Judge: Katherine Chilton, Case: 21STLC09127, Date: 2023-05-04 Tentative Ruling
If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 25 at the Spring Street Courthouse up until the morning of the motion hearing. The e-mail address is SSCdept25@lacourt.org. The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.
Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time. **Please note we no longer use CourtCall**
Case Number: 21STLC09127 Hearing Date: May 4, 2023 Dept: 25
PROCEEDINGS: MOTION
FOR SUMMARY ADJUDICATION
MOVING PARTY: Plaintiff
Comforting Home Hospice Inc.
RESP. PARTY: Defendant David C. Perkins
MOTION FOR SUMMARY ADJUDICATION
(CCP § 437c)
TENTATIVE RULING:
Plaintiffs Comforting Home Hospice,
Inc.’s Motion for Summary Adjudication of the Complaint’s First Cause of Action
for violation of the California Business & Professions Code § 7031 is GRANTED.
SERVICE:
[X] Proof of Service Timely
Filed (CRC 3.1300) OK
[X] Correct Address (CCP 1013,
1013a) OK
[X] 75/80 Day Lapse (CCP 12c
and 1005 (b)) OK
OPPOSITION: Filed on April 18, 2023. [ ] Late [ ] None
REPLY: Filed on April
25, 2023. [ ] Late [ ] None
ANALYSIS:
I.
Background
On December 30, 2021, Plaintiff Comforting
Home Hospice Inc. (“Hospice”) and Alexander Everest (“Everest”) filed a
Complaint against David C. Perkins (“Perkins”) for 1) violation of Business and
Professions Code § 7031,
2) breach of contract, 3) fraudulent concealment, and 4) negligent misrepresentation.
On April 7, 2022, Defendant, in
propria persona, filed an Answer to the Complaint. Defendant also filed a Cross-Complaint
against Plaintiffs for common count – work labor and services and breach of
oral contract. Plaintiffs/Cross-Defendants
filed an Answer to the Cross-Complaint on May 13, 2022.
On February 9, 2023, Plaintiff filed a Motion for Summary
Adjudication of the Complaint’s First Cause of Action (“Motion”). Defendant, in propria persona, filed an
Opposition to the Motion (“Opposition”) on April 18, 2023. Plaintiff filed a Reply to the Opposition
(“Reply”) on April 25, 2023.
On May 3, 2023, the Court on its own
motion, continued the hearing on the Motion to May 4, 2023. (5-3-23 Minute Order.)
II.
Legal
Standard
A party seeking summary judgment has the burden of
producing evidentiary facts sufficient to entitle him/her to judgment as a
matter of law. (Code Civ. Proc. §
437c(c).) The moving party must make an
affirmative showing that he/she is entitled to judgment irrespective of whether
or not the opposing party files an opposition.
(Villa v. McFerren (1995) 35
Cal.App.4th 733, 742-743.) Thus,
“the initial burden is always on the moving party to make a prima facie showing
that there are no triable issues of material fact.” (Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (citing Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850.). When a plaintiff seeks summary
judgment, he/she must produce admissible evidence on each element of each cause
of action on which judgment is sought.
(Code Civ. Proc., § 437c(p)(1).) The moving
party’s “affidavits must cite evidentiary facts, not legal conclusions or
‘ultimate’ facts” and the courts must construe the evidence in support of the
opposing party, resolving any doubts in favor of the opposing party. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639; Scalf, 128 Cal.App.4th at 1519;
Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.)
The opposing party on a motion for summary judgment is
under no evidentiary burden to produce rebuttal evidence until the moving party
meets his or her initial movant’s burden. (Binder
v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.) Once the initial movant’s burden is met, then
the burden shifts to the opposing party to show, with admissible evidence, that
there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc. § 437c(p).) The opposing party may not simply rely on
his/her allegations to show a triable issue but must present evidentiary facts
that are substantial in nature and rise beyond mere speculation. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 162.) Summary judgment must be granted “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.)
As to any alternative request for
summary adjudication of issues, such alternative relief must be clearly set
forth in the Notice of Motion and the general burden-shifting rules apply but
the issues upon which summary adjudication may be sought are limited by
statute. (Code Civ. Proc., § 437c(f)(1).)
“A motion for summary adjudication shall
be granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty.” (Ibid.)
California Rules of Court, rule 3.1350(b) requires that “the specific
cause of action, affirmative defense, claims for damages, or issues of duty
must be stated specifically in the notice of motion and be repeated, verbatim,
in the separate statement of undisputed material facts.”
III.
Discussion
Plaintiffs seek a court order
granting summary adjudication in its favor and against Defendant for its first
cause of action for violation of Business & Professions Code § 7031. (Mot pp. 1-2.)
Business and Professions Code §
7031(b)
“allows any person who utilizes the services of an unlicensed contractor to
bring an action for disgorgement of all compensation paid for the performance
of any act or contract, regardless whether there was any fault in the
contractor’s work…” (Eisenberg
Village of Los Angeles Jewish Home for the Aging v. Suffolk Construction
Company, Inc. (2020) 53 Cal.App.5th 1201, 1203.) In a matter of first impression, the Court in Eisenberg
held that the one-year statute of limitations applied to claims for
disgorgement under § 7301(b), and that a 7301(b) claim accrued
upon the completion or cessation of performance of the contract at issue. (Ibid.)
