Judge: Anne Richardson, Case: 22STCV07065, Date: 2023-11-09 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV07065    Hearing Date: November 9, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings Framing Motion

Plaintiff American Ironworks Manufacturing, Inc. sues Defendants Fassberg Contracting Corporation (Fassberg), 1400 Fig LLC (1400 Fig), and Does 1 through 150 pursuant to a February 25, 2022 Complaint alleging claims of (1) Breach of Contract against Fassberg and Does 1-50, (2) Enforcement of Mechanics Lien against 1400 Fig and Does 51-100, (3) Common Counts against Fassberg and Does 1-50, and (4) Lien Release Bond against Fassberg, Does 1-50, and Does 101-150.

The claims arise from allegations that Plaintiff, as a subcontractor to Defendant Fassberg, agreed to and did in fact furnish certain labor, services, equipment, and materials for structural and miscellaneous ironworks improvement projects at 1400 S. Figueroa Street, Los Angeles, CA 90015 (the 1400 Figueroa project)—i.e., on real property owned by Defendant 1400 Fig—with an agreed-on subcontractor fee of $642,150, later modified to include extra work for the total price of $892,060, with Defendant Fassberg ultimately failing to pay Plaintiff $140,836.58 of the balance on the parties’ agreement.

Motion Before the Court

On August 23, 2023, Plaintiff filed an affirmative motion for summary judgment or adjudication of the Complaint’s four causes of action as against Fassberg and 1400 Fig.

On September 13, 2023, the Court held a status conference regarding alternative dispute resolution, at which time counsel represented that the case was near settlement.

On October 25, 2023, Fassberg opposed the motion for summary judgment or adjudication.

On November 3, 2023, Plaintiff filed a stipulation and proposed order noting a partial settlement of this case as between Plaintiff and 1400 Fig.

On November 6, 2023, the Court signed the November 3rd stipulation and proposed order.

The record fails to reflect that Plaintiff replied to Fassberg’s October 25th opposition.

Plaintiff’s August 23rd motion is now before the Court.

Request for Judicial Notice

Per Plaintiff’s request, the Court takes judicial notice of (1) the November 30, 2021 Claim of Mechanic’s Lien recorded by Plaintiff with the Los Angeles County Recorder’s Office, (2) the June 8, 2015 Grant Deed for 1400 S. Figueroa St., Los Angeles, California 90015, and (3) the Complaint in this action. (Mot., RJN, Exs. A-C; see Evid. Code, §§ 452, subds. (c), (d), 453; Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600 [judicial notice may be taken as to existence of document and legal effects deriving therefrom].)

Motion for Summary Judgment or Adjudication

Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of select causes of action, affirmative defenses, claims for damages, or issues of duty, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects like a motion for summary judgment. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t); see Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, questioned by dictum in Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094, fn. 2 [finding that summary adjudication may be granted as to separate factual grounds supporting a claim stated as a single count because the separate grounds state a separate cause of action].) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment or adjudication “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make a rebuttal prima facie showing that a triable issue of material fact exists. (Id. at p. 849.) “[I]n ruling on motions for summary judgment courts are to ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’ [Citations].” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)

I.

Summary Judgment, Complaint: DENIED.

The Court notes that summary judgment of the entire Complaint cannot be granted because, aside from the fact that triable issues of material fact remain as to the Complaint’s first and third causes of action (see discussions at Sections II and IV infra), a disposition as to the Complaint second and fourth causes of action has been mooted (see discussions at Sections III and V infra). Otherwise stated, summary judgment cannot be granted because the papers submitted do not show that there are no triable issues of material fact for trial as to all the Complaint’s causes of action. (Code of Civ. Proc., § 437c, subd. (c).)

II.

Summary Adjudication, Complaint, First Cause of Action, Breach of Contract: DENIED.

“A contract is a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing.” (Robinson v. Magee (1858) 9 Cal. 81, 83.) “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352, italics omitted.)

The first cause of action alleges that Plaintiff and Defendant Fassberg entered a written contract (the Subcontract), that Plaintiff performed its obligations pursuant to that Subcontract, that Fassberg breached the Subcontract by failing to pay a balance of $140,836.58, together with interest at the legal rate, and that Plaintiff was harmed in the amount of $140,836.58, plus interest, and attorney’s fees. (Complaint, ¶¶ 7-10, 11-13.)

Plaintiff’s motion for summary judgment or adjudication argues that the Plaintiff has made an evidentiary showing of a contract between the parties (the Subcontract), Plaintif’s satisfaction of its contractual duties, Fassberg’s failure to pay a balance of $140,836.58 on the Subcontract, and harm to Plaintiff in the amount of $140,836.58, plus interest and attorney’s fees. (Mot., p. 7, citing Mot., Separate Statement (Sep. St.), Undisputed Material Fact (UMF Nos.) 1-7.)

The Court’s review of Plaintiff’s evidence shows that it carries its burden on summary adjudication of the Complaint’s first cause of action.

Plaintiff shows that it entered the Subcontract with Fassberg on May 3, 2016. (Mot., Asiss Decl., Ex. 2, Subcontract Agreement, cited in Mot., Sep. St., UMF No. 1.) Plaintiff also shows evidence that it performed its obligations under the Subcontract, that Defendant Fassberg breached its obligations by failing to pay Plaintiff $140,836.58, and that Plaintiff has been damaged. Plaintiff provides a ‘summary of accounts’ for the 1400 Figueroa project, which shows an original contract amount of $642,150, twenty-three change orders to the Subcontract increasing the total contract amount in Plaintiff’s favor to $892,060, and a summary of outstanding invoices totaling $140,836.57. This evidence is also accompanied by copies of the outstanding invoices, numbered 10580 to 10582 and 10677, and copies of a stop payment on a check by Fassberg in favor of Plaintiff for the 10580 to 10582 invoices. Last, Plaintiff attaches a declaration from its Chief Executive Officer and Responsible Managing Officer (RMO) indicating that these invoices are connected to services performed and material provided to the 1400 Figueroa project. (Mot., Asiss Decl., ¶¶ 6-7, Exs. C [summary of account and outstanding invoices], D [stop payment], cited in Mot., Sep. St., UMF Nos. 3-7.)

