Case Number: EC067766 Hearing Date: August 02, 2019 Dept: A

Motion for Summary Judgment/Adjudication;

Motion to be Relieved as Counsel (3)

Calendar:

16

Case No.:

EC067766

Hearing Date:

August 02, 2019

Action Filed:

March 14, 2018

Trial Date:

Not Set

Motion for Summary Judgment/Adjudication

MP:

Plaintiffs Jose Sanchez d/b/a Sanchez Construction; Sanchez Construction 1

RP:

Defendants New Ridge Development, LLC; Yanying Dong a/k/a “Claire” Dong; Yanbo Liao

Motions to be Relieved as Counsel (x3)

MP:

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law, Counsel for Defendant Joshua Higgins, Cross-Defendant Ruben J. Gonzalez, and Cross-Defendant Andi Cerroni

RP:

N/A

ALLEGATIONS:

This action involves the original and corrective interior and exterior construction to be performed by Plaintiff Jose Sanchez dba Sanchez Construction, and Sanchez Construction 1 (“Plaintiffs”) on 6 condominiums. The real properties at issue are known as the New Ridge Condominiums located at 681, 683, and 685 N. First Street, Arcadia, CA 91006. Plaintiff alleges that Defendants New Ridge Development, LLC (“New Ridge”), Yanying Dong aka “Claire” Dong (“Dong”), and Yanbo Liao (“Liao” and collectively the “Defendants’) were the beneficial and legal holders of title to the properties. Plaintiffs allege that on March 20, 2017, they entered into a verbal agreement with Defendants to furnish labor on the condominiums. Plaintiffs further allege that Defendant Joshua Higgins (“Higgins”) represented himself as the owner of the properties and the contracting entity, Infinities Group, and that he held a contractor’s license, but Plaintiffs allege that both of these representations were false.

The operative Second Amended Complaint (“SAC”) was filed on June 26, 2018, and alleges causes of action sounding in (1) Breach of Contract; (2) Quantum Meruit; (3) Fraud in the Inducement; (4) Intentional Misrepresentation; (5) Negligent Misrepresentation; (6) Breach of the Implied Covenant of Good Faith and Fair Dealing; (7) Declaratory Relief; and (8) Restitution/Unjust Enrichment.

PRESENTATION:

Plaintiffs Jose Sanchez d/b/a Sanchez Construction; and Sanchez Construction 1 filed their instant motion for summary judgment or adjudication on May 09, 2019. Defendants New Ridge Development, LLC; Yanying Dong a/k/a “Claire” Dong; and Yanbo Liao filed opposition to the motion on July 10, 2019. Plaintiffs submitted a reply brief on July 17, 2019.

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law, Counsel for Defendant Joshua Higgins, Cross-Defendant Ruben J. Gonzalez, and Cross-Defendant Andi Cerroni moved to be relieved as counsel for each of its clients on June 27, 2019, citing non-payment and breakdown in attorney-client communication as the basis for relief. No opposition has been received on any of the three motions.

RELIEF REQUESTED:

Plaintiffs move for judgment as to the entire action, and alternatively moves for adjudication on the following issues:

(1) On the First Cause of Action, on the grounds that there is no material dispute as to the existence of the agreement, Plaintiffs’ performance, and Defendants’ failure to pay $313,052.52;

(2) On the Second Cause of Action, on the grounds that there is no dispute that Plaintiffs rendered work with the expectation of receiving compensation, and that the fair value of the work is $313,052.52;

(3) On the Sixth Cause of Action, on the grounds that Defendants substantially interfered with Plaintiffs’ right to receive payment in the amount of $313,052.52; and

(4) On the Eighth Cause of Action, on the grounds that Defendants received a material benefit from the work done by Plaintiffs, and it would be unjust to allow them to receive the benefit without just compensation to Plaintiffs in the amount of $313,052.52.

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law, move in three separate motions to be relieved as counsel for (1) Defendant Joshua Higgins, (2) Cross-Defendant Ruben J. Gonzalez, and (3) Cross-Defendant Andi Cerroni.

DISCUSSION:

Standard of Review – Motion to be Relieved as Counsel – Code of Civil Procedure §284(1) allows for a change or substitution of attorney “[u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes.” If both parties do not consent to a substitution of attorney, Code of Civ. Proc. §284(2) allows for a substitution “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” California Rules of Court Rule 3.1362 sets forth procedures for relieving counsel without the mutual consent of both parties.

Under Rule 3.1362, an attorney seeking to withdraw by motion rather than by consent of the client, as here, is required to make that motion using approved Judicial Council forms. The motion also requires a declaration stating “in general terms, and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” Cal. Rules of Ct., Rule 3.1362(c). Judicial Council form MC-052, the attorney’s declaration, requires that the client be provided no less than five days’ notice before hearing on the motion. A proposed order prepared on form MC-053 must also be lodged with the court with the moving papers.

