Preview
1 Jeffrey H. Belote, Esq., SBN 104218
Melissa M. Palozola, Esq., SBN 278858
2 CLARK HILL LLP
ELECTRONICALLY
One Embarcadero Center, Suite 400
3 San Francisco, CA 94111 F I L E D
Superior Court of California,
Telephone: (415) 984-8500 County of San Francisco
4 Facsimile: (415) 984-8599
Email: jbelote@ClarkHill.com 06/24/2020
5 Email: mpalozola@ClarkHill.com Clerk of the Court
BY: RONNIE OTERO
Deputy Clerk
6 Attorneys for Plaintiffs
TIMOTHY Z. DILLEY and THERESA C. DILLEY,
7 Trustees of the Dilley Revocable Trust, dated
October 19, 2001
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO
10
11
TIMOTHY Z. DILLEY, Trustee of the Dilley Case No. CGC-18-569911
12 Revocable Trust, dated October 19, 2001; and
THERESA C. DILLEY, Trustee of the Dilley PLAINTIFF TIMOTHY Z. DILLEY AND
13 Revocable Trust, dated October 19, 2001, THERESA C. DILLEY, TRUSTEES OF THE
DILLEY REVOCABLE TRUST, DATED
14 Plaintiffs, OCTOBER 19, 2001’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
15 v. OPPOSITION TO DEFENDANT ALAN L.
BURRADELL’S MOTION FOR SUMMARY
16 BURRADELL CONSTRUCTION, INC., a JUDGMENT OR, ALTERNATIVELY, FOR
California Corporation; ALAN L. SUMMARY ADJUDICATION OF ISSUES
17 BURRADELL, an individual;
SANTOS & URRUTIA ASSOCIATES, INC., a
18 California Corporation; RODRIGO SANTOS, DATE: July 8, 2020
an individual, MCMAHON ARCHITECTS, TIME: 9:30 a.m.
19 INC., a California Corporation; DEPT.: 501
CHRISTOPHER MCMAHON, an individual;
20 and DOES 1 through 50, inclusive, Complaint Filed: September 19, 2018
21 Defendants.
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28 1
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 TABLE OF CONTENTS
2
I. INTRODUCTION ................................................................................................................ 5
3
II. SUMMARY OF THE REMAINING PARTIES ................................................................. 5
4
III. FACTUAL BACKGROUND .............................................................................................. 6
5
A. At McMahon’s Express Recommendation and Insistence, The Dilleys Hired
6 BCI and Burradell To Construct The Property; Burradell Hired SUA and
Santos To Obtain Permits For the Property .............................................................. 7
7
B. Unbeknownst to the Dilleys, SUA Failed to Obtain San Francisco Planning
8 Department Approval and The Necessary And Legal Permits And BCI and
Burradell Proceeded To Construct The Property Without The Necessary And
9 Legal Permits Which Resulted In A Notice Of Violation Issued By DBI On
June 29, 2016 Mandating That All Work On The Property Be Stopped. ................ 9
10
C. In December Of 2016, DBI Discovered That A Substantial Amount Of
11 Unpermitted Work Was Continuing To Be Performed On The Property And
DBI Issued Another Notice Of Violation; The Dilleys Were Shocked And
12 Horrified To Discover That The Property Was Again Not Being Constructed
With The Necessary Permits. ................................................................................. 11
13
IV. LEGAL ANALYSIS .......................................................................................................... 12
14
A. Burradell’s Motion For Summary Judgment Must Be Denied Because He Fails
15 To Meet His Initial Burden Of Production And His Request To Adjudicate
Alter Ego Liability Is Premature. ........................................................................... 13
16
B. Burradell’s Motion For Summary Adjudication Fails To Resolve Any Cause
17 Of Action Or Claim For Damages, And Must Therefore Be Denied. .................... 14
18 C. The Numerous Issues Of Undisputed Material Fact Regarding Burradell’s
Personal Liability Compel The Denial Of The Motion. ......................................... 15
19
D. If The Court Is Not Inclined To Deny The Motion Now, There Is Good Cause
20 To Continue The Hearing So the Dilley’s Can Depose Burradell On Alter Ego
Liability. ................................................................................................................. 19
21
V. CONCLUSION .................................................................................................................. 20
22
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28 2
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 TABLE OF AUTHORITIES
2 Cases
3 Ace American Ins. Co. v. Walker
(2004) 121 Cal. App. 4th 1017 ....................................................................................................... 19
4
Aguilar v. Atlantic Richfield Co.
5 (2001) 25 Cal. 4th 826 ......................................................................................................... 12, 13, 19
6 Ahrens v. Superior Court
(1988) 197 Cal. App. 3d 1134 ........................................................................................................ 13
7
Consumer Cause, Inc. v. SmileCare,
8 (2001) 91 Cal. App. 4th 454 ........................................................................................................... 13
9 Dee v. Vintage Petroleum, Inc.
(2003) 106 Cal. App. 4th 30 .......................................................................................................... 19
10
Dow Jones Co. Avenel,
11 (1984) 151 Cal. App. 3d 144 .......................................................................................................... 14
12 Flait v. North American Watch Corp.
(1992) 3 Cal. App. 4th 467 .............................................................................................................. 14
13
Frances T. v. Village Green Owners Assn.,
14 (1986) 42 Cal. 3d 490 ......................................................................................................... 15, 16, 18
15 Frazee v. Seely
(2002) 95 Cal. App. 4th 627 ........................................................................................................... 19
16
Lilienthal & Fowler v. Superior Court
17 (1993) 12 Cal. App. 4th 1848 .......................................................................................................... 15
18 Lopez v. Superior Court
(1996) 45 Cal. App. 4th 705 ........................................................................................................... 13
19
Michaels v. Benavides
20 (1998) 61 Cal. App. 4th 681 ............................................................................................................ 18
21 Spahn v. Guild Industries Corp.
(1979) 94 Cal. App. 3d 143 ...................................................................................................... 16, 18
22
Statutes
23
California Code of Civil Procedure
24 section 437(c) .......................................................................................................................... passim
section 437(c)(h) ............................................................................................................................. 19
25 section 437(c)(1) ............................................................................................................................. 15
section 437(c)(f) ....................................................................................................................... 14, 15
26
27
28 3
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 Other Authorities
2 5 Witkin, Summary 11th Torts
section 37 (2020) ............................................................................................................................ 16
3
San Francisco Building Code
4 section 104.A.2.4 .............................................................................................................................. 9
5
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PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 Plaintiffs TIMOTHY Z. DILLEY and THERESA C. DILLEY, Trustees of the Dilley
2 Revocable Trust, dated October 19, 2001 (“Dilleys”) hereby submit this memorandum of points and
3 authorities in Opposition to Defendant ALAN L. BURRADELL’s (“Burradell”) Motion for Summary
4 Judgment or, Alternatively, for Summary Adjudication of Issues (“Motion”):
5 I. INTRODUCTION
6 This case arises from fraudulent serial permitting and illegal construction in the complete
7 remodel (“Project”) of the Dilley’s two-unit home located at 3437-3439 Fillmore Street, San
8 Francisco, California (“Property”). Defendant Burradell Construction Inc. (“BCI”) was the general
9 contractor responsible for obtaining all permits for the Project. BCI’s President, principal shareholder,
10 CEO and Responsible Managing Officer (“RMO”), Burradell, personally directed and participated in
11 fraudulent acts and illegal “series permitting” which resulted in the Dilleys paying to his one-man
12 company over $1,230,000, and ultimately resulted in the Dilley’s being forced to tear down the entire
13 remodel and restore the Property to its original condition.
