Judge: Marcella O. Mclaughlin, Case: 37-2023-00012710-CU-CO-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Contract - Other Summary Judgment / Summary Adjudication (Civil) 37-2023-00012710-CU-CO-CTL RENOVATING SPECIALIST LNC VS BERG [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 01/10/2024

The unopposed motion for summary judgment is DENIED.

A. A defendant moving for summary judgment bears the burden of persuasion to show either (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). 'When the motion is based on the assertion of an affirmative defense, the defendant has the initial burden to demonstrate that undisputed facts support each element of the affirmative defense.' Daily v. City of San Diego (2013) 223 Cal.App.4th 237, 249.

B. Defendant has failed to establish that the home improvement contract is illegal and should not be enforced.

'Generally a contract made in violation of a regulatory statute is void.' Asdourian v. Araj (1985) 38 Cal.3d 276, 292. However, a contract made in violation of Business and Professions Code section 7159 'does not involve the kind of illegality which automatically renders an agreement void.' Id. at 293.

In Asdourian, the California Supreme Court held that oral home improvement contracts were enforceable, notwithstanding section 7159, because (1) defendants were real estate investors, rather than homeowners, and thus 'not members of the group primarily in need of the statute's protection'; (2) '[t]here was nothing 'intrinsically illegal' about the agreements between plaintiff and defendant to repair and remodel the residential property,' and thus the contracts were not void but merely 'voidable depending on the factual context and the public policies involved'; (3) 'plaintiff and defendants were friends, who had had business dealings in the past, the failure to comply with the strict statutory formalities is, perhaps, understandable'; and (4) plaintiff fully performed according to the oral agreements, and defendants accepted the benefits of the oral agreements, meaning that '[i]f defendants are allowed to retain the value of the benefits bestowed by plaintiff without compensating him, they will be unjustly enriched.' Id. at 292-93. Importantly, because noncompliance with section 7159 is an affirmative defense, it is the defendant's burden to prove that the Asdourian exception does not apply.

Hinerfeld-Ward, Inc. v. Lipian (2010) 188 Cal.App.4th 86, 93.

Here, defendant does not cite Asdourian. Nor has she submitted evidence regarding any of the Asdourian factors. Thus, defendant has failed to carry her initial burden of showing that plaintiff's noncompliance with section 7159 renders the home improvement contract void as a matter of law. See Hinerfeld-Ward, 188 Cal.App.4th at 93; see also Dix v. Live Nation Entertainment, Inc. (2020) 56 Cal.App.5th 590, 604 ('Where the evidence presented by defendant does not meet its burden, 'the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.'') (quoting Calendar No.: Event ID:  TENTATIVE RULINGS

3054822  4 CASE NUMBER: CASE TITLE:  RENOVATING SPECIALIST LNC VS BERG [IMAGED]  37-2023-00012710-CU-CO-CTL Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533).

C. Defendant has also failed to establish that she cancelled the home improvement contract.

A buyer has a statutory right to cancel a home improvement contract within 3 and/or 5 days after receiving an executed copy of the contract. See Bus. & Prof. Code § 7159(e)(6).

In this case, there is no evidence showing that defendant exercised her right to cancel the home improvement contract during the required timeframe. Defendant's reliance on Beley v. Ventura County Municipal Court (1979) 100 Cal.App.3d 5 and Weatherall Aluminum Products Co. v. Scott (1977) 71 Cal.App.3d 245 is misplaced. At the time those cases were decided, if a home solicitation contract did not contain the mandatory notice of a buyer's right to cancel, the buyer had the right to cancel at any time. See Former Civ. Code § 1689.7(e). No such language appears in section 7159 or the current version of section 1689.7.

Accordingly, defendant has not shown that she is entitled to judgment as a matter of law for cancelling the contract.

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