Karen M. Lantz v. Clarion Call Express, Inc., et al

Case Number

24CV02784

Case Type

Hearing Date / Time

Wed, 04/09/2025 - 10:00

Nature of Proceedings

Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

Tentative Ruling

For Plaintiff Karen M. Lantz, individually and as Trustee of the Kandyland Trust: James B. Devine, Law Offices of James B. Devine, APC

For Defendants Clarion Call Express, Inc., doing business as Fit Plumbing and Ramirez Plumbing, David A. Ramirez, and Business Alliance Insurance Company: Robert C. Chandler, Floyd F. Fishell, Christopher L. Nelson, Holly M. Chandler, Chandler Law Firm

                       

RULING

For all reasons discussed herein, the motion of plaintiff for summary judgment or, in the alternative, summary adjudication is denied.

Background

On May 20, 2024, plaintiff Karen M. Lantz (Lantz), individually and as Trustee of the Kandyland Trust (the Trust), filed a complaint against defendants Clarion Call Express, Inc. (Clarion), doing business as Fit Plumbing and Ramirez Plumbing, David A. Ramirez (D. Ramirez), and Business Alliance Insurance Company (Business Alliance) (collectively, defendants). Briefly, as alleged in the complaint:

Clarion and D. Ramirez performed plumbing-related work at real property owned by the Trust and commonly known as 916 Roble Lane in Santa Barbara, California (the Property), for which Lantz rendered payment. (Compl., ¶¶ 2, 14-17, 19-22, 26.) Lantz believed that Clarion was licensed by the Contractors State License Board or “CLSB” to perform work as a plumbing contractor. (Id. at ¶ 2, 14, 35.) Though Clarion claimed to the CLSB that it was exempt from having workers’ compensation insurance, Clarion was not exempt during the time it performed work at the Property. (Id. at ¶¶ 28, 36, 40, & 47.) Because Clarion did not have, and was not exempt from maintaining, workers’ compensation insurance, Clarion’s license was deemed automatically suspended by law resulting in Clarion being unlicensed to perform the subject work at the Property. (Id. at ¶¶ 18, 24, 40, 43, & 47.) Because Clarion was not properly licensed during the performance of its work at the Property, Clarion cannot seek compensation for that work. (Id. at ¶ 67.)

Lantz further alleges that D. Ramirez and Clarion performed a small portion of the scope of work at the Property in an untimely and incomplete manner, and that Lantz terminated D. Ramirez and Clarion from performing any additional work at the Property. (Compl., ¶¶ 26 & 28.) Clarion issued a final invoice to Lantz on March 11, 2024. (Id. at ¶ 29 & Exh. B.)

In the complaint, Lantz alleges six causes of action: (1) breach of oral contract (against Clarion and D. Ramirez); (2) disgorgement of money paid to unlicensed contractor (against Clarion); (3) negligence (against Clarion and D. Ramirez); (4) violation of Business and Professions Code section 17200 et seq. (against Clarion and D. Ramirez); (5) recovery on license bond (against all defendants); and (6) declaratory relief (against Clarion).

Business Alliance, D. Ramirez, and Clarion each answered the complaint on June 20, 2024, generally denying its allegations and asserting affirmative defenses.

Also on June 20, 2024, Clarion filed a cross-complaint against Lantz, in her individual capacity and as Trustee of the Trust, alleging four causes of action: (1) breach of contract; (2) common counts – reasonable value of goods and services rendered; (3) common counts – open book account; and (4) foreclosure of mechanics lien. As alleged in the cross-complaint of Clarion:

Clarion provided Lantz with an estimate to perform plumbing services at the Property. (Cross-Compl., ¶¶ 4, 6, & Exh. A.) Though Clarion began the scope of work as agreed upon by the parties, Lantz stopped that work after Clarion had substantially performed, and would not pay any further. (Id. at ¶¶ 7-8.) Clarion demanded payment from Lantz for materials, labor, and lost profits as reflected in Clarion’s “Final Bill”. (Id. at ¶¶ 9-10 & Exh. B.) In addition, to ensure recovery, Clarion filed a mechanics lien on the Property which was served on May 16, 2024. (Id. at ¶¶ 11-12 & Exh. C.)

