Judge Daniel M. Crowley, Case 22SMCV02249 2023-03-28 Tentative Ruling

Judge: Daniel M. Crowley, Case: 22SMCV02249, Date: 2023-03-28 Tentative Ruling

Case Number: 22SMCV02249 Hearing Date: March 28, 2023 Dept: 207

Background

Plaintiff Schuyler Merritt Moore (“Plaintiff”) brings this action against Defendant Martin Salgado (“Defendant”) stemming from Defendant’s installation of a wood floor at Plaintiff’s residence. Plaintiff’s Complaint alleges causes of action against Defendant for breach of contract and negligence. Plaintiff now moves for summary judgment on its claims. Plaintiff’s motion is unopposed.

Legal Standard

Motions for summary judgment are governed by Code Civ. Proc. § 437c, which allows a party to “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.” (C.C.P. § 437c(a)(1).) 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.) Code Civ. Proc. § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “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.) 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.)

As to each claim as framed by the complaint, the plaintiff moving for summary judgment must satisfy the initial burden of proof by presenting facts to prove each element of the cause of action entitling the party to judgment on the cause of action. (C.C.P. § 437c(p)(1). 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. (C.C.P. § 437c(o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.) 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.)

Analysis

Pursuant to Code Civ. Proc. § 437c(a)(1), a motion for summary judgment “may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.” Defendant first appeared in this action through an Answer filed on December 7, 2022. Plaintiff filed the instant motion on December 28, 2022. Plaintiff did not file a motion or ex parte application seeking to shorten time pursuant to section 437c(a)(1), and concedes his motion was filed before the 60 day time period had elapsed. Plaintiff instead asks the Court to waive the 60-day requirement because he asserts “there is no reason for further delay” in the determination of his motion. Plaintiff’s belief that the statutory time limits are unnecessary does not establish good cause for relief from those requirements. Plaintiff has not demonstrated he would have suffered any prejudice if he had to wait until February 6, 2023, to file the instant motion. Having failed to demonstrate good cause to shorten the time period set forth under section 437(c)(a)(1), Plaintiff’s motion is procedurally improper. This alone merits the DENIAL of Plaintiff’s motion.

The same result follows from consideration of the merits of Plaintiff’s motion. Plaintiff claims he is entitled to a judgment of $50,000 in his favor under Business & Professions Code § 7031(b), which allows a person or entity to recover all compensation paid to an unlicensed contractor. Plaintiff alleges Defendant is an unlicensed contractor, and thus Plaintiff is entitled to recover the $50,000 paid to Defendant for the flooring work that forms the basis of this action. The only evidence submitted by Plaintiff on this issue is the Declaration of Plaintiff, which states he searched the California Department of Consumer Affairs Contractors State License Board website, which indicated Defendant had never been licensed. (Moore Decl. at ¶6.) Plaintiff’s declaration does not attach any evidence of this purported search, but merely provides a URL link to the Contractors State License Board website. A search of the Contractors State License Board website reveals three individuals with the name of Martin Salgado who are presently or formerly licensed by the Contractors State License Board. Plaintiff offers no showing that these individuals on the Contractors State License Board website are not Defendant.

Plaintiff has also not established the threshold elements of its causes of action for breach of contract or negligence. Plaintiff states in conclusory fashion that Defendant breached his contract with Plaintiff by (1) failing to test the concrete base of his residence, (2) not sealing that concrete base prior to installing the floor, (3) not installing a felt liner above the concrete base, and (4) not leaving enough room for the wood floor to expand due to moisture. (Moore Decl. at ¶4.) Plaintiff has not demonstrated any of these actions were required under Plaintiff’s alleged contract with Defendant. Plaintiff also claims his floor has buckled in several places as a result of Defendant’s breaches and now needs to be removed and replaced in its entirety. (Id. at ¶5.) Plaintiff offers no foundation for these statements, nor any qualifications to offer opinion evidence as to the causation of an alleged construction defect.

Based on the above, the Court finds Plaintiff has failed to carry his initial burden of establishing the elements of his claims against Defendant. This is a separate and independent basis meriting the DENIAL of Plaintiff’s motion.

Conclusion

Plaintiff’s motion for summary judgment is DENIED.