latter agreement specifically references NCC Electrical by its CSLB number—which Chan testified he did not notice. (Chan Depo., p. 104:1-20.) The Agreement provided for rendering of electrical services and Chan testified that he “sometimes” uses NCC Electrical for jobs requiring “[e]lectrical only.” (Chan Depo., p. 110:22-111:4.) The Court therefore rejects NCC’s first argument that, as a matter of law, the MKK contracts were with NCC Construction only—a reasonable trier of fact could conclude the references to NCC Electrical were not mistaken, given the specific references to the electrical license held by NCC Electrical, the fact that these references went unnoticed by Chan, Chan’s failure to sharply distinguish between the two entities, the references to NCC Construction alone in the other underlying agreements and assignments, and the evidence that Chan elsewhere referenced NCC Electrical as the contractor (e.g. in the proposal to MKK and in the applications for permits).

NCC also argued the parties’ conduct in paying only NCC Construction pursuant to NCC Construction invoices established that NCC Electrical was not a party. However, the distinction between the two entities appears fuzzy. The foregoing evidence indicated the Agreement and Assignment—the only contracts regarding electrical services—both referred to NCC Electrical while the other agreements and assignments did not. (Tarassoly Decl., Exh. B, E, F (referencing “NCC Construction” and “State Lic. 953751” rather than NCC Electrical or CSLB No. 832861); cf. Tarassoly Decl., Exh. A, Exh. D (referring to NCC Electrical and/or CSLB No. 832861.)) Chan testified that he swaps between the two entities depending on the scope of the job and the need for “workers’ comp,” further undermining the distinction between the two. While the evidence is unrebutted that invoices were issued by NCC Construction, not NCC Electrical, a reasonable trier of fact could conclude that there is not a sharp distinction between the two entities such that payment to one is attributable to other, particularly given that Chan appears to be sole proprietor for both entities.

For the foregoing reasons, the Court finds a triable issue of fact as to whether there is a valid agreement between NCC Electrical and MMK in the Agreement and between NCC Electrical, MMK, and the Lukes in the Assignment. The Lukes have adduced sufficient evidence from which a reasonable trier of fact could conclude NCC Electrical was indeed a party to the Agreement, whether due to the express references to it or due to the lack of sharp distinction between the two entities evinced by Chan’s testimony. Similarly, a reasonable trier of fact could conclude NCC Electrical was a party to the Assignment based on the references to NCC Electrical’s license number, particularly in contrast to the references in the other assignments to the distinct license held by NCC Construction and the lack of references to NCC Electrical in those agreements. The Court finds it significant that the only references to NCC Electrical and its license number are found in those agreements concerning electrical services.

The Motion for Summary Judgment is DENIED as to the breach of contract claim.

Negligence

Next, NCC seeks summary adjudication of the negligence claim. The elements of negligence are (1) the existence of a duty, (2) a breach of that duty, (3) injury to the plaintiff caused by the defendant’s breach, and (4) actual injury or damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) NCC argues “there was never a contract with” NCC Electrical, which “never performed any services at the Property” and never issued invoices to or received money from Lukes. Rather, NCC Electrical claims any services at the property were rendered by NCC Construction.

NCC does not specifically identify which element(s) it is attacking—it appears that (1) the argument that NCC Electrical never had an agreement with Lukes/MKK goes to the existence of a duty while (2) the argument that NCC never performed services on the property goes to the breach of that duty. The former argument is rejected for the reasons set forth above—there is a triable issue of fact as to whether NCC Electrical had contractual duties to the Lukes. In response to the latter argument, the Lukes argue NCC Construction probably did not perform the electrical work on the premises because it does not carry a C-10 electrical license, whereas NCC Electrical does carry such a license. Lukes rely on Bus. & Prof. Code sec. 7057, arguing “California law requires that a home improvement contract involving a single trade for electrical work cannot be performed by a General B licensed contractor” such as NCC Construction.

