This case was last updated from Los Angeles County Superior Courts on 06/03/2022 at 09:04:50 (UTC).

UNI-GLORY DEVELOPMENT, INC. VS. FAIRVIEW EAST LLC

Case Summary

On 04/06/2017 UNI-GLORY DEVELOPMENT, INC filed a Contract - Other Contract lawsuit against FAIRVIEW EAST LLC. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ, COLIN P. LEIS, ALAN S. ROSENFIELD, JOEL L. LOFTON, MICHAEL VILLALOBOS, WILLIAM D. STEWART and MARGARET L. OLDENDORF. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6531

  • Filing Date:

    04/06/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. MATZ

COLIN P. LEIS

ALAN S. ROSENFIELD

JOEL L. LOFTON

MICHAEL VILLALOBOS

WILLIAM D. STEWART

MARGARET L. OLDENDORF

 

Party Details

Plaintiffs and Cross Defendants

UNI-GLORY DEVELOPMENT INC.

GDT FRAMING INC.

DLAC INC. A CALIFORNIA CORPORATION

GOLDEN CITY INTERNATIONAL INC.

DLAC INC.

CALIFORNIA CONSTRUCTION & ROOFING INC.

ENGLES SHEN & ASSOCIATES INC.

LUCY XIANGXIN GAO

CHIEN-KUO LIU

GEORGE ZHANG AKA GEORGE YUGUANG ZHANG

LIU CHIEN-KUO

GAO LUCY XIANGXIN

ZHANG GEORGE AKA GEORGE YUGUANG ZHANG

ECO CONCRETE INC.

MOES 1 THROUGH 100 INCLUSIVE

Cross Plaintiffs and Defendants

FAIRVIEW EAST LLC

CALIFORNIA CONSTRUCTION & ROOFING INC.

Attorney/Law Firm Details

Plaintiff Attorney

LEXINT LAW GROUP APLC

Defendant Attorney

ROLAND Y. HO

Cross Plaintiff Attorney

HO ROLAND YIN-CHIA

Cross Defendant Attorneys

HWU FRANK S

WONG SPENCER Y.

COY KATIE L.

ESCHENBURG MATTHEW JAY

PLUMTREE ANGELINA MARIA

SLOME TROY H.

HSU ROBERT CHIHMING

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (JURY TRIAL AND FINAL STATUS CONFERENCE) OF 10/01/2021

10/1/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (JURY TRIAL AND FINAL STATUS CONFERENCE) OF 10/01/2021

Minute Order - MINUTE ORDER (JURY TRIAL AND FINAL STATUS CONFERENCE)

10/1/2021: Minute Order - MINUTE ORDER (JURY TRIAL AND FINAL STATUS CONFERENCE)

Minute Order - MINUTE ORDER (COURT ORDER)

10/5/2021: Minute Order - MINUTE ORDER (COURT ORDER)

Notice of Case Reassignment and Order for Plaintiff to Give Notice

10/5/2021: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Challenge To Judicial Officer - Peremptory (170.6)

10/5/2021: Challenge To Judicial Officer - Peremptory (170.6)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/05/2021

10/5/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/05/2021

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE FSC AND TRIAL DATE

10/13/2021: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE FSC AND TRIAL DATE

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE FSC AND TRIAL DATE;)

10/15/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE FSC AND TRIAL DATE;)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE RE: JENNIFER AGUILAR, CSR#12993, FOR HEARING ON 10

10/15/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE RE: JENNIFER AGUILAR, CSR#12993, FOR HEARING ON 10

Minute Order - MINUTE ORDER (JURY TRIAL AND FINAL STATUS CONFERENCE)

10/18/2021: Minute Order - MINUTE ORDER (JURY TRIAL AND FINAL STATUS CONFERENCE)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (JURY TRIAL AND FINAL STATUS CONFERENCE) OF 10/18/2021

10/18/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (JURY TRIAL AND FINAL STATUS CONFERENCE) OF 10/18/2021

Minute Order - MINUTE ORDER (HEARING ON MOTION IN LIMINE (ALL MOTIONS IN LIMINE))

11/2/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION IN LIMINE (ALL MOTIONS IN LIMINE))

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

11/2/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Motion in Limine - MOTION IN LIMINE EXCLUDING ENLARGED DAMAGES & FOR MONETARY SANCTIONS

11/8/2021: Motion in Limine - MOTION IN LIMINE EXCLUDING ENLARGED DAMAGES & FOR MONETARY SANCTIONS

Request for Judicial Notice

11/8/2021: Request for Judicial Notice

Response - RESPONSE TO DEFENDANT AND CROSS-COMPLAINANT'S OBJECTIONS AND PROPOSED ORDER ON MOTIONS IN LIMINE

11/9/2021: Response - RESPONSE TO DEFENDANT AND CROSS-COMPLAINANT'S OBJECTIONS AND PROPOSED ORDER ON MOTIONS IN LIMINE

Ex Parte Application - EX PARTE APPLICATION FOR CLARIFICATION AND CONFIRMATION OF DECEMBER 6, 2021 TRIAL DATE; DECLARATION OF ROLAND HO RE NOTICE AND FACTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUP

11/9/2021: Ex Parte Application - EX PARTE APPLICATION FOR CLARIFICATION AND CONFIRMATION OF DECEMBER 6, 2021 TRIAL DATE; DECLARATION OF ROLAND HO RE NOTICE AND FACTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUP

Motion to Bifurcate

11/12/2021: Motion to Bifurcate

316 More Documents Available

 

Docket Entries

  • 08/08/2022
  • Hearing08/08/2022 at 08:30 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Jury Trial

    [+] Read More [-] Read Less
  • 07/28/2022
  • Hearing07/28/2022 at 09:00 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Final Status Conference

    [+] Read More [-] Read Less
  • 06/16/2022
  • Hearing06/16/2022 at 08:30 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Hearing on Motion for Leave to Amend Answer

    [+] Read More [-] Read Less
  • 05/13/2022
  • DocketMotion for Leave to Amend (Answer to Second Amended Complaint); Filed by Fairview East LLC (Defendant)

