Judge: Melvin D. Sandvig, Case: 21CHCV00341, Date: 2022-10-03 Tentative Ruling
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Case Number: 21CHCV00341 Hearing Date: October 3, 2022 Dept: F47
Dept. F47
Date: 10/3/22
Case #21CHCV00341
SUMMARY JUDGMENT/SUMMARY ADJUDICATION
Motion filed on 7/18/22.
MOVING PARTY: Defendant Daniel Salazar
RESPONDING PARTY: Plaintiff Oscar Padilla dba La Hacienda Concrete
NOTICE: ok
RULING: The motion is denied in its entirety.
FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY
This action arises out of Plaintiff Oscar Padilla dba Hacienda Concrete’s (Plaintiff) claim that Defendant Daniel Salazar Construction (Defendant) failed to pay all sums due to Plaintiff under an oral subcontract agreement. On 4/30/21, Plaintiff filed this action for: (1) Breach of Contract, (2) Open Book Account, (3) Account Stated, (4) Intentional Misrepresentation, (5) Negligent Misrepresentation, (6) Fraud and (7) Unjust Enrichment. On 10/20/21, Defendant answered the complaint and filed a cross-complaint against Plaintiff for breach of contract.
On 7/18/22, Defendant filed and served the instant motion seeking an order granting summary judgment in favor of Defendant and against Plaintiff on Plaintiff’s complaint, or in the alternative, summary adjudication in Defendant’s favor of the 1st, 2nd, 3rd, 4th, 5th, 6th and/or 7th causes of action in Plaintiff’s complaint. Plaintiff has opposed the motion.
PROCEDURAL DEFECTS
“If summary adjudication is sought, whether separately or 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 material facts.” See CRC 3.1350(b); CRC 3.1350(h). Here, Defendant has failed to set forth the alternative issues for summary adjudication verbatim in the notice of motion and separate statement. (See Notice of Motion; Defendant’s Separate Statement).
Also, Defendant’s “Objection to Plaintiff’s Response to Defendant’s Separate Statement and the Declaration of Oscar Padilla” which seeks to strike Plaintiff’s Separate Statement and the declaration of Oscar Padilla is improper. (See [Proposed] Order Granting Daniel Salazar Construction LLC’s Objection to Plaintiff’s Separate Statement and Declaration). To make proper evidentiary objections, Defendant was required to follow one of the formats set forth in CRC 3.1354. See CRC 3.1354(b). As such the objection/objections are overruled.
ANALYSIS
Defendant’s Request for Judicial Notice is granted.
Plaintiff’s Request for Judicial Notice is denied and Defendant’s objection thereto is sustained. The Court finds the evidence unnecessary for the determination of the motion as Defendant has provided evidence of Plaintiff’s license history. (See Defendant’s Exhibits, Ex.B).
The party moving for summary judgment/adjudication has the initial burden of establishing no triable issue of material fact exists and that party is entitled to judgment as a matter of law. Aguilar (2001) 25 C4th 826, 850. In ruling on a motion for summary judgment/adjudication, the moving party’s evidence must be strictly construed while the responding party’s evidence must be liberally construed. Schacter (2009) 47 C4th 610, 618; Aguilar, supra at 843. Doubts about the propriety of granting summary judgment/adjudication must be resolved in favor of the party opposing the motion. Johnson (2008) 43 C4th 56, 64; Aguilar, supra.
Business and Professions Code 7028 requires that all contractors be licensed pursuant to Business & Professions Code, Division 3, Chapter 9 (i.e., Sections 7000 thru 7191) if engaged in “the business of, or act in the capacity of, a contractor within” the state of California, otherwise known as the Contractor State Licensing Law (CSLL). The CSLL is a legislative mandate governing the construction business in California that is “designed to protect the public from incompetent or dishonest providers of building and construction services.” Alatriste (2010) 183 CA4th 656, 664.
Business and Professions Code 7031(a) provides:
Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract, regardless of the merits of the cause of action brought by the person . . . .”