In response, NCC argues NCC Construction was not required to have a specialty electrical license “because its work [on the Property] involved at least three separate trades”—electrical, plumbing, and plastering. (Reply, p. 3.) Bus. & Prof. Code sec. 7057(b) prohibits a “general building contractor” from taking “a prime contract for any project involving trades other than framing or carpentry unless the prime contract requires at least two unrelated building trades or crafts other than framing or carpentry, or unless the general building contractor holds the appropriate license classification or subcontracts with an appropriately licensed contractor to perform the work.” Further, a “general building contractor shall not take a subcontract involving trades other than framing or carpentry, unless the subcontract requires at least two unrelated trades or crafts other than framing or carpentry, or unless the general building contractor holds the appropriate license classification.”

The parties appear to dispute whether the project on the Property involved “a single trade for electrical work” or “at least three separate trades” (electrical, plumbing, and plastering). This dispute in turn hinges on the parties’ conflict over whether NCC Electrical was a party to any of the agreements for services on the Property. Based on the arguments discussed, NCC contends NCC Construction was the sole party to the contracts, including the Agreement for electrical services; thus, NCC argues NCC Construction was properly conducting a contract involving three trades, because NCC Construction provided electrical services.

In turn, the Lukes offer two alternative views. On the one hand, the Lukes contend NCC Construction is a party only to the contracts for plumbing and plastering, arguing NCC Electrical is the party to the Agreement for electrical services. In that case, NCC Construction would not be administering a contract with “at least three separate trades.” On the other hand, the Lukes argue the NCC entities are not as distinct as Chan suggests based on the evidence discussed above. (Opposition, p. 8 (“The “NCC companies” are ‘AKAs’ of one another.”)) This argument is less favorable to the Lukes, as if there is identity between the NCC entities, NCC may have been permissibly administering a contract with at least three separate trades. But if there is identity between the entities, then NCC Electrical was necessary also performing work on the premises and may have done so negligently; moreover, this identity would undermine NCC’s argument that payments to NCC Construction show NCC Electrical did no work on the premises.

The Court concluded earlier that the evidence provided is sufficient to create a triable issue of fact as to whether NCC Electrical was a party to the Agreement and whether it is sharply distinct from NCC Construction, given Chan’s testimony. By extension, the Court finds a triable issue of fact as to whether the work performed on the Property was performed by NCC Electrical or NCC Construction. The evidence provided could support a reasonable trier of fact’s conclusion that NCC Electrical performed the electrical work on the Property. At a minimum, the Court cannot conclude as a matter of law that NCC Electrical did not perform any work on the premises—NCC has not carried its burden to “negate” the element of breach by showing NCC Electrical rendered no services which could have been negligent.  

The Motion for Summary Judgment is DENIED as to the negligence claim.

Attorney’s Fees

The Lukes seek attorney’s fees pursuant to CCP sec. 128.5(a), authorizing recovery of fees incurred “as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” An action or tactic is “frivolous” if it is “totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP sec. 128.5(b)(2).)

The Lukes contend they attempted to meet and confer, but that NCC’s counsel “consistently failed to explain (or present any evidence) . . . how or why NCC Electrical would not be deemed a party to the Electrical Assignment Agreement, any why the action against NCC Electrical is without merit” in light of the record. (Opposition, p. 9-10.) The Lukes also contend PCC lacked support for its argument that Chan was “pressurized” by the filing of a lawsuit against NCC Electrical, which lacks the corporate protections of NCC Construction, Inc. On this basis, the Lukes’ counsel seeks attorney’s fees for drafting the Opposition and attending the hearing, requesting fees for 19.6 hours of work (16.1 hours drafting the Opposition and 3.5 hours “review[ing] any reply brief” and attending the hearing) at $400 per hour. (Opposition, p. 11.)

The foregoing arguments do not establish that the Motion was frivolous. The Court concluded there was a triable issue of fact regarding whether NCC Electrical is a party to the Agreement—the evidence adduced did not establish that point as a matter of law, nor were the arguments against that conclusion “totally and completely meritless.” While NCC’s assertion of mistake was insufficient to obtain summary judgment, it was supported by evidence that NCC Construction was the primary contact for the Lukes for payment and that NCC Construction is referred to in the Agreement, Assignment, and other underlying agreements arguably composing a single project on the Property. It is difficult for the Court to conclude the Motion was “totally and completely meritless” where it was only defeated by a notable evidentiary showing from the Lukes. The Motion otherwise did not present indicia of bad faith or intent to harass. Therefore, the Court denies the request for attorney’s fees under CCP sec. 128.5.