    [+] Read More [-] Read Less
  • 04/04/2022
  • Docketat 08:30 AM in Department 3; Jury Trial - Not Held - Continued - Party's Motion

    [+] Read More [-] Read Less
  • 03/25/2022
  • Docketat 09:00 AM in Department 3; Final Status Conference - Not Held - Continued - Party's Motion

    [+] Read More [-] Read Less
  • 03/24/2022
  • Docketat 09:00 AM in Department 3, Colin P. Leis, Presiding; Hearing on Ex Parte Application (to Continue Trial) - Held - Motion Granted

    [+] Read More [-] Read Less
  • 03/24/2022
  • DocketMinute Order ( (Hearing on Ex Parte Application to Continue Trial)); Filed by Clerk

    [+] Read More [-] Read Less
  • 03/21/2022
  • DocketEx Parte Application (to Continue Trial); Filed by Fairview East LLC (Cross-Complainant)

    [+] Read More [-] Read Less
  • 02/10/2022
  • DocketNotice (of Entry of Order to Continue Five Year Rule); Filed by Uni-Glory Development Inc., (Plaintiff)

    [+] Read More [-] Read Less
416 More Docket Entries
  • 04/17/2017
  • DocketAmended Complaint (First); Filed by Uni-Glory Development Inc., (Plaintiff)

    [+] Read More [-] Read Less
  • 04/17/2017
  • DocketSummons Filed; Filed by Attorney for Plaintiff

    [+] Read More [-] Read Less
  • 04/17/2017
  • DocketSummons; Filed by UNI-GLORY DEVELOPMENT, INC. (Plaintiff)

    [+] Read More [-] Read Less
  • 04/17/2017
  • DocketFirst Amended Complaint; Filed by Attorney for Plaintiff

    [+] Read More [-] Read Less
  • 04/06/2017
  • DocketCivil Case Cover Sheet; Filed by UNI-GLORY DEVELOPMENT, INC. (Plaintiff)

    [+] Read More [-] Read Less
  • 04/06/2017
  • DocketNotice (OSC)

    [+] Read More [-] Read Less
  • 04/06/2017
  • DocketSummons; Filed by null

    [+] Read More [-] Read Less
  • 04/06/2017
  • DocketSummons Filed

    [+] Read More [-] Read Less
  • 04/06/2017
  • DocketComplaint filed-Summons Issued

    [+] Read More [-] Read Less
  • 04/06/2017
  • DocketComplaint filed-Summons Issued; Filed by null

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****6531 Hearing Date: June 16, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

UNI-GLORY DEVELOPMENT, INC. ;

Plaintiff,

vs.

FAIRVIEW EAST, LLC , et al.,

Defendants.

Case No.:

****6531

Hearing Date:

June 16, 2022

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT/CROSS-COMPLAINANT FAIRVIEW EAST, LLC’S MOTION FOR LEAVE TO AMEND ANSWER TO SECOND AMENDED COMPLAINT

AND RELATED CROSS-ACTION

MOVING PARTY: Defendant/Cross-Complainant Fairview East, LLC

RESPONDING PARTY: Plaintiff Uni-Glory Development, Inc.

Defendant/Cross-Complainant Fairview East, LLC’s Motion for Leave to Amend Answer to Second Amended Complaint

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

BACKGROUND

Plaintiff Uni-Glory Development, Inc. (“Uni-Glory”) filed this action on April 6, 2017, against Defendant Fairview East, LLC (“Fairview”). The operative Second Amended Complaint (“SAC”) was filed on November 8, 2017, and asserts causes of action for (1) breach of written contract, (2) implied indemnity, and (3) declaratory relief. The gravamen of this action is a dispute over unpaid sums for construction work performed under an agreement between Uni-Glory, a general contractor, and Fairview, the property owner and developer.

On August 25, 2017, Fairview filed a cross-complaint against, among others, Uni-Glory, George Zhang, Lucy Xiangxin Gao, and Chien-Kuo Liu (collectively, the “Uni-Glory Parties”). On December 22, 2017, Fairview filed its answer to the SAC. Fairview’s operative Fourth Amended Cross-Complaint (“4ACC”) was filed on August 31, 2020, and asserts causes of action for breach of contract, fraud, negligence, and recovery of payments to unlicensed contractor (Bus. & Prof. Code, 7031(b)). Fairview alleges that Uni-Glory is not entitled to any payments because Uni-Glory was not a duly licensed contractor at the relevant time.

Fairview now moves for leave to file an amended answer to add an additional affirmative defense of lack of capacity to sue.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).)

DISCUSSION

The court finds that Fairview has complied with the procedural requirements. However, the court finds that Fairview has not demonstrated good cause for the amendment. According to Fairview, counsel was preparing for trial in this matter (which is currently scheduled for August 7, 2022) when he noticed that checks issued by Uni-Glory indicated that Uni-Glory was doing business as AJL Development. Upon further research, counsel for Fairview determined that AJL Development is not a fictitious business name currently in use, and that AJL Development, Inc. is a dissolved corporation. (Ho Decl., 6, Ex. 1.) Because a dissolved corporation lacks capacity to sue, Fairview contends that amending the answer to include such an affirmative defense is proper. But AJL Development, Inc. is not a party in this case. The corporate entity that is a party – Uni-Glory – is an active corporation. And Fairview does not assert that Uni-Glory is, or was, a dissolved corporation that lacked the capacity to sue, thus rendering Fairview’s proposed new affirmative defense not germane.

CONCLUSION

Based on the foregoing, the court denies Fairview’s motion for leave to amend its answer.

Uni-Glory is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 16, 2022

Colin Leis

Judge of the Superior Court



b'

Case Number: ****6531 Hearing Date: December 13, 2021 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

UNI-GLORY DEVELOPMENT, INC. ,

Plaintiff,

vs.

FAIRVIEW EAST, LLC , et al.,

Defendants.

