Judge: Mel Red Recana, Case: 20STCV11180, Date: 2024-05-23 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 20STCV11180 Hearing Date: May 23, 2024 Dept: 45
Hearing
date: Thursday,
May 23, 2024
Moving Party: Plaintiff Creditors Adjustment
Bureau Inc.
Responding
Party: Klacen Group Inc.
Motion
for Summary Adjudication
The Court
considered the moving papers, and opposition. No reply was filed.
The
motion is DENIED.
Background
This is a
collections action. Plaintiff Creditors Adjustment Bureau, Inc. (“Plaintiff” or
“Creditors”) filed this action on March 20, 2020, against defendant Klacen
Group, Inc., (“Defendant” or “Klacen”) alleging causes of action for (1) breach
of contract; (2) open book account; (3) account stated; and (4) reasonable
value.
The Complaint
alleges the following: Plaintiff’s assignor and Defendant entered into a
written agreement in which Plaintiff’s assignor agreed to provide a policy of
workers’ compensation insurance to Defendant Klacen. (Compl., ¶ 11.) Defendant agreed to pay premiums in
accordance with the terms and conditions of said policy. (Id.
at ¶ 11.) The Policy was effective
February 13, 2018 until February 13, 2019. (“Motion for Summary Judgment
(“MSJ”) p. 3.) Following the expiration of the Policy, an
audit was conducted which resulted in additional premiums of $115,120.14 being
owed to Plaintiff because Plaintiff alleged Defendant had employed individuals
as employees as opposed to independent contractors, as Defendant had
claimed. (Id.) On June 24, 2019, Defendant breached the
policy terms requiring the payment of premiums. (Id.) Thus, Defendant became indebted to Plaintiff’s
assignor for the balance due for insurance premiums by Plaintiff’s assignor as
a result of the sale, issuance, and delivery of said workers compensation
insurance policy. (Compl.,. at ¶ 14.)
On February 14,
2024, Plaintiff filed a Motion for Summary Judgment (“MSJ”), moving the Court
to grant summary judgment against Defendant as to the first cause of action
(breach of contract). Plaintiff also
filed multiple declarations in support of the motion, as well as a Separate
Statement of undisputed facts (“UMF”), a Request for Judicial Notice (“RJN”),
and an Exhibit List.
On May 9, 2024,
Defendant filed an Opposition, along with Evidentiary Objections to Plaintiff’s
Separate Statement of material facts.
No Reply was
filed.
Legal
Standard
Motion for Summary
Judgment
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 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.” (Id.)
California Workers’ Compensation Uniform
Statistical Reporting Plan, 1995; Title 10, California Code of Regulations,
Section 2318.6
“4. Audit of Payroll
The audit and assignment of payroll shall be governed by the rules and
classifications contained herein and the approved pure premium rates, subject
to the following specific requirements:
a. The insurer shall audit the employer's records for the purpose of
determining the payroll in ac- cordance with the following (See Part 1, Section
II, General Definitions, for the definition of "Phys- ical
Audit" and "Voluntary Audit" and Part 4, Section II, Definitions,
for the definition of "Final Premium(s)"):
(1) Each policy producing a final premium of $13,000 or more shall be
subject to a physical audit at least once a year. On policies subject to
monthly, quarterly, or semiannual interim audits, voluntary audits may be
accepted in lieu of interim physical audits. The last audit of the policy shall
be a physical audit of the complete policy period.
(2) Each policy producing a final premium of less than $13,000 shall be
physically audited at suf- ficient intervals to ensure determination of proper
payrolls. For each policy that is not physi- cally audited, a voluntary audit
shall be performed.
(3) Each policy producing a final premium of less than $13,000 and
developing exposure in a dual wage construction or erection classification that
requires the regular hourly wage to equal or exceed a specified amount shall be
physically audited, unless the policy is a renewal and the insurer physically
audited one of the two immediately preceding policy periods.
(4) Notwithstanding the above, a physical audit shall be conducted on the
complete policy period of each policy insuring the holder of a C-39 license
from the Contractors State License Board. See California Insurance Code Section
11665(a) for additional requirements regarding the audit of C-39 license
holders.
