Judge Ashfaq G. Chowdhury, Case Number: EC065899, Date: 2024-02-23 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: EC065899, Date: 2024-02-23 Tentative Ruling

Case Number: EC065899 Hearing Date: February 23, 2024 Dept: E

Hearing Date: 02/23/2024 – 8:30am

Case No: EC065899
Trial Date: 04/15/2024

Case Name:

FAC

KV ELECTRIC, INC., v. FAIRVIEW EAST, LLC; TAI ON HO; ERIC HO; UNI-GLORY DEVELOPMENT, INC.; SEM CONSTRUCTION MANAGEMENT, INC.; KEVIN GUO; and DOES 1-20 inclusive

Cross-Complaint
FAIRVIEW EAST, LLC, a California limited liability company; v. KV ELECTRIC, INC., a California corporation; MIN SHANG KO, an individual; and DOES 1-20 inclusive

[DEFENDANTS’ MSJ/MSA]

RELIEF REQUESTED

“Defendants, Fairview East, LLC; Tai On Ho aka Eric Ho; and Kevin Guo move for summary judgment and in the alternative for summary adjudication against Plaintiff, KV, Electric, Inc.

This motion will be made on the grounds that there is no triable issue of material fact pursuant to

Code of Civil Procedure, Section 437c and case law and will be based upon the attached Declarations, Moving Parties' Separate Statement of Undisputed Facts, Request for Judicial Notice and Memorandum of Points and Authorities as well as all the files contained within this action.

In the alternative, the moving parties seek summary adjudication of the following causes of action pursuant to Code of Civil Procedure, section 437c(f):

1. The First Cause of Action for breach of written contract has no merit the written contract upon

which it is based was between Plaintiff and dismissed Defendant Uni-Glory Development - not

with any of the moving parties.

2. The Second Cause of Action for breach of oral contract has no merit because the alleged oral

agreement was between Plaintiff and dismissed Defendant SEM Construction Management,

Inc. - not with any of the moving parties.

3. The Third Cause of Action for breach of written contract has no merit because the written

contract upon which it is based was between Plaintiff and dismissed Defendant SEM

Construction Management, Inc - not with any of the moving parties.

4. The Fourth Cause of Action for intentional or negligent misrepresentation has no merit because there is no evidence that the moving parties made any misrepresentations to Plaintiff and there is no evidence of reliance by Plaintiff;

5. The Fourth Cause of Action concealment has no merit because there is no evidence that the

moving parties engaged in any actionable concealment and there is no evidence of reliance by Plaintiff;

6. The Fourth Cause of Action for promise made without intention to perform has no merit

because there is no evidence that the moving parties made any misrepresentation, no evidence

of a lack of intent to perform by moving parties and no evidence of reliance.

7. The Fifth Cause of Action for common counts has no merit because there is no evidence that

the moving parties contracted for any service.

8. The Sixth Cause of Action for unfair business practices has no merit because there is no

evidence that the moving parties made any misrepresentation or engaged in unfair business

practices.

9. The Seventh Cause of Action for foreclosure of mechanic's lien has no merit because there is

no evidence that the moving parties were the contracting parties.”

[The Court notes that the Complaint makes allegations against several individuals and entities. Two of the individuals named in the Complaint are Tai On Ho and Eric Ho. This MSJ refers to one of the moving Defendants as Tai On Ho aka Eric Ho. The Parties need to address this issue at the hearing as to if these are two different individuals or the same individual.]

[The Court notes that the notice of this MSJ/MSA does not indicate if it is moving for MSJ/MSA against the FAC or the Cross-Complaint. To the Court, it appears as if Movants are moving as to the FAC. Movants shall address this issue at the hearing.]

PROCEDURAL

Moving Party: Defendants, Fairview East, LLC; Tai on Ho aka Eric Ho; and Kevin Guo

Responding Party: Plaintiff, KV Electric, Inc.

Moving Papers: Notice/Motion; Separate Statement; Request for Judicial Notice; Proposed Order;

Opposing Papers: Opposition; Request to Strike Exhibits 2 & 3 attached to Defendant’s Request for Judicial Notice; Request for Judicial Notice; Separate Statement;

Reply Papers: Reply; Responses to Plaintiff’s Separate Statement; Roland Ho Declaration;

Sur-Reply: Plaintiff’s Objections to Defendant’s Response to Plaintiff’s Separate Statement and objections to the declaration of Roland Ho; Proof of Service

75/80 Days

Under CCP § 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (CCP § 437c(a)(2), emph. added)

Movants should address why Plaintiff’s counsel was the only party served this motion. CCP § 437c(2) states that the notice of the motion shall be served on all other parties to the action. Here, there appear to be more parties to the action other than Plaintiff and the moving Defendants. The parties are to address which parties still remain in this action other than Plaintiff and moving Defendants so the Court can determine if all parties were served.