Business and Professions Code 7125.2 “provides for the automatic suspension by operation of law of the license of a contractor who fails to obtain or maintain workers' compensation insurance coverage.” Loranger (2010) 184 CA4th 847, 849. A contractor’s license is automatically suspended ,without notice, as of the date the contractor was required to obtain workers’ compensation insurance but did not. Business and Professions Code 7152.2(a)(2); Loranger, supra at 856.
A contractor may avoid the obligation to obtain workers’ compensation coverage for all of the various individuals and day laborers if they were classified as an independent contractor rather than an employee as the requirements of the Workers' Compensation Act extend only to an "`employee.'" S. G. Borello & Sons, Inc. (1989) 48 C3d 341, 349.
Defendant concedes that Plaintiff is “reputedly” licensed by the California State License Board as a C-8 Concrete contractor. (Separate Statement (SS) 5). Defendant contends that Plaintiff purportedly had employees working on the underlying project for which Plaintiff failed to pay workers’ compensation insurance. (SS 6, 8, 10, 13, 14, 15, 16, 17). As a result of the foregoing, Defendant contends that Plaintiff is unlicensed as a matter of law. Therefore, Defendant concludes that Plaintiff 1st cause of action for Breach of Contract, 2nd cause of action for Open Book Account, 3rd cause of action for Account Stated and 7th cause of action for Unjust Enrichment fail because an unlicensed contractor is precluded from seeking recovery of any compensation pursuant to Business and Professions Code 7031. Defendant further contends that Plaintiff’s 4th cause of action for Intentional Misrepresentation, 5th cause of action for Negligent Misrepresentation and 6th cause of action for Fraud fail because as an unlicensed contractor Plaintiff could not have justifiably relied on Defendant’s representations that Plaintiff would be paid.
Whether an individual is an employee or and independent contractor is a question of fact and only becomes one of law if the evidence is undisputed. See S.G. Borello, supra at 349 (internal citations omitted).
Business and Professions Code 2750.5 provides, in relevant part:
There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, 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.
See also Mendoza (2006) 142 CA4th 72, 77; Chin (2008) 166 CA4th 994, 1004.
Here, Defendant has failed to establish that the workers he claims to have been employees of Plaintiff were performing services for which a license is required. Contrary to Defendant’s assertion, Plaintiff has not admitted in verified discovery responses that he had at least three employees during the time that he claimed to be exempt from the Contractor’s State License Board’s workers’ compensation insurance coverage requirement for the labor provided at the project. (See Reply, p.2:15-18; Evidence cited by Defendant in support of SS 10, 12-13, 15, 17). Rather, that is Defendant’s interpretation of Plaintiff’s discovery responses. In his declaration filed in support of the opposition, Plaintiff states that workers were day laborers who only performed digging and breaking up concrete. (Padilla Decl. ¶6). Defendant has not established that a license is required for such services.
Therefore, a triable question of material fact exists as to whether the workers were employees of Plaintiff for which he was required to obtain workers’ compensation insurance. In turn, a triable question of material fact exists as to whether the failure of Plaintiff to obtain such insurance rendered him unlicensed as a matter of law during the time he performed the work for which he is now suing Defendant to recover payment. As such, Defendant has not established his right to judgment as a matter of law on Plaintiff’s 1st, 2nd, 3rd and/or 7th causes of action.
Similarly, under the circumstances, a triable issue of material fact exists as to whether Plaintiff reasonably relied on Defendant’s representations that Plaintiff would be paid. As such, Defendant has not established that he is entitled to judgment as a matter of law on Plaintiff’s 4th, 5th and/or 6th causes of action.
The Court notes that although Defendant’s separate statement includes facts regarding Plaintiff’s purported unsatisfactory performance of the work agreed upon, the memorandum of points and authorities does not specifically address such argument. (See SS 11, 12; Defendant’s Memorandum of Points and Authorities, Table of Contents and generally). As such, these facts are not material to the motion. See CRC 3.1350(a)(2), (d)(2). Regardless, Plaintiff’s declaration regarding the work he performed on the project is sufficient to create a triable issue of material fact as to whether the work was performed in a satisfactory manner. (See Padilla Decl. ¶¶8-12).