Case No.:

****6531

Hearing Date:

December 13, 2021

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF AND CROSS-DEFENDANTS’ MOTION TO BIFURCATE TRIAL

MOVING PARTIES: Plaintiff and Cross-Defendant Uni-Glory Development, Inc. and Cross-Defendants George Zhang, Lucy Xiangxin Gao, and Chien-Kuo Liu

RESPONDING PARTY: Defendant and Cross-Complainant Fairview East, LLC

Plaintiff and Cross-Defendants’ Motion to Bifurcate Trial

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

BACKGROUND

Plaintiff Uni-Glory Development, Inc. (“Uni-Glory”) filed this action on April 6, 2017, against Defendant Fairview East, LLC (“Fairview”). The operative Second Amended Complaint (“SAC”) was filed on November 8, 2017, and asserts causes of action for (1) breach of written contract, (2) implied indemnity, and (3) declaratory relief. The gravamen of this action is a dispute over unpaid sums for construction work performed under an agreement between Uni-Glory, a general contractor, and Fairview, the property owner and developer.

On August 25, 2017, Fairview filed a cross-complaint against, among others, Uni-Glory, George Zhang, Lucy Xiangxin Gao, and Chien-Kuo Liu (collectively, the “Uni-Glory Parties”). The operative Fourth Amended Cross-Complaint (“4ACC”) was filed on August 31, 2020, and asserts causes of action for breach of contract, fraud, negligence, and recovery of payments to unlicensed contractor (Bus. & Prof. Code, ; 7031(b)). Fairview alleges that Uni-Glory is not entitled to any payments because Uni-Glory was not a duly licensed contractor at the relevant time.

The Uni-Glory Parties now move for an order bifurcating trial into three phases.

LEGAL STANDARD

Code of Civil Procedure section 1048, subdivision (b) provides: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” The objective of bifurcation typically is “avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” (Horton v. Jones (1972) 26 Cal.App.3d 952, 955.)

Code of Civil Procedure section 598 allows a court to order that the trial of any issue or part thereof proceed before the trial of any other issue to promote the ends of justice or the economy and efficiency of handling the litigation. Additionally, “trial courts have broad discretion to determine the order of proof in the interests of judicial economy.” (Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 496, 504.)

Civil Code section 3295, subdivision (d) provides that “[t]he court shall, on application of any defendant, preclude the admission of evidence of that defendant’s profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294.” Section 3295, subdivision (d) “requires a court, upon application of any defendant, to bifurcate a trial so that the trier of fact is not presented with evidence of the defendant’s wealth and profits until after the issues of liability, compensatory damages, and malice, oppression, or fraud have been resolved against the defendant.” (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777-778.)

DISCUSSION

The Uni-Glory Parties seek an order bifurcating trial as follows:

Phase One: bench trial on the legal issue of whether Fairview’s claim for disgorgement under Business and Professions Code section 7031, subdivision (b) is time-barred and/or statutorily barred by Business and Professions Code section 7031, subdivision (d)

Phase Two: jury trial

Phase Three: punitive damages in the event that the jury returns a verdict in favor of Fairview on its fraud claims

As an initial matter, the court notes that there is no dispute that the issue of punitive damages is properly bifurcated from the rest of trial. Therefore, the motion is granted as to Phase Three.

The court also notes that there is no dispute that the statute of limitations issue and the issue of the application of Business and Professions Code section 7031, subdivision (d) should be tried first. The only dispute appears to be whether Phase One is appropriately tried to a jury or to the court.

Business and Professions Code section 7031, subdivision (b) authorizes an action to be brought by “a person who utilizes the services of an unlicensed contractor…to recover all compensation paid to the unlicensed contractor for performance of any act or contract.” Business and Professions Code section 7031, subdivision (d) provides that “proof of licensure…shall be made by production of a verified certificate of licensure from the Contractors State License Board which establishes that the individual or entity bringing the action was duly licensed in the proper classification of contractors at all times during the performance of any act or contract covered by the action.”

Because licensure is a “required element of a contractor plaintiff’s case in chief,” a contractor is entitled to a jury trial on the issue of the validity of the licensure. (Jeff Tracy, Inc. v. City of Pico Rivera (2015) 240 Cal.App.4th 510, 517-518.) This is especially the case when the party challenging the validity of the license goes “behind the face of the license” to prove that the required managing employee or responsible managing officer is a “sham”. (Id. at p. 518.) Here, Fairview alleges in the 4ACC that Uni-Glory obtained a license under the qualifying individual, Chien-Kuo Liu, via fraud. (4ACC, ¶ 14.) Fairview explicitly alleges that Uni-Glory was not properly licensed, and that Liu was a sham. (4ACC, ¶ 65.) Based on these allegations, the court finds that the issue of valid licensure must be tried by a jury.

Similarly, the court finds that the issue of the application of the statute of limitations is also appropriately tried by a jury. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320 [“Resolution of the statute of limitations issue is normally a question of fact.”]; Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 778 [“Although application of the statute of limitations is normally a question of fact, the question becomes one of law when the evidence is susceptible of only one reasonable conclusion.”].) Although the Uni-Glory Parties argue that the statute of limitations issue in this case has become a legal issue, the court disagrees. The Uni-Glory Parties argue that the date by which Uni-Glory ceased providing construction services to Fairview (and thus, when the cause of action under Business and Professions Code section 7031, subdivision (b) began to accrue) is undisputed based on questions counsel for Fairview asked during the deposition of George Zhang. The Uni-Glory Parties characterize counsel’s line of questioning as his having taken a “position” to which Fairview is bound under the doctrines of judicial estoppel and party admission.

Judicial estoppel prevents a party from “asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 130-131.) “In California, courts consider five factors in determining whether to apply judicial estoppel: ‘The doctrine [most appropriately] applies “‘when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.”’” (Id. at p. 131, quoting Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.) Here, the factors do not support applying judicial estoppel. There is no authority for the proposition that asking questions at a deposition is equivalent to taking a “position” in a proceeding, and more important, there is no showing that Fairview was “successful” in asserting any such position. By the same token, counsel’s questions did not constitute a party admission by an agent. Therefore, the court finds that the statute of limitations issue is not “undisputed” and is properly tried to a jury.

CONCLUSION

Based on the foregoing, the court grants in part and denies in part the Uni-Glory Parties’ motion to bifurcate.