The motion appears to comply with the 75-day requirement.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

CCCP § 437c, subdivision (a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“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.” (CCP §437c(p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

ANALYSIS

Preliminary Matter

As to Movants’ evidence, the motion itself contains the Roland Ho Declaration, the Tai On Ho Declaration, and various emails. Separate from the evidence attached to the motion itself,

Movants submitted evidence in their request for judicial notice which is labeled as Exhibit 1 – FAC; Exhibit 2 – Deposition transcripts of Plaintiff KV Electric, Inc.’s PMQ; and Exhibit 3 – Statement of Information filed by dismissed defendant SEM Construction Management, Inc.

Movants conveniently labeled and indicated each page in the request for judicial notice by preceding the page number with “RFJN.” By conveniently labeling and assigning a unique number to each page in the request for judicial notice, as opposed to having the same page number appear in different exhibits, referencing each specific exhibit in the request for judicial notice is unnecessary. Therefore, if the Court does not identify a specific exhibit in Movants’ request for judicial notice, the parties can still determine which exhibit it is in because each page has a unique number.

However, the Court notes that the evidence submitted in the motion itself does not use this labeling and numbering of “RFJN,” but instead cites to a specific individual’s declaration and paragraph number in the declaration.

TENTATIVE RULING - First Cause of Action – Breach of Contract

Establishing a breach of contact claim requires a showing of (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff. (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

Movants appear to attack the element of the existence of the contract. To support that no contract existed between Movants and Plaintiff, Movants’ Separate Statement said, “ Uni-Glory Development, Inc. hired a subcontractor KV Electric, Inc. for the Fairview construction project. A construction contract was thus entered into between the general contractor, Uni-Glory Development, Inc., and plaintiff subcontractor KV Electric, Inc. Evidence: RFJN, Ex. 1: 4 & 13-14; Decl. of Tai On Ho, Parag. 4.” (UMF 5.)

This does not, in the Court’s view, necessarily establish that Movants, Fairview East, Tai on Ho/Eric Ho, and Kevin Guo did not enter into a contract with Plaintiff. Plaintiff could have entered into multiple contracts with multiple parties.

Further, the evidence cited in the Tai On Ho Declaration ¶ 4 states, “Defendant Uni-Glory thereafter hired plaintiff KV Electric, Inc., an electric subcontractor, for the performance of the Fairview construction project on or about October 16,20 4. See RFJN, Ex. 1: 4 & 13-14.”

Again, this evidence does not establish that Plaintiff did not enter into contracts with Movants. At best, this statement establishes Uni-Glory and Plaintiff entered into a contract; however, the Court fails to see how Tai On Ho could attest to what Uni-Glory and Plaintiff did when Tai On Ho alleges he is the managing officer of Fairview East LLC and SEM.

Similarly, RFJN 13-14 is equally unhelpful to Movants because at best, maybe it establishes a contract between Uni-Glory and Plaintiff, but this proves nothing as to Plaintiff and Movants.

Here, it appears to the Court that the Movants did not meet their burden in showing that the existence of a contract cannot be established between Plaintiff and Movants.

At best, even if the Court assumes the Movants’ contention to be true that Uni-Glory and Plaintiff entered into a contract, this does not establish that Movants and Plaintiff could not enter into a contract.

The Court’s tentative is to DENY Movants’ motion as to the first cause of action.

Tentative Ruling – Second Cause of Action – Breach of Oral Contract

Movants appear to argue that Plaintiffs cannot establish the second cause of action by attacking the first element in a breach-of-contract cause of action.

Movants argue in their Separate Statement:

6. Defendant Kevin Guo, acting on behalf of SEM Construction Management, Inc., contacted and contracted with KV Electric, Inc.

Evidence: RFJN, Ex 2: 27-30 (Depo of KV’s PMQ)

7. The alleged written or oral agreement to compete the construction project was entered into between SEM Construction Management, Inc. and KV Electric, Inc.

Evidence: RFJN, Ex 1: 15-17; RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

(Def. Sep. Stmt. UMF 6-7.)

Here, the Court fails to see how Movants have met their burden in establishing that a contract did not exist between Plaintiff and Movants by arguing that a contract existed between SEM and Plaintiff.

