Judge: H. Jay Ford, III, Case: 21SMCV01160, Date: 2023-03-14 Tentative Ruling

Case Number: 21SMCV01160    Hearing Date: March 14, 2023    Dept: O

  Case Name:  Title v. Svatek Builders, Inc.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

MOVING PARTY:   Cross-Defendant/Cross-Complainant Jad Roofs, Inc.

RESP. PARTY:         Defendant/Cross-Complainant Svatek Builders, Inc.

TENTATIVE RULING

            Cross-Defendant Jad Roofs, Inc’s Motion for Summary Judgment, or in the Alternative Summary Adjudication is DENIED.

Jad’s objections to Dec. of S. Dozer—OVERRULE

Jad’s objection to Dec. of E. Willmer—OVERRULE

            Jad moves for summary judgment or adjudication of two separate pleadings, Jad’s cross-complaint against Svatek and Svatek’s cross-complaint against Jad.  Jad improperly combined the request for summary judgment of two separate pleadings in a single motion.  Jad is ordered to pay an additional filing fee for its second summary judgment.

I.  Jad’s Motion for Summary Judgment, or in the alternative, Summary Adjudication of Svatek’s Cross-Complaint against Jad

            Jad moves for summary judgment of Svatek’s claims against it on grounds that it did nothing wrong, and it did not do something it was not supposed to do.  Jad argues all of Svatek’s claims against it require a finding that Svatek was damaged in some form attributable to Jad.  According to Jad, Svatek’s claims all depend on whether Plaintiff Title had any complaints against Jad.  Jad argues (1) Plaintiff Title admits that Jad did nothing wrong; and (2) Svatek admits that it was not damaged as a result of anything that Jad did or failed to do.  To establish its argument, Jad relies on the discovery responses of Plaintiff, the deposition testimony of Svatek’s PMK and emails between counsel for Plaintiff and counsel for Svatek.

A.  Counsel’s emails and Plaintiff’s RFA Responses do not negate Svatek’s allegation that Jad’s negligence caused Plaintiff’s alleged damages

Jad submits an email chain between Plaintiff’s counsel, Svatek’s counsel and Jad’s counsel wherein Plaintiff’s counsel denies that any reference to roofing damages are based on Jad’s scope of work.  See Dec. of M. Horowitz, ¶¶8-9. Plaintiff’s counsel stated in the emails that, at the time the email was sent, there were no roofing or HVAC issues.  Id. at ¶9, Ex. F.  Plaintiff’s counsel also clarified that the complaint allegations regarding roof leaks and improper roof flashing were based on the work of “Genesis,” which performed roofing work before Jad.  Id.  Plaintiff confirmed in RFA responses that the complaint allegations regarding “improper roof flashing,” “roof and vent leaks and other work relating to the remodeling,” and “roof and vent leaks” were not against Jad and the work it provided at the property.  See Dec. of M. Horowitz, ¶7.  Plaintiff confirmed that she does not believe that the materials or work provided by Jad were defective or deficient.  Id.

            The email correspondence and the RFA responses do not negate Svatek’s allegation in the cross-complaint that it was Jad’s work that caused Plaintiff’s alleged damages.  The RFAs asked Plaintiff to admit that she did not believe that Jad’s work was negligent or that it was in any way defective.  In the email chain, Plaintiff’s counsel stated that Plaintiff attributed the damages she suffered due to roof leaks and improper roof flashing to a different entity, identified as “Genesis.”  Neither Plaintiff nor counsel are experts who can opine as to what caused the roof leaks and whose roofing work caused Plaintiff’s damages. 

As such, neither Plaintiff’s RFA responses nor Plaintiff’s counsel’s email chain negate Svatek’s allegation that Jad’s roofing work caused the damage for which Plaintiff seeks to hold Svatek liable.  Plaintiff has not relinquished her claim that roofing defects caused her damage.  So long as Plaintiff claims that roofing defects caused her damage and absent any affirmative evidence establishing that the roofing defects are not attributable to Jad as an issue of law, Svatek is entitled to establish in connection with its equitable indemnification claims that those roofing defects are attributable to Jad or any other subcontractor responsible for the roof.  Whether Plaintiff believes those roofing defects are attributable to Jad is immaterial to Svatek’s claim for equitable indemnification.