14 Disregarding his active role in the events leading up to this lawsuit, Burradell baldly asserts
15 that the sole basis of liability against him is as an alter ego of BCI. (Motion, p. 2-6). This appears
16 strange as the Dilleys have not ‘presently’ alleged alter ego in the Complaint. Having set up this
17 ‘straw man’ defense, Burradell asks this Court to adjudicate the alter ego issue in his favor. (Id.)
18 However, Burradell’s logic ignores a critical step—he fails to establish by reference to the pleadings
19 or to the evidence that alter ego is the theory of liability asserted against him. (Id.) Burradell
20 moreover disregards his personal liability for his own wrongdoing in this dispute. This Motion is ill-
21 conceived and haphazardly thrown together. Both the Dilleys and this Court have been required to
22 spend unnecessary time and resources adjudicating matters not properly before it. As triable issues of
23 material fact exist as to Burradell's personal liability to the Dilleys for his own wrongdoing,
24 Burradell’s Motion must be denied.
25 II. SUMMARY OF THE REMAINING PARTIES
26 • Santos & Urrutia Associates, Inc. (“SUA”) was the subcontractor of BCI brought in by
27 Burradell after he had initially obtained the first fraudulent Over-The-Counter Permit; SUA
28 5
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
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1 provide civil, structural engineering and design services and worked for Burradell purportedly
2 to provide permit expedition services while actually seeking to defraud both the Dilleys and
3 the Department of Building Inspection (“DBI”) and the San Francisco Planning Department
4 (“Planning”).
5 • Rodrigo Santos (“Santos”) is a principal of SUA and was the responsible person at SUA who
6 handled and supervised the submission of fraudulent plans to DBI, obtaining of serial permits
7 for the Property, and submission of false certified engineering inspection reports.1
8 • Defendant McMahon Architects, Inc. (“MAI”), is a licensed architectural company and was
9 the architect hired by the Dilleys to design and prepare architectural plans and oversee
10 construction as an architect to ensure the property was built in accordance with DBI approved
11 plans.
12 • Christopher McMahon (“McMahon”) is the President of MAI who handled and/or supervised
13 the actions of MAI related to the Property.
14 III. FACTUAL BACKGROUND
15 The Dilleys purchased the Property in 2003 and decided in 2015 to completely remodel the
16 Property. (Declaration of T. Dilley, ¶ 1-2, (hereinafter “Decl. of T. Dilley”)). At the time of the
17 purchase and continuing to the present day, the Dilleys have never rented any portion of either unit
18 and have lived mainly in the upper unit while also utilizing the lower unit. (Id.) The Dilleys wanted
19 to remodel and expand the upper unit while retaining a renovated smaller lower unit. (Id.) Essentially,
20 their desire was to convert the property into a large living unit with a smaller in-law type unit to
21 assure that they could, 1) live in the home for the remainder of their lives, and 2) provide a separate
22 living space for their children when they completed college. (Id.)
23 On August 11, 2015, the Dilleys entered into a written contract with McMahon to design and
24 prepare architectural plans for the remodel of the Property as well as to manage the construction of
25 the Property (the “McMahon Contract”). (Decl. of T. Dilley, ¶ 3). Prior to entering into the written
26
1
Santos should be well known to the Court as he was recently arrested by the FBI and indicted for his fraudulent
27 submissions to DBI and for having been a party in multiple frauds against DBI and his clients. (Request for Judicial
Notice, ¶ 1-2).
28 6
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 contract with McMahon, the Dilleys asked McMahon if they could expand the upper unit size and
2 decrease the lower unit size to optimize their personal living area while also leaving the lower unit as
3 a potential place for their children to reside when needed by them. (Decl. of T. Dilley, ¶ 3). McMahon
4 assured them that this could be legally done. (Id.). At no time did McMahon warn either of the
5 Dilleys about the potential for an illegal unit merger, illegal unit configuration or any other design
6 problems with this design. (Id.).
7 McMahon constructed architectural plans and designs. (Decl. of T. Dilley, ¶ 4). At all times,
8 the Dilleys understood that McMahon was constructing legal and proper plans for the remodel and
9 that any construction work on the Property would be properly permitted. (Id.). Unbeknownst to the
10 Dilleys, McMahon knew that submitting the plans he had constructed to the Planning Department
11 would be a time-consuming and risky proposition which would require at least 6 – 8 months at the
12 least, would require notification to the neighbors, and could be rejected and/or could require
13 substantial modification. (Exhibit V to the Dilley TOE, McMahon, p. 15:15-25; 16; 17:1-0; 129:9-14;
14 137:6-12; 191:22-25; 192-193:1-5; 208:13-25; 209:1; 211:9-25).
15 McMahon decided to avoid submitting the plans to the San Francisco Planning Department
16 despite that the scope of the proposed construction dictated the necessity of doing so. (Id.). Instead
17 McMahon decided to utilize a contractor who would submit and apply for ‘over-the-counter’ permits
18 at DBI in series (“series permitting”) to avoid San Francisco Planning Department oversight. (Id.).
19 A. At McMahon’s Express Recommendation and Insistence, The Dilleys Hired BCI
and Burradell To Construct The Property; Burradell Hired SUA and Santos To
20
Obtain Permits For the Property
21
22 While the plans were still being drawn (“MAI plans”), McMahon recommended that the
23 Dilley’s hire BCI and Burradell as the general contractor. (Decl. of T. Dilley, ¶ 5). The Dilleys relied
24 upon the recommendation of McMahon and hired BCI and Burradell as the general contractor for the
25 remodel and Burradell hired SUA and Santos for the civil and structural engineering and design and
26 the procurement of all necessary and proper permits for the Property. (Id.). Burradell provided a
27 CAD set of the MAI plans to Santos at or around the time of engaging SUA and Santos. (Exhibit D to
28 7
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 the Dilley TOE). The Dilleys continued to believe that the plans designed by McMahon and MAI
2 would be properly permitted. (Decl. of T. Dilley, ¶ 4-5).
3 On or around February 15, 2016, the Dilleys entered into the written contract with BCI for the
4 remodel of the Property (“BCI Contract”) for the fixed sum of $1,476,600. (Dilleys’ Response and
5 Separate Statement of Undisputed Material Facts (hereinafter, “UMF”) (UMF, ¶ 2). The BCI
6 Contract stated, in pertinent part, that “[BCI] shall apply for and obtain such permits and regulatory
7 approvals as may be required by the local municipal/ county government, the cost shall not be
8 included as part of the Project price.” (UMF, ¶ 2-5). The BCI Contract was executed by Burradell.
9 (Id.).
10 At deposition, Burradell testified that he previously worked on a number of other projects
11 with McMahon and utilized series permitting during some of those projects. (UMF, ¶ 12).
12 The BCI Contract allowed BCI to engage licensed subcontractors at its discretion, such as
13 SUA and Santos, but provided that BCI “shall remain fully responsible for the proper completion of
14 the Project.” (UMF, ¶ 2-5).The BCI Contract further required that, “[a]ll work shall be completed in
15 a workman-like manner and in compliance with all building codes and applicable laws.” (UMF, ¶ 6-
16 9).