On July 15, 2024, Clarion separately filed requests for dismissals of, respectively, the fourth cause of action for foreclosure of mechanics lien alleged in the cross-complaint, and as to cross-complaint prayer for relief, paragraph 4, in which Clarion asserts a claim for recovery of attorney’s fees.

On July 19, 2024, Lantz filed an answer to the cross-complaint of Clarion, generally denying its allegations and asserting twenty-two affirmative defenses, including that Clarion was not properly licensed as a contractor at all times it performed work for which a license was required. (Answer at p. 6 [Affirmative Defense No. 20].)

On January 13, 2025, Lantz filed a motion for summary judgment as to the cross-complaint of Clarion which is effectively made on the grounds that Clarion cannot establish that it was licensed to perform work at the Property for which Clarion seeks to recover compensation from Lantz in the cross-complaint. Alternatively, Lantz seeks summary adjudication of each remaining cause of action alleged in the cross-complaint, and as to Lantz’s twentieth affirmative defense, effectively on the grounds that Clarion was unlicensed as a matter of law at the time it performed the work for which Clarion seeks to recover compensation in the cross-complaint.

Clarion and D. Ramirez oppose the motion.

It is presently undisputed that Lantz and her husband acquired title to the Property on August 25, 2022, as co-Trustees of the Trust. (Opposing Separate Statement [“Opp. Sep. Stmt.”], UMF Nos. 1-2 & evidence cited therein.) Prior to September 23, 2023, Lantz met with D. Ramirez, purporting to act on behalf of Clarion, to discuss Clarion providing Lantz with an estimate to perform plumbing-related work on the Property. (Opp. Sep. Stmt., UMF No. 3 & evidence cited therein.) Clarion has a class C-36 plumbing license issued by the CSLB. (Opp. Sep. Stmt., UMF No. 48 & evidence cited therein.)

On September 23, 2024, D. Ramirez presented Lantz with a one-page, lump sum estimate to perform plumbing-related work on the Property in the amount of $24,720 (the Original Estimate), which did not include a portion of the scope of work requested by Lantz. (Opp. Sep. Stmt., UMF No. 4 & evidence cited therein.) Because the Original Estimate did not include the entire scope of work requested by Lantz, Lantz asked D. Ramirez to present a revised estimate that included all work. (Opp. Sep. Stmt., UMF No. 5 & evidence cited therein.)

On October 2, 2023, D. Ramirez provided Lantz with an amended estimate (the Amended Estimate) that increased the scope of work to include replacing the sewer line at the Property along with the associated permit, for a lump sum of $37,800. (Opp. Sep. Stmt., UMF No. 6 & evidence cited therein [not reasonably disputed on this point].) The Amended Estimate contained Clarion’s license number 1103419. (Opp. Sep. Stmt., UMF No. 7 & evidence cited therein.) On October 2, 2023, Lantz told D. Ramirez that she accepted the Amended Estimate. (Opp. Sep. Stmt., UMF No. 8 & evidence cited therein [not disputed on this point].)

Clarion began performing work on the Property during the first week of October 2023. (Opp. Sep. Stmt., UMF No. 9 & evidence cited therein.) On October 5, 2023, Lantz caused Lantz Full Circle, Inc. (LFC) to, on Lantz’s behalf, pay to Clarion as “Ramirez Plumbing” the sum of $3,500. (Opp. Sep. Stmt., UMF No. 10 & evidence cited therein [not reasonably disputed on this point].) Lantz is the sole shareholder, officer, and director of LFC. (Opp. Sep. Stmt., UMF No. 11 & evidence cited therein [not disputed on this point].)