(5) In every instance, the audit report shall show the source or sources
from which the payrolls were obtained.
b. If a policy is not audited as required by this rule, the insurer shall
comply with the rules for report- ing unaudited exposure on unit statistical
reports found in Part 4, Section Ill, Rule 5, Estimated Audit Code, and
Section IV, Rule 4, Exposure Amount, of this Plan.
5. Test Audits
The WCIRB conducts test audits of insured employers' payrolls and
insurers' audits of those payrolls to (1) check the accuracy and reliability of
insurers' audits and (2) examine all records relative to the insur- ers' audits
and the premises of insured employers in order to ensure the accurate reporting
of exposures and application of experience modifications, if any, by insurers
pursuant to this Plan.
a. WCIRB test audits may include:
(1) An examination of an insurer's entire records relating to the audits
of payroll and the classifi- cation of claims.
(2) An examination of an employer's entire record of payroll and all
other records relating thereto in order to determine the proper amounts and
allocation of such payroll in accordance with the provisions of this Plan.
(3) An examination of an employer's records in order to determine the
proper allocation of losses to their respective classifications in accordance
with the provisions of this Plan.
b. In order to accomplish the purposes of this Plan, each insurer shall
constitute the WCIRB its representative to inspect and examine the employer's
records pursuant to the terms of its policies.” (RJN, Ex. 14.)
Requests
for Judicial Notice
Plaintiff makes
the following requests for judicial notice:
Exhibit 14: Relevant portions of the California Workers’
Compensation Uniform Statistical Reporting Plan – 1995, Effective January 1,
2018 (Part 1; Part 2; Part 3, Sections I – VI and Section VII relating to
classification codes 5403 (Carpentry), 5201 (Concrete), 5108 (Door
Installation), 5474 (Painting) and 5446 (Wallboard)).
Exhibit 15: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by Martin Real.
Exhibit 16: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by Martin Garage Doors.
Exhibit 17: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by Ismael Guevara
Exhibit 18: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by Roger A. Estrella.
Exhibit 19: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by Eduardo Herrera
Exhibit 20: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by Jaime Bolanos,
Exhibit 20: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by Bolanos Painting.
Exhibit 22:
Results of search of Contractors State License Board records reflecting no
contractor’s license held by Brandon Cendejas.
Exhibit 23: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by WCM Builders Inc.
Exhibit 24: Results
of search of Contractors State License Board records reflecting no contractor’s
license held by WMC Builders Inc
The Court declines to take judicial notice of
Exhibits 14-24 on the grounds that the exhibits do not provide any date or time
stamps to evidence when the searches were conducted and do not provide the
inputted search entries to demonstrate the names of the contractors or
employees that were searched for.
Evidentiary
Objections
Defendant makes
the following objections:
Objection 1: Sustained (hearsay)
Objection 2: Sustained (hearsay and lacks foundation,
authentication)
Objection 3: Sustained (lacks foundation and authentication, the evidence does not
state the audit was mandatory and states that “failure to allow an audit will
result in cancellation of your current coverage for non-compliance.” (Ex. 3.)
However, the MSJ states the policy had already expired.
Objection 4: Overruled (personal knowledge)
Objection 5: Overruled (Auditor Chavira had personal knowledge)
Objection 6: Overruled (personal knowledge)
Objection 7: Sustained as far as Plaintiff is asserting the audit report as evidence
of the accurate number of damages because Plaintiff has since adjusted their
calculations during the pendency of this litigation. The report is admissible
for the purposes of establishing an audit was conducted and those were the
findings therein.
Objection 8: Sustained (lack of personal knowledge)
Objection 9: Sustained (lack of personal knowledge, lack of records evidencing how
Plaintiff reached the invoiced figure)
Objection 10: Sustained (conclusory)
Objection 11: Overruled (no grounds for objection)
Objection 12: Sustained (lacks authentication and foundation; facts not found in
evidence)
Objection 13: Sustained (Lacks foundation, authentication; facts not in evidence, best
evidence rule)
Objection 14: Sustained
(hearsay)
Objection 15: Sustained (no supporting evidence cited)
Objection 17: Sustained (lacks personal knowledge, authentication, foundation; violates
best evidence rule) as to Klopstock Declaration and Overruled as to Brunson
Declaration.