17 After Burradell pulled a limited permit for remodeling of 3 full baths and a powder room on
18 February 19, 2016, Burradell then demolished the interior of both units constructing far beyond the
19 scope of the permit that had been issued. (UMF, ¶ 6-9). Burradell then hired SUA and Santos to
20 obtain more permits for the Property and perform civil and structural engineering and design as
21 necessary for the construction of the Property.2 (UMF, ¶ 10). Burradell had worked previously on
22 other projects with SUA and Santos.3 (UMF, ¶ 11)
23 McMahon, Burradell and Santos avoided San Francisco Planning Department review and
24 scrutiny by applying for a series of ‘over-the-counter’ permits that did not require San Francisco
25
2
The initial 2/19/16 permit pulled and signed by Burradell stated on its face that that there was to be no alteration of
26 walls, windows or doors. (UMF, ¶ 6-9).
3
27 SUA and Santos are also currently being prosecuted civilly by the City of San Francisco for repeated efforts to defraud
the City with series permitting, fraudulent plans and other certified documents. (RJN, ¶ 1-2).
28 8
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 Planning Department review. (UMF, ¶ 6-38).
2 Without proper permits, Burradell began substantial and expansive demolition and
3 construction work on the Property in February of 2016 and began to perform work in the light well at
4 the Property. (UMF, ¶ 6-9). The construction work included alteration of walls, windows and doors,
5 alterations which were expressly forbidden on the face of the initial Burradell permit. (Id.).
6 SUA and Santos submitted the second permit application April 5, 2016. (Exhibit E to Dilley
7 TOE). Both permits were received ‘over the counter’ at DBI. (Id.). The scope of work in the second
8 permit was for a foundation upgrade. (UMF, ¶ 6-38). The Dilleys were informed that permits had
9 been obtained and believed that the permits allowed all construction work as called for in the
10 McMahon plans to be undertaken. (Decl. of T. Dilley, ¶ 1-21). In fact, the ‘over-the-counter’ permits
11 were submitted to DBI were expressly represented as “Alterations without plans.” (UMF, ¶3-38;
12 Dilley TOE Ex. E). Incredibly the McMahon Plans were not even in final form in April 2016. (Id).
13 BCI and Burradell proceeded with major reconstruction of the Property initially without plans,
14 and then only with a rough, partial set of architectural plans drawn by McMahon. (UMF, ¶ 6-38).
15 Burradell testified that when construction began, BCI and Burradell gutted both units of the Property
16 and commenced work that far exceeded the two permits that had been obtained including but not
17 limited to the removal of walls and doors as well as structural components. (Id. ).
18 B. Unbeknownst to the Dilleys, SUA Failed to Obtain San Francisco Planning
Department Approval and The Necessary And Legal Permits And BCI and
19
Burradell Proceeded To Construct The Property Without The Necessary And
20 Legal Permits Which Resulted In A Notice Of Violation Issued By DBI On June
29, 2016 Mandating That All Work On The Property Be Stopped.
21
22 On June 29, 2016, a Notice of Violation was issued by DBI mandating that any and all
23 construction work on the Property stop pending proper permit issuance pursuant to San Francisco
24 Building Code section 104.A.2.4 (“June NOV”). (UMF, ¶ 17).The June NOV stated that permits were
25 issued for a foundation upgrade and a bathroom remodel, only. (Id.) However, the construction work
26 performed by BCI and Burradell at the Property far exceeded the scope of the permits issued. (UMF,
27 ¶ 6-38).
28 9
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 Without obtaining the necessary permits, Burradell and BCI had, among other things,
2 unlawfully removed most walls and all doors within the entire building, installed moment frames,
3 removed a large section of the joist at the center of the building, and extended the building into the
4 light well. (Id.).
5 BCI, Burradell, SUA and Santos failed to obtain the necessary and proper permits for the
6 construction work on the premises. (Id.). Many dozens of emails between Burradell with the Dilleys
7 during all of 2016 demonstrate a continuing attempt to assure the Dilleys that all was well with the
8 project, notices or violations received were minor in nature, and work could continue properly and
9 legally. (UMF, ¶8-36 ). Based on the continuing misrepresentations and assurances of Burradell and
10 Santos, the Dilley’s money continued to flow to BCI and Burradell. (UMF, ¶ 41; Decl. of T. Dilley, ¶
11 1-21).
12 In order to abate the June NOV and obtain permits to continue construction at the Property,
13 and unbeknownst at all times to the Dilleys until the Spring of 2017, Santos and SUA submitted plans
14 and four permit applications to DBI that contained false and deceptive and misleading information.
15 (Dilley TOE, Ex. E). The submission of the four false permit applications and the false plans of SUA
16 and Santos which resulted in two permits being issued were done with the knowledge and agreement
17 of McMahon and Burradell in order to allow improper and illegal construction to continue at the
18 Property. (Id.; UMF, ¶ 3-39).
19 Having submitted false plans to DBI and/ the Planning Department that did not represent what
20 was being built by Burradell, on or around July 8, 2016 Santos represented in writing via email to
21 Burradell that “Planning just signed off. Smooth sailing from here,” which Burradell in turn
22 represented via email to the Dilleys. (UMF, ¶ 21). This was a lie.
23 Burradell and McMahon knew or should have known that the submission of false, incorrect,
24 or deceptive plans, permits and information to DBI and/or the Planning Department in an effort to
25 abate the June NOV was improper and illegal. Thereafter, Burradell continued with construction of
26 the remodel of the Property in accordance with draft MAI plans which McMahon continued to
27 modify. (UMF, ¶ 2-39).
28 10
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 Burradell continued to assure the Dilleys that the problem had been resolved. (UMF, ¶19-37).
2 Construction continued on the Property until December. (UMF, ¶ 19-37).
3 C. In December Of 2016, DBI Discovered That A Substantial Amount Of
Unpermitted Work Was Continuing To Be Performed On The Property And DBI
4
Issued Another Notice Of Violation; The Dilleys Were Shocked And Horrified To
5 Discover That The Property Was Again Not Being Constructed With The
Necessary Permits.
6
7 In December of 2016, DBI discovered that there was continuing substantial unpermitted work
8 being done on the Property without approval or proper permits or plans. (UMF, ¶ 35). As a result,
9 DBI issued another Notice of Violation on December 2, 2016 that required all work on the Property
10 to stop until permits have been issued for the actual scope of work in accordance with San Francisco
11 Building Code section 104A.2.4 (“December NOV”). (UMF, ¶ 36). The December NOV also
12 required that all the insulation on the Property be removed so that a framing inspection could be
13 performed by DBI. (Id.).
14 The NOV of December 2, 2016 described the violation as follows:
15
Entire building has been remodeled. Insulation in place. No framing inspection has
16 been performed. 2 unit building has been converted to single family. No permit
issued for entire scope of work. Floor joist at 3rd level at the centre [sic] of building
17 have been removed 20 ft. x 15 ft. approx.) 2 new roof decks have been built. No
drawings or job cards on site. A monthly surcharge will be assessed on all NOV’s.
18 (Id.)
19 The Dilleys did not find out about the permitting issues on the Property until approximately
20 one week later when, after trying and failing to get a hold of Burradell to ask why there was no work
21 being performed on the Property, Tim Dilley contacted DBI who informed him that there was not a
22 permit for the work being performed on the Property, and there were no plans for the Property on site.
23 (UMF, ¶3-7; T. Dilley Decl., ¶ 1-21).
24 On or around December 19, 2016, Burradell informed the Dilleys that the December NOV
25 was cleared and the ‘stop work’ order was lifted. (UMF, ¶ 37). This was a lie. Burradell further
26 informed the Dilleys that more information on the upper unit would follow shortly. (Id.). It was not
27 until December that the Dilleys learned that there never had been any permit for the work that was
28 11
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 occurring on the upper unit. (UMF, ¶37).