After paying the amount of $3,500 to Clarion, Lantz discovered that Clarion was not licensed or authorized to replace the sewer line at the Property. (Opp. Sep. Stmt., UMF No. 12 & evidence cited therein [not reasonably disputed on this point].) As a result, Clarion and Lantz agreed to remove the sewer line replacement from Clarion’s scope of work and to cancel the permit that had been obtained from the City of Santa Barbara (the City). (Opp. Sep. Stmt., UMF No. 13 & evidence cited therein [not disputed on this point].)

 

On November 14, 2023, Lantz caused LFC to pay $6,720 to Clarion. (Opp. Sep. Stmt., UMF No. 14 & evidence cited therein.)

As a result of the reduction of Clarion’s scope of work, on November 24, 2023, D. Ramirez presented Lantz with a revised estimate in the lump sum amount of $32,250 (the Second Amended Estimate). (Opp. Sep. Stmt., UMF No. 15 & evidence cited therein.) On February 9, 2024, Lantz caused LFC to pay $5,000 to Clarion in the name of “Fit Plumbing” as directed by D. Ramirez. (Opp. Sep. Stmt., UMF No. 16 & evidence cited therein.)

On February 20, 2024, following a rough sewer inspection by the City, a pipe installed by Clarion burst. (Opp. Sep. Stmt., UMF No. 17 & evidence cited therein [not reasonably disputed on this point].)

The work described in the estimates of Clarion fall within the scope of work which a plumbing contractor is permitted to perform. (Opp. Sep. Stmt., UMF No. 49 & evidence cited therein.) Between February 20 and March 10, 2024, Lantz became aware from information on the CSLB’s website that Clarion claimed that it was exempt from workers’ compensation insurance requirements because it has had no employees since March 6, 2023, or before the time Clarion performed any work on the Property, and that Clarion had no workers’ compensation insurance. (Opp. Sep. Stmt., UMF Nos. 18-19, 44, & evidence cited therein.) Lantz terminated Clarion from performing additional work on the Property. (Opp. Sep. Stmt., UMF No. 22 & evidence cited therein [not reasonably disputed on this point].)

On March 11, 2024, Clarion issued its final invoice (the Final Invoice) to Lantz in the sum of $26,675, which included $20,800 in “profits lost.” (Opp. Sep. Stmt., UMF No. 23 & evidence cited therein.) Subsequent to receiving the Final Invoice, Lantz was provided with copies of two Statements of Information (individually, the SOI) that Clarion had filed with the Secretary of State (the Secretary). (Opp. Sep. Stmt., UMF No. 24 & evidence cited therein.)

On March 7, 2023, before Clarion performed work on the Property, Clarion filed an SOI with the Secretary in which Clarion stated that it had four officers identified as D. Ramirez, Teresita Ramirez (Teresita), Javier Ramirez (Javier), and Angel Rafael Ramirez (Angel). (Opp. Sep. Stmt., UMF No. 25 & evidence cited therein [not disputed on this point].) (Note: To avoid confusion due to common surnames, the Court will refer to the officers identified in the motion by their first names. No disrespect is intended.) On March 12, 2024, the day after Clarion issued its Final Invoice, Clarion filed an SOI with the Secretary stating that it has the same four officers. (Opp. Sep. Stmt., UMF No. 26 & evidence cited therein [not disputed on this point].)

In Lantz’s request for production (RFP) no. 48, Lance asked Clarion to “produce copies of any and all written waivers of rights executed pursuant to California Labor Code § 3352(a)(16)(A)(i) by any of YOUR employees since April 8, 2022.” (Opp. Sep. Stmt., UMF No. 37 & evidence cited therein.) In its response to RFP no. 48, Clarion responded that it “does not have employees, as such no documents are known to exist or ever existed, in responding party’s possession or otherwise.” (Opp. Sep. Stmt., UMF No. 39 & evidence cited therein.)

The above summary is not intended to be exhaustive, and the Court considers all admissible evidence submitted in support of and in opposition to the motion.

Analysis

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The party moving for summary judgment “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Id. at p. 845.) “Initially, the moving party bears a burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. If he carries his burden of production, he causes a shift: the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a genuine issue of material fact.” (Ibid.)

