TENTATIVE RULING

Plaintiff Kimberly Kim’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.

Plaintiff Kimberly Kim to give notice. 

REASONING

Plaintiff Kimberly Kim (“Plaintiff”) moves the Court for an order granting summary judgment or adjudication in her favor against Defendant J Baron Construction, Inc. (“Defendant”) as to Plaintiff’s claims for breach of contract and fraud. Defendant has not filed an opposition to Plaintiff’s motion. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a party’s failure to file an opposition can be considered a concession that the motion is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) 

“On a motion for summary judgment, 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.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“Code of Civil Procedure section 437c, subdivision (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.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

First Cause of Action: Breach of Contract

To establish a cause of action for breach of contract, Plaintiff must be able to establish “(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.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

In the complaint, Plaintiff alleges that Defendant breached the parties’ agreement by failing to obtain permits for the property, failure of Warren Braithwaite to be licensed, failure to perform any work other than demolition, improper completion of framing, use of materials not up to code, improper performance of work, and failure to perform asbestos testing and remediation. (Compl., p. 3, Attachment BC-2.)

Plaintiff provides evidence that she and Defendant entered into a contract for remodeling work on Plaintiff’s condominium on January 19, 2018, and it was understood that Warren Braithwaite was the licensed contractor who would perform the work, but Plaintiff learned Braithwaite was not licensed, Braithwaite enlarged the bathroom and demolished the space outside of the plans, Braithwaite made Plaintiff purchase non-code-compliant fixtures and metal framing, the work performed violated code, Braithwaite did not obtain proper permits, and an inspector did not come to the property. (Pls.’s UMF Nos. 1, 2, 4, 6-11.)

Plaintiff states in her separate statement that she paid $81,266.00 for the contract with Defendant, but the only work she received was demolition work done below the standard of care. (Pl.’s UMF No. 16.) However, she provides only her own statement as evidence to this effect without evidence of payment to Defendant, such as endorsed checks or invoices marked as paid. The failure to provide evidence of Plaintiff’s performance under the contract renders it such that Plaintiff has not shown there is no triable issue of material fact as to whether Defendant is liable for breach of contract, i.e., Plaintiff has failed to provide sufficient evidence to prove all elements of her breach of contract claim. Thus, the burden does not shift to Defendant to create a triable issue on this claim. Accordingly, Plaintiff’s motion for summary adjudication is DENIED as to the first cause of action for breach of contract.

Second Cause of Action: Fraud

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be established factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly establish fraud against a corporation, Plaintiff must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

In her complaint, Plaintiff alleges that that Defendant represented that the home improvement project could be done by Defendant and that the scope of the project would include demolition and remodel in compliance with codes, and only demolition and same framing was done. (Compl., p. 5.)

As to the second cause of action, Plaintiff provides the same evidence as the prior cause of action, and as to the fraud claim, she provides only general evidence that Warren Braithwaite made “false assertions that he was a licensed contractor, qualified to do the work.” (Pl.’s UMF No. 24.) Plaintiff provides no evidence of the specific statements made to her by Braithwaite, when they were made, or by what means they were communicated to Plaintiff, nor does she provide evidence of Braithwaite’s authority to speak for Defendant, and it is not clear if any representations about licensure were made before or after Plaintiff entered into the agreement with Defendant. Again, Plaintiff also fails to provide evidence of payment to Defendant, such as endorsed checks or invoices marked as paid. The failure to provide evidence of payment to Defendant and failure to specifically set forth the purported misrepresentations made to Plaintiff renders it such that Plaintiff has not shown there is no triable issue of material fact as to whether Defendant is liable for fraud. Thus, the burden does not shift to Defendant to create a triable issue on this claim. Accordingly, Plaintiff’s motion for summary adjudication is DENIED as to the second cause of action for breach of fraud.

Conclusion

Given that Plaintiff’s motion for summary adjudication has been denied as to each claim alleged against Defendant, Plaintiff Kimberly Kim’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.