Further, the Court fails to see how RFJN 27-30 establishes what Movants argue it establishes. Additionally, the Court fails to see how RFJN 15-17 is even relevant to Movants. At best, RFJN 15-17 could potentially be a contract between SEM and Plaintiff. That does not prove that Plaintiff and Movants did not enter into a contract.

Here, Movants did not establish that that the existence of a contract cannot be established between Plaintiff and Fairview East, Tai On Ho/Eric Ho, and Kevin Guo. Movants simply argued that a contract existed between SEM and KV Electric. This does not preclude other contracts from existing.

The Court’s tentative is to DENY Movants’ motion for summary judgment and summary adjudication as to the second cause of action.

Tentative Ruling – Third Cause of Action – Breach of Written Contract

Movants make the same arguments about the third cause of action as they did with respect to the second cause of action.

Here, Movants did not establish that that the existence of a contract cannot be established between Plaintiff and Movants, Fairview East, Tai On Ho/Eric Ho, and Kevin Guo. Movants simply argued that a contract existed between SEM and KV Electric. This does not preclude other contracts from existing.

The Court’s tentative is to DENY the motion for summary judgment and summary adjudication as to the third cause of action.

TENTATIVE RULING – Fourth Cause of Action – Fraud

"The elements of fraud that will give rise to a tort action for deceit are: '" (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.'" (Def. Mot p. 7-8 citing Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974)

Movants appear to be attacking the misrepresentation and reliance elements.

As argued in Movants’ Separate Statement:

10. Defendant Kevin Guo, acting on behalf of SEM Construction Management, Inc., contacted and contracted with KV Electric, Inc.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

11. No particular misrepresentations made by Kevin Guo.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

12. No representations made at all by defendant Tai On Ho, a.k.a. Eric Ho when KV was requested to return to complete the Fairview project.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

13. No reliance on any representations made by defendant Tai On Ho as no representations were made to induce KV Electric, Inc. to return to complete the Fairview project after Uni-Glory had notified KV that Fairview had noticed Uni-Glory to cease work as a general contractor.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

14. The alleged written or oral agreement to compete the construction project was entered into between SEM Construction Management, Inc. and KV Electric, Inc.

Evidence: RFJN , Ex.1: 15-17; RFJN, Ex. 2:27-30 (Depo of KV’s PMQ)

(Def. Sep. Stmt, UMF 10-14.)

Here, the Court fails to see how RFJN 27-30 establishes any of the arguments that Movants attempt to argue that RFJN 27-30 establishes.

Further, UMF 14 is irrelevant to the fraud cause of action.

Here, Movants did not meet their burden in showing one or more elements of a fraud cause of action cannot be established.

The Court’s tentative is to DENY the motion for summary judgment and motion for summary adjudication as to this cause of action.

TENTATIVE RULING FOURTH CAUSE OF ACTION – CONCEALMEANT

[The Court notes that it appears that three different fourth causes of action are alleged in the FAC. This fourth cause of action appears to be pertaining to concealment.]

Movants make the same arguments with respect to the concealment cause of action as they do for the initial fourth cause of action for fraud.

Here, the Court fails to see how RFJN 27-30 establishes any of the arguments that Movants attempt to argue that RFJN 27-30 establishes.

Further, UMF 19 is irrelevant to the concealment cause of action.

Here, Movants did not meet their burden in showing one or more elements of a concealment cause of action cannot be established.

Movants’ motion for summary judgment and motion for summary adjudication is DENIED as to this cause of action.

TENTATIVE RULING FOURTH CAUSE OF ACTION – Fraud Promise Without Intention to Perform

[The Court notes that it appears that three different fourth causes of action are alleged in the FAC. This fourth cause of action appears to be promise without intention to perform.]

Movants make the same exact arguments here as they did for the other two fraud causes of action.

Here, the Court fails to see how RFJN 27-30 establishes any of the arguments that Movants attempt to argue that RFJN 27-30 establishes.

Further, UMF 24 is irrelevant to this fraud cause of action.

Here, Movants did not meet their burden in showing one or more elements of a promissory fraud cause of action cannot be established.

Movants’ motion for summary judgment and motion for summary adjudication is DENIED as to this cause of action.

TENTATIVE RULING FIFTH CAUSE OF ACTION – Common Counts

As a preliminary matter, the FAC and the moving papers do not indicate in any clear manner what specific common count or counts this cause of action is alleging.