The motion of Lantz is directed only to the causes of action alleged by Clarion in the cross-complaint, and not to the second cause of action for disgorgement of money paid to an unlicensed contractor alleged in Lantz’s complaint. For present purposes, Lantz may meet her initial burden by showing that an element of the cause of action alleged in the cross-complaint cannot be established or there exists a complete defense to that cause of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Aguilar, supra, 25 Cal.4th at p. 854.)

In the motion, Lantz contends that the officers of Clarion identified and described above are deemed to be employees of Clarion under Labor Code section 3351. Lantz asserts that Clarion has admitted in discovery that its officers did not execute a waiver of rights under Labor Code section 3352, which, according to Lantz, demonstrates that these officers are not exempt from workers’ compensation insurance requirements. Because Clarion had employees (i.e., its officers) but did not have workers’ compensation insurance during the time Clarion performed work at the Property, Lantz argues, Clarion’s license was automatically suspended by operation of law under Business and Professions Code section 7125.2. Lance further argues that, because Clarion’s license was suspended by operation of law, Clarion may not recover any compensation for its work at the Property under Business and Professions Code section 7031.

The pleadings determine the issues to be addressed in a summary judgment motion. (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) As further discussed above, in the first, second, and third causes of action alleged in the cross-complaint, which are the only causes of action presently at issue as to that pleading, Clarion seeks to recover from Lantz payment for services it rendered and materials it provided at the Property as described in the Final Invoice described above, a copy of which is also attached to Clarion’s cross-complaint as exhibit B. For all reasons further discussed herein, Lantz has failed to meet her burden to show that she is entitled to judgment as a matter of law with respect to the causes of action alleged in the cross-complaint of Clarion, or as to Lantz’s twentieth affirmative defense to the cross-complaint. Therefore, the court will deny the motion.

Subject to exceptions which do not appear to apply here, “no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that they were a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person….” (Bus. & Prof. Code, § 7031, subd. (a).) (Note: Undesignated code references shall be to the Business and Professions Code unless otherwise stated.) “The obvious statutory intent [of section 7031] is to discourage persons who have failed to comply with the licensing law from offering or providing their unlicensed services for pay.” (Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 995.)

Section 7000 et seq. (the Contractors State License Law or CSLL) sets forth licensing requirements for “contractors” as that term is defined in the CSLL, and exemptions under which its provisions do not apply. (See, e.g., Bus. & Prof. Code, §§ 7025 et seq., 7040 et seq., 7055, & 7065 et seq.) Lantz contends or effectively contends that Clarion is required to but cannot prove that it was duly licensed when it performed the work for which Clarion seeks compensation in the cross-complaint. Apart from conclusory assertions that Clarion has a plumbing license and was performing “plumbing-related” work, absent from the separate statement submitted in support of the motion is evidence or argument showing that, with respect to the materials or services described in the Final Invoice for which Clarion seeks to recover compensation, Clarion was performing work or a contract where a license is required under the CSLL.

“On summary judgment, the facts are those shown by the evidentiary materials submitted by the parties. [Citation.] Additionally, any evidence on which the parties wish to rely in support of … the summary judgment motion must appear in their separate statements of undisputed and/or disputed facts. [Citation.] If it does not appear there, ‘ “it does not exist.” ’ [Citation.]” (O’Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 800, fn. 1, original italics.) The Final Invoice included as exhibit 8 to the Lantz declaration submitted in support of the motion includes separate charges of $10,320 for “86 hours” of “work completed” by Clarion, of $480 for “4 hours to repair water line outside @ $120 per hour”, and for “[m]aterial for copper line” of $75. (Lantz Decl., Exh. 8; see also Cross-Compl., Exh. B [Final Invoice].) Wholly absent from the separate statement submitted in support of the motion, and the motion, is any information or evidence showing the nature of the “work completed” by Clarion, or an explanation of why the work described in the Final Invoice requires a license under the CSLL. Lantz’s failure to include in the separate statement all evidence on which Lantz relies to show that Clarion was acting in the capacity of a contractor performing an act or contract requiring a license under the CSLL is sufficient grounds upon which the court may deny the motion. (Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 94 [general discussion].)

