Judge: Helen Zukin, Case: 22SMCV02249, Date: 2023-06-29 Tentative Ruling

Case Number: 22SMCV02249    Hearing Date: June 29, 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 his claims. Plaintiff’s motion is unopposed.

The court denied Plaintiff’s previous motion for summary judgment for the following reasons: 1) Plaintiff brought the motion before the 60-day period elapsed from Defendant’s first general appearance and thus the motion was procedurally improper, 2) Plaintiff provided insufficient evidence to support his claim under Business & Professions Code § 7031(b), and 3) Plaintiff did not establish the threshold elements of his causes of action for breach of contract or negligence.

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

Plaintiff’s claims in his complaint for breach of contract and negligence allege that Defendant breached the contract and was negligent 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. (Complaint ¶ 4.) Plaintiff, however, provides no evidence showing that any of these actions were required under Plaintiff’s alleged contract with Defendant or that Defendant’s work was negligent. Plaintiff also claims his floor has buckled in several places because of Defendant’s breaches and now needs to be removed and replaced in its entirety. (Id. at ¶ 5.) Again, Plaintiff offers no foundation for these statements, nor any qualifications to offer opinion evidence as to the causation of an alleged construction defect. Indeed, Plaintiff’s declaration in support of his motion contains no facts whatsoever pertaining to his claims in the complaint.

Plaintiff’s motion instead contends that 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 work that forms the basis of this action. Specifically, Plaintiff alleges Defendant did not have a California C-15 contractor’s license when he installed wood flooring at Plaintiff’s residence. But Plaintiff’s complaint does not plead a cause of action for disgorgement for violation of Business and Professions Code § 7031(b). Plaintiff does not explain how he can obtain summary judgment on a legal theory not even pled in his complaint.

In any event, Plaintiff’s evidence regarding his Section 7031(b) argument is lacking. The only evidence submitted by Plaintiff on this issue is his declaration. First, Plaintiff attests that Defendant admitted in open court on March 28, 2023 that he did not have the proper license before the Honorable Judge Daniel M. Crowley. (Declaration ¶ 4.) However, the tentative issued on that date does not reflect this alleged admission. Nor does Plaintiff submit other proof of the admission. Plaintiff also attests that he confirmed that Defendant did not have a license by searching the California Department of Consumer Affairs Contractors State License Board website (https://www.cslb.ca.gov/findmylicensedcontractor) on March 30, 2023. (Ibid.) According to Plaintiff, there are three Martin Salgado names listed but (a) none of them are in the city Defendant Salgado lives in (Los Angeles), (b) the licenses for two of the individuals have expired, and (c) the third license is only for air conditioning (Declaration, Exhibits A-D.) According to the Moore Declaration, Defendant resides in the “County of Los Angeles.” (Declaration ¶ 2.) The exhibits do not necessarily support Plaintiff’s contention. The printouts from the license board website attached to the declaration show that one of the three individuals, a “Martin Gonzalez Salgado Sr.” possesses a contractor’s license and resides in Inglewood, California. (Ex. A.) Inglewood is a city in Los Angeles County, meaning that it is possible that “Martin Gonzalez Salgado Sr.” could be Defendant. Given that this is the only evidence Plaintiff puts forth, and it is not definitive, this is insufficient to support a claim based on the Business and Professions code. Regardless, Plaintiff did not plead a cause of action for violation of the Business and Professions code.

Based on the above, the Court finds Plaintiff has failed to carry his initial burden of establishing the elements of his claims against Defendant.

Conclusion

Plaintiff’s motion for summary judgment is DENIED.