Movants argue in their motion, “SEM Construction Management - not the moving parties - was the contracting party with KV Electric, and would have received the benefit of any work to be performed by Plaintiff because SEM would thereafter be paid for that work under its general contract with the owner. SS: UDFS 25-29. But there is no evidence that Plaintiff ever came back to actually perform the work contracted for with SEM (despite receiving an additional advance of $2,000), meaning that Plaintiff cannot establish that any services were rendered that benefitted the moving parties. Summary adjudication should be granted as to this claim.” (Def. Mot. p. 10.)

Here, Movants’ have not met their burden in showing one or more elements of this cause of action cannot be established.

It is unclear which element Movants are attacking in this cause of action. Movants appear to be making the same arguments they have previously made that this Court has found lacking, as noted above.

Movants’ motion for summary judgment and adjudication as to this cause of action is DENIED.

TENTATIVE RULING SIXTH CAUSE OF ACTION – Unfair Business Practices

Movants did not identify the elements of what must be proven to establish the sixth cause of action. Therefore, it is not entirely clear how Movants have established that one or more elements of the cause of action cannot be established. Movants provided no legal authority for their arguments.

Movants’ motion for summary judgment and adjudication as to the sixth cause of action is DENIED.

TENTATIVE RULING SEVENTH CAUSE OF ACTION
Movants’ motion for summary judgment and adjudication as to the seventh cause of action is DENIED on the same grounds explained in the sixth cause of action.

Overall
Movants also argue in their motion and their Separate Statement that summary judgment is appropriate as to the entire FAC. These arguments are unavailing. These arguments hinge on arguments that Uni-Glory hired KV and that SEM and KV entered into a contract. None of these arguments precludes that Movants entered into a contract with Plaintiff. Movants did not meet their initial burden on any of the causes of action in the FAC.

Objections and Requests for Judicial Notice
“ In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP § 437c(q).)

Opposition objected to Exhibit 2 in Movants’ request for judicial notice which was the deposition transcript of Plaintiff KV Electric Inc.’s PMQ. Opposition is correct to note that the initial Roland Ho declaration did not establish proper foundation for the deposition transcript in RFJN Exhibit 2.

“Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waived.” (CCP § 437c(d).)

However, since Movants did not meet their initial burden, the Court does not find it necessary to rule on Opposition’s objections. Even if the Court assumed the truth of the deposition transcript, and even if the initial Roland Ho declaration provided proper foundation for the deposition transcript, the deposition transcript in the moving papers still did not establish what Movants argued it was establishing.

Opposition’s request for judicial notice is the entire docket in this case. The Court Grants Opposition’s request for judicial notice.

The Court will not rule on Opposition’s objections in the sur-reply because again, Movants did not meet their initial burden in their initial moving papers.

Again, Movants should address why Plaintiff’s counsel was the only party served this motion. CCP § 437c(2) states that the notice of the motion shall be served on all other parties to the action. Here, there appear to be more parties to the action other than Plaintiff and the moving Defendants. The parties are to address which parties still remain in this action other than Plaintiff and moving Defendants so the Court can determine if all parties were served.

Hearing Date: 02/23/2024 –
8:30am

Case No: EC065899

Trial Date: 04/15/2024

Case Name:

FAC

KV ELECTRIC, INC., v. FAIRVIEW EAST,
LLC; TAI ON HO; ERIC HO; UNI-GLORY DEVELOPMENT, INC.; SEM CONSTRUCTION
MANAGEMENT, INC.; KEVIN GUO; and DOES 1-20 inclusive

Cross-Complaint

FAIRVIEW EAST, LLC, a California
limited liability company; v. KV ELECTRIC, INC., a California corporation; MIN
SHANG KO, an individual; and DOES 1-20 inclusive

[DEFENDANTS’
MSJ/MSA]

RELIEF REQUESTED

“Defendants, Fairview East, LLC; Tai
On Ho aka Eric Ho; and Kevin Guo move for summary judgment and in the
alternative for summary adjudication against Plaintiff, KV, Electric, Inc.

This motion will be made on the
grounds that there is no triable issue of material fact pursuant to

Code of Civil Procedure, Section
437c and case law and will be based upon the attached Declarations, Moving
Parties' Separate Statement of Undisputed Facts, Request for Judicial Notice
and Memorandum of Points and Authorities as well as all the files contained
within this action.

