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This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 07:27:26 (UTC).

STANLEY W. COOK VS ALBINO CONSTRUCTION, INC.,

Case Summary

On 11/14/2017 STANLEY W COOK filed a Contract - Debt Collection lawsuit against ALBINO CONSTRUCTION, INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LISA HART COLE and BOBBI TILLMON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8375

  • Filing Date:

    11/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LISA HART COLE

BOBBI TILLMON

 

Party Details

Plaintiff

COOK STANLEY W.

Defendants and Cross Plaintiffs

ALBINO CONSTRUCTION INC.

BEATTIE STEVE

STEVE BEATTIE PAINTING

ALBINO CONSTRUCTION INC

ROES 1-100

BEATTIE STEVE DBA STEVE BEATTIE PAINTING

Defendants and Cross Defendants

BEATTIE STEVE

MONTELONGO INC.

HEIDI CORPORATION DBA DONALD J SHEFFLER

WEATHER MASTERS WATERPROOFING INC.

SECURE SHEET METAL INC.

RODRIGUEZ GOLDCOAST MASONRY INCORPORATED

MILLWORKS ETC. INC.

OLD MISSION PLASTERING INC.

BEATTIE STEVE DBA STEVE BEATTIE PAINTING

ROES 1-50

ROES 1 -100

OLD MISSION PLASTERING INC

STEVE BEATTIE PAINTING

MAGIC FOUNTAIN

MAGIC MOUNTAIN

MONTELONGO INC

7 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

BLOCK ALAN ROBERT

Defendant and Cross Plaintiff Attorneys

BREMER WHYTE BROWN & O'MEARA LLP

WEISSMAN ANDREW N. ESQ.

BREMER KEITH G.

GIBBS GIDEN LOCHER TURNER SENET & WITTBRO

MARIBOHO KENNETH LEROY II

Defendant and Cross Defendant Attorneys

WEISSMAN ANDREW N. ESQ.

TREMBLEY CHRISTOPHER KEEGAN

SENET THEODORE LESLIE

TERCERO III NAPOLEON G.

DAVILA NICHOLAS

ORTIZ KEVIN M.

MURCHISON & CUMMING LLP

POWERS JOSEPH

DALMORE JEAN ANN

CORRELL DEBORAH ANN

 

Court Documents

Demand for Jury Trial

2/23/2018: Demand for Jury Trial

Summons

4/2/2018: Summons

Summons

4/2/2018: Summons

Unknown

5/1/2018: Unknown

Unknown

5/7/2018: Unknown

Summons

6/25/2018: Summons

Case Management Statement

9/12/2018: Case Management Statement

Request for Entry of Default / Judgment

9/12/2018: Request for Entry of Default / Judgment

Case Management Statement

9/18/2018: Case Management Statement

Summons

10/22/2018: Summons

Unknown

12/13/2018: Unknown

Case Management Statement

12/17/2018: Case Management Statement

Case Management Statement

1/3/2019: Case Management Statement

Case Management Statement

3/20/2019: Case Management Statement

Minute Order

3/22/2019: Minute Order

Notice

3/25/2019: Notice

Association of Attorney

4/12/2019: Association of Attorney

Declaration

5/24/2019: Declaration

107 More Documents Available

 

Docket Entries

  • 06/05/2019
  • at 08:30 AM in Department O; Case Management Conference

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  • 06/05/2019
  • at 08:30 AM in Department O; Hearing on Motion to Compel Arbitration

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  • 06/05/2019
  • at 08:30 AM in Department O; Hearing on Motion - Other (challenging good faith settlement) - Not Held - Continued - Party's Motion

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  • 05/31/2019
  • at 08:30 AM in Department O; Hearing on Ex Parte Application (For Leave to File Opposition to Motion to Contest Good Faith Settlement, or in the Alternative, for Continuance of Hearing) - Held - Motion Granted

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  • 05/31/2019
  • Declaration (of Christopher K. Trembley in Support of Opposition to Motion to Contest Good Faith Settlement); Filed by Secure Sheet Metal, Inc. (Cross-Defendant)

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  • 05/31/2019
  • Minute Order ( (Hearing on Cross-Defendant Secure Sheet Metal, Inc.'s Ex Part...)); Filed by Clerk

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  • 05/31/2019
  • Declaration (of Riepe in Support of Opposition to Motion to Contest Good Faith Settlement); Filed by Secure Sheet Metal, Inc. (Cross-Defendant)

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  • 05/31/2019
  • Opposition (to Motion to Contest Good Faith Settlement; Memorandum of Points and Authorities in Support of; Declaration of Robert Riepe and Christopher K Trembley in Support Thereof); Filed by Secure Sheet Metal, Inc. (Cross-Defendant)