2 The December NOV was actually not abated and the ‘stop work’ order was not lifted. (UMF,
3 ¶ 36). Rather, Santos submitted the MAI plans or some variation thereof to DBI and/or the Planning
4 Department. (Exhibit E to Dilley TOE). This was the first attempt to submit any MAI plans to DBI
5 and Planning despite that work had been proceeding for 10 months. (Id.). The San Francisco Planning
6 Department, however, did not sign off on the MAI plans. (Id.).
7 On March 14, 2017, DBI issued a Notice of Violation Final Warning regarding both the June
8 NOV and the December NOV, which stated, in pertinent part, “The time period to correct all cited
9 code violations indicated in [the NOV of June 29, 2016 and the NOV of December 2, 2016] has
10 passed and the Department records indicate that the required code abatement work remains
11 outstanding.” (UMF, ¶ 38).
12 Burradell and BCI were fired in early 2017. (Decl. of T. Dilley, ¶1-21 ). Santos managed to
13 continue to fool the Dilleys for several more months but was eventually discharged. (Decl. of T.
14 Dilley, ¶1-21). Thereafter, in an effort to mitigate damages, the Dilleys sought a variance for the
15 construction called for in the MAI plans which at the time it was stopped was mostly complete. (Id.;
16 UMF, ¶ 39-41; ). On March 1, 2018, the Planning Department denied the request for variance. (Id.).
17 As a result, the Dilleys were forced to return the Property to its original design configuration, i.e.,
18 walls, floors, windows, etc. with proper plans and legal permits and are still not yet back at their
19 home. (Id.).
20 IV. LEGAL ANALYSIS
21 In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, the Supreme Court established the
22 basis for summary judgment/adjudication motions under Code of Civil Procedure section 437(c).
23 “First, and generally, from commencement to conclusion, the party moving for summary judgment
24 bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to
25 judgment as a matter of law.” (Id. at 850.) “Second, and generally, the party moving for summary
26 judgment bears an initial burden of production to make a prima facie showing of the nonexistence of
27 any triable issue of material fact; if he carries his burden of production, he causes a shift, and the
28 12
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 opposing party is then subjected to a burden of production of his own to make a prima facie showing
2 of the existence of a triable issue of material fact.” (Id.) “Third, and generally, how the parties
3 moving for, and opposing, summary judgment may each carry their burden of persuasion and/or
4 production depends on which would bear what burden of proof at trial.” (Id.) In order to prevail on
5 summary judgment, a defendant must “show that the plaintiff cannot establish at least one element of
6 the cause of action.” (Id. at 853-854.)
7 A. Burradell’s Motion For Summary Judgment Must Be Denied Because He Fails To
Meet His Initial Burden Of Production And His Request To Adjudicate Alter Ego
8
Liability Is Premature.
9
10 Under California Code of Civil Procedure § 437(c), defendant bears the initial burden of
11 making a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic
12 Richfield Co., (2001) 25 Cal. 4th 826, 850.) Until this has been done, plaintiff has no obligation to file
13 any evidence or make any showing to oppose the motion at all. (Consumer Cause, Inc. v.
14 SmileCare, (2001) 91 Cal. App. 4th 454, 468.)
15 It is not sufficient for a defendant to pick out one aspect of a complaint, claiming that there is
16 no evidence to support it, while ignoring the other theories of liability. (Lopez v. Superior
17 Court (1996) 45 Cal. App. 4th 705, 717.) Defendant has the burden of showing that he is entitled to
18 judgment with regard to all theories of liability asserted by plaintiff. (Id.) Mere conclusions of law or
19 fact are insufficient to satisfy the evidentiary requirements of the summary judgment statute. (Ahrens
20 v. Superior Court (1988) 197 Cal. App. 3d 1134, 1141.)
21 Here, Burradell’s Motion purports to move for summary judgment on the Dilley’s Third
22 Cause of Action for Fraud, Fourth Cause of Action for Negligent Misrepresentation, Fifth Cause of
23 Action for Negligence, and Sixth Cause of Action for Unjust Enrichment. (Motion, p. 2-6). Burradell,
24 however, makes no attempt to address the substantive elements of the Dilleys’ causes of action, nor
25 does he so much as mention any defenses. (Id.) Burradell makes no attempt to present any evidence at
26 all relating to his own personal liability. (Id.).
27 Burradell concedes in his separate statement that the Dilleys did not allege alter ego liability
28 13
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 against him in their Complaint (Burradell UMF, ¶ 9.) Yet, the sole basis of his Motion is to adjudicate
2 alter ego liability against him. Thus, Burradell’s Motion fails at the outset because he has not met his
3 initial burden of production. (C.C.P. § 437(c).)
4 Moreover, Burradell’s attempt to put the cart before the horse and force this Court to
5 adjudicate the issue of alter ego liability now is premature and procedurally improper. Under
6 California law, alter ego liability is appropriately established after a judgment has been entered
7 against a defendant corporation through a motion to add a judgment debtor. (Dow Jones Co. Avenel,
8 (1984) 151 Cal. App. 3d 144, 148.) The Dilley’s have a right to amend their complaint post-judgment
9 to allege alter ego liability against Burradell if and when it is appropriate; However, Burradell’s
10 misguided attempt to ambush the Dilley’s now when alter ego liability has not been alleged or
11 explored in discovery is inappropriate.
12 B. Burradell’s Motion For Summary Adjudication Fails To Resolve Any Cause Of
Action Or Claim For Damages, And Must Therefore Be Denied.
13
14 Code of Civil Procedure section 437(c)(f)(1) sets the standard for motions for summary
15 adjudication, providing as follows:
A party may move for summary adjudication as to one or more causes of action within an
16 action, one or more affirmative defenses, one or more claims for damages, or one or more
issues of duty, if that party contends that the cause of action has no merit or that there is
17 no affirmative defense thereto, or that there is no merit to an affirmative defense as to any
cause of action, or both, or that there is no merit to a claim for damages, as specified
18 in Section 3294 of the Civil Code, or that one or more defendants either owed or did not
owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be
19 granted only if it completely disposes of a cause of action, an affirmative defense, a claim
20 for damages, or an issue of duty. (C.C.P. §437(c)(f)(1); Emphasis added).
A motion for summary adjudication proceeds in all procedural respects as a motion for
21
summary judgment. (C.C.P. § 437(c)(f)(2).) “The affidavits of the moving party are strictly construed
22
and those of his opponent liberally construed, and doubts as to the propriety of summary judgment
23
should be resolved against granting the motion.” (Flait v. North American Watch Corp. (1992) 3 Cal.
24
App. 4th 467, 472.)
25
Burradell's alternative request for summary adjudication similarly fails because it will not
26
“completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of
27
duty” as required by Code of Civil Procedure section 437(c)(f)(1). Burradell's Motion does not seek
28 14
PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY
ADJUDICATION OF ISSUES
31 223973294.v5-6/24/20
1 separate adjudication of each cause of action. Instead, Issues Nos. 1 through 20 in Burradell’s
2 separate statement relate solely to Burradell’s liability as an alter ego of BCI. (See Burradell’s UMF
3 ¶ 1-20.)