Objection 18: Sustained (lacks personal knowledge, authentication, and foundation)
Objection 19 Sustained (lacks personal knowledge, foundation, and authentication)
Objection 20: Sustained (lacks personal knowledge, foundation, and authentication)
Objection 21: Overruled (objection unclear)
Objection 22: Sustained (conclusory)
Objection 23: Sustained (lacks authentication)
Objection 24: Sustained (lacks authentication and foundation
Objection 25: Sustained (lacks authentication and foundation)
Objection 25: Sustained (lacks authentication and foundation)
Objection 26: Sustained (lacks authentication and foundation)
Objection 27: Sustained (lacks authentication and foundation)
Objection 28: Sustained (lacks authentication and foundation)
Objection 29: Sustained (lacks authentication and foundation)
Objection 30: Sustained (lacks authentication and foundation)
Objection 31: Sustained (lacks authentication and foundation)
Objection 32: Sustained (lacks authentication and foundation)
Moving
The California workers’ compensation system was established pursuant to
Article XIV, section 4, of the California Constitution to provide medical and
disability benefits (including compensation) to persons who are injured or
harmed in the course of their employment, regardless of fault. (MSJ, pg. 3.)
Plaintiff’s assignor, the State Compensation Insurance Fund (“SCIF”) is
a California state agency that is organized within the Department of Industrial
Relations as a public enterprise fund to ensure that mandatory workers’
compensation insurance coverage is available to all California employers. (MSJ, pg. 5.)
As the risks associated with various types of businesses or employment
varies, the state has established a system called the Uniform Statistical
Rating Plan (“USRP”) whereby business and occupations are sorted into distinct
classifications, and the “pure premium” rate applicable to a particular
classification depends on the loss experienced by businesses and occupations
within each particular field. (MSJ, pg.
4.) The rules of USRP are mandatory and
are part of the Insurance Commissioner’s regulations found within the
California Code of Regulations (“CCR”), Title 10, § 2318.6. As such, all workers’ compensation insurance
companies in California must follow USRP in performing audits and reporting information
to the Workers’ Compensation Insurance Rating Bureau (the “Bureau”). By labeling workers as independent
contractors instead of employees, non-compliant employers get an unfair
competitive advantage over other businesses who have incurred the expense of
purchasing insurance for their employees.
(MSJ, pg. 5.)
SCIF had previously insured Defendant for the 2017 policy year. (MSJ, pg. 5.). When that policy (the
“Policy”) was nearing its expiration date, SCIF sent Defendant a renewal quote
for the following year (2/13/2018-2/13/2019).
(Id.). Given Defendant did not request termination of
coverage, the Policy was automatically renewed. (Id.) Then, following the Policy’s expiration, SCIF
audited the Policy and after reviewing various business and payroll records
that Defendant had provided, determined that additional premiums were owed in
the amount of $115,120.14. (MSJ, pg. 6.)
Plaintiff alleges that the auditor’s worksheets reflect that Defendant failed
to report to SCIF the compensation paid to various unlicensed workers who
provided construction-related labor. (Id.). Once this compensation was properly included as
payroll, it became clear that Defendant had substantially underpaid premiums on
the Policy and an invoice for unpaid premiums was generated. (Id.)
Under California law, there is a presumption that any person rendering
services for another is that person’s employee.
Labor
Code § 3357. Furthermore, Labor Code § 2750 specifically
states that “a worker performing services for which a license is required
pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of Business
and Professions Code [a contractor’s license], or who is performing such
services for a person who is required to obtain such a license is an employee
rather than an independent contractor.” Labor Code § 2750.5.
Subsequently and while the case was still pending, Defendant produced
invoices reflecting the purchase of materials and SCIF subsequently deducted
the cost of those materials from payroll, as well as reclassified certain
workers into different premium categories based on the job duties and
description Defendant provided for certain workers. Thus, Plaintiff thereafter
reduced the premiums due from $114.120.14 to $82,576.88. (MSJ, pg. 6.)