In the alternative, the moving
parties seek summary adjudication of the following causes of action pursuant to
Code of Civil Procedure, section 437c(f):

1. The First Cause of Action for
breach of written contract has no merit the written contract upon

which it is based was between
Plaintiff and dismissed Defendant Uni-Glory Development - not

with any of the moving parties.

2. The Second Cause of Action for
breach of oral contract has no merit because the alleged oral

agreement was between Plaintiff and dismissed
Defendant SEM Construction Management,

Inc. - not with any of the moving
parties.

3. The Third Cause of Action for
breach of written contract has no merit because the written

contract upon which it is based was
between Plaintiff and dismissed Defendant SEM

Construction Management, Inc - not
with any of the moving parties.

4. The Fourth Cause of Action for
intentional or negligent misrepresentation has no merit because there is no
evidence that the moving parties made any misrepresentations to Plaintiff and
there is no evidence of reliance by Plaintiff;

5. The Fourth Cause of Action
concealment has no merit because there is no evidence that the

moving parties engaged in any
actionable concealment and there is no evidence of reliance by Plaintiff;

6. The Fourth Cause of Action for
promise made without intention to perform has no merit

because there is no evidence that
the moving parties made any misrepresentation, no evidence

of a lack of intent to perform by
moving parties and no evidence of reliance.

7. The Fifth Cause of Action for
common counts has no merit because there is no evidence that

the moving parties contracted for
any service.

8. The Sixth Cause of Action for
unfair business practices has no merit because there is no

evidence that the moving parties
made any misrepresentation or engaged in unfair business

practices.

9. The Seventh Cause of Action for
foreclosure of mechanic's lien has no merit because there is

no evidence that the moving parties
were the contracting parties.”

[The Court notes that the Complaint makes
allegations against several individuals and entities. Two of the individuals
named in the Complaint are Tai On Ho and Eric Ho. This MSJ refers to one of the
moving Defendants as Tai On Ho aka Eric Ho. The Parties need to address this
issue at the hearing as to if these are two different individuals or the same
individual.]

[The Court notes that the notice of
this MSJ/MSA does not indicate if it is moving for MSJ/MSA against the FAC or
the Cross-Complaint. To the Court, it appears as if Movants are moving as to
the FAC. Movants shall address this issue at the hearing.]

PROCEDURAL

Moving Party: Defendants, Fairview East, LLC; Tai on Ho aka
Eric Ho; and Kevin Guo

Responding Party: Plaintiff, KV Electric, Inc.

Moving Papers: Notice/Motion; Separate Statement; Request
for Judicial Notice; Proposed Order;

Opposing Papers: Opposition; Request to Strike Exhibits 2
& 3 attached to Defendant’s Request for Judicial Notice; Request for
Judicial Notice; Separate Statement;

Reply Papers: Reply; Responses to Plaintiff’s Separate
Statement; Roland Ho Declaration;

Sur-Reply: Plaintiff’s Objections to Defendant’s Response to
Plaintiff’s Separate Statement and objections to the declaration of Roland Ho;
Proof of Service

75/80 Days

Under CCP § 437c(2), notice
of the motion and supporting papers shall be served on all other parties to the
action at least 75 days before the time appointed for hearing. If the
notice is served by mail, the required 75-day period of notice shall be
increased by 5 days if the place of address is within the State of California.
If the notice is served by facsimile transmission, express mail, or another
method of delivery providing for overnight delivery, the required 75-day period
of notice shall be increased by two court days. (CCP § 437c(a)(2), emph. added)

Movants should address
why Plaintiff’s counsel was the only party served this motion. CCP § 437c(2)
states that the notice of the motion shall be served on all other parties to
the action. Here, there appear to be more parties to the action other than
Plaintiff and the moving Defendants. The parties are to address which parties
still remain in this action other than Plaintiff and moving Defendants so the
Court can determine if all parties were served.

The motion appears to
comply with the 75-day requirement.

LEGAL STANDARD

The function of a
motion for summary judgment or adjudication is to allow a determination as to
whether an opposing party cannot show evidentiary support for a pleading or
claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues; the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382.)

CCCP § 437c, subdivision (a)
provides that “a party may move for summary judgment in an action or proceeding
if it is contended that the action has no merit or that there is no defense to
the action or proceeding.” The motion shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. (CCP §
437c(c).) In determining if the papers show that there is no triable issue
as to any material fact, the court shall consider all of the evidence set forth
in the papers, except the evidence to which objections have been made and
sustained by the court, and all inferences reasonably deducible from the
evidence, except summary judgment shall not be granted by the court based on
inferences reasonably deducible from the evidence if contradicted by other
inferences or evidence that raise a triable issue as to any material fact. (Id.)

