2012-00123977-CU-BC

Paul Norton vs. Green Inq LLC

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Mawhinney, Ronald

Defendant Gregory Schillianskey dba All Year Heating & Air Conditioning aka All Year
(“All Year”) motion for summary judgment, or in the alternative, summary adjudication,
is denied.

In this action arising from the construction of Plaintiffs 22 room, 8,000 square foot
mansion, Plaintiffs allege causes of action for breach of contract, breach of express
and implied warranty, breach of Contractors’ State License Law for recovery of the
surety bond, unjust enrichment and negligence against All Year. Plaintiffs allege that
All Year failed to install a geothermal exchange system pursuant to the parties’
contract in that it failed to follow the terms of the contract, failed to construct the in a
workmanlike manner, failed to correct defects, make repairs and complete work on
items specifically enumerated to All Year, and caused damage to their flooring.

Plaintiffs and co-defendant Mountain Built-In Systems (“Mountain”) have separately
opposed the motion.

All Year’s separate statement includes the following. All Year is a heating and air
conditioning solar contractor. Defendant Green Inq. invited All Year to bid on installing
a geothermal system that was already designed by the Meline Group at Plaintiffs Paul
and Cherie Norton’s mansion. All Year won the bid and delivered a contract to
Plaintiffs in February 2007. All Year did not have a contract with Green, Inq., or with
Ultimate Development, the general contractor.

All Year entered into a written contract for the installation of the geothermal system
with Plaintiff on February 17, 2007. The contract provided that “[e]xisting electrical
wiring systems are assumed to be, and are represented by buyer as being adequate to
carry the load imposed by existing work.” All Year began work in February 2007 and
was on the job through June 2009 as the project went on longer than expected as
Plaintiffs and the general contractor made major changes as the job progressed.
Numerous change ordered were executed between Plaintiffs and All Year.

Plaintiffs decided to integrate “smart home” technology into the mansion without
consulting All Year and arranged for the general contractor to contract with Mountain
to install a “Control4” home automation system. Mountain installed thermostats in the
control room and individual sensors in the individual rooms, and Cat 5 wiring between
the sensors and the control system. The control system and the wiring were specified
by Mountain. Mountain went out of business as did the general contractor.

Plaintiffs began to experience problems with the operation of the control system and its
effect on the geothermal system as the control system failed to properly regulate room
temperature causing the heat and air conditioning to engage simultaneously. All Year
responded numerous times to help address these issues. All Year explained that the
geothermal system was working fine and was installed properly and the problems were
the result of the control system.

In March 2011, Plaintiffs retained Dwight Branco, an expert on the Control4 System to
evaluate their problems. Branco found that Mountain used improper wire for the
control system and found no issue with the geothermal system itself or with All Year’s
work. Plaintiffs sold the mansion in October 2011 to Mr. Jenkins. Plaintiffs
recommended All Year to Mr. Jenkins. After the mansion was sold, a new control
system manufactured by Creston was installed and no issue was raised with respect to
All Year’s work.
Pursuant to the All Year contract, All Year guaranteed that “all materials furnished by it
will be of standard quality free from defects, and will be installed or applied in a good
and workmanlike manner…The installation provided…is to be in conformance with the
applicable State, County, and City building codes in effect as to the date of the
contract.” The contract also provided that it was “the entire contract. Oral
understandings or agreements with representative shall not be binding. All
understandings must be set forth in writing in this contract.” Plaintiff Cherrie Norton
signed the All Year contract on February 17, 2007, below the “Acceptance of Proposal”
provision which stated that “[t]he above prices, specifications, and conditions are
satisfactory and are accepted…”

Fourth Cause of Action (Breach of Contract)

All Year moves for summary adjudication on the basis that its scope of work was
simply limited to the installation of the geothermal system which work it fully performed
and Plaintiffs cannot show it breached the contract in any way. All Year maintains that
Plaintiffs are essentially trying to hold it responsible for obligations of others and that
the issues Plaintiffs experienced with the behavior of the geothermal system were the
result of the Control 4 automation system installed by Mountain. All Year also argues
that Plaintiffs failed to perform under the contract because the contract provided that
“[e]xisting electrical wiring systems are assumed to be, and are represented by buyer
as being adequate to carry the load imposed by existing work.” All Year maintains that
Plaintiffs did not comply with this provision because the cat-5 wiring installed in their
home was unable to carry the signal load for the control system and was responsible
for the problems Plaintiffs experienced.

Here, the Court finds that All Year failed to meet its burden on the instant motion to
show that Plaintiffs will be unable to demonstrate as a matter of law that All Year’s
breached the contract because it did not cause any of the issues regarding the
geothermal system.

Indeed, as aptly pointed out in Mountain’s opposition, All Year failed to provide
admissible evidence to support a number of the “facts” set forth in its separate
statement. Specifically, for example, All Year states in fact 25 that Plaintiffs retained
Dwight Branco, an “expert on the Control4 system, to evaluate the control system and
identify problems” and in fact 26 that Branco found that Mountain installed the wrong
wire for the control system and thus he determined that any problems were the fault of
the control system having improper wiring. (SSUF 25, 26.) All Year states in fact 27
that Blanco “took no issue with the geothermal system or with All Year’s work.” (SSUF
27) However, the evidence in support of these facts is the deposition testimony of
Plaintiff Cherie Norton regarding statements that Blanco purportedly made to her.
While statements made by Ms. Norton, a party to the action, are not rendered
inadmissible by the hearsay rule, statements made by Blanco to Ms. Norton are
hearsay not within an exception. Further, given that Blanco himself did not submit a
declaration in support of the instant motion, there has been no showing that he is an
expert, or otherwise qualified to render opinions on the cause of the problems
regarding the geothermal system.