4 The fatal flaw in Burradell’s analysis is that there is no cause of action for alter ego liability
5 asserted in the Complaint. (See Burradell UMF ¶ 9;). Rather, the Complaint includes three
6 introductory paragraphs (Complaint ¶ 3, 9, and 10.) which allege a basis for Burradell’s personal
7 liability. As discussed below in section III, infra, the Complaint is replete with allegations regarding
8 Burradell's own wrongful conduct for which he is personally liable.
Preview
1 Jeffrey H. Belote, Esq., SBN 104218 Melissa M. Palozola, Esq., SBN 278858 2 CLARK HILL LLP ELECTRONICALLY One Embarcadero Center, Suite 400 3 San Francisco, CA 94111 F I L E D Superior Court of California, Telephone: (415) 984-8500 County of San Francisco 4 Facsimile: (415) 984-8599 Email: jbelote@ClarkHill.com 06/24/2020 5 Email: mpalozola@ClarkHill.com Clerk of the Court BY: RONNIE OTERO Deputy Clerk 6 Attorneys for Plaintiffs TIMOTHY Z. DILLEY and THERESA C. DILLEY, 7 Trustees of the Dilley Revocable Trust, dated October 19, 2001 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 TIMOTHY Z. DILLEY, Trustee of the Dilley Case No. CGC-18-569911 12 Revocable Trust, dated October 19, 2001; and THERESA C. DILLEY, Trustee of the Dilley PLAINTIFF TIMOTHY Z. DILLEY AND 13 Revocable Trust, dated October 19, 2001, THERESA C. DILLEY, TRUSTEES OF THE DILLEY REVOCABLE TRUST, DATED 14 Plaintiffs, OCTOBER 19, 2001’S MEMORANDUM OF POINTS AND AUTHORITIES IN 15 v. OPPOSITION TO DEFENDANT ALAN L. BURRADELL’S MOTION FOR SUMMARY 16 BURRADELL CONSTRUCTION, INC., a JUDGMENT OR, ALTERNATIVELY, FOR California Corporation; ALAN L. SUMMARY ADJUDICATION OF ISSUES 17 BURRADELL, an individual; SANTOS & URRUTIA ASSOCIATES, INC., a 18 California Corporation; RODRIGO SANTOS, DATE: July 8, 2020 an individual, MCMAHON ARCHITECTS, TIME: 9:30 a.m. 19 INC., a California Corporation; DEPT.: 501 CHRISTOPHER MCMAHON, an individual; 20 and DOES 1 through 50, inclusive, Complaint Filed: September 19, 2018 21 Defendants. 22 23 24 25 26 27 28 1 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 TABLE OF CONTENTS 2 I. INTRODUCTION ................................................................................................................ 5 3 II. SUMMARY OF THE REMAINING PARTIES ................................................................. 5 4 III. FACTUAL BACKGROUND .............................................................................................. 6 5 A. At McMahon’s Express Recommendation and Insistence, The Dilleys Hired 6 BCI and Burradell To Construct The Property; Burradell Hired SUA and Santos To Obtain Permits For the Property .............................................................. 7 7 B. Unbeknownst to the Dilleys, SUA Failed to Obtain San Francisco Planning 8 Department Approval and The Necessary And Legal Permits And BCI and Burradell Proceeded To Construct The Property Without The Necessary And 9 Legal Permits Which Resulted In A Notice Of Violation Issued By DBI On June 29, 2016 Mandating That All Work On The Property Be Stopped. ................ 9 10 C. In December Of 2016, DBI Discovered That A Substantial Amount Of 11 Unpermitted Work Was Continuing To Be Performed On The Property And DBI Issued Another Notice Of Violation; The Dilleys Were Shocked And 12 Horrified To Discover That The Property Was Again Not Being Constructed With The Necessary Permits. ................................................................................. 11 13 IV. LEGAL ANALYSIS .......................................................................................................... 12 14 A. Burradell’s Motion For Summary Judgment Must Be Denied Because He Fails 15 To Meet His Initial Burden Of Production And His Request To Adjudicate Alter Ego Liability Is Premature. ........................................................................... 13 16 B. Burradell’s Motion For Summary Adjudication Fails To Resolve Any Cause 17 Of Action Or Claim For Damages, And Must Therefore Be Denied. .................... 14 18 C. The Numerous Issues Of Undisputed Material Fact Regarding Burradell’s Personal Liability Compel The Denial Of The Motion. ......................................... 15 19 D. If The Court Is Not Inclined To Deny The Motion Now, There Is Good Cause 20 To Continue The Hearing So the Dilley’s Can Depose Burradell On Alter Ego Liability. ................................................................................................................. 19 21 V. CONCLUSION .................................................................................................................. 20 22 23 24 25 26 27 28 2 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 TABLE OF AUTHORITIES 2 Cases 3 Ace American Ins. Co. v. Walker (2004) 121 Cal. App. 4th 1017 ....................................................................................................... 19 4 Aguilar v. Atlantic Richfield Co. 5 (2001) 25 Cal. 4th 826 ......................................................................................................... 12, 13, 19 6 Ahrens v. Superior Court (1988) 197 Cal. App. 3d 1134 ........................................................................................................ 13 7 Consumer Cause, Inc. v. SmileCare, 8 (2001) 91 Cal. App. 4th 454 ........................................................................................................... 13 9 Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30 .......................................................................................................... 19 10 Dow Jones Co. Avenel, 11 (1984) 151 Cal. App. 3d 144 .......................................................................................................... 14 12 Flait v. North American Watch Corp. (1992) 3 Cal. App. 4th 467 .............................................................................................................. 14 13 Frances T. v. Village Green Owners Assn., 14 (1986) 42 Cal. 3d 490 ......................................................................................................... 15, 16, 18 15 Frazee v. Seely (2002) 95 Cal. App. 4th 627 ........................................................................................................... 19 16 Lilienthal & Fowler v. Superior Court 17 (1993) 12 Cal. App. 4th 1848 .......................................................................................................... 15 18 Lopez v. Superior Court (1996) 45 Cal. App. 4th 705 ........................................................................................................... 13 19 Michaels v. Benavides 20 (1998) 61 Cal. App. 4th 681 ............................................................................................................ 18 21 Spahn v. Guild Industries Corp. (1979) 94 Cal. App. 3d 143 ...................................................................................................... 16, 18 22 Statutes 23 California Code of Civil Procedure 24 section 437(c) .......................................................................................................................... passim section 437(c)(h) ............................................................................................................................. 19 25 section 437(c)(1) ............................................................................................................................. 15 section 437(c)(f) ....................................................................................................................... 14, 15 26 27 28 3 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 Other Authorities 2 5 Witkin, Summary 11th Torts section 37 (2020) ............................................................................................................................ 16 3 San Francisco Building Code 4 section 104.A.2.4 .............................................................................................................................. 