This case was last updated from Los Angeles County Superior Courts on 02/06/2019 at 13:15:45 (UTC).

SUSAN PENA, ET AL VS EDWARD KATS, ET AL

Case Summary

On 09/06/2017 SUSAN PENA filed a Property - Construction Defect lawsuit against EDWARD KATS. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are RAMONA G. SEE, ROBERT B. BROADBELT and STUART M. RICE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2306

  • Filing Date:

    09/06/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Construction Defect

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RAMONA G. SEE

ROBERT B. BROADBELT

STUART M. RICE

 

Party Details

Plaintiffs

PENA ALFONSO AN INDIVIDUAL

PENA SUSAN AN INDIVIDUAL

PENA SUSAN

PENA ALFONSO

Defendants and Cross Plaintiffs

YURIY MATYASH CONSTRUCTION

TIN HILL CONSTRUCTION

DOES 1 THROUGH 50 INCLUSIVE

MATYASH YURIY AN INDIVIDUAL

KATS EDWARD AN INDIVIDUAL

KATS EDWARD

DOES 1 THROUGH 50

MATYASH YURIY

Defendant, Cross Defendant and Cross Plaintiff

MATYASH YURIY

Attorney/Law Firm Details

Plaintiff Attorneys

STEPHEN M. HAUPTMAN

NEWMEYER & DILLION LLP

Defendant Attorneys

WEINSTEIN CRAIG D.

ROBERT J. LYNCH ESQ.

 

Court Documents

Declaration

11/20/2018: Declaration

Order

12/3/2018: Order

Notice

12/19/2018: Notice

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/26/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice

1/15/2019: Notice

Request for Dismissal

1/16/2019: Request for Dismissal

Notice of Settlement

10/26/2018: Notice of Settlement

Notice

8/22/2018: Notice

Notice

8/22/2018: Notice

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Order

7/5/2018: Order

 

Docket Entries

  • 01/16/2019
  • Request for Dismissal; Filed by ALFONSO PENA (Plaintiff)

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  • 01/15/2019
  • Notice (name extension) (Notice of Case Reassignment); Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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  • 12/26/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/19/2018
  • Notice (name extension) (Of Entry Of Order Determining Good Faith Settlement Of Defendant Edward Kats); Filed by EDWARD KATS (Defendant)

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  • 12/03/2018
  • Order (name extension) (Determining Good Faith Settlement of Defendant Edward Kats); Filed by EDWARD KATS (Defendant)

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  • 11/20/2018
  • Declaration (name extension) (of Craig Weinstein Regarding No Opposition Received to Defendant Edward Kats's Notice of Settlement and Application for Good Faith Determination); Filed by EDWARD KATS (Defendant)

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  • 10/26/2018
  • Notice of Settlement and Application For Good Faith Determination; Filed by EDWARD KATS (Defendant)

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  • 09/17/2018
  • at 08:30 AM in Department B; Unknown Event Type

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  • 08/22/2018
  • Notice; Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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  • 08/22/2018
  • Notice of Case Assignment; Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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33 More Docket Entries
  • 10/30/2017
  • Petition; Filed by EDWARD KATS (Defendant)

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  • 10/04/2017
  • Proof-Service/Summons; Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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  • 09/28/2017
  • Proof-Service/Summons; Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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  • 09/21/2017
  • at 08:30 AM in Department M; (Affidavit of Prejudice; Case is reassigned) -

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  • 09/21/2017
  • Minute order entered: 2017-09-21 00:00:00; Filed by Clerk

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  • 09/15/2017
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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  • 09/11/2017
  • OSC-RE Other (Miscellaneous); Filed by Clerk

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  • 09/06/2017
  • Complaint; Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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  • 09/06/2017
  • Summons; Filed by SUSAN PENA (Plaintiff); ALFONSO PENA (Plaintiff)

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  • 09/06/2017
  • Notice of Case Management Conference; Filed by Clerk

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Tentative Rulings

Case Number: YC072306    Hearing Date: February 04, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

SUSAN PENA, et al.,

Plaintiffs,

Case No.:

YC072306

vs.

[Tentative] RULING

EDWARD KATS, et al.

Defendants.

Hearing Date: February 4, 2020

Moving Parties: Defendant Yuriy Matyash, ind. and dba Tin Hill Construction aka Yuriy Matyash Construction

Responding Party: None

Motion for Judgment on the Pleadings

The court considered the moving papers.

RULING

The motion is GRANTED.

BACKGROUND

On September 6, 2017, plaintiffs Susan Pena and Alfonso Pena filed a complaint against defendants Edward Kats and Yuriy Matyash, ind. and dba Tin Hill Construction aka Yuriy Matyash Construction for (1) strict products liability, (2) violation of standards set forth in Civil Code §896, (3) breach of implied warranty of merchantability, (4) breach of express warranty, (5) breach of contract, and (6) negligence. Plaintiffs allege that they are the owners of a home at 510 S. Irena Ave., Redondo Beach. On March 8, 2015, Kats entered into a written contract with plaintiffs for the sale of the property. At the time of the purchase of the property by plaintiffs, the property was defective and unfit for its intended purpose because it had been constructed in a defective manner and in violation of the standards identified in Civil Code §896.

On March 20, 2018, Yuriy Matyash, ind. and dba Tin Hill Construction filed a cross-complaint against Roes for indemnity, breach of warranties, and declaratory relief.

