Case Number: BC493899    Hearing Date: October 21, 2014    Dept: 56

Case Name: Mansour, et al. v. Jillson, et al.
Case No.: BC493899
Matter: Defendants’ Motion for Summary Judgment/Adjudication

Tentative Ruling: Summary judgment is granted.

Plaintiffs Luzelba and Zaki Mansour filed this action against Defendants Leslie Jillson and Design Build Associates Inc., asserting causes of action for trespass and conversion. Defendants move for summary judgment or adjudication.

Objections –
Plaintiffs object to the declaration of Leslie Jillson: All objections are overruled. Plaintiffs object to the declaration of Jonathan Dykstra: All objections are overruled. Plaintiffs object to the declaration of Barry Kaiman: Nos. 40 & 41 are sustained, and all other objections are overruled. Plaintiffs object to Defendants’ exhibits: All objections are overruled.

Defendants object to the declaration of Maria Kao: No. 1 is sustained. Defendants object to the declaration of Zaki Mansour: Nos. 2-8 are sustained, No. 1 is overruled.

Res Judicata –
Defendants argue that Plaintiffs’ claims are barred by res judicata and collateral estoppel, submitting that the same claims and damages that Plaintiffs assert in this action were the subject of a binding arbitration award between Marina Strand Colonies #1 Home Owners Association and Plaintiffs. Defendants submit evidence that Plaintiffs and the HOA were parties to a previous lawsuit concerning water damage to Plaintiffs’ unit and an adjacent unit; the lawsuit was settled with an agreement that the HOA would repair and remediate Plaintiffs’ unit; the HOA hired Defendants as the construction consultant to oversee the repair and remediation process; Plaintiffs initiated arbitration proceedings against the HOA, which included the same claims, subject matter and damages as this action; the arbitrator ruled in favor of the HOA; and the arbitrator’s award was confirmed in a Superior Court judgment.

Defendants contend that Plaintiffs are precluded from asserting the same claims against Defendants, who are the agents of the HOA. Defendants rely upon three appellate decisions which precluded relitigation of claims under comparable facts. Richard B. LeVine Inc. v. Higashi (2005) 131 Cal.App.4th 566, 576-79, held that an arbitration award concerning a partnership precluded relitigation of an identical claim against the partnership’s accountant. Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 756-761, held that an arbitration award concerning a general contractor precluded relitigation of an identical claim against a subcontractor. Sartor v. Superior Court (1982) 136 Cal.App.3d 322, 327-328, held that an arbitration award concerning an architectural and engineering firm precluded relitigation of an identical claim against employees of the firm.

Plaintiff relies on Vandenberg v. Superior Court (1999) 21 Cal.4th 815, arguing that the Supreme Court held that arbitration awards do not support res judicata or collateral estoppel in favor of a nonarbitrating third party unless there was an agreement to that effect. Plaintiff’s reliance on Vandenberg is misplaced. That decision does not bar application of res judicata or collateral to arbitration awards that eliminate the nonarbitrating party’s derivative liability. See LeVine, supra 131 Cal.App.4th at 576. And Vandenberg specifically pointed out that its holding did not apply to Thibodeau and Sartor. See Vandenberg, supra 21 Cal.4th at 824 n. 2.

Defendants have shown that Plaintiffs’ claims are barred by the arbitration award in favor of the HOA. Plaintiffs have failed to raise a triable issue of material fact, and summary judgment is therefore granted on this ground.

Trespass and Conversion Claims –
Defendants also move for summary judgment on the ground that they did not engage in any conduct that would constitute trespass or conversion. Defendants submit evidence that they were hired only as the construction consultant for the repair and remediation of Plaintiffs’ unit; Del Mar Pacific Construction and Janus Corporation were the subcontractors hired by the HOA, and they performed the actual work; and Defendants did not remove or touch any fixtures or personal property in Plaintiffs’ unit.

Plaintiffs have failed to submit any admissible evidence to raise triable issues of fact as to whether Defendants removed or touched any fixtures or personal property in Plaintiffs’ unit. Although Plaintiffs have submitted evidence of the destruction of Plaintiffs’ unit and property, Zaki Mansour’s declaration makes only conclusory assertions about Defendants’ responsibility. Summary judgment is also granted on this ground.

Ruling –
Summary judgment is granted in favor of Defendants Leslie A. Jillson and Design Build Associates Inc.