In the same email chain, Svatek’s counsel states that (1) Jad was named in the Svatek cross-complaint based on a good-faith belief that their work was implicated in this construction defect matter; (2) Svatek had since confirmed that no construction-defect allegations related to Jad’s work; and (3) “Consequently, we are amenable to dismissing your client in exchange for a waiver of costs.”  See Dec. of M. Horowitz, Ex. E. 

Svatek’s counsel’s email is not an admission that Jad’s work was not negligent, that Jad’s work was not the proximate cause of Plaintiff’s alleged roofing damages or a dismissal of Jad from its cross-complaint.  Despite indicating that Svatek was amenable to discussing Jad’s dismissal, Svatek never dismissed Jad and continues to maintain in opposition that the roofing damage alleged by Plaintiff implicates Jad’s scope of work.  Plaintiff has also not amended the complaint to remove any reference to roofing defects and improper roof flashing.  It is also undisputed that Jad’s scope of work on the property was provision of roofing services.  See Dec. of Diaz, ¶2, Ex. A; Dec. of M. Horowitz, ¶3, Ex. A. 

Based on the operative complaint, Plaintiff continues to seek damages from defective roofing work without qualification.  Jad does not submit any expert evidence negating Svatek’s allegation that Jad’s negligence caused the damage alleged against Svatek in Plaintiff’s complaint, i.e. roofing defects and improper roof flashing.  Unless there is undisputed evidence negating Jad’s liability for those damages as an issue of law, e.g. an undisputed expert declaration to that effect, Svatek is free to pursue indemnification against Jad.  For purposes of Svatek’s cross-complaint for indemnification, Plaintiff’s personal “belief” regarding the proximate cause of the defective roofing work is irrelevant and immaterial.    

Jad fails to satisfy its burden as party seeking summary judgment or adjudication of Svatek’s cross-complaint based on Plaintiff’s RFA responses and the email chain between counsel. The burden therefore does not shift to Svatek to raise a triable issue of material fact based on this evidence.

B.  Svatek’s PMK testimony does not negate Svatek’s allegation that Jad’s negligence caused Plaintiff’s alleged damages 

Jad submits the deposition testimony of Svatek’s PMK testimony to negate Svatek’s allegation of negligence against Jad.  Based on a review of the deposition testimony, Svatek’s PMK never made an unqualified, unambiguous admission that Jad “did nothing wrong” or that Svatek was not damaged as a result of anything Jad “did or didn’t do.”  See Dec. of M. Horowitz, Ex. B.  Svatek’s PMK’s testimony regarding Jad’s negligence was limited to his personal awareness or knowledge of any defects in Jad’s work.  See Dec. of M. Horowitz, Ex. B, 19:15-25; 22:6-9; 24:8-12; 25:19-23; 26:7-25-27:9-11.  Throughout the deposition, Svatek’s counsel asserted an objection on grounds that the questions called for an expert opinion.  Id.  The Court agrees that whether Jad’s roofing work was negligent and whether that negligence caused Plaintiff’s alleged roofing damages are issues that require expert testimony.  Svatek’s PMK’s deposition testimony regarding his personal opinion on whether Jad performed its services in a workmanlike manner is immaterial. 

Svatek’s PMK also acknowledged that Svatek’s claims against Jad were based entirely on Plaintiff’s complaint allegations.  See Dec. of M. Horowitz, Ex. B, 21:13-24.  Svatek’s admission that its cross-complaint is based on Plaintiff’s complaint does not negate any element of Svatek’s cross-claims. In fact, Svatek’s testimony merely confirms the legal definition of implied indemnification.  CACI 3801 (implied equitably indemnity requires that (1) indemnitee “may be” required to pay liability to third party and (2) that indemnitor’s conduct be a substantial factor in causing third-party plaintiff’s harm); see also Yamaha Motor Corp. v. Paseman (1990) 219 Cal.App.3d 958, 964 (“Unless the prospective indemnitor and indemnitee are jointly and severally liable to the plaintiff there is no basis for indemnity.”) 