In opposition, Defendant Fassberg argues that summary judgment or adjudication is improper as to the Complaint’s first cause of action because triable issues of material fact remain as to whether Plaintiff’s damages should be offset based on four distinct grounds. These include: (1) delays by Plaintiff relating to steel columns for the third floor in the 1400 Figuroa project; (2) duplicative charges by Plaintiff; (3) Plaintiff requesting meritless change orders that Fassberg was forced to accept to keep the 1400 Figueroa project moving forward but for which Plaintiff should not be compensated based on the terms of the Subcontract; and (4) based on Plaintiff’s failure to complete certain work related to window washing tiebacks and the trellis on the 1400 Figueroa project. (Opp’n, pp. 5-10, citing Opp’n, Sep. St., Additional Material Fact (AMF) Nos. 10, 13-14, 16-17, 19-26.) Fassberg also argues that the Subcontract provided a condition precedent to filing suit—mediation—which was not satisfied here because Plaintiff did not mediate this action before filing it. (Opp’n, pp. 10-11, citing Opp’n, Sep. St., AMF Nos. 18, 27.)

No reply by Plaintiff appears in the record.

The Court’s review of Fassberg’s evidence shows that it carries its burden on summary adjudication of the Complaint’s first cause of action, specifically, by showing triable issues as to the amount of damages to which Plaintiff claims to be entitled and as to Plaintiff’s actual performance under the Subcontract.

Fassberg provides evidence that appears to show that Plaintiff twice charged for work relating to fabricating and installing elevator divider posts, first on April 18, 2016, and again on July 31, 2017, undercutting the amount of damages sought by Plaintiff (duplicate costs). (Opp’n, Fassberg Decl., ¶¶ 11-15 & Opp’n, Evidentiary Appendix, Exs. 11-14, cited in Opp’n, Sep. St., AMF Nos. 19-21.) Fassberg also shows evidence of Plaintiff’s failure to complete two distinct tasks—installing tieback supports for the window washing equipment and steelwork related to the front trellis on the 1400 Figueroa project—which undercuts damages, as well as the position that Plaintiff performed all its obligations pursuant to the Subcontract. (See Opp’n, Fassberg Decl., ¶¶ 19-20 [Fassberg’s President’s declaration as to tieback work] & Opp’n, Evidentiary Appendix, Exs. 17 [change orders related to tieback work], 20 [new contract with subcontractor to complete tieback and other work not completed by Plaintiff], cited in Opp’n, Sep. St., AMF Nos. 24-25; see also Opp’n, Fassberg Decl., ¶ 21 [Fassberg’s President’s declaration as to steel work on trellis] & Opp’n, Evidentiary Appendix, Exs. 15 [change order showing credit for work to be performed by Plaintiff on front trellis], referenced in Opp’n, Sep. St., AMF No. 26; see also Opp’n, Evidentiary Appendix, Ex. 24 [change order for third-party company to complete trellis work].) Without reaching the sufficiency and merit of the remaining arguments opposing summary adjudication, the Court determines that this evidence alone raises triable issues as to damages and Plaintiff’s performance of obligations pursuant to the parties’ agreement (the Subcontract), as reflected in change orders on which Plaintiff relies for damages.

Summary adjudication is thus DENIED as to the Complaint’s first cause of action.

III.

Summary Adjudication, Complaint, Second Cause of Action, Enforcement of Mechanic’s Lien]: MOOT.

Plaintiff’s motion is MOOT as to the Complaint’s second cause of action based on the November 3, 2023 stipulation between Plaintiff and 1400 Fig, which the Court signed on November 6, 2023. The claim is not pleaded against Fassberg.

IV.

Summary Adjudication, Complaint, Third Cause of Action, Common Counts: DENIED.

“‘As Witkin states in his text, “[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain [Account Stated], or for the reasonable value of services, goods, etc., furnished [Goods and Service Rendered]. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.”’” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958, internal citations omitted.) Otherwise stated, the essential elements of any common count are: (1) that defendant is indebted to plaintiff in a certain sum; (2) for some consideration from plaintiff (i.e., goods sold, work done, money paid); and (3) defendant’s nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

The Court adopts its discussion in Section II to find that because triable issues of material fact remain as to Plaintiff’s performance and damages under the Subcontract, triable issues of material fact remain as to whether and in what amount Fassberg is indebted to Plaintiff and as to whether and the amount that Fassberg failed to pay Plaintiff under the Subcontract and the change orders.

V.

Summary Adjudication, Complaint, Fourth Cause of Action, Lien Release Bond: MOOT.

Plaintiff’s motion is MOOT as to the Complaint’s fourth cause of action based on Plaintiff’s request for dismissal of this claim, without prejudice. (Mot., p. 9.)

The Court DISMISSES Plaintiff’s fourth cause of action, without prejudice. 

Conclusion

Plaintiff American Ironworks Manufacturing, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED, in Part, and MOOT, in Part, as follows:

(1) DENIED as to summary judgment;

(2) DENIED as to summary adjudication of the Complaint’s first and third causes of action; and

(3) MOOT as to summary adjudication of the Complaint’s second and fourth causes of action.