SVLA LLC v. Mark Tanner Construction

5. S-CV-0050702 SVLA LLC v. Mark Tanner Construction

Moving parties are advised the notice of motion must include notice of the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Defendant Jason Wooley dba Lot C Architecture’s Motion for Summary Judgment / Adjudication

Rulings on Requests for Judicial Notice and Evidentiary Objections

The parties’ requests for judicial notice are granted.

Plaintiff’s objections to defendant’s Undisputed Material Facts (“UMF”) Nos. 2, 3, 6, 8, 9, 10, 11, 12, 13, 16, 17, are overruled.

Ruling on Motion

Defendant requests summary judgment as to the sole cause of action alleged against him for violation of Civil Code section 896.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c(c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

As a preliminary matter, plaintiff argues defendant is judicially estopped from asserting that plaintiff cannot establish this claim in light of prior arguments made in the context of demurrers to the operative complaints. Judicial estoppel applies where “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)

In this case, defendant previously argued that based on the allegations, any negligence claim was necessarily supplanted by the Right to Repair Act. The court accepted this argument and ultimately sustained the demurrer to the negligence claim alleged in plaintiff’s third amended complaint without leave to amend. In the current motion, defendant argues that plaintiff cannot demonstrate by admissible evidence that the Right to Repair Act applies. These two positions are not totally inconsistent as the demurrer addressed the facts as alleged in the pleading, as opposed to whether plaintiff possesses evidence establishing a triable issue of fact regarding applicability of the Right to Repair Act. The court concludes defendant is not judicially estopped from arguing that the claim fails in the context of this summary judgment motion.

Turning to defendant’s substantive arguments, defendant asserts the Right to Repair Act cannot apply to his work as an architect or design professional because the Right to Repair Act applies only to “original construction intended to be sold as an individual dwelling unit.” (Civ. Code § 896.) Defendant submits evidence that in or about 2009, he was retained by Lawrence J. Welk III and Tracey M. Welk, to design a custom home to be built on a vacant lot they owned. (Deft. SSUMF 1, 2, 4.) Defendant understood the Welks wished to develop a vacation home for their personal use. (Deft.

SSUMF 2.) After construction of the home was completed, defendant visited the home to consult with the Welks regarding potential changes to their garage and observed them occupying the property. (Deft. SSUMF 6.) Defendant was never advised that the Welks intended to design and build the home so they could sell it. (Deft. SSUMF 3.) Based on this evidence, defendant meets his initial burden to demonstrate there are no triable issues of fact, shifting the burden to plaintiff to establish a triable issue.

Plaintiff cites to Beacon Residential Community Association v. Skidmore, Owings, & Merrill LLP (2014) 59 Cal.4th 568, where the California Supreme Court held that architects owed a duty of care to future homeowners despite the lack of contractual privity. The Court’s decision in that case noted “defendants provided their services knowing the finished construction would be sold as condominiums.” (Id. at 571.) Here, plaintiff presents no evidence to raise a triable issue of fact that the home was designed and constructed with the intent that it be sold, nor does plaintiff identify caselaw which would support the contention that the Right to Repair Act applies in the absence of such evidence.

As plaintiff fails to meet its burden to demonstrate a triable issue of fact, the motion for summary judgment is granted.

Defendant Mark Tanner Construction, Inc.’s Motion for Summary Adjudication

Rulings on Requests for Judicial Notice and Evidentiary Objections

The parties’ requests for judicial notice are granted.

Plaintiff’s objections to defendant’s Undisputed Material Facts (“UMF”) Nos. 4, 6, 7, 8, 9, are overruled.

Ruling on Motion

Defendant Mark Tanner Construction, Inc. moves for summary adjudication as to plaintiff’s third cause of action for violation of Civil Code section 896 and fifth cause of action for strict liability.

A party may move for summary adjudication as to one or more causes of action. (Code Civ. Proc. § 437c (f)(1).) The moving party bears the initial burden of establishing each element of the cause of action entitling them to judgment as a matter of law. (Id. at (f)(1),

(p)(1).) Only if this initial burden is met will the burden shift to the opposing party to establish a triable issue of material fact. (Id. at (p)(1).) In reviewing a motion for summary adjudication, the court must view the supporting evidence and all reasonable inferences drawn from the evidence in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843.)

As a preliminary matter, plaintiff argues that the court has already determined it may proceed under the Right to Repair Act in light of its ruling on prior demurrers. However, the court’s ruling on prior demurrers addressed the facts as alleged in the operative pleading, as opposed to the issue of whether plaintiff possesses evidence establishing a triable issue of fact regarding applicability of the Right to Repair Act.

Defendant asserts the plaintiff’s claims under the Right to Repair Act cannot apply because it applies only to “original construction intended to be sold as an individual dwelling unit.” (Civ. Code § 896.) Defendant submits evidence that he was retained to construct a custom home for property owners the Welks and did not perform contractor services for original construction intended to be sold. (Deft. SSUMF 3-7.) Based on this evidence, defendant meets his initial burden to demonstrate there are no triable issues of fact, shifting the burden to plaintiff to establish a triable issue.

In opposition, plaintiff presents no evidence to raise a triable issue of fact that the home was designed and constructed with the intent that it be sold, nor does plaintiff identify caselaw which would support the contention that the Right to Repair Act applies in the absence of such evidence.

As plaintiff fails to meet its burden to demonstrate a triable issue of fact, the motion for summary adjudication is granted as to the third and fifth causes of action.

6. S-CV-0050872 Ernst, Cody v. Denham, Michele

If oral argument is requested, it will be heard in Department 32 by the Honorable Trisha J. Hirashima.

Plaintiff is advised the notice of motion must include notice of the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Motion for Protective Order

Plaintiff, by and through his former counsel of record, moves for a protective order against defendants for an extension of time to respond to discovery demands. This motion was noticed for hearing on August 21, 2026 at 2:00 p.m. in Department 33. Due to scheduling changes at the court, this motion hearing was continued to August 25, 2026 at 8:30 a.m. in Department 32. While notice of the continued hearing was provided to defense counsel (order continuing hearing filed Jun. 29, 2026), it appears due to the court’s mistake that plaintiff who is now self-represented was not served the notice of continued hearing.

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