In addition, as discussed above, Plaintiff’s opinion or personal belief about what caused her roofing damage is immaterial and irrelevant.  It is undisputed that (1) Plaintiff continues to maintain a claim for damages due to improper roofing work; (2) Jad’s scope of work was for roofing services; (3) Svatek alleges that Jad is responsible for the damages alleged in Plaintiff’s complaint; and (4) neither Jad nor Plaintiff submit any expert evidence negating Svatek’s allegation that Jad’s negligence caused Plaintiff’s alleged roofing damages.  Given these undisputed facts, triable issues of fact remain as to whether Svatek’s cross-claims against Jad. 

Jad also that Svatek’s cross-claims “cannot be established” because the PMK testimony indicates that Svatek’s lack of evidence on some essential element of the claim.  See Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.  In order to establish satisfy its burden on this basis, Jad must present evidence that Svatek “does not possess and cannot reasonably obtain, needed evidence.”  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 854.  Such evidence normally consists of admissions by the plaintiff following sufficient discovery to the effect that plaintiff has discovered nothing to support an essential element of the cause of action.  Id. at 855.  It is not enough for defendant to show merely that plaintiff “has no evidence” on a key element of plaintiff's claim. Defendant must also produce evidence showing plaintiff cannot reasonably obtain evidence to support that claim.  See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.

Svatek’s PMK deposition testimony does not admit to any lack of evidence on any essential element.  As discussed above, Svatek’s PMK only testifies as to his personal knowledge of any defects in Jad’s work.  This testimony is not a an admission that Svatek lacks any evidence of Jad’s negligence, nor does it indicate that such evidence cannot reasonably be obtained. 

Svatek’s PMK also admitted that Svatek’s claims for indemnification and negligence are based on Plaintiff’s complaint and their damage allegations.  Again, the PMK merely admitted the definition of equitable indemnification. 

Finally, as discussed above, what Plaintiff believes caused the roofing damage is not probative of what legally caused the roofing damage, nor does Plaintiff’s belief preclude Svatek from asserting an indemnification claim that Plaintiff’s roofing damage was the result of Jad’s roofing work.  The PMK’s testimony that Svatek would have no claim for indemnification if Plaintiffs were “happy” with Jad’s work is not an admission that Jad was not negligent.  The PMK is also not qualified to testify as to whether a specific fact-pattern supports an indemnification claim. 

Svatek’s PMK’s deposition testimony does not negate Svatek’s allegation in its cross-complaint that Jad’s negligent roofing work caused Plaintiff’s damages.  Jad fails to satisfy its burden as the party moving for summary judgment of Svatek’s cross-complaint based on Svatek’s PMK deposition testimony.  The burden therefore does not shift to Svatek to raise a triable issue of material fact.  Jad’s Motion for Summary Judgment or Adjudication of Svatek’s Cross-complaint is DENIED. 

C.  Declaration of Dozer

Svatek submits the declaration of Steven Dozer as evidence that Plaintiff is currently experiencing water leaks at her home and that “those leaks are attributable to improper waterproofing and/or improper installation of other fixtures, associated with the roof and its installation.”  See Dec. of S. Dozer, ¶12.  Dozer testifies that he is a retained expert but not yet designated.  Dozer states that his “observations” in this declaration are not his final opinions on the issue of what caused the leaks in Plaintiff’s home.  Id. at ¶3. 

Jad did not submit an expert declaration negating Svatek’s allegation that it negligently performed roofing services on the project and Jad’s negligent work caused Plaintiff’s damages.  As such, the burden never shifted to Svatek to present a rebuttal expert declaration. 