Notwithstanding the deficiencies noted above, in the cross-complaint, Clarion alleges that it is licensed by the CSLB. (Cross-Compl., ¶¶ 5, 16, & 37.) Giving these allegations a reasonable interpretation, and absent any dispute from Clarion, the court will, for present purposes only, assume without deciding that, with respect to the work or services described in the Final Invoice for which Clarion seeks to collect compensation from Lantz as alleged in the cross-complaint, Clarion was engaged in the business or acting in the capacity of a contractor performing an act or contract where a license is required under the CSLL.

Relevant here, section 7125 of the CSLL requires, as a condition precedent to the continued maintenance of a contractor’s license, that the licensee “have on file at all times a current and valid Certificate of Workers’ Compensation Insurance or Certification of Self-Insurance in the … licensee’s business name.” (Bus. & Prof. Code, § 7125, subd. (a).) “The failure of a licensee to obtain or maintain workers’ compensation insurance coverage, if required under this chapter, shall result in the automatic suspension of the license by operation of law…..” (Bus. & Prof. Code, § 7125.2.) A license suspension imposed under section 7125.2 is effective on either the date the workers’ compensation insurance coverage lapses, or the date the coverage is required to be obtained, whichever is earlier. (Bus. & Prof. Code, § 7125.2, subd. (a)(1)-(2).)

“Subdivision (b) of section 7125 carves out an exception to these requirements for contractors who do not employ workers.” (Smith v. Workers’ Compensation Appeals Bd. (2002) 96 Cal.App.4th 117, 124.) Relevant here, the requirements of subdivision (a) of section 7125 does not apply to a licensee who has no employees provided that the “licensee files a statement with the board on a form prescribed by the registrar before the issuance, reinstatement, reactivation, or continued maintenance of a license, certifying that the applicant or licensee does not employ any person in any manner so as to become subject to the workers’ compensation laws of California or is not otherwise required to provide for workers’ compensation insurance coverage under California law.” (Bus. & Prof. Code, § 7125, subd. (b)(1).)

Included as exhibit 7 to the Lantz declaration submitted in support of the motion is a “Contractor’s License Detail for License # 1103419” (the license detail) which Lantz ostensibly obtained from the website of the CSLB, and which shows that, as of March 6, 2023, Clarion was “exempt from having workers compensation insurance” because Clarion “certified that they have no employees at this time.” (Lantz Decl., ¶ 19 & Exh. 7.) Information appearing in the license detail gives rise to an inference that Clarion filed with the CSLB the statement required under subdivision (b)(1) of section 7125, in which Clarion certified that it has no employees. Absent an objection by Clarion, an inference may be drawn from this evidence and information that, at the time Clarion performed the work described in the Final Invoice for which Clarion seeks to recover compensation in the cross-complaint, Clarion was not required to maintain workers’ compensation insurance based on the exemption provided in subdivision (b)(1) of section 7125.

For reasons more fully discussed above, the focus of the Lantz’s motion is whether or not D. Ramirez, Teresita, Javier, or Angel, who Lantz contends are or were the officers of Clarion as further detailed above, are employees of Clarion. To support the points advanced in the motion, Lantz relies on the provisions of Labor Code section 3351 which, for purposes of the workers’ compensation and insurance requirements set forth in Labor Code section 3200 et seq., define an “employee” to mean “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed” and to include “[a]ll officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay.” (Lab. Code, § 3351, subd. (c).)

Though Lantz contends that the officers of Clarion identified in the motion and above are deemed to be employees of Clarion, wholly absent from the separate statement and motion of Lantz is any evidence or information showing that D. Ramirez, Teresita, Javier, or Angel were acting in the service of Clarion under an appointment or contract of hire, or rendered actual service for Clarion for pay, during the time Clarion performed any of the work described in the Final Invoice. Therefore, Lantz has failed to support her argument with evidence or information showing why the officers of Clarion are employees under Labor Code section 3351, subdivision (c).