The court orders that trial in this matter will be tried in the following phases:

Phase One: jury trial on the issue of whether Fairview’s claim for disgorgement under Business and Professions Code section 7031, subdivision (b) is time-barred and/or statutorily barred by Business and Professions Code section 7031, subdivision (d)

Phase Two: jury trial on all other issues

Phase Three: punitive damages in the event that the jury returns a verdict in favor of Fairview on its fraud claims.

Fairview is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: December 13, 2021

_____________________________

Colin Leis

Judge of the Superior Court

'


b'

Case Number: ****6531 Hearing Date: July 12, 2021 Dept: A

Motions in Limine

Plaintiff’s No. 1 – GRANTPlaintiff’s No. 2 – GRANT, but argument is indicatedPlaintiff’s No. 3 – GRANTPlaintiff’s No. 4 – GRANT

Defendant’s NO. 1 – DENY

Defendant’s NO. 2 – DENY

Defendant’s NO. 3 – GRANT

Defendant’s NO. 4 - DENY

'


Case Number: ****6531    Hearing Date: November 25, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology LACourtConnect

If it is indispensable for counsel to be present in court, face masks (without a valve) are mandated (unless a court orders otherwise) and social distancing rules are in force.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

  3. State your name at the beginning of all statements.

  4. Do not speak directly to other counsel without permission of court.

  5. Do not interrupt or attempt to speak over another speaker.

  6. Do not announce your presence until called by your name or case name.

  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

  8. Maintain silence in your surroundings – no keyboarding, dogs barking, children crying, etc.

Uni-Glory Development v Fairview East

Motion for Summary Judgment

Calendar:

13

Case No.:

****6531

Hearing Date:

November 25, 2020

Action Filed:

April 06, 2017

Trial Date:

Not Set

MP:

Defendant Fairview East LLC

RP:

Plaintiff Uni-Glory Development, Inc.

ALLEGATIONS:

The instant action arises from the construction dispute involving real property located at 8831, 8833, 8835, 8837, 8839, 8841, 8843, 8845, 8849, and 8851 East Fairview Avenue, San Gabriel, CA 91775 (the “Property”). Plaintiff Uni-Glory Development, Inc. (“Plaintiff”) alleges that it performed certain construction services on behalf of Defendant Fairview East LLC (“Defendant”), the owner of the Property, but that Defendant failed to fully remunerate Plaintiff by failing to pay $418,437.70.

Plaintiff filed its Complaint on April 06, 2017, its First Amended Complaint (“FAC”) on April 17, 2017, and its Second Amended Complaint (“SAC”) on November 08, 2017, alleging three causes of action sounding in (1) Breach of Written Contract, (2) Implied Indemnity, and (3) Declaratory Relief.

Defendant filed its Cross-Complaint ("XC") on August 25, 2017, a First Amended Cross-Complaint ("FXC") on October 12, 2017, a Second Amended Cross-Complaint ("SXC") on March 01, 2018, a Third Amended Cross-Complaint ("TXC") on November 13, 2018, and a Fourth Amended Cross-Complaint ("4XC") on August 31, 2020 as against Plaintiff and Cross-Defendants George Zhang a/k/a George Yuguang Zhang (“Zhang”); Lucy Xiangxin Gao (“Gao”); Chien-Kuo Liu (“Liu”); Engles Shen & Associated, Inc. (“ESA”); DLAC, Inc. (“DLAC”); GDT Framing, Inc. (“GDT”); California Construction & Roofing, Inc. (“CCR”); and Golden City International, Inc. (“Golden City” and collectively the Cross-Defendants”). In the 4XC, Defendant alleges eight causes of action sounding in: (1) Breach of Contract, (2) Breach of Contract (Civ. Code ;1559); (3) Fraud; (4) Fraud; (5) Fraud; (6) Negligent Misrepresentation; (7) Negligence; and (8) Recovery of Payments to Unlicensed Contractor (B&P Code ; 7031(b)).

Cross-Defendant California Construction & Roofing, Inc. filed a Cross-Complaint ("CXC") on January 10, 2018, as against unknown MOE Defendants, sounding in three causes of action for (1) Equitable Indemnity, (2) Contribution and Equitable Apportionment, and (3) Declaratory Relief.

On July 06, 2020, the Court entered a dismissal as requested of the CXC with prejudice.

PRESENTATION:

Defendant filed the instant motion on December 26, 2019. The Court received opposition on August 14, 2020, and a reply brief on August 21, 2020. The original hearing date for the motion was on March 20, 2020.

On March 06, 2020, the Court granted Plaintiff's ex parte application to continue the motion for summary judgment hearing date, and the Court continued the instant matter to August 28, 2020.

On August 28, 2020, the Court continued the instant matter to November 25, 2020 and ordered a separate Fourth Amended Cross-Complaint to be filed. Counsel for Defendant was ordered to give notice and a copy of the minute order was mailed to counsel.

RELIEF REQUESTED:

Defendant moves for summary judgment as to the SAC, or, in the alternative, summary adjudication as to the First, Second, and Third causes of action in the SAC, and summary adjudication as to the Eighth cause of action in Defendant's Fourth Amended Cross-Complaint.

DISCUSSION:

Standard of Review – Moving Defendant, Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., ;437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., ;437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., ; 437c, subd. (p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Id.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., ;437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

Merits – SAC – Defendant contends that Plaintiff's SAC should be dismissed because an unlicensed general contractor may not maintain any action at law or in equity. Defendant argues that Chien Kuo Liu, Plaintiff's Responsible Managing Officer ("RMO"), did not conform to requirements for his position pursuant to Business & Professions Code ; 7068(b)(3) (Appendix, Ex. 2, 7:16-20, 10:24-12:14; Ex. 3, 8:24-9:16, 10:1-8); without a valid RMO, Defendant argues, Plaintiff could not have been a licensed contractor.

Plaintiff argues that Chien Kuo Liu was properly licensed as an RMO during the 2013-2016 period encompassing the SAC claims. (Decl. Vesque, ¶ 4; Decl. Liu, ¶¶ 5-8.) Plaintiff contends that whether Chien Kuo Liu was properly licensed is, at a minimum, a "disputed issue of material fact" precluding summary judgment. Second, Plaintiff argues that the doctrine of "substantial compliance" pursuant to Business and Professions Code ; 7031(e), and so claimed defects with its RMO do not defeat its claims. Third, Plaintiff argues it presents evidence disputing Defendant's claim that Plaintiff is liable for alleged construction defects at the Project, which represents another disputed issue of material fact precluding summary judgment.