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  • 05/31/2019
  • Notice (Notice of Ruling on Ex Parte Application); Filed by Secure Sheet Metal, Inc. (Cross-Defendant)

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  • 05/30/2019
  • Request for Judicial Notice; Filed by Secure Sheet Metal Inc. (Cross-Defendant)

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196 More Docket Entries
  • 01/04/2018
  • Cross-Compl fld - Summons Issued; Filed by ALBINO CONSTRUCTION, INC (Cross-Complainant)

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  • 01/04/2018
  • Answer; Filed by ALBINO CONSTRUCTION, INC. (Defendant)

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  • 01/04/2018
  • Answer to Complaint Filed; Filed by Attorney for Defendant

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  • 12/08/2017
  • Proof-Service/Summons; Filed by STANLEY W. COOK (Plaintiff)

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  • 12/08/2017
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 11/14/2017
  • Summons Filed; Filed by Attorney for Plaintiff

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  • 11/14/2017
  • Complaint Filed

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  • 11/14/2017
  • Summons; Filed by Plaintiff

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  • 11/14/2017
  • Complaint; Filed by STANLEY W. COOK (Plaintiff)

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  • 11/14/2017
  • Civil Case Cover Sheet; Filed by STANLEY W. COOK (Plaintiff)

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Tentative Rulings

Case Number: SC128375    Hearing Date: October 13, 2020    Dept: O

Case Name: Cook, et al. v. Albino Construction, Inc.

Case No.: SC128375

Complaint Filed: 11-14-17

Hearing Date: 10-13-20

Discovery C/O: 4-5-21

Calendar No.: 10

Discover Motion C/O: 4-19-21

POS: OK

Trial Date: 5-3-21

SUBJECT: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant/X-Complainant Albino Construction, Inc.

JOINED BY: X-Defendant Secure Sheet Metal, Inc. (ROE 6)

RESP. PARTY: Plaintiff Stanley W. Cook, individually and as a Trustee of the Cook Family Trust

TENTATIVE RULING

Defendant/X-Defendant Albino Construction, Inc.’s Motion for Summary Judgment is GRANTED. X-Defendant Secure Sheet Metal, Inc.’s Joinder is GRANTED.

Plaintiff’s Evidentiary Objections—The objections are immaterial to the Court’s ruling on the summary judgment. The Court declines to rule on them. CCP §437c(q).

I. The undisputed facts demonstrate that the RRA does not apply to Defendant’s construction of Plaintiff’s home.

Civil Code §936 states: “Each and every provision of the other chapters of this title apply to general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals to the extent that the general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract.” A homeowner suing a general contractor, subcontractor, material suppliers, individual product manufacturer and/or design professional under CC §936 must establish that the alleged violation of the RRA was the result of that entity’s negligent act or omission or breach of contract. See Acqua Vist HOA v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1143. The negligence requirement under CC §936 does not apply to common law claims for strict liability.

Plaintiff cannot hold Defendant liable under CC §936, because the standards of the RRA do not apply to the construction of 6315 Tantalus Drive, Malibu, CA 90265 under Civil Code §§896, 911 and 938. The material facts are undisputed. Plaintiff is the owner of real property at 6315 Tantalus Drive, Malibu, CA 90265. See Defendant’s SSUMF No. 4; Plaintiff’s Response to SSUMF No. 4. Plaintiff hired Defendant to construct the Subject Home in 2003. Id. Plaintiff is the current owner of the Subject Home. See Dec. of K. Mariboho, ¶2, Complaint, ¶6; ¶5, Exhibit 2, Plaintiff’s Responses to Form Interrogatories, Set One, Response No. 305.5, page 13, lines 8-12 (“I purchased vacant land and had my house built on it by defendant.”)(emphasis added). Cook testifies that, “[w]e wanted Albino to build us a home that we could move into while our children were still young. We had learned that building a home in Malibu could take many years and we wanted to avoid delay as much as possible.” See Dec. of S. Cook, ¶5. Cook moved into the Subject Home in early 2008 as his residence, once City of Malibu granted a Certificate of Occupancy. See Defendant’s SSUMF Nos. 16 and 17; Plaintiff’s Response to Defendant’s SSUMF Nos. 16 and 17.

Based on the undisputed facts, the Subject Home is not an “original construction intended to be sold as an individual dwelling unit” under CC §896. The Subject Home was an original construction intended for owner occupancy. CC §896 explicitly states that the RRA is “intended to apply to original construction intended to be sold as an individual dwelling unit.” There is nothing in CC §896 indicating that the RRA is intended to apply to original construction intended for owner occupancy and not resale.

Plaintiff fails to identify any section of the RRA indicating that it applies to original construction intended for owner occupancy, not resale. Plaintiff also fails to identify any case authority applying the RRA to an original construction intended for owner occupancy, not resale.