For the same reasons discussed above, and notwithstanding evidence and information which tends to show that Clarion certified to the CLSB that it had no employees, Lantz has failed to show why Clarion had employees as of March 6, 2023, as that term is defined in subdivision (c) of Labor Code section 3351, or why Clarion was not exempt under subdivision (b)(1) of section 7125. Lantz has also failed to show why Clarion was required under the circumstances present here to maintain workers’ compensation insurance as required under subdivision (a) of section 7125. For all reasons discussed above, Lantz has failed to meet her burden to show that Clarion cannot prove that it was duly licensed to perform the work or services described in the Final Invoice, or why the license of Clarion was suspended by operation of law under to section 7125.2 at the time Clarion performed that work.

Lantz advances the same arguments in support of her motion for summary adjudication of each cause of action alleged in the cross-complaint, and of the twentieth affirmative defense of Lantz to those causes of action. The same reasoning and analysis apply. For all reasons discussed above, Lantz has failed to meet her burden to produce evidence showing that any of the causes of action alleged in the cross-complaint cannot be established, or that there exists a complete defense to those causes of action. Therefore, the Court will deny the motion.

Lantz submits evidentiary objections to material appearing in the declarations of Angel and D. Ramirez. The court rules “only on those objections to evidence that it deems material to its disposition of the motion.” (Code Civ. Proc., § 437c, subd. (q).) Because Lantz did not, for all reasons discussed above, carry her burden of production, Lantz failed to shift the burden to Clarion to show the existence of a genuine issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 845.) For this reason, the evidence presented by Clarion in opposition to the motion is not material to the court’s disposition of the motion. Therefore, the court need not rule on Lantz’s objections.

Lantz also requests that the court take judicial notice of the following: (1) that on April 18, 2024, Clarion recorded a claim of mechanics lien in the official records of Santa Barbara County, California, as document number 2024-0011512 in the amount of $21,355 (the April Mechanics Lien) against the Property; (2) that on May 13, 2024, Clarion recorded a Release of Mechanics Lien as to the April Mechanics Lien in the official records of Santa Barbara County, California, as document number 2024-0014136; and (3) that on May 16, 2024, Clarion recorded a claim of mechanics lien in the official records of Santa Barbara County, California, as document number 2024-0014610 in the amount of $21,355 (the May Mechanics Lien) against the Property. (RJN, ¶¶ 1-3 & Exhs. 11-13.)

The matters stated in paragraphs 1 through 3 of Lantz’s request and described above, and the April Mechanics Lien, the release of the April Mechanics Lien, and the May Mechanics Lien, are not relevant to the issues presented in the motion. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) For this reason, the court will deny judicial notice of these matters and records.

Lantz also requests that the court take judicial notice of the fact that Lantz commenced this action on May 20, 2024, by filing the complaint described above; that on June 20, 2024, Clarion filed its cross-complaint further described above; that on July 15, 2024, Clarion filed a request for partial dismissal as to its cause of action for foreclosure of mechanics lien; that on July 19, 2024, Lantz filed her answer to the cross-complaint of Clarion; that in the answer to the Clarion cross-complaint, Lantz has included an affirmative defense entitled “Lack of Licensure” which alleges that Lantz “is informed and believes, and based thereon alleges, that [Clarion] was not properly licensed as a contractor at all times that it performed work for which a contractor’s license is required on the work of improvement that is the subject of the Cross-Complaint and is therefore barred from any recovery against [Lantz] pursuant to Business & Professions Code § 7031.” (RJN, ¶¶ 4-8.)

Though not necessary, the court will grant Lantz’s request for judicial notice of the matters stated in paragraphs 4 through 8 of Lantz’s request and described immediately above. (Evid. Code, § 452, subd. (c) & (h).) Judicial notice does not extend to the truth of any hearsay statements or factual assertions appearing in the complaint, cross-complaint, request for dismissal, or affirmative defense described in these paragraphs and above. (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396.)