Evidentiary Objections

The Lukes filed fourteen evidentiary objections to the Declaration of Vida Tarassoly. The objections are largely based on relevance, hearsay, improper opinion testimony, lack of personal knowledge, and lack of foundation. The Lukes additionally object that the entire Declaration is not executed “under penalty of perjury under the laws of the State of California.” While this correction is belated, the Court notes NCC filed on April 30, 2021 an updated Declaration of Vida Tarassoly which is indeed verified “under penalty of perjury under the laws of the State of California.” Given that the Court is denying the Motion for the reasons set forth above, the Lukes are not prejudiced by the Court accepting this belated correction to consider the full record. The Court overrules the verification objections given that Chan and counsel have cured the defects before the hearing (Objections 11 and 14). The Court also overrules at the outset the objections under CCP sec. 437c(d) in Objections 1, 2, 4-8, and 10-13, which upon review are meritless.

The Court now rules as follows on the remainder of the evidentiary objections:

Objection 1 is OVERRULED. The allegation does not contain hearsay, improper opinion testimony, or irrelevant material. Sufficient foundation was laid for Tarassoly's declaration.

Objection 2 is OVERRULED. The allegation clearly does not contain irrelevant material in identifying the Agreement. Sufficient foundation was laid for Tarassoly's declaration. No improper opinion or hearsay testimony is presented.

Objection 3 is OVERRULED. The underlying plumbing agreement is relevant and not hearsay. Sufficient foundation was laid for Tarassoly's declaration and no improper opinion or hearsay testimony is presented. There is clearly no legal conclusion alleged.

Objections 4 and 9 are OVERRULED. The invoices do not constitute inadmissible hearsay or improper opinion. They are not irrelevant. Sufficient foundation was laid for consideration.

Objection 5, 6, and 7 are OVERRULED. The underlying assignment agreements are relevant and do not constitute inadmissible hearsay. The identification of these exhibits is not speculative or improper opinion. Sufficient foundation was laid.

Objection 8 is OVERRULED. While not discussed above, the proposals provided between NCC and the Lukes are obviously relevant and do not constitute inadmissible hearsay. The identification of these exhibits is not speculative or improper opinion.

Objection 10 is OVERRULED. Like the invoices, the payments made thereon are relevant. The checks reflecting those payments are not inadmissible hearsay and constitute neither improper lay opinion nor legally conclusory testimony. Sufficient foundation was laid.

The remainder of Objection 11 is OVERRULED. Chan’s testimony was not speculative or conclusory, and did not constitute improper opinion testimony.

The Court does not rule on Objections 12 and 13 as the underlying materials were relevant only to NCC’s request for fees—which, due to denying this Motion, the Court did not consider.

CONCLUSION

The Motion for Summary Judgment is DENIED.

Lukes to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


[1] The Sur-Reply reasserted procedural defects noted in the Motion for Summary Judgment (e.g. the distinction between summary judgment and adjudication and evidentiary defects raised). The Court does not find the failure to distinguish between judgment and adjudication significant and addresses the evidentiary issues in ruling on the Lukes’ objections below.

The Sur-Reply also indicated the Reply was untimely and that the new reply evidence was deficient, as Chan's Reply Declaration was not executed "under penalty of perjury under the laws of the State of California" consistent with CCP sec. 2015.5. The Court concurs that Chan’s Reply Declaration filed April 29, 2021 is inadmissible under CCP sec. 2015.5(a), which requires that any declaration “executed within this state” be under penalty of perjury. The Court notes Chan filed another Reply Declaration “under penalty of perjury under the laws of the State of California” the next day. The Court exercises its discretion to consider the late-filed Second Reply Declaration—which seeks to verify previously provided evidence, see Chan Reply Decl. at para. 2—and the late-filed Reply.

[2] For example, NCC argues the reference to “NCC Electrical, Inc.” in the Assignment was “an obvious error in transcription” because that entity “does not even exist.”

Case Number: BC650661    Hearing Date: October 25, 2019    Dept: 20

TENTATIVE RULING

Judge Dalila C. Lyons

Department 20

Hearing Date: Friday, October 25, 2019

Case Name: NCC Construction, Inc. v. Lukes, et al.