Plaintiff cites to McMillin Albany LLC v. Supr. Ct. (2018) 4 Cal.5th 241 for the proposition that the RRA was intended to be the exclusive remedy for construction defects in new residential construction and that the Legislature intended the RRA to supersede common law causes of action for negligence resulting in economic and property damage. McMillin Albany LLC, supra, 4 Cal.5th at 256.

However, McMillin Albany LLC did not address the issue of whether the RRA applies to new/original construction built for owner occupancy, not sale. In addition, unlike this case, McMillin Albany LLC undisputedly involved “an original construction intended to be sold as an individual dwelling unit,” and there was a qualifying purchase agreement under CC §938 between the individual plaintiffs and the defendant builder/developer. Id. at 247. McMillin Albany LLC does not refute Defendant’s showing that the Subject Home is not subject to the RRA under CC §896.

II. There is no purchase agreement under CC §938

Civil Code §938 provides, “This title applies only to new residential units where the purchase agreement with the buyer was signed by the seller on or after January 1, 2003.” There is no “purchase agreement” for a “new residential unit” executed by Plaintiff as a buyer and anyone as a seller.

Plaintiff purchased the vacate land on which the Subject Home currently sits from Tantalus, LLC. See Dec. of S. Cook filed on 9-29-20, ¶4; See Dec. of K. Mariboho, ¶5, Exhibit 2, Plaintiff’s Responses to Form Interrogatories, Set One, Response No. 305.5. Plaintiff does not submit a copy of that purchase agreement, nor is Civil Code §938 reasonably interpreted to apply to Plaintiff’s purchase agreement with Tantalus LLC for a piece of vacant land.

Plaintiff attempts to characterize the “Construction Agreement” with Defendant as a “purchase agreement” for a new “residential unit.” The Court finds this interpretation of Civil Code §938 to be unreasonable. The Construction Agreement is an agreement for construction services, not a Purchase Agreement. See Dec. of S. Cook filed on 9-29-20, ¶4, Ex. 1. Plaintiff cites to Oxbow Carbon & Minerals, LLC v. Dept. of Industrial Relations (2011) 194 Cal.App.4th 538 as authority that the Construction Agreement is a purchase agreement for the Subject Home. However, Oxbow Carbon & Minerals, LLC was an employment law case that did not involve the RRA and instead interpreted portions of the Labor Code. Oxbow Carbon & Minerals, LLC is wholly inapposite the issue of whether the Construction Agreement is a “purchase agreement” under Civil Code §938.

III. Defendant is not a “builder” under CC §911

Civil Code §911(a) provides, “For purposes of this title, except as provided in subdivision (b), ‘builder’ means any entity or individual, including, but not limited to a builder, developer, general contractor, contractor, or original seller, who, at the time of sale, was also in the business of selling residential units to the public for the property that is the subject of the homeowner's claim or was in the business of building, developing, or constructing residential units for public purchase for the property that is the subject of the homeowner's claim.”

The undisputed evidence establishes that Defendant is not a builder under Civil Code §911(a). Defendant was not in the business of selling the subject property (6315 Tantalus Drive, Malibu, CA 90265) “to the public,” nor was it in the business of building the subject property “for public purchase.” At all times, Defendant was constructing the subject property for Plaintiff’s occupancy, not resale to the public, and Plaintiff is still currently occupying the subject home. See Defendant’s SSUMF Nos. 4, 16 and 17; Plaintiff’s Response to SSUMF No. 4; Dec. of K. Mariboho, ¶2, Complaint, ¶6; ¶5, Exhibit 2, Plaintiff’s Responses to Form Interrogatories, Set One, Response No. 305.5, page 13, lines 8-12; Dec. of S. Cook, ¶¶4 and 5.

In opposition, Plaintiff argues Albino markets, sells and builds homes for members of the public and provides everything but the property on which the house is built. See Dec of S. Cook, ¶¶4-6; Dec. of Bloc, ¶6, Ex. 4. Plaintiff’s evidence at best raises a question as to whether Albino markets, sells and builds homes for members of the public generally. Plaintiff’s evidence fails to raise a disputed material fact as to whether Defendant is a builder under Civil Code §911, which requires evidence that Defendant was specifically in the business of selling 6315 Tantalus Drive, Malibu, CA 90265 to the public or that it built 6315 Tantalus Drive, Malibu, CA 90265 “for public purchase.”

IV. Arguments regarding whether a common law claim for negligence is time barred are irrelevant to this MSJ and this litigation, which only states a claim under the RRA

Albino Construction also argues Plaintiff cannot assert a common law claim for negligence because it would be barred by SOL. This argument is outside the scope of this MSJ and this litigation, which Albino Construction admits only asserts a cause of action under the RRA.

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