Janco Industries, Inc VS Williams

Proc., § 437c, subd. (p)(2).)

The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850; Evid. Code, § 500.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the nonmoving party. (Aguilar, supra, 25 Cal.4th at p. 850.) “A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (LaChapelle v.

Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.) RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by HERBST CONSTRUCTION INC., a California Corp. (Defendant) + CRS# 886290093158 in Department 25 “The papers are to be construed strictly against the moving party and liberally in favor of the opposing party; any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party.” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.)

BACKGROUND At issue in this Motion are two causes of action in Plaintiff Ellen Williams (“Plaintiff”)’s May 22, 2025 Third Amended Complaint (“TAC”) against Defendants, for Intentional Misrepresentation (Eighteenth) and Conversion (Twentieth). In this consolidated construction defect case, Plaintiff sues numerous other defendants, some of whom have also filed dispositive motions, who participated in the design and/or building of Plaintiff’s residence. DISCUSSION Plaintiff seeks punitive damages against both Defendants for two tort causes of action arising out of alleged misrepresentations regarding, inter alia, the project budget; completion time frame; and assignment of subcontracts and bids to other parties.

Intentional Misrepresentation The elements of intentional misrepresentation include the same requirements as for fraud. (Aton Ctr., Inc. v. United Healthcare Ins. Co. (2023) 93 Cal. App. 5th 1214, 1245.) The elements include (1) a representation; (2) knowledge of falsity; (3) intent to defraud or induce reliance; (4) reliance was justifiable; (5) and it resulted in damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Defendants argue generally that Plaintiff cannot establish proof of fraud by clear and convincing evidence and thus is not entitled to punitive damages.

As the moving party, it is Defendants’ burden to show that “one or more claims for [punitive] damages” cannot survive by establishing that “there is no merit to [the claim], as specified in Section 3294 of the Civil Code ....” (Code Civ. Proc, § 437c, subd. (f)(1).) A defendant establishes a claim has no merit by showing that an element of the claim cannot be established. (Code Civ. Proc, § 437c, subd. (p)(2).) To do so, a defendant must show that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar, supra, 25 Cal.4th at p. 854.)

To meet its burden, a defendant must present evidence; he may not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Id. at pp. 854-55.) However, the key issue with the Motion is that Defendants fail to address each of the factual theories for punitive damages that are actually pled in the TAC. (TAC ¶ 211.) Specific examples of the alleged representations include that Defendants would be able to complete the project for $21 million; provide a budget breakdown within 60 days of starting the project; and that Herbst Construction Inc. (“HCI”) would handle assignment and execution of subcontracts a certain way. (Ibid.)

The pleadings play a key role in a summary judgment motion and serve the purpose of delimiting the scope of summary judgment and framing the outer measure of materiality in a summary judgment proceeding. (White v. Smule (2022) 75 Cal.App.5th 346, 354.) Instead, Defendants rely on arguing a “factually devoid discovery responses” approach as to fraudulent intent under Civil Code section 3294(b), and justifiable reliance. A defendant moving for summary judgment may meet its initial burden with circumstantial evidence, including a plaintiff’s own discovery responses when those responses are “factually devoid.” (Andrews v.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by HERBST CONSTRUCTION INC., a California Corp. (Defendant) + CRS# 886290093158 in Department 25 Foster Wheeler LLC (2006) 138Cal.App.4th 96, 101.) That is, Plaintiff cannot prove that she is entitled to punitive damages. However, while “the ‘clear and convincing’ evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment.” (Spinks v.

Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1053.) For fraudulent intent, Defendants assert this point solely as to the “budget estimate amount” theory. While this may be enough to shift the burden to Plaintiff as to this theory, Plaintiff then offers numerous examples of alleged conduct from which a jury could reasonably infer fraudulent intent: for instance, excessive billing rates (AMFs 13-14), delay in providing a complete budget (AMFs 10, 20), providing a cost estimate at twice the original estimate (AMFs 9-10) and so forth.

Defendants make no mention of Plaintiff’s other theories of intentional misrepresentation. As to “justifiable reliance,” which is an element of both intentional and negligent representation claims, Defendants do not address any of Plaintiff’s pleaded theories, but rely upon an admission regarding the difference in cost between stucco and stone. (UMF 6.) But as Plaintiff points out, any representations concerning the cost of stone versus stucco were not among the alleged misrepresentations at issue.

As summary adjudication is only proper when it “completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty,” Defendants have not ultimately shown that Plaintiff cannot offer evidence as to the elements for this cause of action. (Code Civ. Proc., §437c, subd. (f)(1).) Conversion The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages. (Plummer v.

Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.) Although Defendants argue that Plaintiff’s evidence consists of “disputed project accounting and subcontractor payment issues,” the Court is not persuaded. (Reply, p. 9:1-4.) “[S]ummary judgment ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.’” (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 762.) In so doing, the court must draw reasonable (nonspeculative) inferences from the evidence in favor of the nonmoving party. (Id. at p. 766.)

Defendants have not presented evidence that would rule out reasonable inferences, which a trier of fact could draw from Plaintiff’s allegations, that Defendants willfully misappropriated Plaintiff’s payment for work intended for Defendants’ subcontractors. (TAC ¶ 227.) Plaintiff made payments to Defendants per invoices received but learned thereafter that Defendants’ subcontractors were not being paid accordingly, and the substantial increase in the costs incurred. (AMFs 14-16, 18.) Defendants identify no justification for nonpayment, and Plaintiff presents evidence that instead of paying subcontractors as required, they attempted to smear Plaintiff as a “deadbeat” customer. (AMF 19.)

Johnson & Johnson illustrates that mens reas may be (and is often) gleaned from indirect evidence of intent, and that triable issues may be based upon such evidence. (Johnson & Johnson, supra, 192 Cal.App.4th at p. 766; Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30; Oppo., p. 16:6-14.)

Conclusion

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by HERBST CONSTRUCTION INC., a California Corp. (Defendant) + CRS# 886290093158 in Department 25 Moreover, as to both claims, while Defendants argue that the allegations of the TAC do not rise to the level of malice or oppression, and that Plaintiff offers no specific evidence in support of her claims, the Court cannot conclusively find as a matter of law that a reasonable jury could not find that the evidence is clear and convincing proof of fraud. (Johnson & Johnson, supra,192 Cal.App.4th 757 at pp. 761-762.)

In other words, the Court finds that there are triable issues of fact as to Plaintiff's claim for punitive damages under intentional misrepresentation and conversion. Defendants’ Motion is DENIED. OBJECTIONS The Court did not rely on the items identified in connection with Defendants’ objections and therefore does not reach any objections thereto. (Code Civ. Proc., §437c, subd. (q).)

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by HERBST CONSTRUCTION INC., a California Corp. (Defendant) + CRS# 886290093158 in Department 25 Zoomgov.com using credentials below.

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