Furthermore, Plaintiff alleges in Furtado v. Schriefer (1991) 228 Cal.App. 3d 1608, the court found that
pursuant to Labor Code § 2750.5, a person cannot be deemed an independent
contractor for purposes of workers’ compensation law where that person did not
hold the required license for the work provided. In Furtado, the court concluded that a painter who was an
unlicensed contractor was performing work for which a license was required. (Id.) Thus, the
court found that in such cases, there exists a non-rebuttable presumption of
employee status. For a worker to qualify as an independent contractor, the
worker must have its own contractor’s license if the work requires a license to
perform. Furtado, supra, 228 Cal. App. 3d at 161; Labor Code § 2750.5.
In the instant case, Plaintiff states there are seven (7)
persons/entities that were paid compensation by Defendant Klacen for which
compensation was included in the premiums calculator: (1) Martina Real/ Martin
Garage Doors; (2) Ismael Guevara; (3) Roger Estrella; (4) Eduardo Herrera; (5)
Jaime Bolanos/ Bolanos Painting; (6) Brandon Cendejas; and (7) WMC Builders aka
WCM Builders. (MSJ, pg. 7.) Plaintiff asserts Defendant has not and
cannot offer any evidence to establish that any of the foregoing workers had
its own contractor’s license. (Id.) Thus,
this alone is sufficient for finding each was an employee and not an
independent contractor. (Id.)
Plaintiff now moves for summary adjudication as to its first cause of
action (breach of contract) on the grounds that Plaintiff has established by
undisputed facts the requisite elements: (1) a valid contract; (2) plaintiff’s
performance; (3) defendant’s breach; and (4) resulting damage. Plaintiff claims the following facts are
undisputed:
(a) The Policy was issued by SCIF to Defendant at
Defendant’s Request. (Sep. Stmt., ¶¶ 1-2.)
(b) SCIF performed what it was required to perform by
issuing the Policy. (Sep. Stmt., ¶ 2.)
(c) Defendant breached its agreement by failing to pay
the premium due on the Policy. (Sep. Stmt., ¶¶ 20-21.)
(d) Plaintiff’s assignor has been damaged by
Defendant’s breach in the principal amount of $82,576.88, plus interest. (Sep. Stmt., ¶¶ 21, 23.)
Opposition
In Opposition, Defendant argues that triable issues of material fact
exist as to which items are being assessed for purposes of Plaintiff’s
insurance premium calculations.
(Opposition (“Opp.”), pg. 12.)
Additionally, Defendant maintains it is disputing Plaintiff’s table of
undisputed facts and that SCIF seeks insurance premiums and damages which
dramatically exceed what Plaintiff is actually owed. (Opp., pg. 5.) Defendant further argues that Plaintiff
ignores Defendant’s calculations, pertinent payroll data, and that Plaintiff
continues to ignore that SCIF is wrongfully assessing premiums for materials,
equipment and rentals, instead of billable labor. (See Declaration of Claudio Cendejas; Opp.,
pg 6.) Thus, triable issues of material
fact exist with respect to Plaintiff’s calculations as to its alleged damages and
such issues are reflected by Plaintiff’s own $31,543.26 reduction of the
purported balance. (Opp., pg. 11.)
Defendant states the underlying construction job involved the
construction of a 6,500 square foot single-family residence on Kling Street in
Studio City, California and that Defendant did not maintain payroll nor a
payroll service because Defendant only worked with subcontractors and issued
payments accordingly. (Opp., pg. 7.)
Significantly, Defendant asserts that although it believed it was at
all times covered by compensation coverage, it never received a renewal quote
package, nor the new SCIF policy of workers’ compensation insurance as stated
by Plaintiff. (Opp., pg. 8.) Thus, Defendant disputes Plaintiff’s
contention in its Separate Statement, alleging it is disputed that Defendant
Klacen elected to renew its workers’ compensation coverage with SCIF. (Opp., pg. 8.) As to each of the seven individuals and/or
entities that provided labor, Defendant contends through the declaration of its
principal officer, Claudio Cendejas, Defendant is informed and believes each
was worker was a licensed contractor.
(Opp., pgs. 8-9; Cendejas Decl., ¶¶ 8-14.) Finally, Defendant emphasizes the court’s
statement in Binder
v. Aetna Life Ins. Co. (1999)
75 Cal.App.4th 832, 838-840: “if the evidence is in conflict, the factual
issues must be resolved by trial.”
Discussion
In the instant case, Plaintiff is moving for
summary adjudication as to its first cause of action for breach of contract.