9 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 Plaintiffs TIMOTHY Z. DILLEY and THERESA C. DILLEY, Trustees of the Dilley 2 Revocable Trust, dated October 19, 2001 (“Dilleys”) hereby submit this memorandum of points and 3 authorities in Opposition to Defendant ALAN L. BURRADELL’s (“Burradell”) Motion for Summary 4 Judgment or, Alternatively, for Summary Adjudication of Issues (“Motion”): 5 I. INTRODUCTION 6 This case arises from fraudulent serial permitting and illegal construction in the complete 7 remodel (“Project”) of the Dilley’s two-unit home located at 3437-3439 Fillmore Street, San 8 Francisco, California (“Property”). Defendant Burradell Construction Inc. (“BCI”) was the general 9 contractor responsible for obtaining all permits for the Project. BCI’s President, principal shareholder, 10 CEO and Responsible Managing Officer (“RMO”), Burradell, personally directed and participated in 11 fraudulent acts and illegal “series permitting” which resulted in the Dilleys paying to his one-man 12 company over $1,230,000, and ultimately resulted in the Dilley’s being forced to tear down the entire 13 remodel and restore the Property to its original condition. 14 Disregarding his active role in the events leading up to this lawsuit, Burradell baldly asserts 15 that the sole basis of liability against him is as an alter ego of BCI. (Motion, p. 2-6). This appears 16 strange as the Dilleys have not ‘presently’ alleged alter ego in the Complaint. Having set up this 17 ‘straw man’ defense, Burradell asks this Court to adjudicate the alter ego issue in his favor. (Id.) 18 However, Burradell’s logic ignores a critical step—he fails to establish by reference to the pleadings 19 or to the evidence that alter ego is the theory of liability asserted against him. (Id.) Burradell 20 moreover disregards his personal liability for his own wrongdoing in this dispute. This Motion is ill- 21 conceived and haphazardly thrown together. Both the Dilleys and this Court have been required to 22 spend unnecessary time and resources adjudicating matters not properly before it. As triable issues of 23 material fact exist as to Burradell's personal liability to the Dilleys for his own wrongdoing, 24 Burradell’s Motion must be denied. 25 II. SUMMARY OF THE REMAINING PARTIES 26 • Santos & Urrutia Associates, Inc. (“SUA”) was the subcontractor of BCI brought in by 27 Burradell after he had initially obtained the first fraudulent Over-The-Counter Permit; SUA 28 5 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 provide civil, structural engineering and design services and worked for Burradell purportedly 2 to provide permit expedition services while actually seeking to defraud both the Dilleys and 3 the Department of Building Inspection (“DBI”) and the San Francisco Planning Department 4 (“Planning”). 5 • Rodrigo Santos (“Santos”) is a principal of SUA and was the responsible person at SUA who 6 handled and supervised the submission of fraudulent plans to DBI, obtaining of serial permits 7 for the Property, and submission of false certified engineering inspection reports.1 8 • Defendant McMahon Architects, Inc. (“MAI”), is a licensed architectural company and was 9 the architect hired by the Dilleys to design and prepare architectural plans and oversee 10 construction as an architect to ensure the property was built in accordance with DBI approved 11 plans. 12 • Christopher McMahon (“McMahon”) is the President of MAI who handled and/or supervised 13 the actions of MAI related to the Property. 14 III. FACTUAL BACKGROUND 15 The Dilleys purchased the Property in 2003 and decided in 2015 to completely remodel the 16 Property. (Declaration of T. Dilley, ¶ 1-2, (hereinafter “Decl. of T. Dilley”)). At the time of the 17 purchase and continuing to the present day, the Dilleys have never rented any portion of either unit 18 and have lived mainly in the upper unit while also utilizing the lower unit. (Id.) The Dilleys wanted 19 to remodel and expand the upper unit while retaining a renovated smaller lower unit. (Id.) Essentially, 20 their desire was to convert the property into a large living unit with a smaller in-law type unit to 21 assure that they could, 1) live in the home for the remainder of their lives, and 2) provide a separate 22 living space for their children when they completed college. (Id.) 23 On August 11, 2015, the Dilleys entered into a written contract with McMahon to design and 24 prepare architectural plans for the remodel of the Property as well as to manage the construction of 25 the Property (the “McMahon Contract”). (Decl. of T. Dilley, ¶ 3). Prior to entering into the written 26 1 Santos should be well known to the Court as he was recently arrested by the FBI and indicted for his fraudulent 27 submissions to DBI and for having been a party in multiple frauds against DBI and his clients. (Request for Judicial Notice, ¶ 1-2). 28 6 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 contract with McMahon, the Dilleys asked McMahon if they could expand the upper unit size and 2 decrease the lower unit size to optimize their personal living area while also leaving the lower unit as 3 a potential place for their children to reside when needed by them. (Decl. of T. Dilley, ¶ 3). McMahon 4 assured them that this could be legally done. (Id.). At no time did McMahon warn either of the 5 Dilleys about the potential for an illegal unit merger, illegal unit configuration or any other design 6 problems with this design. (Id.). 7 McMahon constructed architectural plans and designs. (Decl. of T. Dilley, ¶ 4). At all times, 8 the Dilleys understood that McMahon was constructing legal and proper plans for the remodel and 9 that any construction work on the Property would be properly permitted. (Id.). Unbeknownst to the 10 Dilleys, McMahon knew that submitting the plans he had constructed to the Planning Department 11 would be a time-consuming and risky proposition which would require at least 6 – 8 months at the 12 least, would require notification to the neighbors, and could be rejected and/or could require 13 substantial modification. (Exhibit V to the Dilley TOE, McMahon, p. 15:15-25; 16; 17:1-0; 129:9-14; 14 137:6-12; 191:22-25; 192-193:1-5; 208:13-25; 209:1; 211:9-25). 15 McMahon decided to avoid submitting the plans to the San Francisco Planning Department 16 despite that the scope of the proposed construction dictated the necessity of doing so. (Id.). Instead 17 McMahon decided to utilize a contractor who would submit and apply for ‘over-the-counter’ permits 18 at DBI in series (“series permitting”) to avoid San Francisco Planning Department oversight. (Id.). 19 A. At McMahon’s Express Recommendation and Insistence, The Dilleys Hired BCI and Burradell To Construct The Property; Burradell Hired SUA and Santos To 20 Obtain Permits For the Property 21 22 While the plans were still being drawn (“MAI plans”), McMahon recommended that the 23 Dilley’s hire BCI and Burradell as the general contractor. (Decl. of T. Dilley, ¶ 5). The Dilleys relied 24 upon the recommendation of McMahon and hired BCI and Burradell as the general contractor for the 25 remodel and Burradell hired SUA and Santos for the civil and structural engineering and design and 26 the procurement of all necessary and proper permits for the Property. (Id.). Burradell provided a 27 CAD set of the MAI plans to Santos at or around the time of engaging SUA and Santos. (Exhibit D to 28 7 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 the Dilley TOE). The Dilleys continued to believe that the plans designed by McMahon and MAI 2 would be properly permitted. (Decl. of T. Dilley, ¶ 4-5). 3 On or around February 15, 2016, the Dilleys entered into the written contract with BCI for the 4 remodel of the Property (“BCI Contract”) for the fixed sum of $1,476,600. (Dilleys’ Response and 5 Separate Statement of Undisputed Material Facts (hereinafter, “UMF”) (UMF, ¶ 2). The BCI 6 Contract stated, in pertinent part, that “[BCI] shall apply for and obtain such permits and regulatory 7 approvals as may be required by the local municipal/ county government, the cost shall not be 8 included as part of the Project price.” (UMF, ¶ 2-5). The BCI Contract was executed by Burradell. 9 (Id.). 10 At deposition, Burradell testified that he previously worked on a number of other projects 11 with McMahon and utilized series permitting during some of those projects. (UMF, ¶ 12). 12 The BCI Contract allowed BCI to engage licensed subcontractors at its discretion, such as 13 SUA and Santos, but provided that BCI “shall remain fully responsible for the proper completion of 14 the Project.” (UMF, ¶ 2-5).The BCI Contract further required that, “[a]ll work shall be completed in 15 a workman-like manner and in compliance with all building codes and applicable laws.” (UMF, ¶ 6- 16 9). 