LAW AND MOTION CALENDAR
FEBRUARY 19, 2016
1. CSAA INS. EXCH. v. KRISTON, ET AL., SC20130152
Motion for Summary Adjudication; Applications for Determination
of Good Faith Settlements
Three matters are before the court. First, defendant Edward Kriston,
dba Edward Kriston Construction, moves for summary adjudication as to two
causes of action in the First Amended Complaint filed by plaintiffs Torre
Mercogliano and Chong Mercogliano, individually and as guardians ad litem
for Thomas Mercogliano and Michelle Mercogliano (“individual plaintiffs”).
Second, defendant and cross-defendant Douglas Huff, dba Huff’s Heating and
Air Conditioning, applies for the court’s determination that the settlement
entered into between Huff, defendant Kriston, and plaintiff CSAA Insurance
has been made in good faith. And third, cross-defendant and crosscomplainant Reno Truss applies for the court’s determination that the
settlement entered into between Reno Truss, individual plaintiffs, and CSAA
Insurance has been made in good faith.
1.
A PPLICATIONS
FOR
D ETERMINATION
OF
G OOD
F AITH
S ETTLEMENTS
To date, the court having not received any timely written objections to
either application, and good cause appearing, the applications are granted as
requested.
2.
M OTION
FOR
S UMMARY A DJUDICATION
Defendant Kriston moves for summary adjudication as to the First and
Fifth Causes of action in the individual plaintiffs’ First Amended Complaint.
2.1
Standard of Review
“A motion for summary adjudication may be made by itself or as an
alternative to a motion for summary judgment and shall proceed in all
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FEBRUARY 19, 2016
procedural respects as a motion for summary judgment.” (Code of Civ. Proc.
§ 437c, subd. (f)(2).)
A defendant moving for summary judgment or summary adjudication
bears the burden of persuasion that one or more elements of the cause of
action at issue cannot be established, or that there is a complete defense to
the cause of action. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850
[107 Cal.Rptr.2d 841].) The moving party bears the initial burden of making
a prima facie showing of the nonexistence of a triable issue of material fact,
and only if the moving party carries the initial burden does the burden shift
to the opposing party to produce a prima facie showing of the existence of a
triable issue of material fact. (Ibid.)
“The court focuses on issue finding; it does not resolve issues of fact. The
court seeks to find contradictions in the evidence, or inferences reasonably
deducible from the evidence, which raise a triable issue of material fact.”
(Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1024 [68 Cal.Rptr.3d
897].) The evidence of the moving party is strictly construed and the evidence
of the opposing party liberally construed. Doubts as to the propriety of
granting the motion must be resolved in favor of the party opposing the
motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417
[42 Cal.Rptr. 449].)
2.2
Defendant
Kriston’s
Objections
and
Request
for
Judicial Notice
Kriston’s objections to individual plaintiffs’ (1) response to separate
statement of undisputed material facts, and (2) evidence in support of
individual plaintiffs’ opposition are overruled.
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Kriston’s objections to the page length of individual plaintiffs’ opposition
is overruled. The court will exercise its discretion to consider the opposition
memorandum, despite individual plaintiffs exceeding the page limit.
Kriston’s request for judicial notice as to individual plaintiffs’ First
Amended Complaint is granted. (Evid. Code § 452, subd. (d)(1).)
2.3
Discussion
Individual plaintiffs’ First Cause of Action alleges general negligence.
Each individual plaintiff asserts as part of this claim a right to recovery for
emotional distress. Kriston moves for summary adjudication on the grounds
that the underlying tort for general negligence fails, there was no
independent duty, and courts have rejected tort damages arising solely out of
negligent breach of contract claims.
As an initial matter, individual plaintiffs’ argument concerning The
Right to Repair Act is not applicable. That Act applies only “to original
construction intended to be sold as an individual dwelling unit[,]” not to
rebuild a home already owned by a plaintiff. (Civ. Code § 896.)
“ ‘[A] tortious breach of contract ... may be found when (1) the breach is
accompanied by a traditional common law tort, such as fraud or conversion;
(2) the means used to breach the contract are tortious, involving deceit or
undue coercion or; (3) one party intentionally breaches the contract intending
or knowing that such a breach will cause severe, unmitigable harm in the
form of mental anguish, personal hardship, or substantial consequential
damages.’ [Citation.] Focusing on intentional conduct gives substance to the
proposition that a breach of contract is tortious only when some independent
duty arising from tort law is violated. [Citation.] If every negligent breach of
a contract gives rise to tort damages the limitation would be meaningless, as
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would the statutory distinction between tort and contract remedies.” (Erlich
v. Menezes (1999) 21 Cal.4th 543, 553–554 [87 Cal.Rptr.2d 886].)