If Jad had shifted the burden, such that Svatek was required to submit an expert opinion in rebuttal, Dozer’s expert declaration clears the low threshold necessary to raise a triable issue of fact on summary judgment.  Svatek is entitled to all favorable inferences that may be reasonably derived from Dozer’s declaration.  See Hanson v. Grode (1999) 76 Cal.App.4th 60, 609-610 (the trial court erred in finding Plaintiff’s expert medical opinion lacked a factual basis - summary judgment in favor of defendant reversed.) “[T]he rule [is] that ... we liberally construe the declarations for the plaintiff's experts.”  Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-128 (summary judgment in favor of defendant reversed - trial court erred in finding Plaintiff’s medical expert opinion did not have a “detailed reasoned explanation” rejecting the application of that requirement to expert declarations submitted in opposition to summary judgment; see also Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189, 153 Cal.Rptr.3d 693 [“a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial”].)

Dozer is a retained expert. For purpose of summary judgment, he lays sufficient foundation to opine as to the cause of the water leaks he personally observed during his informal inspection of Plaintiff’s home.  See Dec. of S. Dozer, ¶¶5-12.  He also provides a reasoned explanation for his opinion.  Id.  Dozer indicates that his observations are not his final opinions on the matter, which implies that his observations are preliminary opinions. 

II.  Jad’s motion for summary judgment or adjudication of its cross-complaint against Svatek

            Jad also moves for summary judgment of its cross-complaint against Svatek for (1) breach of contract; (2) quantum meruit; (3) unjust enrichment; and (4) implied equitable indemnification.  Jad establishes that Svatek entered into an agreement with it for roofing services on the project and that Svatek paid only $8,000 of the $34,000 contract price. 

However, triable issues of fact remain as to whether Jad performed as required under the parties’ contract.  Jad was required to perform its scope of work under the subcontract in a “reasonable and workmanlike manner in accordance with generally accepted industry standards and practices; and to the satisfaction of the Contractor and Owner.”  See Dec. of E. Willner, Ex. A, “Subcontract Agreement,” Provision D.  For the reasons stated in connection with Svatek’s cross-complaint, disputed issues of material fact exist as to whether Jad performed its in a reasonable, workmanlike manner and in accordance with generally accepted industry standards and practices. 

            In addition, Svatek submits evidence that would excuse its failure to pay Jad for its work.  Provision E of the Subcontract provides that payment shall be within 30 days after completion and acceptance by Contractor and Owner of all work under the Prime Contract.  See Dec. of E. Willner, Ex. A, Provision E.  Provision K of the Subcontract also allows Svatek to withhold payment to the extent necessary to protect itself from loss due to Jad’s unremedied, defective work.  Id. at Ex. A, Provision K.  Svatek was terminated from the project on 9-2-20 and Plaintiff has not fully compensated Svatek for the work performed on grounds that the work performed was defective.  Id. at Ex. B.  Among the defects alleged in Plaintiffs’ complaint are defects in the roofing work.  See Plaintiff’s Complaint, ¶¶16, 29. 

In addition, Jad fails to submit any evidence or facts addressing its claim for implied equitable indemnification.  An essential element of implied equitable indemnity is the indemnitee’s potential to liability to a third party as a result of the indemnitor’s negligence.  CACI 3801 (implied equitably indemnity requires that (1) indemnitee “may be” required to pay liability to third party and (2) that indemnitor’s conduct be a substantial factor in causing third-party plaintiff’s harm); see also Yamaha Motor Corp. v. Paseman (1990) 219 Cal.App.3d 958, 964 (“Unless the prospective indemnitor and indemnitee are jointly and severally liable to the plaintiff there is no basis for indemnity.”)  Indemnification is generally understood to apply to third party liability and not direct liability, the exception being in cases of express contractual indemnification where the provision could be reasonably be interpreted to include direct liability to the plaintiff.  See Hot Rods, LLC v. Northrop Grumman Systems Corp. (2015) 242 Cal.App.4th 1166, 1179. 

Jad fails to submit any evidence that it is potentially liable to any third party as a result of Svatek’s negligence.  Jad fails to satisfy its burden as to any of the essential elements of an equitable indemnification claim. 

Triable issues of fact therefore remain as to whether Jad performed its obligations under the Subcontract and what the reasonable value of Jad’s services are.  Jad’s Motion for Summary Judgment or Adjudication of its cross-complaint against Svatek is DENIED.