John Ziegler v. Dennis Allen Associates

Case Number

23CV00325

Case Type

Hearing Date / Time

Wed, 07/24/2024 - 10:00

Nature of Proceedings

1) Mtn To Compel Dennis Allen Assoc’s Further Resp's To Form Roggs-Construction Litigation, Req's For POD & Spec Roggs Set One; 2) Mtn To Compel John Ziegler's Further Resp's to Form Roggs-Construction Lititgation, RFA, Req's for POD & Spec Roggs Set One

Tentative Ruling

For Plaintiff John Ziegler: John J. Thyne III, Adam T. Carralejo, Thyne Taylor Fox Howard LLP                    

For Defendant and Cross-Complainant Dennis Allen Associates: Domingo R. Tan, S. Joanna Dyriam, Wood, Smith, Henning & Berman LLP                            

For Cross-Defendant John Kenney Construction, Inc.: David M. Levy, Natalie V. Glavinovich, Janine M. Fiel-Cosse, Van De Poel, Levy, Thomas LLP                           

Additional parties: See List

Emails: acarralejo@ttfhlaw.com; abarron@nixonpeabody.com; dtan@wshblaw.com; dbraasch@macdonaldcody.com; jmcelroy@jacobsenmcelroy.com; dcrespo@bremerwhyte.com; margaret.eum@amtrustgroup.com; jim@orlandlawgroup.com; eriffle@ccllp.law; mgallagher@eghblaw.com; ccannon@thomaslucaslegal.com;

RULING

For all reasons discussed herein, the Court will continue the hearing on the motions of cross-Defendant John Kenney Construction, Inc., to August 14, 2024.  On or before July 31, 2024, cross-Defendant shall pay the filing and other fees required for the motion to compel Dennis Allen Associate’s further responses to Form Interrogatories-Construction Litigation, Requests For Production Of Documents, And Special Interrogatories Set One, and the filing and other fees required for the motion to compel John Ziegler’s further responses to Form Interrogatories-Construction Litigation, Requests For Admission, Requests For Production Of Documents, And Special Interrogatories Set One. In addition, on or before August 2, 2024, cross-Defendant shall file and serve a notice of payment of fees identifying the motion(s) for which filing fees have been paid and for which adjudication is sought. 

Background

On January 26, 2023, Plaintiff John Ziegler (Ziegler) filed a complaint against Defendant Dennis Allen Associates (Allen Associates), alleging three causes of action: (1) negligence – construction defect; (2) breach of contract – construction agreement; and (3) violation of Business and Professions Code section 7159. As alleged in the complaint:

Ziegler owns a residence located at 1050 Cold Springs Road in Montecito, California. (Compl., ¶¶ 1 & 6.) On March 8, 2021, Ziegler and Allen Associates entered into a “Construction Agreement – Cost Plus a Fee” (the contract) pursuant to which Allen Associates was to construct and complete a residential remodel for a price stated in the contract. (Id. at ¶¶ 7-9.) Allen Associates was to commence the work under the contract on April 26, 2021, and complete the work on March 28, 2022. (Id. at ¶¶ 10-11.)

The work of Allen Associates suffered delays and was defective. (Compl., ¶¶ 12-13.) On July 5, 2022, Ziegler demanded that Allen Associates remedy all problems within 7 business days. (Id. at ¶ 14.) Despite this opportunity to cure, Allen Associates failed to remedy the problems and defects. (Ibid.)

On August 16, 2022, Allen Associates demanded an additional $293,480.32 prior to delivering an “End of Job Cost Report” (the cost report) on August 30, 2022. (Compl., ¶ 15.) Upon a preliminary review of the cost report, Ziegler determined that there were excess costs and overcharges totaling $405,336. (Id. at ¶ 16.) Allen Associates refused to accept the findings of Ziegler’s preliminary review of the cost report. (Id. at ¶ 17.)

In addition, a preliminary defect list identified defects which Allen Associates admitted and agreed to in part. (Compl., ¶ 19.) Ziegler permitted Allen Associates to perform repairs to address issues identified in the preliminary defect list which were unsuccessful. (Id. at ¶¶ 19-23.) Additional defects emerged during the repair attempts made by Allen Associates. (Id. at ¶ 23.)

On March 17, 2023, Allen Associates filed its answer to the complaint of Ziegler generally denying its allegations and asserting sixty affirmative defenses.

Also on March 1, 2023, Allen Associates filed a cross-complaint against: Action Roofing; Big Phase Inc. dba A. Wood Electric; Embers West, Inc.; Fordyce Custom Carpentry, Inc.; Insulate SB, Inc.; J N L Glass, Inc.; John Kenney Construction, Inc.; Korbacher Glass, Inc.; Montie Wayne Sheet Metal And Heating, Inc.; Pyramid Tile Company; Specialty Team Plastering, Inc.; Ventura County Plumbing Inc.; and, Wick Boiler Service, Inc. The cross-complaint of Allen Associates alleges nine causes of action against all named cross-Defendants described above: (1) implied contractual indemnity; (2) total indemnity; (3) equitable indemnity; (4) express contractual indemnity; (5) breach of express warranty; (6) breach of implied warranty; (7) breach of written contract; (8) declaratory relief (duty to defend); and (9) declaratory relief (duty to indemnify).