Plaintiff Everest asserts that he
met Defendant Perkins in the beginning of 2020 and was told that Defendant is a
licensed electrician. (Everest Decl. ¶
1.) Plaintiff “requested that [Perkins]
install outdoor lighting and wiring to add cameras and a security system” to
his property and the parties orally discussed the terms of the agreement. (Ibid. at ¶ 2.) After some months, Perkins submitted
handwritten invoices to Defendant for a total of $19,131.03, including
materials purchased from Home Depot. (Ibid.at
¶ 3, Exs. A-B.) Plaintiff sets forth
several issues with the work done by Defendant, including damage to his
property. (Ibid. at ¶¶ 4-5.) According to Plaintiff, he paid $19,131.03 to
Perkins for work already performed and was presented with an additional bill
for $10,647.18, which he refused to pay due to outstanding work and damage to
his property. (Ibid. at ¶ 5,
Ex. C.) Everest hired an attorney and
learned that Perkins was not a licensed electrician and had been charging
excessive amounts “in violation of law.”
(Ibid. at ¶ 6.)
Plaintiff’s counsel, Anne Singer, states that she was retained around
November 2021 as Plaintiffs Hospice and Everest were being sued in Small Claims
Court by Perkins. (Singer Decl. ¶ 1, Ex.
1.) Singer checked the California
Contractors State License Board and did not find any information showing that
Defendant “Perkins is or has ever been licensed as a contractor.” (Ibid. at ¶ 2, Ex. D.) Counsel has attached an image from the
Contractors State License Board website showing that Defendant Perkins does not
appear in any searches. (Ibid.) Moreover, Perkins has admitted in his
discovery responses that he is not a licensed contractor. (Ibid. at ¶¶ 3-4, Exs. E-F.)
Plaintiffs argue that according to
Business & Professions Code § 7026, a contractor is “‘any person, who
undertakes to ... construct, alter, repair, add to, subtract from, improve,
move, wreck or demolish any building ... structure, project, development or
improvement, or to do any part thereof, ... whether or not the performance of
[such] work ... involves the addition to or fabrication into any [such]
structure, project, development or improvement ... of any material or article
of merchandise.’” (Mot. p. 8.) Moreover, pursuant to California Code of
Regulations Title 16, Division 8, Article 3, Section 832.10, an electrical
contractor is someone who: “places, installs, erects or connects any electrical
wires, fixtures, appliances, apparatus, raceways, conduits, solar photovoltaic cells
or any part thereof, which generate, transmit, transform or utilize electrical
energy in any form or for any purpose.”
(Mot. p. 6.) Although Perkins
argues that he was hired as a handyman, Business & Professions Code § 7048
states that the statute does not apply when “the aggregate contract price which
for labor, material, and all other items, is less than five hundred dollars
($500)” and is considered “casual, minor, or inconsequential nature.” (Ibid. at p. 8.) Here, Defendant was providing services for
thousands of dollars, which required a contractor’s license. (Ibid.)
Defendant, in propria persona,
opposes Plaintiff’s Motion. He states
that when he met with Plaintiff Everest, he “made it perfectly clear that [he]
did not have a Contractors nor an Electricians’ license.” (Perkins Decl. ¶ 1.) Defendant explains that “the majority [of the
work he was asked to perform] were manual labor jobs” that “were basic, simple
tasks.” (Ibid. at ¶ 2.) None of these tasks “required an electrician’s
license to perform.” (Ibid. at ¶
2.) Defendant has attached a list of the
projects he was assigned by Plaintiff Everest, who “was the boss on all
jobs.” (Ibid. at ¶¶ 3-4, Ex. A.) Perkins asserts that he never informed
Everest that he had a professional license.
(Ibid. at ¶ 4.) Defendant
also contests that Motion was properly served as he found it in his mailbox on
March 8, 2023, less than 75 days before the hearing, and was not notified in
any other manner by Plaintiffs’ attorney regarding the Motion. (Ibid. at
¶ 6.) However, the Court finds that
service was proper as the moving papers were served on Defendant’s physical
address via first class mail on February 9, 2023. (Mot. p. 49.)
In their Reply, Plaintiffs argue
that “it is clear from the invoices and receipts included in Plaintiff’s Motion
that Defendant was providing contracting services” as defined by Business &
Professions Code § 7026. (Reply p.
1.) The invoices and receipts submitted
along with Plaintiff’s Motion demonstrate that he spent “hundreds of hours of
work on Plaintiff’s residence” charging well over $500 for the total work
performed. (Ibid. at pp.
3-4.)
Having
reviewed the evidence presented by Plaintiffs, including the invoices and
receipts filed demonstrating the type of work performed and the amounts charged,
the Court finds that Plaintiffs have met their burden of producing sufficient
evidence to show that that the work performed by Defendant Perkins constituted
that of a “contractor” under Business & Professions Code § 7026 and
required a license pursuant to § 7048.
Although, Defendant argues that he informed Plaintiffs that he was not a
licensed contractor, the Court does not find that Defendant has presented
evidence demonstrating that a triable issue of material fact exists regarding
the requirement for Defendant to carry a license for the type of work he
performed. Thus, the Court finds that
there is no triable issue of material fact as to the cause of action for
violation of the California Business & Professions Code § 7031.
Plaintiffs’
Motion for Summary Adjudication is GRANTED.
IV.
Conclusion
& Order
For the foregoing reasons,
Plaintiffs Comforting Home Hospice,
Inc.’s Motion for Summary Adjudication of the Complaint’s First Cause of Action
for violation of the California Business & Professions Code § 7031 is
GRANTED.