Pursuant to Business & Professions Code ; 7031, a contractor may not maintain an action for compensation for the performance of any act where a license is required by this chapter without also alleging that he or she was a licensed contractor at all times during the performance of the act unless the court determines there has been substantial compliance with licensure requirements. The court may determine substantial compliance exists if it is shown at an evidentiary hearing that the contractor (1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure. (Bus. & Prof., ; 7031, subd. (a) & (e).)

A corporation may qualify for a contractor's license by "the appearance of a responsible managing officer or responsible managing employee who is qualified for the same license classification as the classification being applied for. . . . A responsible managing employee for the purpose of this chapter shall mean an individual who is a bona fide employee of the applicant and is actively engaged in the classification of work for which that responsible managing employee is the qualifying person on behalf of the applicant." (Bus. & Prof., ; 7068, subd. (b)(3) & (c).) "For purposes of Section 7068 of the Code, "bona fide employee" of the applicant means an employee who is permanently employed by the applicant and is actively engaged in the operation of the applicant's contracting business for at least 32 hours or 80% of the total hours per week such business is in operation, whichever is less." (Cal. Code Regs., tit. 16, ; 823, subd. (a).)

On review of the moving papers, the Court finds that Defendant has sufficiently met its burden to show that Plaintiff was not a licensed contractor during the course of the project timeframe underlying the SAC, and thus may not maintain any of the SAC's claims. The Court further finds that Plaintiff sufficiently meets its burden to show the existence of a material, triable issue. Specifically, the Declaration of Chien Kuo Liu asserts that he was the RMO for Plaintiff at all relevant times and performed RMO duties accordingly. (Decl. Liu, ¶¶ 4-8.) Plaintiff sufficiently shows that whether Chien Kuo Liu was a valid RMO for Plaintiff during the relevant period specified in the SAC is thus a material, triable fact at issue.

As Defendant makes no further arguments in support of summary judgment, the Court WILL deny the motion for summary judgment as to the SAC.

---

Standard of Review – Moving Plaintiff, Summary Judgment – DA party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., ;437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., ;437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., ; 437c, subd. (p)(1).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., ;437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

Merits – 4XC – As Defendants makes no further arguments in support of summary adjudication as to the Recovery of Payments to Unlicensed Contractor claim beyond the unlicensed contractor argument discussed by the Court in the previous summary judgment analysis, supra, the Court will deny the motion for summary adjudication as to the 4XC.

---

RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Fairview East LLC’s Motion for Summary Judgment came on regularly for hearing on November 25, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS DENIED.

DATE: _______________ _______________________________

JUDGE



Case Number: ****6531    Hearing Date: November 20, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology LACourtConnect

If it is indispensable for counsel to be present in court, face masks (without a valve) are mandated (unless a court orders otherwise) and social distancing rules are in force.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

  3. State your name at the beginning of all statements.

  4. Do not speak directly to other counsel without permission of court.

  5. Do not interrupt or attempt to speak over another speaker.

  6. Do not announce your presence until called by your name or case name.

  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

  8. Maintain silence in your surroundings – no keyboarding, dogs barking, children crying, etc.

Uni-Glory Development v Fairview East

Motion to Compel Deposition

Calendar:

17

Case No.:

****6531

Hearing Date:

November 20, 2020

Action Filed:

April 06, 2017

Trial Date:

Not Set

MP:

Plaintiff/Cross-Defendant Uni-Glory Development, Inc.; Cross-Defendants George Zhang; Lucy Xiangxin Gao; Chien-Kuo Liu

RP:

Defendant/Cross-Complainant Fairview East, LLC

ALLEGATIONS:

The instant action arises from the construction dispute involving real property located at 8831, 8833, 8835, 8837, 8839, 8841, 8843, 8845, 8849, and 8851 East Fairview Avenue, San Gabriel, CA 91775 (the “Property”). Plaintiff Uni-Glory Development, Inc. (“Plaintiff”) alleges that performed certain construction services on behalf of Defendant Fairview East LLC (“Defendant”), the owner of the Property, but that Defendant failed to fully remunerate Plaintiff by failing to pay $418,437.70.

Plaintiff filed its Complaint on April 06, 2017, its First Amended Complaint (“FAC”) on April 17, 2017, and its Second Amended Complaint (“SAC”) on November 08, 2017, alleging three causes of action sounding in (1) Breach of Written Contract, (2) Implied Indemnity, and (3) Declaratory Relief.

Defendant filed its Cross-Complaint on August 25, 2017, as against Plaintiff and Cross-Defendants George Zhang a/k/a George Yuguang Zhang (“Zhang”); Lucy Xiangxin Gao (“Gao”); Chien-Kuo Liu (“Liu”); Engles Shen & Associated, Inc. (“ESA”); DLAC, Inc. (“DLAC”); GDT Framing, Inc. (“GDT”); California Construction & Roofing, Inc. (“CCR”); and Golden City International, Inc. (“Golden City” and collectively the Cross-Defendants”). Defendant then filed a First Amended Cross-Complaint (“FXC”) on October 12, 2017, a Second Amended Cross-Complaint (“SXC”) on March 01, 2018, a Third Amended Cross-Complaint (“TXC”) on November 13, 2018, and a Fourth Amended Cross-Complaint ("4XC") on August 31, 2020. In the 4XC, Defendant alleges eight causes of action sounding in (1) Breach of Contract, (2) Breach of Contract (Civ. Code ;1559); (3) Fraud (Intentional Misrepresentation); (4) Fraud (Intentional Misrepresentation); (5) Fraud/Intentional Concealment; (6) Negligent Misrepresentation; (7) Negligence; and (8) Recovery of Payments to Unlicensed Contractor – B&P Code, Section 7031(b).

Cross-Defendant California Construction & Roofing, Inc. filed a Cross-Complaint on January 10, 2018, as against unknown MOE Defendants, sounding in three causes of action for (1) Equitable Indemnity, (2) Contribution and Equitable Apportionment, and (3) Declaratory Relief.

