Shulman Roofing, Inc vs. Nguyen

“The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.” (Civ. Code, § 3342, subd. (a).)

As discussed above, Defendant carried her burden to establish that she is not the owner of the dog at issue. She is not the registered owner and does not live at the property where the dog lives. Plaintiff proffers no evidence that Defendant Rhonda Teel is the owner of the dog at issue or acts in any capacity as the owner of the dog.

Plaintiff argues that Defendant Rhonda Teel should be liable under section 3342 as a “keeper” of the dog. Plaintiff cites to Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625 for this contention. Plaintiff cites to the following discussion in Hillman:

“The keeper of an animal of a species dangerous by nature, or of any animal which he knows, or has reason to know, to have dangerous propensities, is liable, without wrongful intent or negligence, for damage to others resulting from such a propensity.” [Citations.] The liability of the keeper is absolute, for “[t]he gist of the action is not the manner of keeping the vicious animal, but the keeping him at all with knowledge of the vicious propensities. [Citation.] In such instances the owner is an insurer against the acts of the animal, to one who is injured without fault, and the question of the owner's negligence is not in the case. [Citations.]” (Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626.)

Plaintiff’s authority would require that Defendant Rhonda Teel have knowledge that the dog at issue had dangerous propensities. As discussed above, there is no evidence before the Court that Defendant Rhonda Teel had knowledge that the dog at issue had dangerous propensities.

The motion for summary adjudication is GRANTED as to the second cause of action for strict liability.

Accordingly, based on applicable law and as set forth herein, said Motion is GRANTED in its entirety.

Defendant Rhonda Teel to give notice.

2. 30-2023-01351588 1. Motion for Summary Judgment

Shulman Roofing, Inc Plaintiff and Cross Defendant Shulman Roofing, Inc. (“SRI”) and Cross-Defendant Joe Shulman vs. Nguyen (“Shulman”) move for summary adjudication pursuant to CCP§ 437c as to certain causes of action set forth in Defendant and Cross-Complainant’s (referred to herein as “Nguyen” or “RP”) Fourth Amended [Cross] Complaint.

This motion was originally on calendar for 7/16/2026. However, because RP Nguyen’s opposition was untimely, the Court found good cause to continue the matter to today’s date and have Nguyen refile an opposition with minimal footnotes. The Court ordered an opposition filed by 8/21. Nguyen filed his opposition on 8/24—no explanation for the untimeliness was provided. Moving parties (“MP”) did not object to the untimeliness in the reply. Also, RP was allowed to file an opposition, not new evidence or a new separate statement—both of which he did. Moreover, Nguyen’s separate statement (ROA 172) fails to comply with CRC 3.1350(h) in that he fails to list MP’s evidence in the left-hand column of the page.

RP Nguyen also made a request to continue this matter to obtain the deposition testimony of Shulman’s PMQ. Decl. of Holmes¶36, 37.

If the opposing party shows by declaration that essential evidence “may exist but cannot, for reasons stated, be presented, the court shall deny the motion” or continue it for a reasonable period, or “make any other order as may be just.” [CCP § 437c(h); see Bahl v. Bank of America (2001) 89 CA4th 389, 395.] In determining what orders “may be just,” the court may consider whether the party seeking the continuance has been diligent in its discovery efforts.

Failure to request a continuance to conduct further discovery before the opposition is due waives the right to further discovery. [Lewinter v. Genmar Indus., Inc. (1994) 26 CA4th 1214, 1224,; Roman v. BRE Properties, Inc. (2015) 237 CA4th 1040, 1056—opposing party must request continuance and show, either in opposition papers or in a separate application filed no later than the opposition papers, that discovery is needed to oppose motion (pendency of motion to compel further discovery insufficient to trigger continuance of summary judgment motion)]

Here, the opposition was due 6/26/2026. Nguyen did not make the request for a continuance for PMQ deposition in the original untimely opposition. As such, the request is waived. Also, he did not seek the deposition of the PMQ until July 2026, and thus, was not diligent. Therefore, the Court will not again continue this motion.

Issue No. 1: SRI and Shulman did not breach the covenant of good faith and fair dealing because it is duplicative of Nguyen’s first cause of action for breach of contract.

Cross-Defendant argues because the implied covenant claim is “predicated upon the same facts as the breach of contract claim and seeks the same damages,” it “may be disregarded as superfluous” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395, 1491) To that end MP presents evidence that Nguyen has expressly admitted in verified discovery responses that his First Cause of Action for Breach of Contract, and his Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing are predicated upon identical facts. [UMF No. 86, See Davis Decl., Ex 40 (Special Interrogatory Nos. 21 and 24); Ex 41 (Nguyen’s Supplemental Responses to Special Interrogatory Nos. 21 and 24, pp. 83-95 and 109 121).]

MP also argues Nguyen seeks the same damages for recovery of his breach of contract claim and his breach of the implied covenant of good faith and fair dealing claim. See Fourth Amended Cross Complaint prayer relating to the 1st and 2nd causes of action.

