Judge: Lynette Gridiron Winston, Case: 21PSCV01019, Date: 2023-12-18 Tentative Ruling

Case Number: 21PSCV01019    Hearing Date: December 18, 2023    Dept: 6

CASE NAME:  Archtic, LLC v. Fervino, Inc. dba Slater’s 50-50, et al.

Defendant Fervino, Inc. dba Slater’s 50-50’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues 

TENTATIVE RULING

            The Court DENIES Defendant Fervino, Inc. dba Slater’s 50-50’s motion for summary judgment, or in the alternative, summary adjudication. 

            Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND

This is a breach of contract case. On December 6, 2021, plaintiff Archtic, LLC (Plaintiff) filed this action against defendants Fervino, Inc. dba Slater’s 50-50 (Fervino), Raul Trevino, and Does 1 through 50, alleging causes of action for breach of contract, open book account, account stated, reasonable value of labor and materials furnished, violations of prompt payment statutes, and foreclosure of mechanic’s lien. On April 26, 2023, Raul Trevino was dismissed from this action. 

On September 27, 2023, Fervino filed the instant motion for summary judgment, or in the alternative, summary adjudication. On December 4, 2023, Plaintiff opposed. On December 8, 2023, Fervino replied. 

Trial is scheduled for January 30, 2024. 

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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “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, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “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.) 

“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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 

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.” (Code Civ. Proc., § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion “shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” ((Code Civ. Proc., § 437c, subd. (p)(2); see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

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.) 

DISCUSSION

California Rules of Court, rule 3.1350, subdivision (d)

            “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, 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.” (CRC Rule 3.1350(b)) [emphasis added]. 

Plaintiff contends that Fervino’s alternative motion for summary adjudication is defective because it fails to state any cause of action or other issue to be adjudicated per Rule 3.1350, subdivision (b) of the California Rules of Court. The Court agrees. Fervino’s notice fails to state the specific causes of action, affirmative defenses, claims for damages, or issues of duty to which the motion for summary adjudication is directed, and Fervino’s separate statement does not repeat those items verbatim. This by itself is a sufficient basis for denying Fervino’s alternative motion for summary adjudication. 

            In addition to this procedural deficiency, the Court finds Fervino’s motion for summary judgment and alternative motion for summary adjudication also fail on substantive grounds. 

First Cause of Action – Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) 

Fervino contends there is no triable issue of fact with respect to Plaintiff’s First Cause of Action for breach of contract. Fervino argues that the sole factual basis for Plaintiff’s breach of contract claims is that Fervino failed to pay it for “general construction management services”. (Fervino’s Separate Statement of Undisputed Material Facts (SSUMF) 2; Compl.  ¶¶ 6-9.) Fervino further contends that in response to Fervino’s Requests for Admissions, Plaintiff admitted that it did not provide general construction management services in connection with the underlying construction project. (SSUMF 10-15.) Fervino’s motion is predicated entirely upon these discovery responses. The Court finds Fervino has not established the absence of a triable issue of material fact. 

In addition to general construction management services, Plaintiff’s Complaint alleges that the underlying agreement between the parties was subsequently amended to increase the scope and price. (Compl., ¶ 7.) Thus, even if Plaintiff has admitted in response to Fervino’s Requests for Admission that it did not provide general construction management services, that still does not address the remaining scope of services allegedly agreed upon. The Court further notes that Plaintiff’s responses to Request for Admission Numbers 7, 8, 11, 12, and 14 indicate that Plaintiff performed services as a Design Project Manager, which tends to show that Plaintiff was involved with the construction project in some managerial capacity. (Milner Decl., Ex. 2.) 

Based on the foregoing, the Court finds that Fervino has not met its burden of showing 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. There are triable issues of material facts as to the scope of the agreement and the services provided by Plaintiff. Therefore, the Court DENIES the motion for summary judgment and the alternative motion for summary adjudication as to the First Cause of Action. 

Although the Court has found that Fervino failed to comply with Rule 3.1350, subdivision (b) of the California Rules of Court, the Court will still address each remaining cause of action with respect to the alternative motion for summary adjudication. 