Court records reflect that cross-Defendants named in the cross-complaint of Allen Associates have each filed answers generally denying its allegations and asserting affirmative defenses. Cross-Defendants Fordyce Custom Carpentry, Inc., and Insulate SB, Inc., have also each filed cross-complaints against, respectively, “MOE” and “POE” Defendants.

Court records further reflect that on June 5, 2024, Allen Associates filed a request for dismissal of its cross-complaint, without prejudice, as to cross-Defendant Insulate SB, Inc., only.

On June 18, 2024, cross-Defendant John Kenney Construction, Inc. (Kenney), filed a motion for an order compelling further responses from Allen Associates (the Allen Motion) to Kenney’s Form Interrogatories-Construction Litigation (the Allen FI), Requests for Production of Documents (the Allen RFP), and Set One Special Interrogatories (the Allen SI). The motion is opposed by Allen Associates.

Also on June 18, 2024, Kenney filed a motion for an order compelling further responses from Ziegler (the Ziegler Motion) to Kenney’s Form Interrogatories (the Ziegler FI), Requests for Admission (the Ziegler RFA), Requests for Production of Documents (the Ziegler RFP), and Set One Special Interrogatories (the Ziegler SI). The motion is opposed by Ziegler.

Analysis

“Every direction of a Court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (Code Civ. Proc., § 1003.) Code of Civil Procedure section 2016.010 et seq. (the Civil Discovery Act) authorizes the Allen Motion and the Ziegler Motion in which Kenney seeks orders compelling, respectively, Allen Associates and Ziegler to provide further responses to specific discovery requests described above. (Code Civ. Proc., §§ 2030.290, subd. (b); 2030.300, subd. (a); 2031.300, subd. (b); 2031.300, subd. (a); 2033.290.)

The Allen Motion and the Ziegler Motion are each keyed or correlated to the responses of Allen Associates and Ziegler to a particular set or method of discovery, specifically and as described in each notice of motion, the Allen FI, the Allen RFP, the Allen SI, the Ziegler FI, the Ziegler RFA, the Ziegler RFP, and the Ziegler SI. (See Code Civ. Proc., §§ 2030.210, 2030.220, 2030.230, 2030.240, 2030.250 [setting forth form and content requirements applicable to responses and objections to interrogatories]; 2030.300 [setting forth requirements applicable to a motion for an order compelling a further response to interrogatories]; 2031.210, 2031.220, 2031.230, 2031.240, 2031.250 [setting forth form and content requirements applicable to responses and objections to inspection demands]; 2031.310 [setting forth requirements applicable to a motion for an order compelling a further response to inspection demands]; 2033.210, 2033.220, 2033.230, 2033.240 [setting forth form and content requirements applicable to responses and objections to requests for admissions]; 2033.290 [setting forth requirements applicable to a motion for an order compelling a further response to requests for admissions].)

The fee to file a motion applies to “[d]iscovery motions under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.” (Gov. Code, § 70617, subd. (a)(4).) “Regardless of whether each motion or matter is heard at a single hearing or at separate hearings, the filing fees required by subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed.” (Gov. Code, § 70617, subd. (f).) In addition, “[o]fficers of the state, or of a county or judicial district, shall not perform any official services unless upon the payment of the fees prescribed by law for the performance of the services, except as provided in this chapter.” (Gov. Code, § 6100.) “An unbroken line of decisions by our Supreme Court holds that it is mandatory for Court clerks to demand and receive the fee required by statute before documents or pleadings are filed.” (Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 459.)

The Allen Motion combines three motions in a single motion, each requesting an order compelling Allen Associates to provide further responses to distinct and different discovery methods as further discussed above. Similarly, the Ziegler Motion combines four motions for orders compelling Ziegler to provide further responses to four different discovery methods also as further discussed above. Though in general a party is not prohibited from combining documents supporting certain types of motions, such as Kenney has done here, there exists a procedural problem regarding the payment of filing fees. 

Because each motion of Kenney to compel further responses from Allen Associates and Ziegler to a specific set of discovery is a separately authorized motion, a separate filing fee is required for each motion whether or not the motions are presented in a single notice with combined supporting papers or presented with separate notices and separate supporting papers. Here, the Court’s records reflect that Kenney paid one filing fee for the Allen Motion notwithstanding that the Allen Motion includes three motions as further discussed above, and one filing fee for the Ziegler Motion also notwithstanding that the Ziegler Motion includes four motions as further discussed above. While the Court could address only one request for an order with respect to each motion (for example, the requests for orders compelling further responses to, respectively, the Allen FI and the Ziegler FI, which are the first requests described in each respective notice filed by Kenney), the Court declines to do so in the interests of judicial efficiency.

Kenney must pay additional filing fees for the Allen Motion if Kenney wishes the Court to address the request for an order compelling Allen Associates to provide further responses to the Allen RFP and Allen SI. Kenney must also pay additional filing fees for the Ziegler Motion if Kenney wishes the Court to address the request for an order compelling Ziegler to provide further responses to the Ziegler RFA, the Ziegler RFP, and the Ziegler SI. Therefore, the Court will continue the hearing on the Allen Motion and the Ziegler Motion to permit Kenney to pay any required additional filing or other fees. In addition, the Court will order Kenney to file and serve a notice of payment of fees identifying each motion(s) for which filing fees have been paid and for which adjudication is sought.