Case No.: BC650661

Motion: Determination of Good Faith Settlement

Moving Party: Cross-Defendant Villeda Associates Corporation dba Elite Plastering

Responding Party: *UNOPPOSED*

Notice: OK

Ruling: Cross-Defendant Villeda Associates Corporation dba Elite Plastering’s motion for a determination of good faith settlement is DENIED WITHOUT PREJUDICE.

On October 10, 2019, Cross-Defendant Villeda filed a motion for determination of good faith settlement for a partial settlement of claims between Cross-Complainants Mr. and Ms. Lukes and Villeda. However, Villeda is not a Cross-Defendant in the Lukes’ cross-complaint.

In addition to a determination that Villeda’s motion for determination of good faith settlement, Villeda specifically moved for this Court to dismiss with prejudice the NCC Cross-Complaint in this case and a Complaint filed by Cross-Defendant Avila in a different case (LASC Case No. 19STCV26604) assigned to Dept. 48.

First, this Court cannot dismiss complaints or cross-complaints unless the complainant or cross-complainants agree to such dismissal based on the settlement.

Second, the following charts of the complaints and cross-complaints in this action illustrates why the Court will not grant Villeda’s motion for good-faith settlement at this time:

First Amended Complaint filed by NCC Construction on 06/13/2017

John C. Lukes (Named/Bankruptcy)

Kathryn A. Lukes (Named)

NCC Construction (Plaintiff)

First Amended Cross-Complaint filed by John C. Lukes, et al. on 10/16/2017

Raymond D. Avila (Answered)

NCC Electrical (Answered)

Lasso Construction (Answered)

NCC Construction Inc. (Answered)

John C. Lukes (Cross-Complainant)

Kathryn A. Lukes (Cross-Complainant)

Cross-Complaint filed by NCC Construction on 03/29/2018

Roes 1-25 (Named)

Villeda Associates Corporation (Answered)

NCC Construction Inc. (Cross-Complainant)

As the three charts demonstrate, Villeda is not named as a Cross-Defendant in Mr. and Ms. Lukes’ Cross-Complaint. Instead, Villeda is named as a Cross-Defendant in NCC Construction’s Cross-Complaint. However, Villeda has not submitted any proof that NCC Construction consents to Villeda being dismissed from NCC Construction’s Cross-Complaint. The fact that Villeda conditionally settled with Mr. and Ms. Lukes[1] has no bearing on whether the Court should dismiss a different cross-complaint by a different party who did not settle its claims against Villeda.

At the hearing on this motion the parties are to explain to the Court the basis for requesting dismissal of non-parties and of cases not involved in the settlement without the consent of the complainant/cross-complainant.

_____________________________________________________________________________

MOTION NO. 2

TENTATIVE RULING

Judge Dalila C. Lyons

Department 20


Hearing Date: Friday, October 25, 2019

Case Name: NCC Construction, Inc. v. Lukes, et al.

Case No.: BC650661

Motion: Determination of Good Faith Settlement

Moving Party: Cross-Defendant Raymond Avila and Intervenor Gemini Insurance Company on behalf of Jasso’s Construction, Inc., a suspended corporation

Responding Party: *UNOPPOSED*

Notice: OK


Ruling: The motion for determination of good faith settlement by Cross-Defendant Raymond Avila and Intervenor Gemini Insurance Company on behalf of Jasso’s Construction, Inc., a suspended corporation, is GRANTED.

Any and all cross-complaints or claims arising out of this action against Raymond Avila, Gemini Insurance Company, or Jasso’s Construction, Inc. for equitable comparative contribution or partial or comparative indemnity based on comparative negligence or comparative fault are barred.

Cross-Defendant Raymond Avila and Intervenor Gemini Insurance Company on behalf of Jasso’s Construction, Inc. are hereby dismiss with prejudice.

Moving Party to Give Notice.


“[A] defendant's settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant's liability to be.” Torres v. Union Pacific R.R. Co. (1984) 157 Cal.App.3d 499, 509. The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far “out of the ballpark” in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a “settlement made in good faith” within the terms of section 877.6. Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.