PRESENTATION:

Plaintiff/Cross-Defendant Uni-Glory Development, Inc. and Cross-Defendants George Zhang, Lucy Xiangxin Gao, Chien-Kuo Liu ("Cross-Defendants") filed the instant motion on October 13, 2020, Defendant/Cross-Complainant Fairview East, LLC ("Cross-Complainant") filed an opposition on November 02, 2020, and Cross-Defendants filed a reply on November 12, 2020.

RELIEF REQUESTED:

Cross-Defendants move to compel Cross-Complainant's designated expert witness Bart W. Brimhall ("Mr. Brimhall") to appear at a deposition, or, in the alternative, to exclude Mr. Brimhall from the evidence at trial. Cross-Defendants further request associated sanctions in the amount of $1,111.65.

DISCUSSION:

Standard of Review – Compel Deposition – CCP ; 2025.450 permits a party to seek a motion to compel a deposition where a deponent fails to appear or produce documents at a deposition. The motion is permissible after a party fails to appear without having served a valid objection pursuant to CCP ; 2025.410. (Code Civ. Proc., ; 2025.450, subd. (a).) The motion must include specific facts demonstrating good cause for the production of documents or items and must be accompanied by a declaration setting forth facts demonstrating that a good faith and reasonable attempt at informal resolution has been made. (Code Civ. Proc., ; 2025.450, subd. (b).) Monetary sanctions are mandatory against an unsuccessful moving or opposing party unless they acted with substantial justification or imposition of sanctions would be unjust. (Code Civ. Proc., ; 2025.450, subd. (g)(1).)

Meet and Confer – Cross-Complainant contends that Cross-Defendants failed to meet and confer reasonably by refusing to consider Cross-Complainant's counsel's calendar. (Decl. Ho, ¶¶ 4-10.) On review of the Declaration of Roland Ho and the Declaration of Tony H. Slome, the Court finds that Cross-Defendants have satisfied meet and confer requirements to code.

Merits – Cross-Complainant argues that: (1) Cross-Defendants failed to properly serve Cross-Defendant DLAC; (2) Cross-Defendants failed to provide a valid deposition notice pursuant to CCP ; 2025.240(a); (3) Cross-Defendants failed to comply with CCP ;; 2034.220, 2034.300, and 2034.240 as to "complete and timely compliance" and proper service of the expert demand; and (4) Cross-Defendants failed to tender payment for the expert witness's fee pursuant to CCP ; 2034.450

In reply, Cross-Defendants argue that: (1) they were not required to serve Cross-Defendant DLAC because Cross-Complainant is the only remaining non-defaulted and non-settling party in the case; (2) they properly served a valid deposition notice; (3) Cross-Complainants' Demand for Exchange of Expert Information was served 70 days before the prior trial date on September 28, 2020, and their method of service argument only applies the due date of the actual exchange of expert information, and not the due date of the service for exchange of expert information; and (4) they are not required to tender payment to the expert witness until the commencement of the deposition itself.

As to the first argument, Cross-Defendants are not required to serve DLAC because they and Cross-Complainants are the only remaining non-settling and non-defaulting parties in the instant litigation. (Decl. Slome, ¶ 9.) Cross-Complainants cite to CCP ; 2025.240(a) ("[t]he party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action") to argue that Cross-Defendants are required to serve DLAC. The purpose of CCP ; 2025.240(a) is to ensure that each interested party is aware of other parties' deposition notices as to each witness. This purpose is not fulfilled by a hyper technical interpretation of the statute when DLAC is no longer a remaining party in the case.

As to the second argument, Cross-Complainants to cite to an email in Exhibit 2 of the Declaration of Roland Ho to argue that Cross-Defendants withdrew the September 28, 2020 Notice of Deposition, and so the instant motion is not based on a valid deposition notice. (Decl. Ho, ¶ 6; Ex. 2.) In the email, Cross-Defendants state: "the noticed deposition of Mr. Brimhall will not be proceeding on September 29, 2020." CCP ; 2025.450(b)(2) provides:

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

As both parties agree that Cross-Defendants cancelled the deposition of Mr. Brimhall on September 29, 2020 (Decl. Ho, ¶ 6, Ex. 2; Decl. Slome, ¶ 5) and so Mr. Brimhall did not fail to attend an active deposition, Cross-Defendants are only required to submit a meet and confer declaration. Cross-Defendants have properly attached a meet and confer declaration and a declaration stating that they contacted Cross-Complainants to inquire about the nonappearance. (Decl. Slome, ¶¶ 4-10.)

As to the third argument, CCP ; 2034.220 provides:

Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.

CCP ; 2034.210 provides:

After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses to the following extent:

(a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.

The parties agree that Cross-Defendants served the Demand for Exchange of Expert Information on July 20, 2020 and that the prior trial date was on September 28, 2020. Cross-Complainant contends that service was untimely because 2 days must be added to the 70-day requirement for electronic service pursuant to CCP ; 1010.6(4)(A). CCP ; 1010.6(4)(A) provides:

If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.

Electronic service is thus deemed to be served on the same day the documents are transmitted, and so no days are added to the 70-day requirement. Cross-Defendants' service is thus timely.

As to the fourth argument, CCP ; 2034.450 provides:

The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition.

Both parties cite to this statutory authority. As the deposition in question has not commenced, Cross-Defendants were not required to tender the expert witness fee, and will not be required to tender the fee until commencement.

Accordingly, the court will grant the instant motion to compel the deposition of Mr. Brimhall

Sanctions – The Court finds that Cross-Complainant did not act with substantial justification and that the imposition of sanctions would not be unjust given the aforementioned circumstances.. The Court will thus award sanctions for Cross-Defendants in the amount of $1,111.65.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff/Cross-Defendant Uni-Glory Development, Inc. and Cross-Defendants George Zhang, Lucy Xiangxin Gao, and Chien-Kuo Liu's Motion to Compel Deposition came on regularly for hearing on November 20, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL DEPOSITION IS GRANTED, AND ASSOCIATED SANCTIONS ARE AWARDED TO CROSS-DEFENDANTS IN THE AMOUNT OF $1,111.65.