17 After Burradell pulled a limited permit for remodeling of 3 full baths and a powder room on 18 February 19, 2016, Burradell then demolished the interior of both units constructing far beyond the 19 scope of the permit that had been issued. (UMF, ¶ 6-9). Burradell then hired SUA and Santos to 20 obtain more permits for the Property and perform civil and structural engineering and design as 21 necessary for the construction of the Property.2 (UMF, ¶ 10). Burradell had worked previously on 22 other projects with SUA and Santos.3 (UMF, ¶ 11) 23 McMahon, Burradell and Santos avoided San Francisco Planning Department review and 24 scrutiny by applying for a series of ‘over-the-counter’ permits that did not require San Francisco 25 2 The initial 2/19/16 permit pulled and signed by Burradell stated on its face that that there was to be no alteration of 26 walls, windows or doors. (UMF, ¶ 6-9). 3 27 SUA and Santos are also currently being prosecuted civilly by the City of San Francisco for repeated efforts to defraud the City with series permitting, fraudulent plans and other certified documents. (RJN, ¶ 1-2). 28 8 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 Planning Department review. (UMF, ¶ 6-38). 2 Without proper permits, Burradell began substantial and expansive demolition and 3 construction work on the Property in February of 2016 and began to perform work in the light well at 4 the Property. (UMF, ¶ 6-9). The construction work included alteration of walls, windows and doors, 5 alterations which were expressly forbidden on the face of the initial Burradell permit. (Id.). 6 SUA and Santos submitted the second permit application April 5, 2016. (Exhibit E to Dilley 7 TOE). Both permits were received ‘over the counter’ at DBI. (Id.). The scope of work in the second 8 permit was for a foundation upgrade. (UMF, ¶ 6-38). The Dilleys were informed that permits had 9 been obtained and believed that the permits allowed all construction work as called for in the 10 McMahon plans to be undertaken. (Decl. of T. Dilley, ¶ 1-21). In fact, the ‘over-the-counter’ permits 11 were submitted to DBI were expressly represented as “Alterations without plans.” (UMF, ¶3-38; 12 Dilley TOE Ex. E). Incredibly the McMahon Plans were not even in final form in April 2016. (Id). 13 BCI and Burradell proceeded with major reconstruction of the Property initially without plans, 14 and then only with a rough, partial set of architectural plans drawn by McMahon. (UMF, ¶ 6-38). 15 Burradell testified that when construction began, BCI and Burradell gutted both units of the Property 16 and commenced work that far exceeded the two permits that had been obtained including but not 17 limited to the removal of walls and doors as well as structural components. (Id. ). 18 B. Unbeknownst to the Dilleys, SUA Failed to Obtain San Francisco Planning Department Approval and The Necessary And Legal Permits And BCI and 19 Burradell Proceeded To Construct The Property Without The Necessary And 20 Legal Permits Which Resulted In A Notice Of Violation Issued By DBI On June 29, 2016 Mandating That All Work On The Property Be Stopped. 21 22 On June 29, 2016, a Notice of Violation was issued by DBI mandating that any and all 23 construction work on the Property stop pending proper permit issuance pursuant to San Francisco 24 Building Code section 104.A.2.4 (“June NOV”). (UMF, ¶ 17).The June NOV stated that permits were 25 issued for a foundation upgrade and a bathroom remodel, only. (Id.) However, the construction work 26 performed by BCI and Burradell at the Property far exceeded the scope of the permits issued. (UMF, 27 ¶ 6-38). 28 9 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 Without obtaining the necessary permits, Burradell and BCI had, among other things, 2 unlawfully removed most walls and all doors within the entire building, installed moment frames, 3 removed a large section of the joist at the center of the building, and extended the building into the 4 light well. (Id.). 5 BCI, Burradell, SUA and Santos failed to obtain the necessary and proper permits for the 6 construction work on the premises. (Id.). Many dozens of emails between Burradell with the Dilleys 7 during all of 2016 demonstrate a continuing attempt to assure the Dilleys that all was well with the 8 project, notices or violations received were minor in nature, and work could continue properly and 9 legally. (UMF, ¶8-36 ). Based on the continuing misrepresentations and assurances of Burradell and 10 Santos, the Dilley’s money continued to flow to BCI and Burradell. (UMF, ¶ 41; Decl. of T. Dilley, ¶ 11 1-21). 12 In order to abate the June NOV and obtain permits to continue construction at the Property, 13 and unbeknownst at all times to the Dilleys until the Spring of 2017, Santos and SUA submitted plans 14 and four permit applications to DBI that contained false and deceptive and misleading information. 15 (Dilley TOE, Ex. E). The submission of the four false permit applications and the false plans of SUA 16 and Santos which resulted in two permits being issued were done with the knowledge and agreement 17 of McMahon and Burradell in order to allow improper and illegal construction to continue at the 18 Property. (Id.; UMF, ¶ 3-39). 19 Having submitted false plans to DBI and/ the Planning Department that did not represent what 20 was being built by Burradell, on or around July 8, 2016 Santos represented in writing via email to 21 Burradell that “Planning just signed off. Smooth sailing from here,” which Burradell in turn 22 represented via email to the Dilleys. (UMF, ¶ 21). This was a lie. 23 Burradell and McMahon knew or should have known that the submission of false, incorrect, 24 or deceptive plans, permits and information to DBI and/or the Planning Department in an effort to 25 abate the June NOV was improper and illegal. Thereafter, Burradell continued with construction of 26 the remodel of the Property in accordance with draft MAI plans which McMahon continued to 27 modify. (UMF, ¶ 2-39). 28 10 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 Burradell continued to assure the Dilleys that the problem had been resolved. (UMF, ¶19-37). 2 Construction continued on the Property until December. (UMF, ¶ 19-37). 3 C. In December Of 2016, DBI Discovered That A Substantial Amount Of Unpermitted Work Was Continuing To Be Performed On The Property And DBI 4 Issued Another Notice Of Violation; The Dilleys Were Shocked And Horrified To 5 Discover That The Property Was Again Not Being Constructed With The Necessary Permits. 6 7 In December of 2016, DBI discovered that there was continuing substantial unpermitted work 8 being done on the Property without approval or proper permits or plans. (UMF, ¶ 35). As a result, 9 DBI issued another Notice of Violation on December 2, 2016 that required all work on the Property 10 to stop until permits have been issued for the actual scope of work in accordance with San Francisco 11 Building Code section 104A.2.4 (“December NOV”). (UMF, ¶ 36). The December NOV also 12 required that all the insulation on the Property be removed so that a framing inspection could be 13 performed by DBI. (Id.). 14 The NOV of December 2, 2016 described the violation as follows: 15 Entire building has been remodeled. Insulation in place. No framing inspection has 16 been performed. 2 unit building has been converted to single family. No permit issued for entire scope of work. Floor joist at 3rd level at the centre [sic] of building 17 have been removed 20 ft. x 15 ft. approx.) 2 new roof decks have been built. No drawings or job cards on site. A monthly surcharge will be assessed on all NOV’s. 18 (Id.) 19 The Dilleys did not find out about the permitting issues on the Property until approximately 20 one week later when, after trying and failing to get a hold of Burradell to ask why there was no work 21 being performed on the Property, Tim Dilley contacted DBI who informed him that there was not a 22 permit for the work being performed on the Property, and there were no plans for the Property on site. 23 (UMF, ¶3-7; T. Dilley Decl., ¶ 1-21). 