Furthermore, Nguyen’s responses to UF 86 and 87 offer only a legal argument and purported conduct which was not included within the express terms of the contract. However, “The implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.” [Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094.]

Motion is GRANTED as to Issue 1.

Issue No. 2: SRI and Shulman were not negligent because there is no evidence that (1) SRI and Shulman breached any duty owed to Nguyen and (2) Nguyen’s cause of action is barred by the economic loss doctrine.

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” [Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.]

MP argues its expert has opined that SRI and Shulman’s conduct was reasonable and not negligent. [UF 95-98] MP submits the declaration of Gary Weaver who declares, “I am a roofing, waterproofing, and building enclosure expert and principal of Atlas Consulting Group / Atlas Consulting Inc. I have been qualified as an expert witness for forty years in the fields of roofing, waterproofing, sheet metal, exterior plaster, moisture intrusion, quality assurance, inspection, testing, and forensic investigation in numerous States and California courts...” (Decl. Weaver¶2). Mr. Weaver declared that, “Based on my inspection, testing, observations, education, training, and experience, it is my opinion that the new roof was installed correctly and in a manner consistent with applicable industry standards for the roofing work performed.” (Decl. Weaver¶9.)

In Opposition, RP submits the declaration of his own expert, Peter Lattey, who is an architect. He states, “I know and understand building design and construction from all points of view.” (Decl. of Lattey¶7.)

While his declaration appears objectionable as to some issues, he does declare that, “SRI was negligent in leaving the horizontal groove open after removing the counter flashing.

27. It was the responsibility of SRI to install caulking, sealant or stucco patch to close this horizontal groove after removing the existing counter flashing to maintain the waterproof integrity of the building envelope.” (Id¶26.) This creates a triable issue of material fact as to issues of duty and breach.

MP also argues the negligence claim is barred by the economic loss rule.... “...there is no recovery in tort for negligently inflicted ‘purely economic losses,’ meaning financial harm unaccompanied by physical or property damage.” [Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922.] Here, the economic loss rule appears inapplicable because the cause of action goes beyond what was contracted for: that is Nguyen contracted for a new roof, not a new roof that allowed pools of water to exist, etc. (See Fourth Amended Cross Complaint¶125.)

And, by virtue of these allegations alone, Cross-Complainant pled damages to the property—which takes it out of the economic loss rule. Nguyen provides evidence of such property damage through his declaration wherein he states, “Cuts and/openings either made or left in the stucco on the first level of the roof system (which I personally observed) that caused water damage to the property (which I also personally observed) and then spent hours repairing in an attempt to stop the water amage to the interior of the first level near the ceiling in one of the units of the house.” (Decl.

Nguyen¶74A.)

As such, SAI as to Issue 2 is DENIED.

Issue No. 3: There is no evidence that Cross-Defendants (1) fraudulently induced Nguyen to enter into the contract, (2) made any misrepresentations to Nguyen, or (3) concealed any material facts.

Initially, this cause of action is three fraud-based causes of action in one—fraudulent inducement, misrepresentations, and concealment. See Fourth Amended Cross-Complaint¶¶129-158.

MP first argues that the fraud cause of action is a restatement of the contract cause of action. Even if this is true, it does not show that either one or more elements of the cause of action cannot be established or that there is a complete defense to the fraud cause of action. (CCP§437c(p)(2).)

Next, MP argues that Nguyen has no evidence of concealment. (Motion page 13:15). However, MP fails to address specific elements that cannot be established. MP also fails to address the elements and evidence relating to the fraudulent inducement aspect of the cause of action or the misrepresentation portion of the cause of action. As such, MP has not sustained its initial burden.

Even if, assuming arguendo, that MP had sustained its initial, substantive burden, almost all of the “fraud” facts are disputed; and thus, create a triable issue of material fact. (See Separate Statement Nos. 103, 106, 107, 108, 109, 112, 113, 114, 115, 116, 117-133).

As such, SAI is DENIED as to Issue No.

3.

Issue No. 4: Nguyen’s fifth cause of action for violation of Bus. & Prof. Code § 17200 et seq. fails because there is no evidence that SRI and Shulman engaged in any unlawful, unfair or fraudulent conduct.

SAI is DENIED as to Issue 4 as rising and falling with Issue 3.

EVIDENTIARY OBJECTIONS: Objections to Declaration of Peter Lattey 1. Overruled 2. Overruled 3. Sustained 4. Sustained 5. Not material 6. Not material 7. Not material 8-10. Overruled 11. Sustained 12. Not material 13. Overruled 14. Not material 15. Overruled 16. Overruled 17. Sustained 18. Overruled 19.-24. Sustained. 25.-31. Overruled

Objections to Declaration of Mark Holmes Not relevant to the disposition of the motion

Objection to Declaration of Tuyet Nguyen No. 10, 13, 14, 16, 27, 20, 21, 22, 24 sustained. Otherwise, overruled.

Moving Party to give notice.