In addition, All Year states in fact 22 that the control system (installed by Mountain)
was the cause of the problems, in that it failed to properly regulate room temperatures
and caused the heat and air conditioning to engage simultaneously. (SSUF 22) SSUF
23 states that these issues were unrelated to All Year’s work and SSUF 24 states that
it was explained to Plaintiffs that the problems they experienced were all due to the
control system. (SSUF 23, 24) The evidence supporting these “facts” is a declaration
from Gregory Schillianskey, All Year’s owner, who simply states, without any detail,
that the problems were due to the control system. (Schillianskey Decl. ¶¶ 16-18.)
Shillianskey’s statements lack any foundation as there is no factual support provided
for any statement that Plaintiffs’ problems were caused by the control system.
Mountain’s objections to this evidence are well taken and sustained. Further the letter
from Green Inq.’s principal to Plaintiffs stating that the geothermal system appeared to
be working properly is also hearsay and Mountain’s objection to this evidence has also
been sustained.

Thus, All Year failed to provide evidence in support of facts 22-27, facts which purport
to show that All Year’s work was not the cause of any problem Plaintiffs experienced
with the geothermal system and instead that Mountain’s installation of the control
system was the cause. These facts were material to any showing that Plaintiffs cannot
as a matter of law prove that All Year breached its contract with Plaintiffs, or that
Plaintiffs failed to perform because the wiring they installed was the cause of the
problems. All Year never shifted the burden to Plaintiffs to demonstrate the existence
of a triable issue of material fact. On this basis alone, the motion for summary
adjudication directed to the breach of contract cause of action is denied.

On this basis alone, the motion for summary adjudication directed to the fifth cause of
action for breach of contract is denied.

In any event, even if All Year met its burden, which it did not, there are triable issues of
material fact. Specifically, All Year’s fact #19 states that Mountain specified the cat 5
wiring between the thermostat sensors and the Control 4 automation system.
Mountain’s evidence shows that the Cat 5 wiring and the thermostats and temperature
sensors to be used in connection with the Control 4 system were specified by the
Control 4 system’s manufacture, not Mountain. (Trimble Depo. 122:9-123:13; 155:2-
156:19.) This directly disputes All Year’s fact #19 and creates a triable issue of
material fact. In addition, Fact 22 (which as discussed above was not properly
supported by the evidence) states that Plaintiff began to experience problems with the
Control 4 system and its effect on the geothermal system in that the Control 4 system
failed to properly regulate room temperatures and caused the heat and air conditioning
to engage simultaneously. Mountain’s evidence shows that it was not determined
whether the problems were caused by the Control 4 system. (Trimble Depo. 196:8-18;
Cherie Norton Depo. 23:20-24:9.) Further fact 24 (again which as discussed above
was not supported by the evidence) states that it was explained to Plaintiffs that the
geothermal system was fine and that the problems were due to the Control 4 System.
Again, the opposing evidence shows that it was not in fact determined that the
problems were the result of the Control 4 system. (Id.) These triable issues of
material fact require that the motion be denied.

In addition, separate from the above, Plaintiffs’ evidence shows that All Year
improperly installed the radiant floor system. Plaintiffs’ evidence shows that the
radiant floor system installed by All Year upstairs caused the floor to be uneven and
noisy. (Paul Norton Decl. ¶¶ 7, 9, 11-13, 21; Jenkins Depo. 83:4-85:17, 173:19-174:2,
174:16-25.) This creates an additional triable issue of material facts as to whether All
Year breached the contract. Indeed, All Year’s evidence does not even address the
upstairs radiant floor system, only the potential problems with the geothermal system
yet Plaintiffs’ evidence appears to show that the issues with the upstairs floor system
were entirely separate. These additional triable issues of fact also require that the
motion be denied.

In sum separate and apart from the fact that the motion must be denied because All
Year never met its initial burden on the instant motion, even if it had, there are multiple
triable issues of fact as to whether All Year’s work pursuant to its contract caused the
problems experienced by Plaintiffs with respect to the geothermal system, in addition
to whether All Year breached the contract with respect to installation of the radiant
floor system.

Fifth, Sixth, Seventh, Eighth and Eleventh Causes of Action

The motions for summary adjudication as to the other cause of action for breach of
express and implied warranty, breach of Contractors’ State License Law for recovery
of the surety bond, unjust enrichment and negligence must also be denied for the
same reasons discussed above in connection with the fifth cause of action for breach
of contract. Indeed, these motions all rely upon the identical facts as the motion
directed to the fifth cause of action.

Defendant/Cross-Complaint Mountain’s evidentiary objections are sustained.
Mountain shall submit an order pursuant to CRC, Rule 3.1354 for the Court’s
signature.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D). Defendants’ counsel is ordered to notify Plaintiff’s
counsel immediately of the tentative ruling system and to be available at the hearing,
in person or by telephone, in the event Plaintiff’s counsel appears without following the
procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.