24 On or around December 19, 2016, Burradell informed the Dilleys that the December NOV 25 was cleared and the ‘stop work’ order was lifted. (UMF, ¶ 37). This was a lie. Burradell further 26 informed the Dilleys that more information on the upper unit would follow shortly. (Id.). It was not 27 until December that the Dilleys learned that there never had been any permit for the work that was 28 11 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 occurring on the upper unit. (UMF, ¶37). 2 The December NOV was actually not abated and the ‘stop work’ order was not lifted. (UMF, 3 ¶ 36). Rather, Santos submitted the MAI plans or some variation thereof to DBI and/or the Planning 4 Department. (Exhibit E to Dilley TOE). This was the first attempt to submit any MAI plans to DBI 5 and Planning despite that work had been proceeding for 10 months. (Id.). The San Francisco Planning 6 Department, however, did not sign off on the MAI plans. (Id.). 7 On March 14, 2017, DBI issued a Notice of Violation Final Warning regarding both the June 8 NOV and the December NOV, which stated, in pertinent part, “The time period to correct all cited 9 code violations indicated in [the NOV of June 29, 2016 and the NOV of December 2, 2016] has 10 passed and the Department records indicate that the required code abatement work remains 11 outstanding.” (UMF, ¶ 38). 12 Burradell and BCI were fired in early 2017. (Decl. of T. Dilley, ¶1-21 ). Santos managed to 13 continue to fool the Dilleys for several more months but was eventually discharged. (Decl. of T. 14 Dilley, ¶1-21). Thereafter, in an effort to mitigate damages, the Dilleys sought a variance for the 15 construction called for in the MAI plans which at the time it was stopped was mostly complete. (Id.; 16 UMF, ¶ 39-41; ). On March 1, 2018, the Planning Department denied the request for variance. (Id.). 17 As a result, the Dilleys were forced to return the Property to its original design configuration, i.e., 18 walls, floors, windows, etc. with proper plans and legal permits and are still not yet back at their 19 home. (Id.). 20 IV. LEGAL ANALYSIS 21 In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, the Supreme Court established the 22 basis for summary judgment/adjudication motions under Code of Civil Procedure section 437(c). 23 “First, and generally, from commencement to conclusion, the party moving for summary judgment 24 bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to 25 judgment as a matter of law.” (Id. at 850.) “Second, and generally, the party moving for summary 26 judgment bears an initial burden of production to make a prima facie showing of the nonexistence of 27 any triable issue of material fact; if he carries his burden of production, he causes a shift, and the 28 12 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 opposing party is then subjected to a burden of production of his own to make a prima facie showing 2 of the existence of a triable issue of material fact.” (Id.) “Third, and generally, how the parties 3 moving for, and opposing, summary judgment may each carry their burden of persuasion and/or 4 production depends on which would bear what burden of proof at trial.” (Id.) In order to prevail on 5 summary judgment, a defendant must “show that the plaintiff cannot establish at least one element of 6 the cause of action.” (Id. at 853-854.) 7 A. Burradell’s Motion For Summary Judgment Must Be Denied Because He Fails To Meet His Initial Burden Of Production And His Request To Adjudicate Alter Ego 8 Liability Is Premature. 9 10 Under California Code of Civil Procedure § 437(c), defendant bears the initial burden of 11 making a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic 12 Richfield Co., (2001) 25 Cal. 4th 826, 850.) Until this has been done, plaintiff has no obligation to file 13 any evidence or make any showing to oppose the motion at all. (Consumer Cause, Inc. v. 14 SmileCare, (2001) 91 Cal. App. 4th 454, 468.) 15 It is not sufficient for a defendant to pick out one aspect of a complaint, claiming that there is 16 no evidence to support it, while ignoring the other theories of liability. (Lopez v. Superior 17 Court (1996) 45 Cal. App. 4th 705, 717.) Defendant has the burden of showing that he is entitled to 18 judgment with regard to all theories of liability asserted by plaintiff. (Id.) Mere conclusions of law or 19 fact are insufficient to satisfy the evidentiary requirements of the summary judgment statute. (Ahrens 20 v. Superior Court (1988) 197 Cal. App. 3d 1134, 1141.) 21 Here, Burradell’s Motion purports to move for summary judgment on the Dilley’s Third 22 Cause of Action for Fraud, Fourth Cause of Action for Negligent Misrepresentation, Fifth Cause of 23 Action for Negligence, and Sixth Cause of Action for Unjust Enrichment. (Motion, p. 2-6). Burradell, 24 however, makes no attempt to address the substantive elements of the Dilleys’ causes of action, nor 25 does he so much as mention any defenses. (Id.) Burradell makes no attempt to present any evidence at 26 all relating to his own personal liability. (Id.). 27 Burradell concedes in his separate statement that the Dilleys did not allege alter ego liability 28 13 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 against him in their Complaint (Burradell UMF, ¶ 9.) Yet, the sole basis of his Motion is to adjudicate 2 alter ego liability against him. Thus, Burradell’s Motion fails at the outset because he has not met his 3 initial burden of production. (C.C.P. § 437(c).) 4 Moreover, Burradell’s attempt to put the cart before the horse and force this Court to 5 adjudicate the issue of alter ego liability now is premature and procedurally improper. Under 6 California law, alter ego liability is appropriately established after a judgment has been entered 7 against a defendant corporation through a motion to add a judgment debtor. (Dow Jones Co. Avenel, 8 (1984) 151 Cal. App. 3d 144, 148.) The Dilley’s have a right to amend their complaint post-judgment 9 to allege alter ego liability against Burradell if and when it is appropriate; However, Burradell’s 10 misguided attempt to ambush the Dilley’s now when alter ego liability has not been alleged or 11 explored in discovery is inappropriate. 12 B. Burradell’s Motion For Summary Adjudication Fails To Resolve Any Cause Of Action Or Claim For Damages, And Must Therefore Be Denied. 13 14 Code of Civil Procedure section 437(c)(f)(1) sets the standard for motions for summary 15 adjudication, providing as follows: A party may move for summary adjudication as to one or more causes of action within an 16 action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is 17 no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified 18 in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be 19 granted only if it completely disposes of a cause of action, an affirmative defense, a claim 20 for damages, or an issue of duty. (C.C.P. §437(c)(f)(1); Emphasis added). A motion for summary adjudication proceeds in all procedural respects as a motion for 21 summary judgment. (C.C.P. § 437(c)(f)(2).) “The affidavits of the moving party are strictly construed 22 and those of his opponent liberally construed, and doubts as to the propriety of summary judgment 23 should be resolved against granting the motion.” (Flait v. North American Watch Corp. (1992) 3 Cal. 24 App. 4th 467, 472.) 25 Burradell's alternative request for summary adjudication similarly fails because it will not 26 “completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of 27 duty” as required by Code of Civil Procedure section 437(c)(f)(1). Burradell's Motion does not seek 28 14 PLAINTIFF DILLEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT 30 ALAN L. BURRADELL’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES 31 223973294.v5-6/24/20 1 separate adjudication of each cause of action. Instead, Issues Nos. 1 through 20 in Burradell’s 2 separate statement relate solely to Burradell’s liability as an alter ego of BCI. (See Burradell’s UMF 3 ¶ 1-20.) 4 The fatal flaw in Burradell’s analysis is that there is no cause of action for alter ego liability 5 asserted in the Complaint. (See Burradell UMF ¶ 9;). Rather, the Complaint includes three 6 introductory paragraphs (Complaint ¶ 3, 9, and 10.) which allege a basis for Burradell’s personal 7 liability. As discussed below in section III, infra, the Complaint is replete with allegations regarding 8 Burradell's own wrongful conduct for which he is personally liable.