Bethany Constr., Consulting & Mgmt., Inc. v. Kapland
| Decision Date | 09 April 2019 |
| Docket Number | B286749 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BETHANY CONSTRUCTION, CONSULTING AND MANAGEMENT, INC., Plaintiff, Cross-defendant and Respondent, v. MICHAEL KAPLAND et al., Defendants, Cross-complainants and Appellants. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC124059)
APPEAL from an order of the Superior Court of Los Angeles County, Nancy L. Newman, Judge. Reversed with directions.
Anderson Yeh, Edward M. Anderson and Regina Yeh for Defendants, Cross-complainants and Appellants.
Myers, Widders, Gibson, Jones & Feingold, Michael S. Martin and Eric R. Reed for Plaintiff, Cross-defendant and Respondent.
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Michael Kapland and Kathryn Carter, defendants and cross-complainants, appeal from an order denying their motion for relief from a default judgment entered in favor of plaintiff and cross-defendant Bethany Construction, Consulting and Management, Inc. (Bethco). We reverse.
Kapland and Carter, who are married to one another, own a home at 17850 Vicino Way in Pacific Palisades. They hired a contractor to do work on the decks and deck drains on their property. That contractor performed the work incorrectly, necessitating repairs and mold remediation. Kapland and Carter's insurance adjuster recommended that they hire Bethco both to perform the repairs and to serve as an expert witness in the dispute with the original contractor.
On May 16, 2014, Kapland1 entered into a contract with Bethco. The contract specified the work to be done and anestimated cost of $295,973.77. The contract required a $1,000 deposit upon execution, monthly progress payments, and a final payment upon completion. The parties executed a series of change orders which increased the cost to $330,766.97.
By October 2014, Bethco had submitted invoices totaling $229,486.93, and Kapland and Carter had paid $178,382.37. Bethco submitted additional invoices for $45,854.56 in connection with work done on the property and $5,250 in connection with Bethco's expert witness services. Bethco made demands for payment, to which Kapland and Carter did not respond.
Kapland and Carter identified a number of unresolved issues with Bethco's work and invoices. They believed Bethco had performed defective work using inadequate materials, resulting in leaks and electrical problems. They had paid Bethco for work undertaken by a subcontractor, R.J. Laun, but R.J. Laun was suing Kapland and Carter for payment. Further, Kapland and Carter had paid Bethco for insurance coverage, and it appeared Bethco was charging them for its entire insurance premium, not merely for coverage related to the work being done on their property. Finally, Bethco failed to provide them with substantiation for a number of charges when requested to do so.
On December 10, 2014, Bethco sent Kapland and Carter a letter demanding progress payments within 30 days pursuant to Civil Code section 8800 in order to avoid liability for interest and/or court costs. On December 18, 2014, Bethco ceased work on the property.
Bethco filed this action on April 21, 2015, alleging causes of action for breach of contract, services provided-agreed price, services provided-reasonable price, book account, and foreclosure of a mechanic's lien.2
Kapland is an attorney, but he does not practice in the area of construction law. He initially filed an answer on behalf of himself and Carter, denying the allegations of the complaint and asserting a number of affirmative defenses.
On October 13, 2015, Kapland and Carter retained attorney Nicholas B. Spirtos, who was experienced in construction law. Spirtos substituted in as attorney for Kapland and Carter on October 19, 2015.
On January 22, 2016, Bethco's counsel served Kapland and Carter with special interrogatories, form interrogatories, requests for admissions, and requests for production of documents. Kapland and Carter failed to respond within the statutory time period. Also on January 22, Bethco's counsel noticed depositions of Kapland and Carter for March 2 and 3, 2016.
Spirtos called Bethco's counsel on February 29, 2016, requesting that the depositions be rescheduled for mutuallyconvenient dates. When counsel agreed, Spirtos said he would call the following week to schedule the depositions. Spirtos failed to do so, and he failed to return phone calls regarding scheduling the depositions.
On March 10, 2016, Bethco's counsel sent Spirtos a meet and confer letter regarding the depositions and re-noticed the depositions for March 24 and March 25. On March 16, Bethco's counsel wrote to Spirtos to meet and confer regarding Kapland's and Carter's failure to respond to the discovery requests. Spirtos did not respond to either letter. However, late in the afternoon on March 23, Spirtos called counsel and stated he was unexpectedly unavailable for the depositions scheduled for the following two days because he was having health issues. He agreed to contact counsel the next day with available dates but again failed to do so. Late that day, counsel re-noticed Kapland's and Carter's depositions for April 14 and 15, 2016 and notified Spirtos of that fact.
Spirtos filed a motion for leave to file a cross-complaint on March 28, 2016.
Bethco's counsel called Spirtos on April 13, 2016 to confirm the depositions scheduled for the following days. Spirtos called back late that afternoon to say that neither he nor his clients would appear for the depositions. Again, he blamed health issues. Kapland and Carter did not appear for their depositions. Bethco's counsel took Kapland's nonappearance on April 14 and canceled the court reporter scheduled for April 15.
Bethco's counsel filed a motion to compel discovery responses and a request for sanctions on April 18, 2016. At the April 20, 2016 hearing on the motion for leave to file a cross-complaint, the trial court granted the motion. Spirtos indicatedthat he would provide discovery responses by May 6, 2016. The trial court ruled that if the responses were received, it would take Bethco's motion to compel off calendar.
Spirtos filed the cross-complaint on April 20, 2016. It alleged causes of action for breach of contract, negligence, and violation of the Contractors License Law. Spirtos also provided the discovery responses, and Bethco took its motion to compel off calendar.
On August 30, 2016, Bethco filed a motion to compel Kapland and Carter to appear for depositions and a request for sanctions. Spirtos did not oppose the motion. Following a hearing on October 5, 2016, at which Spirtos did not appear, the trial court granted the motion. It ordered Kapland and Carter to appear for depositions on November 9 and 10, 2016, and it awarded Bethco sanctions in the amount of $2,252.
When Spirtos began representing Kapland and Carter, Carter telephoned him regularly to check on the status of the case. Eventually, Spirtos convinced Kapland and Carter to allow him to provide affirmative updates when needed rather than to call him regularly and incur unnecessary legal fees. The last time they heard from him was October 5, 2016. Spirtos did not tell them at that time about Bethco's attempts to take their depositions, the motion to compel, or the award of sanctions against them.
On October 24, 2016, Bethco's counsel served Carter with special interrogatories and requests for production of documents by sending them to Spirtos. Spirtos did not respond.
On the afternoon of November 8, 2016, the day before the scheduled depositions, Spirtos called Bethco's counsel to say that he and his clients were unavailable for the depositions becausehis father had suffered a seizure and was being hospitalized, and Spirtos needed to be with him. Spirtos said he would contact counsel the following week to reschedule the depositions. Counsel responded by letter with suspicion,
Bethco took Kapland's and Carter's non-appearances on November 9 and 10, 2016. Counsel sent Spirtos a meet and confer letter on November 15 but received no response.
On December 27, 2016, Bethco filed a motion for terminating and monetary sanctions based on Kapland's and Carter's failure to appear at their scheduled depositions on November 9 and 10, their failure to produce requesteddocuments, and their failure to pay the sanctions previously imposed by the trial court.
Spirtos filed no...
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