Sacks v. Suer CA4/3

Filed 9/28/16 Sacks v. Suer CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

TERRI MICHELLE SACKS,

Plaintiff and Respondent, G051894

v. (Super. Ct. No. 30-2013-00660843)

STEPHEN FLOYD SUER, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. Law Office of Michael C. Olson, Michael C. Olson and Nancy E. Raney, for Defendant and Appellant. Soloman Ward Seidenwurm & Smith, Norman L. Smith and Thomas F. Landers, for Plaintiff and Respondent.

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Defendant Stephen Floyd Suer appeals from an order denying his motion to strike two causes of action in plaintiff Terri Michelle Sacks’s first amended complaint. The amended complaint sought damages for SFS Constructors and Builders, Inc.’s (SFS) allegedly defective work in building a home Sacks subsequently purchased. The two counts at issue allege Suer is personally liable for SFS’s defective work under an alter ego theory, based in part on his filing a cross-complaint for contribution and indemnity against subcontractors. Suer contends the amended complaint’s reliance on his filing the cross-complaint renders the action against him a strategic lawsuit against public participation (SLAPP). (Code Civ. Proc., § 425.16; all further statutory references are to this code unless otherwise indicated.) The trial court disagreed denying his anti-SLAPP motion. We affirm the trial court’s order. The gravamen of the two causes of action is Sacks’s claim for damages to repair the allegedly defective work of improvement. Thus, the reference to Suer’s cross-complaint against the subcontractors is merely incidental to the main thrust of those two counts. FACTS AND PROCEDURAL HISTORY Sacks’s original complaint alleged she purchased a home from Martin and Nicole Hennessy. According to the complaint, SFS and Suer completed construction of the home for the Hennessys. After buying the home, Sacks discovered numerous problems relating to water intrusion, drainage, mold, grading, the roof, and the foundation. The bulk of the complaint’s eight causes of action sought recovery against the Hennessys. However, Sacks also sued SFS and Suer for damages in two counts; the sixth cause of action, brought under the Right to Repair Act (Civ. Code, § 895 et seq.), and the seventh cause of action for negligence. Sacks alleged “one or both of [SFS and Suer] was the general contractor who constructed the Property,” and the home’s defects resulted from the failure to properly build it. Suer and SFS jointly answered the