As to each claim as
framed by the complaint, the defendant moving for summary judgment must satisfy
the initial burden of proof by presenting facts to negate an essential element,
or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)
Courts “liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that
party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“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.” (CCP
§437c(p)(2).) To establish a triable issue of
material fact, the party opposing the motion must produce substantial
responsive evidence. (Sangster v. Paetkau
(1998) 68 Cal.App.4th 151, 166.)

ANALYSIS

Preliminary
Matter

As to Movants’ evidence, the motion itself
contains the Roland Ho Declaration, the Tai On Ho Declaration, and various
emails. Separate from the evidence attached to the motion itself,

Movants submitted
evidence in their request for judicial notice which is labeled as Exhibit 1 –
FAC; Exhibit 2 – Deposition transcripts of Plaintiff KV Electric, Inc.’s PMQ;
and Exhibit 3 – Statement of Information filed by dismissed defendant SEM
Construction Management, Inc.

Movants conveniently
labeled and indicated each page in the request for judicial notice by preceding
the page number with “RFJN.” By conveniently labeling and assigning a unique
number to each page in the request for judicial notice, as opposed to having
the same page number appear in different exhibits, referencing each specific
exhibit in the request for judicial notice is unnecessary. Therefore, if the
Court does not identify a specific exhibit in Movants’ request for judicial
notice, the parties can still determine which exhibit it is in because each
page has a unique number.

However, the Court
notes that the evidence submitted in the motion itself does not use this
labeling and numbering of “RFJN,” but instead cites to a specific individual’s
declaration and paragraph number in the declaration.

TENTATIVE
RULING - First Cause of Action – Breach of Contract

Establishing a breach
of contact claim requires a showing of (1) the existence of the contract, (2)
plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach,
and (4) the resulting damages to the plaintiff. (D’Arrigo Bros. of
California v. United Farmworkers of America (2014) 224 Cal.App.4th 790,
800.)

Movants appear to
attack the element of the existence of the contract. To support that no
contract existed between Movants and Plaintiff, Movants’ Separate Statement
said, “ Uni-Glory Development, Inc. hired a subcontractor KV Electric, Inc. for
the Fairview construction project. A construction contract was thus entered
into between the general contractor, Uni-Glory Development, Inc., and plaintiff
subcontractor KV Electric, Inc. Evidence: RFJN, Ex. 1: 4 & 13-14; Decl. of Tai
On Ho, Parag. 4.” (UMF 5.)

This does not, in the
Court’s view, necessarily establish that Movants, Fairview East, Tai on Ho/Eric
Ho, and Kevin Guo did not enter into a contract with Plaintiff. Plaintiff could
have entered into multiple contracts with multiple parties.

Further, the evidence
cited in the Tai On Ho Declaration ¶ 4 states, “Defendant Uni-Glory thereafter
hired plaintiff KV Electric, Inc., an electric subcontractor, for the
performance of the Fairview construction project on or about October 16,20 4.
See RFJN, Ex. 1: 4 & 13-14.”

Again, this evidence
does not establish that Plaintiff did not enter into contracts with Movants. At
best, this statement establishes Uni-Glory and Plaintiff entered into a
contract; however, the Court fails to see how Tai On Ho could attest to what
Uni-Glory and Plaintiff did when Tai On Ho alleges he is the managing officer
of Fairview East LLC and SEM.

Similarly, RFJN 13-14
is equally unhelpful to Movants because at best, maybe it establishes a
contract between Uni-Glory and Plaintiff, but this proves nothing as to
Plaintiff and Movants.

Here, it appears to
the Court that the Movants did not meet their burden in showing that the
existence of a contract cannot be established between Plaintiff and Movants.

At best, even if the
Court assumes the Movants’ contention to be true that Uni-Glory and Plaintiff
entered into a contract, this does not establish that Movants and Plaintiff
could not enter into a contract.

The Court’s tentative
is to DENY Movants’ motion as to the first cause of action.

Tentative
Ruling – Second Cause of Action – Breach of Oral Contract

Movants appear to argue that Plaintiffs cannot
establish the second cause of action by attacking the first element in a breach-of-contract
cause of action.

Movants argue in their
Separate Statement:

6. Defendant Kevin Guo, acting on behalf of SEM Construction
Management, Inc., contacted and contracted with KV Electric, Inc.