On March 21, 2018, Edward Kats filed a cross-complaint against Yuriy Matyash for breach of contract, breach of express and implied warranties, negligence, indemnity, and contribution.

On December 3, 2018, the court granted Kats’ application for good faith determination. Plaintiffs and defendant Kats agreed that plaintiffs would release and dismiss Kats in exchange for Kats paying $200,000 to plaintiffs and to assign to plaintiffs any claims Kats may have against Matyash (at an agreed upon monetary value of $10,000).

At trial on June 12, 2019, Kats’ cross-complaint was dismissed with prejudice for failure to prosecute.

On June 18, 2019, defendant’s motion for a mistrial was granted.

On October 16, 2019, the court granted defendant’s motion for judgment on the pleadings as to the 1st, 3rd, 4th, and 6th causes of action and denied it as to the 5th cause of action. The court granted plaintiffs’ motion for leave to file an amended complaint.

On November 5, 2019, plaintiffs filed a FAC for (1) violation of standards set forth in Civil Code 896, (2) breach of express warranty, and (3) breach of contract.

LEGAL AUTHORITY

CCP § 438 states, in relevant part: “(b)(1) A party may move for judgment on the pleadings. . . . (c)(1) The motion provided for in this section may only be made on one of the following grounds: . . . . (B) If the moving party is a defendant, that either of the following conditions exist: . . . . (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. . . . (d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. . . .”

A motion for judgment on the pleadings “has the purpose and effect of a general demurrer.” Smiley v. Citibank (s.D.), N.A. (1995) 11 Cal. 4th 138, 146 (citation omitted). “[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein. As appropriate, however, it may extend its consideration to matters that are subject to judicial notice. In this, it performs essentially the same task that it would undertake in ruling on a general demurrer.” Id. (citations omitted).

DISCUSSION

Defendant Yuriy Matyash dba Tin Hill Constructions (“Matyash”) requests judgment on pleadings on the FAC as to the 2nd cause of action for breach of contract and 3rd cause of action for express warranty.

In the FAC, plaintiffs allege that they are the owners of a single-family home located at 510 S. Irena Avenue, Redondo Beach. Defendants were engaged in the development, design, construction, construction management, testing, inspections, and supply of materials for the property. The property suffers from defects in design, construction, and materials that have caused and continue to cause damages to plaintiffs. FAC, ¶1. On July 22, 2013, defendant Matyash, acting as contractor, entered into a contract with then owner of the property, Edward Kats, to construct the property. Id., ¶8. On March 18, 2015, Kats entered into a written contract with plaintiffs for the sale of the property. Id., ¶9. On October 19, 2018, plaintiffs settled their claims with Kats. Pursuant to the settlement, Kats assigned all of his claims against Matyash to plaintiffs, including any and all rights to pursue claims against Matyash for breaching the construction contract. Id., ¶14.

2nd cause of action for breach of contract and 3rd cause of action for express warranty

Defendant argues that these causes of action was dismissed along with defendant/cross-complainant Edward Kats’ cross-complaint against Matyash. Defendant contends that despite plaintiffs’ contention that these claims were assigned to them by Kats, plaintiffs failed to timely or properly prosecute these claims and they can no longer assert them.

Defendant explains that Kats had filed a cross-complaint against Matyash for breach of contract and express warranty. Plaintiffs subsequently settled their claims with Kats on October 19, 2018. On June 12, 2019, on the initial trial date, Kats did not appear for trial and Katyash requested that the cross-complaint be dismissed. The court dismissed the cross-complaint.

Defendant asserts that plaintiffs are basing the 2nd and 3rd causes of action solely on the purported assignment of Kats’ claims to them.

CCP §368.5 states: “An action or proceeding does not abate by the transfer of an interest in the action or proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding.”

A cause of action arising out of a contractual obligation may be assigned to another by its owner. Civil Code §954. “Upon assignment, the assignee ‘stands in the shoes of his assignor, taking his rights and remedies. . . .’” Essex Ins. Co. v. Five Star Dye House, Inc. (2006) 38 Cal. 4th 1252, 1264 (citation omitted).

Kats’ interest in his claims was transferred to plaintiffs after the cross-complaint was filed. CCP §368.5 permits a former real party in interest (Kats) to continue to prosecute an action or proceeding that was pending at the time his interest was transferred to plaintiffs or plaintiffs could substitute into the cross-complaint. Here, neither occurred. Kats did not continue to prosecute the cross-complaint in his name and plaintiffs did not substitute into the cross-complaint. Plaintiffs also did not prosecute the cross-complaint in the name of Kats. See also Casey v. Overhead Door Corporation (1999) 74 Cal. App. 112 disapproved of on other grounds in Jimenez v. Superior Court (2003) 29 Cal. 4th 473, where the homeowners sued a developer for construction defect claim. The developer cross-complained against its subcontractors for indemnity. The developer settled with plaintiffs and assigned its claims under the cross-complaint to plaintiff. The court, citing to CCP §368.5, stated that “[t]he action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding.”

As stated above, as assignees, plaintiffs stood in the shoes of Kats, the assignee. Plaintiffs’ claims are not independent but merely derivative of Kats’ claims. His rights and remedies though were dismissed with prejudice.

There is no opposition.

The motion is GRANTED.

Defendant is ordered to give notice of the ruling.