Motion for Summary Judgment and/or Adjudication
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The Motion for Summary Adjudication brought by Defendant Walsh Construction Company II, LLC is GRANTED in part and DENIED in part.
The Court grants Defendant’s unopposed Request for Judicial Notice of South Coast Air Quality Management District rule 403, pursuant to Evidence Code section 452, subdivisions (b) and (h). (ROA No. 128.)
Summary adjudication is GRANTED, as against the fourth cause of action brought by Plaintiff Elite Body Shop, Inc., as it is undisputed this entity assigned all its rights to Plaintiff Oscar Mandujano.
Per the Complaint: “On or about February 22, 2022 ELITE, by and through its President Oscar Mandujano, duly, fully, and irrevocably assigned, transferred and relinquished any and all rights or legal interests in, and to any and all claims and causes of action, or any settlement, judgment, or recovery of damages it has therefrom and/or to which ELITE is legally entitled against DEFENDANTS, and each of them as set forth in paragraphs 1-44 hereinabove, to Oscar Mandujano, an individual, who has fully accepted said assignment, and is now the sole owner of said claims and causes of action thereunder.” (¶45 of Complaint [ROA No. 2].)
“In summary judgment or summary adjudication proceedings, ‘[a]dmissions of material facts made in an opposing party’s pleadings are binding on that party as ‘judicial admissions.’ They are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her.” (St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248.)
“An assignment carries with it all the rights of the assignor.” (Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1096.) “Once a claim has been assigned, the assignee is the owner and has the right to sue on it.” (Ibid.) “In fact, once the transfer has been made, the assignor lacks standing to sue on the claim.” (Ibid.; See also Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Service Co. (2011) 191 Cal.App.4th 1394, 1402
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Having assigned all its rights to Plaintiff Oscar Mandujano, Plaintiff Elite Body Shop, Inc. no longer has standing. (See Code Civ. Proc., § 367.)
The remainder of the motion is DENIED.
The request to adjudicate the “second cause of action” is DENIED as, despite the way it was pled, the parties concede “negligence per se” is not an independent cause of action, but rather an evidentiary presumption relevant to the claim of negligence. (See Opposition: 10:16-18; See also Reply: 2:18-22.)
Code of Civil Procedure section 437c, subdivision (f)(1), permits summary adjudication only, as to causes of action, affirmative defenses, claims for damages, or issues of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) Similarly, this provision permits adjudication only where the request “completely disposes of a cause of action, an affirmative defense, a claim for damage, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
While labelled a “cause of action,” “[e]rroneous or confusing labels attached by the inept pleader are to be ignored” and “[i]t is not what a paper is named, but what it is that fixes its character.” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) “The caption, title, or label of a pleading or other document does not determine its nature or legal effect.” (Stiger v. Flippin (2011) 201 Cal.App.4th 646, 654.)
Moreover, while Code of Civil Procedure section 437c, subdivision (t) establishes a process by which parties may stipulate to the adjudication of additional issues not encompassed within subdivision (f)(1), this procedure was not followed herein.
Consequently, the Court will not adjudicate application of an evidentiary presumption.
Additionally, while Defendant appears to take the position that summary adjudication should be granted, as the “second cause of action” is not an independent claim, the Court opts against taking this route, to avoid the appearance of having prematurely litigated application of the evidentiary presumption.
The Court finds the “second cause of action” is merely a pled extension of the first cause of action for negligence, which has not been challenged within this motion.
Next, the request to adjudicate the fourth cause of action brought by Oscar Mandujano is DENIED.
With respect to the claim for nuisance, Defendant asserts the same is a “clone of [Plaintiff’s] negligence action.” (Motion: 11:2-3.) In making this argument, Defendant relies on El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337 (El Escorial), wherein the Court stated: “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (Id. at p. 1349.)
While El Escorial includes the above statement, a review of the opinion suggests its holding is specific to product liability and construction defect. Page 14 of 15
In reaching its opinion the El Escorial court cited and relied on City of San Diego v. U.S. Gypsum Co. (1995) 30 Cal.App.4th 575 (U.S. Gypsum). (See Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.)
The Court in U.S. Gypsum noted that “California law has permitted recovery in nuisance where a defendant has owned or controlled property from which the nuisance arose....or where a defendant has employed another to perform work that has resulted in a nuisance to plaintiff’s property,” but noted: “City cites no California decision, however, that allows recovery for a defective product under a nuisance cause of action.” (City of San Diego v. U.S. Gypsum Co. (1995) 30 Cal.App.4th 575, 585-586.) The Court ultimately concluded: “Other jurisdictions considering this issue have not permitted plaintiffs to recover damages for defective asbestos-containing building materials under a nuisance action.” (Id. p. at 586).
Citing the above, the Court in El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, stated: “Here the trial court found Escorial’s ‘overriding’ issue to be toxic mold contamination due to negligent construction, which was analogous to the asbestos claim in City of San Diego.” (Id. at p. 1348). The Court explained: “Here the factual allegations incorporated into the nuisance cause of action involved negligence and defective workmanship.” (Id. at p. 1349.) Thereafter, the El Escorial court noted that injunctive relief was not being sought and found the claims for nuisance and negligence to be duplicative.
In contrast to both U.S. Gypsum and El Escorial, the instant claim cannot be construed as either a claim for products liability or construction defect. Here, Defendant is alleged to have repeatedly sent particulate matter onto Plaintiffs’ property, despite awareness of the effect it was having. (See ¶24- ¶26 and ¶41-¶42 of Complaint [ROA No. 2].) Consequently, Defendant is alleged to have “created a nuisance on another’s property,” as described by the Court in City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, as an example of a proper nuisance claim.
In addition to the above, El Escorial has been criticized by the Fourth District, Division 3, Court of Appeals. (See Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181, 1195-1199 (Lynch).) While Defendant is correct in asserting the Court in Lynch ruled partially based on due process concerns not applicable here, the court nonetheless proceeded to analyze the holding in El Escorial, noting its “discomfort with El Escorial is perhaps more fundamental.” (Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181, 1198.)
“Nuisance is an entirely separate cause of action from negligence, and the analysis should focus on whether the plaintiff has alleged all necessary elements of the claim...Even if the nuisance claim relies on the same facts about lack of due care supporting the negligence claim, it does not mean the claims are identical or duplicative. Indeed, many pleadings allege numerous causes of action based on the same facts. This does not mean the causes of action are all the same. Also, assessing a nuisance claim in this manner ignores the fact that a duty between defendant and plaintiff need not exist to maintain a nuisance claim. By conflating the two theories, the trial court added an element to appellant’s nuisance claim she was never required to establish in the first place.” (Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181, 1199.) Page 15 of 15
As the Lynch court explained: “[I]t is well settled in this state that an owner of land may not do even nonnegligent acts on his property with impunity where they create a nuisance as to his neighbor.” (Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181, 1197.)
Applying Lynch herein, as Defendant did not challenge Plaintiffs ability to prove the elements of a private nuisance, this portion of the motion for summary adjudication is DENIED.