The Court of Appeals has recognized, “A lawyer violates his or her ethical mandate by abandoning a client [citation], or by withdrawing at a critical point and thereby prejudicing the client’s case. [Citation.] We are, however, aware of no authority preventing an attorney from withdrawing from a case when withdrawal can be accomplished without undue prejudice to the client’s interests.” Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.

While there is no trial date pending, the Court notes that on July 29, 2019, (1 month after movant’s June 27, 2019, motions) Defendants New Ridge, Dong, and Liao have filed for summary judgment against Higgins, Gonzalez, and Cerroni – the hearing date is set for November 01, 2019. This nevertheless presents sufficient time for Higgins, Gonzalez, and Cerroni to retain new counsel and, if necessary, seek a continuance of the summary judgment motion. The motions are otherwise in proper form, and appear to have been served to each client at a recently confirmed mailing addresses.

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Standard of Review – Motion for Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” Code Civ. Proc. §437c(p)(1).

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal. App. 4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.

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Principal/Agent Liability – The four causes of action subject to the instant motion for summary judgment/adjudication turn on the principal-agent relationship between Higgins and Defendants, as there appears to be no contested facts regarding the work performed by Plaintiffs, only the intent of Defendants in their hiring of Higgins. Specifically, Defendants argue that they hired Higgins to perform the work that was ultimately performed by Plaintiffs, and did not intend for Higgins to hire Plaintiffs to perform the work they did. Plaintiffs contend that because Higgins and Defendants were in an agent-principal relationship, Defendants are liable to pay for the contracts entered into by their agent for work that accrued to their benefit. Defendants, on the other hand, contend that they should not be required to pay twice for the same work when Higgins is the party to the instant litigation that defrauded both Defendants and Plaintiffs through a scheme whereby he pocketed the money paid to him by Defendants and failed to pay Plaintiffs for the (unauthorized) work they performed.

Under the standards of the instant motion, the Court must accept the inference that Higgins was acting outside of the scope of his agency when he hired Plaintiffs to perform work on the subject property. See Decl. of Dong, ¶12. Under this factual inference, the Civ. Code provides that “[w]hen an agent exceeds his authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized.” Civ. Code §§2331 & 2333. However, “[a] principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.”

Before recovery can be had against the principal for the acts of an ostensible agent, three requirements must be met: (1) The person dealing with an agent must do so with a reasonable belief in the agent’s authority, (2) such belief must be generated by some act or neglect by the principal sought to be charged and (3) the person relying on the agent’s apparent authority must not be negligent in holding that belief. Associated Creditors’ Agency v. Davis (1975) 13 Cal. 3d 374, 399. Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists. Dill v. Berquist Construction Co. (1994) 24 Cal. App. 4th 1426, 1438, fn. 11. “‘Liability of the principal for the acts of an ostensible agent rests on the doctrine of “estoppel,” the essential elements of which are representations made by the principal, justifiable reliance by a third party, and a change of position from such reliance resulting in injury. [Citation.]’ [Citation.]” Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal. App. 4th 741, 747.

On review of the moving papers, Plaintiffs have failed to establish a right to recover from Defendants as a mater of law, as there exists a factual inference that Higgins was working outside of his authority as Defendants’ agent, and insufficient information has been provided to the Court to indicate that Defendants should nevertheless be held liable as a matter of law on the grounds of an ostensible agency theory. Stated another way, while Plaintiffs have established that they performed valuable work, they have not established an uncontestable legal right to receive payment from New Ridge Development, LLC; Yanying Dong a/k/a “Claire” Dong; or Yanbo Liao. Further, as the alleged right to recover on each of the causes of action noticed to the Court for adjudication are premised on the same principal-agent relationship between Higgins and Defendants, the Court cannot grant any portion of the motion seeking adjudication on the separate causes of action.

Accordingly, the motion will be denied.

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RULING:

Grant Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law’s three motions to be relieved as counsel.

Deny Plaintiffs’ motion for summary judgment or adjudication.

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In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law’s Motions to be Relieves as Counsel for Defendant Joshua Higgins, Cross-Defendant Ruben J. Gonzalez, and Cross-Defendant Andi Cerroni came on regularly for hearing on August 02, 2019, together with Plaintiffs Jose Sanchez d/b/a Sanchez Construction; Sanchez Construction 1’s Motion for Summary Judgment or Adjudication with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

TYLER H. BROWN, ESQ., OF BROWN & BROWN ATTORNEYS AT LAW’S THREE MOTIONS TO BE RELIVED AS COUNSEL ARE GRANTED; AND

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION IS DENIED IN ITS ENTIRETY.

DATE: _______________ _______________________________

JUDGE