            Second Cause of Action – Open Book Account

            “‘A book account is defined as ‘a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.’ [Citation.] A necessary element is that the book shall show against whom and in whose favor the charges are made. [Citation.]'” (Biltmore Press v. Usadel (1970) 6 Cal.App.3d 896, 900, internal citations omitted.) 

            Fervino’s argument here is the same as that above, namely that Plaintiff admitted it did not provide general construction management services. For the same reasons set forth above, this fails to establish the absence of a triable issue of material fact. 

            Accordingly, the Court DENIES the motion for summary adjudication as to the Second Cause of Action. 

            Third Cause of Action – Account Stated

            “‘An account stated is a document—a writing—which exhibits the state of account between parties and the balance owing one to the other; and when assented to, either expressly or impliedly, it becomes a new contract.’” (Biltmore Press, supra, 6 Cal.App.3d at p. 900, internal citation omitted.) 

            Fervino’s argument here is the same as that above, namely that Plaintiff admitted it did not provide general construction management services. For the same reasons set forth above, this fails to establish the absence of a triable issue of material fact. The Court also notes that the Complaint does not specifically mention general construction management as part of the claim for account stated. (See Compl., ¶¶ 14-16.) 

            Based on the foregoing, the Court DENIES the motion for summary adjudication as to the Third Cause of Action. 

            Fourth Cause of Action – Reasonable Value of Labor and Materials Furnished

            A claim for reasonable value of labor and materials furnished is based on quasi-contract. (Lazzarevich v. Lazzarevich (1948) 88 Cal.App.2d 708, 721.) “When services are rendered by one person to another, and such services are accepted by that person, the law not only implies a promise to pay for the services, but also implies that such promise is to be performed at the termination of the services.” (Id.) 

            Fervino’s argument here is the same as that above, namely that Plaintiff admitted it did not provide general construction management services. For the same reasons set forth above, this fails to establish the absence of a triable issue of material fact. 

            Accordingly, the Court DENIES the motion for summary adjudication as to the Fourth Cause of Action. 

            Fifth Cause of Action – Violations of Prompt Payment Statutes

“(a) Except as otherwise agreed in writing by the owner and direct contractor, the owner shall pay the direct contractor, within 30 days after notice demanding payment pursuant to the contract is given, any progress payment due as to which there is no good faith dispute between them. The notice given shall comply with the requirements of Chapter 2 (commencing with Section 8100) of Title 1. 

(b) If there is a good faith dispute between the owner and direct contractor as to a progress payment due, the owner may withhold from the progress payment an amount not in excess of 150 percent of the disputed amount.” 

(Code Civ. § 8800, subds. (a), (b).) 

            Fervino’s argument here is the same as that above, namely that Plaintiff admitted it did not provide general construction management services. For the same reasons set forth above, this fails to establish the absence of a triable issue of material fact. The Court also notes that the Complaint does not specifically mention general construction management as part of this claim for prompt payments. (See Compl., ¶¶ 20-25.) 

            Accordingly, the Court DENIES the motion for summary adjudication as to the Fifth Cause of Action. 

            Sixth Cause of Action – Foreclosure of Mechanic’s Lien

            “A mechanic's lien is a claim against real property, which may be filed if a claimant has provided labor or furnished materials for the property and has not been paid.” (Brewer Corp. v. Point Ctr. Fin., Inc. (2014) 223 Cal.App.4th 831, 839.) 

            Fervino’s argument here is the same as that above, namely that Plaintiff admitted it did not provide general construction management services. For the same reasons set forth above, this fails to establish the absence of a triable issue of material fact. 

Fervino also argues that no triable issue of fact exists with respect to Plaintiff’s Sixth Cause of Action because Raul Trevino was the sole owner of the subject property, and he was dismissed from the Complaint on April 26, 2023. The Court finds this argument unavailing because Fervino did not set this forth in its Separate Statement. “[A]ll material facts must be set forth in the separate statement. This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.” (See United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, italics in original and superseded by statute on other grounds; Code Civ. Proc., § 437c, subd. (b)(1); Cal. Rules of Court, rule 3.1350, subd. (d).) 

            Based on the foregoing, the Court DENIES the motion for summary adjudication as to the Sixth Cause of Action. 

CONCLUSION
            The Court DENIES Defendant Fervino, Inc. dba Slater’s 50-50’s motion for summary judgment, or in the alternative, summary adjudication. 

            Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.