Here, Kriston has met his initial burden of demonstrating there are no
triable issues of material fact. (Separate Statement of Undisputed Material
Facts at pp. 2–8.) In opposition to Kriston’s motion, individual plaintiffs have
not pointed to any evidence raising a triable issue of material fact concerning
whether Kriston acted intentionally and intended severe, unmitigable harm,
or made misrepresentations, committed undue coercion, or fraud. They cite
no unique facts of this case or any case law establishing a special relationship
between contractors and homeowners, such that Kriston owed a duty of care
to individual plaintiffs beyond the contract. (See Marlene F. v. Affiliated
Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 590–591 [257 Cal.Rptr. 98]
(discussing special relationship between parent, child, and psychologist);
Burgess v. Super. Ct. (1992) 2 Cal.4th 1064, 1075–1077 [9 Cal.Rptr.2d 615]
(discussing duty of care arising from physician-patient relationship).)
Individual plaintiffs focus their arguments on the physical injury to
Torre Mercogliano’s big toe and smoke inhalation, as well as the emotional
distress suffered by all individual plaintiffs, but they fail to cite any
admissible evidence establishing Kriston committed a tortious breach of
contract, as described earlier. Accordingly, individual plaintiffs have not met
their burden of demonstrating triable issues of material fact. Kriston’s
motion as to the First Cause of Action is granted.
Lastly, Kriston moves for summary adjudication as to the Fifth Cause of
Action for negligent infliction of emotional distress. Negligent infliction of
emotional distress is not an independent tort, but rather the tort of
negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984
[25 Cal.Rptr.2d 550].) Because individual plaintiffs have not met their
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FEBRUARY 19, 2016
burden of demonstrating a triable issue of material fact concerning the
underlying negligence claim, this claim also fails. Kriston’s motion for
summary adjudication as to the Fifth Cause of Action is granted.
TENTATIVE RULING # 1: DEFENDANT KRISTON’S MOTION
FOR
SUMMARY
APPLICATIONS
ADJUDICATION
FOR
IS
DETERMINATION
GRANTED.
OF
GOOD
SETTLEMENTS ARE GRANTED AS REQUESTED.
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THE
FAITH
LAW AND MOTION CALENDAR
FEBRUARY 19, 2016
2. VU, ET AL. v. TAHOE KEYS RESORT, INC., SC20140112
OSC re Dismissal
To date, there is no Request for Dismissal in the court’s file.
TENTATIVE RULING # 2: APPEARANCES ARE REQUIRED AT
1:30 P.M., FRIDAY, FEBRUARY 19, 2016, IN DEPARTMENT
FOUR. IF A REQUEST FOR DISMISSAL IS FILED PRIOR TO
THE
HEARING,
THE
MATTER
WILL
BE
TAKEN
OFF
CALENDAR AND APPEARANCES WILL NOT BE REQUIRED.
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FEBRUARY 19, 2016
3. ABRAMS v. MORTGAGEIT, INC., ET AL., SC20150029
Motion for Judgment on the Pleadings
The parties previously indicated to the court they had reached a
settlement agreement. To date, there is no status update in the court’s file, no
request for a continuance of this hearing, and no opposition to the instant
motion is in the court’s file.
TENTATIVE RULING # 3: APPEARANCES ARE REQUIRED AT
1:30 P.M., FRIDAY, FEBRUARY 19, 2016, IN DEPARTMENT
FOUR.
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FEBRUARY 19, 2016
4. HIGGINS v. MALO, ET AL., SC20150137
Motion to Quash Service of Summons and Complaint
The parties request a continuance of this hearing on the basis that they
are finalizing the terms of a conditional settlement agreement. Good cause
appearing, this matter is continued to April 8, 2016.
TENTATIVE RULING # 4: MATTER IS CONTINUED TO 1:30
P.M., FRIDAY, APRIL 8, 2016, IN DEPARTMENT FOUR.
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LAW AND MOTION CALENDAR
FEBRUARY 19, 2016
5. N. CAL. COLLECTION SERV. v. KTB-KC, LLC, SCL20140105
Application for Protective Order
TENTATIVE RULING # 5: APPEARANCES ARE REQUIRED AT
1:30 P.M., FRIDAY, FEBRUARY 19, 2016, IN DEPARTMENT
FOUR.
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LAW AND MOTION CALENDAR
FEBRUARY 19, 2016
6. ESTATE OF OLSON, SP20150009
Preliminary Injunction
TENTATIVE RULING # 6: APPEARANCES ARE REQUIRED AT
2:30 P.M., FRIDAY, FEBRUARY 19, 2016, IN DEPARTMENT
FOUR.
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