Law and Motion Calendar
Wednesday, March 5, 2014, at 3:30 p.m.
Courtroom 18 -- Hon. Nancy Case Shaffer
3055 Cleveland Avenue, Santa Rosa, CA
CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. Please contact CourtCall directly at (888) 882-6878.
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Shaffer's Judicial Assistant by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, March 4, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. 224655 – GCFS, Inc. v. Boucher
Plaintiff’s motion for costs is granted in the amount of $426. Costs for transcripts are not recoverable unless ordered by the court. (CCP §1033.5) The court is not aware of any order for the transcript. Plaintiff has provided no support for its request for the cost of copies of the judgment.
2. 250696 – Goolsby v. NIS Ventures
Continued by court to March 12, 2014 at 3:30 p.m. in Department 18.
3. 251037 – Congrove v. Safeco
A. Midstate’s Motion for Summary Judgment on First Cause of Action in Congrove Corporation’s Complaint
Midstate moves for summary judgment or, in the alternative, summary adjudication of Congrove Corporation’s first cause of action for Enforcement of Payment Bond and second cause of action for Enforcement of Release of Stop Notice Bond on the ground that Congrove Corporation’s preliminary notice or notice to its surety indicated it was for “labor/payroll service,” which Midstate claims shows Congrove Corporation only provided an administrative service and California law does not authorize a payment bond or a stop payment notice for administrative services. Additionally, Midstate moves on the grounds that both causes of action are barred because Congrove Corporation willfully filed a false stop payment notice by willfully overstating its claim.
Congrove Corporation opposes the motion. Its objections to UMF numbers 3 and 4 are sustained as the “facts” are legal conclusions.
Midstate has not met its burden to establish that there is no triable issue of material fact regarding its argument that Congrove Corporation only provided an administrative service to Congrove Construction. Midstate has only established that Congrove Corporation did not have a contract with Midstate and that Congrove Corporation’s preliminary notice, notice to surety, and/or proof of claim included the description of the furnished service as “LABOR/PAYROLL SERVICE.” (UMF ##1, 2; Evid. Ex. A) Midstate’s argument is based upon the presumption that the word “labor” in Congrove Corporation’s description has the same meaning as “payroll” so that Congrove Corporation has only claimed to have provided payroll services. A provider of payroll services does not qualify as a “claimaint” on a public payment bond. (See Primo Team, Inc. v. Blake Construction Co. (1992) 3 Cal.App.4th 801, 804, 806.) Midstate’s undisputed facts are insufficient to determine, as a matter of law, whether Congrove Corporation can be a “claimaint” under Part 6 (Sections 8000-9566) of Division 4 of the Civil Code, as it is not clear that Congrove Corporation did not provide labor to the job site.
Additionally, Midstate has not met its burden to establish that Congrove Corporation willfully gave a false stop payment notice.
Congrove Corporation is to submit an order consistent with this ruling.
B. Midstate’s Motion for Summary Judgment on the First, Second, Third, Fourth, and Sixth Causes of Action in Congrove Construction’s Complaint
Midstate moves for summary judgment or, in the alternative, summary adjudication of the first, second, third, fourth and sixth causes of action, alleging that Congrove Construction failed to maintain its license in good standing throughout the time it performed work on the subject project.
Congrove Construction opposes the motion.
Midstate’s objections are overruled.
Defendant Midstate as the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850) Midstate has failed to meet its burden.
Midstate has provided evidence that Congrove Construction’s license was automatically suspended by operation of law as of August 1, 2010. (Bus. & Prof. Code §7125.2; Evid. Ex. E, pg. 18) Congrove Construction provided evidence establishing that it contracted with Congrove Corporation to provide workers’ compensation insurance “as of July 10, 2010.” (Harper Dec. Ex. A) Subsequent to filing this motion, Midstate received additional discovery including Congrove Corporation’s workers’ compensation policy. Considering only the arguments raised in the motion—not those first raised in reply—a triable issue of material fact exists regarding whether Congrove Construction had workers’ compensation insurance, through Congrove Corporation, at all times it performed work on the subject project.
Second, the evidence provided in the moving papers does not establish as a matter of law that there is no triable issue of material fact regarding whether Donald Congrove provided any one or any combination of the following activities: “supervising construction, managing construction activities by making technical and administrative decisions, checking jobs for proper workmanship, or direct supervision on construction job sites.” (See 16 CCR §823(b)) The qualifying individual need not be present during the supervision of the work. (Bus. & Prof. Code §7026.1(a)(3)).
Last, it is not clear from the authority cited by Midstate that if Congrove Construction was an “employer” of workers at the site it could not contract through another entity to provide workers’ compensation insurance. Labor Code section 3302 indicates that it is the employment agency which provides the workers that is solely responsible for workers’ compensation insurance. (See Labor Code §3302(b)) Midstate has not met its burden to establish that the employees were not employees of Congrove Corporation.
Congrove Construction is to submit an order consistent with this ruling.
4. 252775 – Garcia v. Husary
5. 253245 – County of Sonoma v. Cobblestone Homes