DATE: _______________ _______________________________

JUDGE



Case Number: ****6531    Hearing Date: August 14, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use LACourtConnect, the court’s remote appearance technology (audio or video)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Uni-Glory Development v Fairview East

Motion for Leave to File 5XC

Calendar:

1

Case No.:

****6531

Hearing Date:

August 14, 2020

Action Filed:

April 06, 2017

Trial Date:

September 28, 2020

MP:

Defendant Fairview East LLC

RP:

N/A

ALLEGATIONS:

The instant action arises from the construction dispute involving real property located at 8831, 8833, 8835, 8837, 8839, 8841, 8843, 8845, 8849, and 8851 East Fairview Avenue, San Gabriel, CA 91775 (the “Property”). Plaintiff Uni-Glory Development, Inc. (“Plaintiff”) alleges that performed certain construction services on behalf of Defendant Fairview East LLC (“Defendant”), the owner of the Property, but that Defendant failed to fully remunerate Plaintiff by failing to pay $418,437.70.

Plaintiff filed its Complaint on April 06, 2017, its First Amended Complaint (“FAC”) on April 17, 2017, and its Second Amended Complaint (“SAC”) on November 08, 2017, alleging three causes of action sounding in (1) Breach of Written Contract, (2) Implied Indemnity, and (3) Declaratory Relief.

Defendant filed its Cross-Complaint on August 25, 2017, as against Plaintiff and Cross-Defendants George Zhang a/k/a George Yuguang Zhang (“Zhang”); Lucy Xiangxin Gao (“Gao”); Chien-Kuo Liu (“Liu”); Engles Shen & Associated, Inc. (“ESA”); DLAC, Inc. (“DLAC”); GDT Framing, Inc. (“GDT”); California Construction & Roofing, Inc. (“CCR”); and Golden City International, Inc. (“Golden City” and collectively the Cross-Defendants”) Defendant then filed a First Amended Cross-Complaint (“FXC”) on October 12, 2017, a Second Amended Cross-Complaint (“SXC”) on March 01, 2018, and a Third Amended Cross-Complaint (“TXC”) on November 13, 2018. In the TXC, Defendant alleges eight causes of action sounding in (1) Breach of Contract, (2) Breach of Contract (Civ. Code ;1559); (3) Fraud; (4) Fraud; (5) Fraud; (6) Negligent Misrepresentation; (7) Negligence; and (8) Fraudulent Transfer.

Cross-Defendant California Construction & Roofing, Inc. filed a Cross-Complaint on January 10, 2018, as against unknown MOE Defendants, sounding in three causes of action for (1) Equitable Indemnity, (2) Contribution and Equitable Apportionment, and (3) Declaratory Relief.

PRESENTATION:

Defendant filed the motion for leave to file a fifth amended cross-complaint on February 27, 2020. No opposition or reply was filed.

On March 18, 2020, in response to the COVID-19 pandemic and pursuant to the March 17, 2020, Administrative Order of the Presiding Judge, the Court continued the instant matter to May 1, 2020. Counsel for Defendant was informed telephonically and directed to give notice.

On April 2, 2020, and again in response to the continuing pandemic, the Court continued the matter to June 5, 2020. Counsel for Plaintiff was informed by mail and directed to give notice. A copy of the minute order was mailed to counsel.

On May 4, 2020, and again in response to the continuing pandemic, the Court continued the matter to July 6, 2020. Counsel for Plaintiff was informed by mail and directed to give notice. A copy of the minute order was mailed to counsel.

On July 6, 2020, the Court held a hearing and continued the instant matter to August 14, 2020 for the purpose of giving proper notice to all parties.

RELIEF REQUESTED:

Defendant moves for leave to file a Fifth Amended Cross-Complaint ("5XC").

DISCUSSION:

Standard of Review

CCP ;473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.)

CRC Rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

Notice

In its July 6, 2020 minute order, the Court found that the Proof of Service refers to only Robert Hsu, counsel for Chien-Kuo Liu. The instant motion also alleges claims against Uni-Glory Development, Inc.; George Zhang a/k/a George Yuguang Zhang; Lucy Xiangxin Gao; Engles Shen & Associates, Inc.; DLAC, Inc.; Eco Concrete, Inc.; GDT Framing, Inc.; California Construction & Roofing, Inc.; and Golden City International, Inc. In the same July 6, 2020 minute order, the Court ordered Cross-Complainant Fairview East, LLC to provide notice to all parties and continued the hearing date to August 14, 2020 regarding the instant motion. As of the hearing date, Cross-Complainant Fairview East, LLC has only provided additional proof of service, on July 8, 2020, for Cross-Defendant DLAC, Inc. Thus, the instant motion did not properly notice all interested parties.

Accordingly, the Court will deny the motion.

.

---

RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant and Cross-Complainant Fairview East LLC’s Motion for Leave to File a Fifth Amended Cross-Complaint came on regularly for hearing on August 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR LEAVE TO FILE A FIFTH AMENDED CROSS-COMPLAINT IS DENIED.

DATE: _______________ _______________________________

JUDGE



Case Number: ****6531    Hearing Date: July 06, 2020    Dept: A

Uni-Glory Development v Fairview East

Motion to Compel Further Responses to RFP;

Motion for Leave to File 5XC

Calendar:

1

Case No.:

****6531

Hearing Date:

July 6, 2020

Action Filed:

April 06, 2017

Trial Date:

September 28, 2020

Motion to Compel further RFP

MP:

Defendant Fairview East LLC

RP:

Plaintiff Uni-Glory Development, Inc.; Cross-Defendants George Zhang a/k/a George Yuguang Zhang; Lucy Xiangxin Gao; Chien-Kuo Liu

Motion for Leave to File 5XC

MP:

Defendant Fairview East LLC

RP:

Plaintiff Uni-Glory Development, Inc.; Cross-Defendants George Zhang a/k/a George Yuguang Zhang; Lucy Xiangxin Gao; Chien-Kuo Liu; Engles Shen & Associates, Inc.; DLAC, Inc.; Eco Concrete, Inc.; GDT Framing, Inc.; California Construction & Roofing, Inc.; Golden City International, Inc.