Evidence: RFJN, Ex 2: 27-30 (Depo of KV’s PMQ)

7. The alleged written or oral agreement to compete the construction
project was entered into between SEM Construction Management, Inc. and KV
Electric, Inc.

Evidence: RFJN, Ex 1: 15-17; RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

(Def. Sep. Stmt. UMF 6-7.)

Here, the Court fails to see how Movants have met their burden in
establishing that a contract did not exist between Plaintiff and Movants by
arguing that a contract existed between SEM and Plaintiff.

Further, the Court fails to see how RFJN 27-30 establishes what
Movants argue it establishes. Additionally, the Court fails to see how RFJN
15-17 is even relevant to Movants. At best, RFJN 15-17 could potentially be a
contract between SEM and Plaintiff. That does not prove that Plaintiff and
Movants did not enter into a contract.

Here, Movants did not establish that that the existence of a contract
cannot be established between Plaintiff and Fairview East, Tai On Ho/Eric Ho,
and Kevin Guo. Movants simply argued that a contract existed between SEM and KV
Electric. This does not preclude other contracts from existing.

The Court’s tentative is to DENY Movants’ motion for summary judgment
and summary adjudication as to the second cause of action.

Tentative Ruling – Third Cause of Action – Breach of Written Contract

Movants make the same arguments about the third cause of action as
they did with respect to the second cause of action.

Here, Movants did not
establish that that the existence of a contract cannot be established between
Plaintiff and Movants, Fairview East, Tai On Ho/Eric Ho, and Kevin Guo. Movants
simply argued that a contract existed between SEM and KV Electric. This does
not preclude other contracts from existing.

The Court’s tentative
is to DENY the motion for summary judgment and summary adjudication as to the third
cause of action.

TENTATIVE
RULING – Fourth Cause of Action – Fraud

"The elements of
fraud that will give rise to a tort action for deceit are: '" (a) misrepresentation
(false representation, concealment, or nondisclosure); (b) knowledge of falsity
(or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d)
justifiable reliance; and (e) resulting damage.'" (Def. Mot p. 7-8 citing Engalla
v. Permanente
Medical Group, Inc. (1997)
15 Cal.4th 951, 974)

Movants appear to be
attacking the misrepresentation and reliance elements.

As argued in Movants’
Separate Statement:

10. Defendant Kevin Guo, acting on behalf of SEM Construction
Management, Inc., contacted and contracted with KV Electric, Inc.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

11. No particular misrepresentations made by Kevin Guo.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

12. No representations made at all by defendant Tai On Ho, a.k.a. Eric
Ho when KV was requested to return to complete the Fairview project.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

13. No reliance on any representations made by defendant Tai On Ho as
no representations were made to induce KV Electric, Inc. to return to complete
the Fairview project after Uni-Glory had notified KV that Fairview had noticed
Uni-Glory to cease work as a general contractor.

Evidence: RFJN, Ex. 2: 27-30 (Depo of KV’s PMQ)

14. The alleged written or oral agreement to compete the construction
project was entered into between SEM Construction Management, Inc. and KV
Electric, Inc.

Evidence: RFJN , Ex.1: 15-17; RFJN, Ex. 2:27-30 (Depo of KV’s PMQ)

(Def. Sep. Stmt, UMF 10-14.)

Here, the Court fails to see how RFJN 27-30 establishes any of the
arguments that Movants attempt to argue that RFJN 27-30 establishes.

Further, UMF 14 is irrelevant to the fraud cause of action.

Here, Movants did not meet
their burden in showing one or more elements of a fraud cause of action cannot
be established.

The Court’s tentative
is to DENY the motion for summary judgment and motion for summary adjudication as
to this cause of action.

TENTATIVE
RULING FOURTH CAUSE OF ACTION – CONCEALMEANT

[The Court notes that
it appears that three different fourth causes of action are alleged in the FAC.
This fourth cause of action appears to be pertaining to concealment.]

Movants make the same
arguments with respect to the concealment cause of action as they do for the initial
fourth cause of action for fraud.

Here, the Court fails
to see how RFJN 27-30 establishes any of the arguments that Movants attempt to
argue that RFJN 27-30 establishes.

Further, UMF 19 is
irrelevant to the concealment cause of action.

Here, Movants did not
meet their burden in showing one or more elements of a concealment cause of
action cannot be established.

Movants’ motion for
summary judgment and motion for summary adjudication is DENIED as to this cause
of action.

TENTATIVE
RULING FOURTH CAUSE OF ACTION – Fraud Promise Without Intention to Perform

[The Court notes that it appears that three
different fourth causes of action are alleged in the FAC. This fourth cause of
action appears to be promise without intention to perform.]