Given Plaintiff is the moving party, Plaintiff bears the initial burden to make
a prima facie showing that there is no triable issue of material fact. Thus,
Plaintiff must provide admissible evidence as to each element for 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 [169 Cal.Rptr.3d 475].
Plaintiff first states there was (1) a valid contract because it is
undisputed that the Policy was issued by SCIF to Defendant at Defendant’s
request. Second, (2) it performed what it was required to perform by issuing
the policy. Third, (3) Plaintiff asserts
that Defendant breached its agreement by failing to pay the premiums due on the
Policy. Lastly, (4) Plaintiff claims its assignor (SCIF) has been damaged by
Defendant’s breach in the principal amount of $82,576.88. Thus, it initially appears Plaintiff has set
forth facts to support its breach of contract claim.
However, as the
moving party, Plaintiff must provide evidence and affidavits that “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.) Defendant is under no evidentiary burden to
produce rebuttal evidence until Plaintiff meets its initial movant’s burden. As
such, the Court finds that a dispute exists as to whether there was a valid
contract between Plaintiff and Defendant.
Although Plaintiff asserts that Defendant requested the renewal,
Plaintiff sets forth no evidence of such a request and no evidence that
demonstrates there was a meeting of the minds or mutual assent. Although
Plaintiff provides a copy of the renewal notice, Plaintiff does not provide a
declaration, nor affidavit, from an individual with personal knowledge of the
notice being sent to Defendant, nor does Plaintiff provide any records of such
a notice being sent to Defendant. Moreover,
the terms or conditions of any such contract are not clear. Plaintiff states
that the premiums in workers’ compensation are calculated in a unique way which
takes into account a number of factors but in this case, Plaintiff does not
provide a clear breakdown, nor a clear agreement. Thus, the Court finds
Plaintiff has not demonstrated a valid contract.
Secondly, although Plaintiff alleges SCIF
“performed what it was required to perform by issuing the Policy,” this does
not suffice. This is merely a conclusory statement and does not explicate what
Plaintiff’s duty even was according to the Policy. Plaintiff has not provided admissible
evidence or affidavits identifying its duty, nor demonstrating Plaintiff
fulfilled such duty. Thus, Plaintiff has failed to show Plaintiff performed.
Third, (3) Plaintiff alleges Defendant
breached its agreement by failing to pay the premiums. It is clear that Plaintiff first increased
the principal balance on the premiums (after the audit) and then invoiced
Defendant for such premiums. Although
the terms and conditions of the policy state that premiums may be modified, it
does not set forth on what terms such modifications will be governed. Although Defendant has not paid more $1,000
of the alleged balance due, it is not clear what Defendant’s duties are or what
Plaintiff’s were and under what terms.
As such, the Court cannot presumptively conclude there has been a breach
under such uncertainty.
Lastly, (4) it is still unclear as to how Plaintiff
arrived at the principal balance of $115,120.14. The Court acknowledges Plaintiff’s statements
about reducing the principal balance due to Defendant providing Plaintiff with
(1) invoices for costs of material to be deducted from the balance and (2)
descriptions and duties of certain jobs that caused those workers to be
reclassified into a different premium category.
However, Plaintiff’s exhibits do not account for what constitutes the
amount now being claimed--$82,576.88. Although the invoice dated December 18,
2023 lists the total charges as $86,598.49 and then subtracts $4,021.62 (in
premium and charges paid), it does not provide the dates for any of the charges
paid or for any of the insurance surcharges charged. The insurance codes do not
set forth which codes correspond to which workers or what the applicable dates
are. Thus, there is not sufficient certainty as to the damages Plaintiff
asserts. (Ex. 12.) As Plaintiff has provided the auditing provisions
from USRP, Plaintiff’s documentation does not
clearly demonstrate compliance with USRP. (Ex. 14.) Plaintiff merely states it has complied with
USRP. However, legal conclusions do not
suffice for the purposes of summary adjudication.
It is not until the initial movant’s burden is met
that the burden shifts to the opposing party.
In the instant case, Plaintiff has not made the necessary showing to
shift the burden to Defendant. As such, there remain triable issues of material
fact.
Thus, Plaintiff’s Motion for Summary Adjudication
is DENIED.
It
is so ordered.
Dated: May 23, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court