The factors a court should look to in evaluating “good faith” within the meaning of CCP § 877.6 are (1) a rough approximation of plaintiff’s total recovery and the settler’s proportionate liability, (2) the amount paid in settlement, (3) the allocation of settlement proceeds among the various plaintiffs, (4) the financial condition of the settling defendants and their ability to respond to a judgment against them, (5) the existence of collusive, fraudulent, or other tortious conduct by the settling parties in connection with the negotiation and construction of the settlement which is injurious to the interests of the non-settling parties. Abbot Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 874 citing Tech-Bilt 38 Cal.3d 488. While the settling party is not initially compelled to make a showing of the Tech-Bilt factors in bringing the motion or application for good faith settlement, once the settlement is attacked as lacking good faith the settling party is required to file counter-affidavits showing the settlement is “in the ballpark.” See Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal. App. 4th 1337, 1350 n. 6.

Here, Cross-Complainants Mr. and Ms. Lukes were remodeling a house they bought, located at 2062 Midwick Drive, Altadena, California (“the House”). Mr. and Ms. Lukes have sued on their cross-complaint for construction defects resulting from that remodeling. Mr. and Ms. Lukes contracted with Jasso’s Construction, Inc. erroneously sued as Jasso Construction (“Jasso’s”) for limited work on the House. Avila was Jasso’s foreman on the remodeling project. Gemini is the insurer for Jasso’s, acting on Jasso’s behalf in this action. Jasso’s is currently a suspended corporation. There are no pending cross-complaints against Jasso’s, Avila, or Gemini.

“Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasors.” TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166. “The settling party’s proportionate liability is one of the most important factors.” Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865, 873. This is especially so when the “true value [for Settling Defendants] in the ‘settlement’ [with Plaintiff] was not the dismissal of [Plaintiff’s] claims as to [Settling Defendants]…but rather the dismissal of the indemnity claims of [the Other Defendants].” West v. Superior Court (1994) 27 Cal.App.4th 1625, 1636. The good faith evaluation is made based on the information available at the time of the settlement and cannot be grossly disproportionate as to what a reasonable person at the time of the settlement would estimate the settling defendant’s liability to be. Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1349. “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint.” Civ. Code § 1431.2(a) (emphasis added).

The nonsettling parties Plaintiff/Cross-Defendant/Cross-Complainant NCC Construction, Cross-Defendant NCC Electrical, and Defendant/Cross-Defendant Villeda have failed to oppose the present application for good faith settlement. The Court’s October 11, 2019 Minute Order reflects all parties agreement that oppositions to the present motion for determination of good faith settlement were to be filed by October 15, 2019. No oppositions have been filed.

In this case, the Court finds Jasso, Avila, and Gemini’s (“Moving Parties”) offer of $420,000.00 is not grossly disproportionate to their potential liability. Moving Parties provide the declaration of an expert, Jay Carey, who opines that the cost to repair the defects alleged to have been caused by Jasso’s and/or Avila is only $23,797.00. Carey Decl. ¶ 4, Exh. 1. The Lukes’ allege $1.2 million in damages, however Moving Parties argue their portion of that potential liability is much smaller than the other contractor cross-defendant, NCC Construction. Jasso’s and Avila worked on the House for eight weeks, while NCC Construction worked on the House for twelve months. Given, Jasso’s and Avila only worked on the House for 12.5% of the remodeling project, their settlement offer of 35% of Plaintiffs’ claimed damages is not grossly disproportionate to their potential liability. Further, Moving Parties cannot be liable to Mr. and Mrs. Lukes for attorney fees because there is no provision for attorney fees in the contract between Jasso’s and Mr. and Mrs. Lukes. This fact reduces Moving Parties’ potential liability by $159,000.00 at least. Additionally, Mr. Lukes does not allege his claim for almost $6 million in lost income against Moving Parties, further reducing Moving Party’s potential liability. That claim is alleged solely against NCC Construction. There is no evidence of collusion between these settling parties and all parties were represented by counsel in arms-length settlement negotiations. The settlement proceeds will be distributed by the bankruptcy court among Mr. Lukes, Mrs. Lukes, and Mr. Lukes’s creditors.

Accordingly, Cross-Defendant Raymond Avila and Intervenor Gemini Insurance Company on behalf of Jasso’s Construction, Inc., a suspended corporation, motion for good faith determination of settlement is GRANTED.

Cross-Defendant Raymond Avila and Intervenor Gemini Insurance Company on behalf of Jasso’s Construction, Inc. are hereby dismiss with prejudice.

[1] Who have not named Villeda in their cross-complaint.

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