ALLEGATIONS:

The instant action arises from the construction dispute involving real property located at 8831, 8833, 8835, 8837, 8839, 8841, 8843, 8845, 8849, and 8851 East Fairview Avenue, San Gabriel, CA 91775 (the “Property”). Plaintiff Uni-Glory Development, Inc. (“Plaintiff”) alleges that performed certain construction services on behalf of Defendant Fairview East LLC (“Defendant”), the owner of the Property, but that Defendant failed to fully remunerate Plaintiff by failing to pay $418,437.70.

Plaintiff filed its Complaint on April 06, 2017, its First Amended Complaint (“FAC”) on April 17, 2017, and its Second Amended Complaint (“SAC”) on November 08, 2017, alleging three causes of action sounding in (1) Breach of Written Contract, (2) Implied Indemnity, and (3) Declaratory Relief.

Defendant filed its Cross-Complaint on August 25, 2017, as against Plaintiff and Cross-Defendants George Zhang a/k/a George Yuguang Zhang (“Zhang”); Lucy Xiangxin Gao (“Gao”); Chien-Kuo Liu (“Liu”); Engles Shen & Associated, Inc. (“ESA”); DLAC, Inc. (“DLAC”); GDT Framing, Inc. (“GDT”); California Construction & Roofing, Inc. (“CCR”); and Golden City International, Inc. (“Golden City” and collectively the Cross-Defendants”) Defendant then filed a First Amended Cross-Complaint (“FXC”) on October 12, 2017, a Second Amended Cross-Complaint (“SXC”) on March 01, 2018, and a Third Amended Cross-Complaint (“TXC”) on November 13, 2018. In the TXC, Defendant alleges eight causes of action sounding in (1) Breach of Contract, (2) Breach of Contract (Civ. Code ;1559); (3) Fraud; (4) Fraud; (5) Fraud; (6) Negligent Misrepresentation; (7) Negligence; and (8) Fraudulent Transfer.

Cross-Defendant California Construction & Roofing, Inc. filed a Cross-Complaint on January 10, 2018, as against unknown MOE Defendants, sounding in three causes of action for (1) Equitable Indemnity, (2) Contribution and Equitable Apportionment, and (3) Declaratory Relief.

PRESENTATION:

Defendant filed the motion to compel further on February 20, 2020. Plaintiff, Zhang, and Liu (the “Opposing Parties”) filed opposition on March 09, 2020, and a reply brief was filed on March 12, 2020.

Defendant filed the motion for leave to file a fifth amended cross-complaint on February 27, 2020. No opposition or reply was filed.

On March 18, 2020, in response to the COVID-19 pandemic and pursuant to the March 17, 2020, Administrative Order of the Presiding Judge, the Court continued both motions to May 1, 2020. Counsel for Defendant was informed telephonically and directed to give notice.

On April 2, 2020, and again in response to the continuing pandemic, the Court continued both motions to June 5, 2020. Counsel for Plaintiff was informed by mail and directed to give notice. A copy of the minute order was mailed to counsel.

On May 4, 2020, and again in response to the continuing pandemic, the Court continued both motions to July 6, 2020. Counsel for Plaintiff was informed by mail and directed to give notice. A copy of the minute order was mailed to counsel.

RELIEF REQUESTED:

Defendant moves to compel further response to Request for Production, Set Two, No. 01, and sanctions in the amount of $2,315.15.

Defendant moves for leave to file a Fifth Amended Cross-Complaint ("5XC").

DISCUSSION:

 

Motion to Compel Further RFP

 

Standard of Review

 

Code of Civil Procedure ;2031.310 provides that a party may bring a motion to compel further to Requests for Production where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under Code of Civ. Proc. ;2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve all issues raised by the motion. (Code Civ. Proc., ; 2031.310, subd. (b)(2).) A motion to compel further responses to Requests for Production must further specifically identify facts showing good cause for the discovery. (Code Civ. Proc., ; 2031.310, subd. (b)(1).) The motion must be brought within 45 days of service of the responses or supplemental responses. (Code of Civ. Proc., ; 2031.310, subd. (c).) Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. (Code of Civ. Proc., ; 2031.310, subd. (h).)

Good Cause

Code of Civil Procedure ;2031.310(b)(1) requires the movant to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice.  In law and motion practice, factual evidence is supplied to the court by way of declarations.  (Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224) (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence).  In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production. Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal. App. 4th 216 at 224, the court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

The same issue identified in Calcor exists here.  The declaration of the moving party’s attorney does not include any specific facts showing good cause for the inspection of the documents sought in each of the requests for production at issue.  Counsel does not offer any sufficient specific facts regarding the documents sought, the requests for production, or the  disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact.  This does not comply with the requirements of Code of Civ. Proc. ;2031.310(b)(1) as set forth in Calcor and Digital Music. Further, Court will additionally note that Defendant was unlikely to succeed on the merits of the motion regardless, as the discovery identifies multiple responding parties, which does not comply with Code of Civ. Proc. ;;2031.030(b) & 2031.040, indicating that propounding discovery should be limited to a single responding party.

Accordingly, the motion will be denied.

---

Motion for Leave to File 5XC

Standard of Review

CCP ;473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.)

CRC Rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

Notice

The instant motion did not properly notice all parties. This is sloppy work. The parties who were affected by the additional cause of action filed non-opposition. Counsel is cautioned concerning filing documents with the court with a proof of service on only those who are thought to be affected thereby,. All parties have a right to notice of all proceedings. Accordingly, the Court could deny the motion. It must be continued to give proper notice to all parties.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Fairview East LLC’s Motion to Compel Further Responses to Requests for Production, Set Two, and Motion for Leave to File a Fifth Amended Cross-Complaint came on regularly for hearing on July 6, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL FURTHER IS DENIED.

THE MOTION FOR LEAVE TO FILE A FIFTH AMENDED CROSS-COMPLAINT IS CONTINUED.

DATE: _______________ _______________________________

JUDGE



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where ECO CONCRETE INC. A CALIFORNIA CORP. is a litigant

Latest cases where FAIRVIEW EAST LLC is a litigant

Latest cases where CALIFORNIA CONSTRUCTION & ROOFING INC. is a litigant