Movants make the same
exact arguments here as they did for the other two fraud causes of action.

Here, the Court fails
to see how RFJN 27-30 establishes any of the arguments that Movants attempt to
argue that RFJN 27-30 establishes.

Further, UMF 24 is
irrelevant to this fraud cause of action.

Here, Movants did not
meet their burden in showing one or more elements of a promissory fraud cause
of action cannot be established.

Movants’ motion for
summary judgment and motion for summary adjudication is DENIED as to this cause
of action.

TENTATIVE
RULING FIFTH CAUSE OF ACTION – Common Counts

As a preliminary
matter, the FAC and the moving papers do not indicate in any clear manner what
specific common count or counts this cause of action is alleging.

Movants argue in their
motion, “SEM Construction Management - not the moving parties - was the
contracting party with KV Electric, and would have received the benefit of any
work to be performed by Plaintiff because SEM would thereafter be paid for that
work under its general contract with the owner. SS: UDFS 25-29. But there is no
evidence that Plaintiff ever came back to actually perform the work contracted
for with SEM (despite receiving an additional advance of $2,000), meaning that
Plaintiff cannot establish that any services were rendered that benefitted the
moving parties. Summary adjudication should be granted as to this claim.” (Def.
Mot. p. 10.)

Here, Movants’ have
not met their burden in showing one or more elements of this cause of action
cannot be established.

It is unclear which
element Movants are attacking in this cause of action. Movants appear to be
making the same arguments they have previously made that this Court has found
lacking, as noted above.

Movants’ motion for
summary judgment and adjudication as to this cause of action is DENIED.

TENTATIVE
RULING SIXTH CAUSE OF ACTION – Unfair Business Practices

Movants did not
identify the elements of what must be proven to establish the sixth cause of
action. Therefore, it is not entirely clear how Movants have established that
one or more elements of the cause of action cannot be established. Movants
provided no legal authority for their arguments.

Movants’ motion for
summary judgment and adjudication as to the sixth cause of action is DENIED.

TENTATIVE
RULING SEVENTH CAUSE OF ACTION

Movants’ motion for summary judgment and
adjudication as to the seventh cause of action is DENIED on the same grounds
explained in the sixth cause of action.

Overall

Movants also argue in their motion and their
Separate Statement that summary judgment is appropriate as to the entire FAC.
These arguments are unavailing. These arguments hinge on arguments that
Uni-Glory hired KV and that SEM and KV entered into a contract. None of these
arguments precludes that Movants entered into a contract with Plaintiff. Movants
did not meet their initial burden on any of the causes of action in the FAC.

Objections
and Requests for Judicial Notice

“ In granting or denying a motion for
summary judgment or summary adjudication, the court need rule only on those
objections to evidence that it deems material to its disposition of the motion.
Objections to evidence that are not ruled on for purposes of the motion shall
be preserved for appellate review.” (CCP § 437c(q).)

Opposition objected to
Exhibit 2 in Movants’ request for judicial notice which was the deposition
transcript of Plaintiff KV Electric Inc.’s PMQ.
Opposition is correct to note that the initial Roland Ho declaration did
not establish proper foundation for the deposition transcript in RFJN Exhibit
2.

“Supporting and
opposing affidavits or declarations shall be made by a person on personal
knowledge, shall set forth admissible evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated in the
affidavits or declarations. An objection based on the failure to comply with
the requirements of this subdivision, if not made at the hearing, shall be
deemed waived.” (CCP § 437c(d).)

However, since Movants
did not meet their initial burden, the Court does not find it necessary to rule
on Opposition’s objections. Even if the Court assumed the truth of the deposition
transcript, and even if the initial Roland Ho declaration provided proper
foundation for the deposition transcript, the deposition transcript in the
moving papers still did not establish what Movants argued it was establishing.

Opposition’s request
for judicial notice is the entire docket in this case. The Court Grants Opposition’s request for judicial notice.

The Court will not
rule on Opposition’s objections in the sur-reply because again, Movants did not
meet their initial burden in their initial moving papers.

Again, Movants should address why Plaintiff’s counsel
was the only party served this motion. CCP § 437c(2) states that the notice of
the motion shall be served on all other parties to the action. Here, there
appear to be more parties to the action other than Plaintiff and the moving
Defendants. The parties are to address which parties still remain in this
action other than Plaintiff and moving Defendants so the Court can determine if
all parties were served.