Case Name: Kondori v. Apex Home Builders, Inc., et al.
Case No.: 2016-1-CV-290927

This is an action for negligence related to the replacement of water lines at a condominium unit. On September 10, 2015, Community Management Services, Inc. (“CMS”), the property management company hired by Cedar Gables Homeowners Association (“HOA”), the homeowners association for the Cedar Gables condominium development, entered into a contract to replace existing water supply lines in the upper and lower units at 1068 Cedar Gables—the unit owned by plaintiff Amir Kondori (“Plaintiff”)—with Apex Inc. Construction & Plumbing (“Apex CP”). (See second amended complaint (“SAC”), ¶¶ 1-3, 13, exh. 1.) The estimate states that Apex CP’s contractor license number for is 529605—which is actually the license number for defendant Wolfgang Hocke (“Hocke”). (See SAC, ¶¶ 7-8, exh.1.) Plaintiff asserts that both Apex CP and defendant Apex Home Builders, Inc. (“Apex HBI”) are alter egos or dbas of Hocke. (See SAC, ¶¶ 7-8, 13.) While replacing the water lines, Defendants Hocke, Apex CP and Apex HBI (collectively, “Defendants”) damaged the hardwood floor, the bathtub, tiles, kitchen cabinets, the kitchen counter top, walls and ceilings of Plaintiff’s property. (See SAC, ¶ 26.) On May 5, 2017, Plaintiff filed the SAC against Defendants, asserting causes of action for breach of contract and negligence.

On December 2, 2016, defendant Apex HBI moved for summary judgment on the grounds that the claims against it lack merit as APEX HBI owed no duty to Plaintiff and did not cause damages. On February 16, 2017, the Court denied Apex HBI’s motion.

Apex HBI and Hocke now move for summary judgment on the identical ground as addressed in the February 16, 2017 order, and also on the ground that they had no contract with Plaintiff nor cause contractual damages.

Motion for summary judgment as to defendant Apex HBI

As stated above, Apex HBI moves for summary judgment on the same ground as their prior motion. Code of Civil Procedure section 1008, subdivision (b) allows a party who originally made an application for an order which was refused in whole or part to make a subsequent application for the same order upon new or different facts, circumstances or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order was made, and what new or different facts, circumstances, or law are claimed to be shown. (See Code Civ. Proc. § 1008, subd. (b).) Apex HBI’s supporting memorandum not only again seeks summary judgment, but the memorandum supporting the second motion for summary judgment is, in large part, identical to the memorandum supporting the first motion for summary judgment. APEX HBI fails to present any such affidavit, or otherwise demonstrate any new or different facts, circumstances or law. To the extent that the Court has discretion to hear such a second motion seeking such an order, the Court does not exercise its discretion to so hear the second motion.

Additionally, for reasons stated below as to Hocke’s motion for summary judgment, Apex HBI’s evidence does not meet its initial burden to demonstrate that there was no possibility that it did not have involvement with the project, and, even if it did meet its initial burden, it has itself demonstrated the existence of a triable issue of material fact as to its involvement as the estimate upon which it relies suggests that Apex HBI was in fact involved in the project.

Accordingly, Apex HBI’s second motion for summary judgment is DENIED in its entirety.

Motion for summary judgment as to defendant Hocke

Defendant’s burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Hocke fails to meet his initial burden.

Defendant Hocke argues that he was not involved with the project because it was actually another person, John Sachs, who presented Community Management Services, Inc. (“CMS”) and Cedar Gables Homeowners Association (“CGHOA”) with an estimate for the repairs in the amount of $11,900. (See Defs.’ separate statement of undisputed material facts, nos. (“UMFs”) 1-4, 22-26.) However, the evidence cited by the separate statement only refers to an estimate from APEX Inc. with a contractor’s license of 529605; there is no reference to a person named John Sachs. Hocke concedes that the contractor’s license number is in fact Apex HBI’s. (See UMF 13, 34.) Hocke also concedes that one of the addresses listed on the estimate is either his or Apex HBI’s. (Id.) Thus, the estimate does not demonstrate a lack of involvement with the project. On the contrary, it at least demonstrates the existence of a triable issue of material fact as to Hocke’s involvement.

Defendant Hocke also argues that there is no possibility that he had involvement with the project because it was John Sachs or defendant Drainworks who worked on the project, not he, and Plaintiff knew that Sachs was working on the project. However, although the deposition testimony provided by Hocke demonstrates that Plaintiff knew that Sachs was working on the project, it also indicates that Plaintiff believed that Sachs worked for Hocke. (See evidence cited by UMF 14, 35.) This was a reasonable belief since Hocke concedes that he has previously hired Sachs as a contractor. (See Hocke decl., ¶ 3.) Hocke states in his declaration that he is Apex HBI’s only employee, but he also states that Apex HBI hires subcontractors for construction jobs. (See Hocke decl., ¶ 2.) Hocke’s contention that he did not have involvement with the project because Plaintiff knew that Sachs was working on the project is again, not supported by his evidence, and is in fact contradicted by it.

Hocke also asserts that he did not have involvement with the project because he neither created nor authorized the estimate. However, again, the estimate itself indicates that he authorized the estimate. A trier of fact will determine whether Hocke indeed authorized or created this estimate.

Hocke contends that he could not have owed Plaintiff a duty of care because he did not actually perform any work related to the job. However, again, the evidence that Hocke presents in support of his motion indicates that Sachs performed the work on Hocke’s behalf. The remainder of Hocke’s arguments with regards to any negligence are addressed by Hocke’s prior arguments regarding his purported lack of involvement with the project.

Hocke’s evidence does not meet his initial burden to demonstrate that there was no possibility that Hocke did not have involvement with the project, and, even if Hocke did meet his initial burden, he has himself demonstrated the existence of a triable issue of material fact as to his involvement as the estimate upon which he relies suggests that he was in fact involved in the project. Accordingly, Hocke’s motion for summary judgment is DENIED.

The Court will prepare the Order.