SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
JeeJee Vizconde, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE:
JANUARY 06, 2015
TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
LINE #
CASE #
CASE TITLE
RULING
LINE 1
110CV166377 D. Martinez, et al v Bell
Enterprises Inc., et al
LINE 2
113CV254616 Inspired Senior Living
Appearance required.
Options – South Bay Inc. v
J. McFarland
LINE 3
114CV259660 Tung Tai Group v H.
Misle, et al
The Motion to Reconsider the Ruling on the
Motion to Expunge Lis Pendens is DENIED.
See below for the Tentative Ruling on the
Demurrer to the First Amended CrossComplaint.
LINE 4
114CV265371 M. Avalos, et al v Balt
Extrusion, et al
See below for Tentative Ruling
LINE 5
114CV268780 Universal Semiconductor Off Calendar.
Technologies, Inc. v M
West Propco X, LLC, et al
LINE 6
111CV214032 The Board of Trustee of
CA State University v
Clark Construction Group,
et al
LINE 7
112CV230975 L. Large v Intero Real
See below for Tentative Ruling.
Estate Services, Inc., et al
LINE 8
107CV096935 P. Bernstein, et al v Cal
State Home Loans, et al
Continued to January 27, 2015 at 9:00 a.m.
LINE 9
111CV210220 G. Shores v DOE One
The Petition to Confirm Arbitration Award is
GRANTED.
LINE 10 113CV239693 H. Vagts, et al v State of
California, et al
Appearance required.
The Motions to Bifurcate the Special Defense
of the Statute of Limitations and Try it
Separately is DENIED. See below for the
Tentative Rulings on the Motions for
Summary Judgment / Adjudication.
The Motion to Continue Trial is DENIED.
LINE 11 113CV256283 RREF CB SBL-AZ, LLC Off Calendar.
v M. Stepovich, et al
LINE 12 114CV273441 M. Guzman v Pennymac
Holdings, LLC, et al
The Application for a Preliminary Injunction
is DENIED.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
JeeJee Vizconde, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 13 109CV156454 FIA Card Services, N.A. v The Motion to Compel Acknowledgment of
A. Sarwar
Satisfaction of Judgment is MOOT and Off
Calendar.
LINE 14 114CV261924 Align Technology, Inc. v
C. Goodman
The Motion for Assignment of Rights,
Restraining Order and Turnover Order is
GRANTED.
LINE 15 114CV268896 Absolute Resolutions V
LLC v D. Bruno
The Motion to Continue Trial is GRANTED.
LINE 16 112CV235009 G. Metzgar, et al v 3M
Company, et al
Off Calendar.
LINE 17 113CV254647 A. Bygdnes, et al v Sonic Off Calendar.
MS, LLC, et al
LINE 18 114CV270757 N. Tran v L. Crawsforth, et Off Calendar.
al
LINE 19 114CV273742 A. Hunter, et al v Depeche The Motion for Protective Order and
Limo & Shuttle Service
Sanctions is DENIED.
LLC
Calendar line 1
- oo0oo -
Calendar line 2
- oo0oo -
Calendar line 3
Case Name: Tung Tai Group v. Howard N. Misle, et al.
Case No.: 1-14-CV-259660
Before the Court is the demurrer of plaintiff and cross-defendant Tung Tai Group
(“Plaintiff”) to the First Amended Cross-Complaint (“FACC”) filed by defendants and crosscomplainants Howard Misle, Tamara Misle, American Metal Recycling Services, Inc., and
Conerstone Nevada Limited Partnership (collectively the “Misle Defendants”).
Plaintiff’s request for judicial notice of its Complaint filed on January 27, 2014 in this
action and the Misle Defendants’ request for judicial notice of a copy of the Payoff Letter and
Release Agreement, which was attached as an exhibit to the motion to expunge lis pendens
filed in this action on August 7, 2014, are both GRANTED. Both documents are records on file
with this Court and judicially noticeable pursuant to Evidence Code section 452, subdivision
(d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of
its own file].)
Plaintiff’s demurrer to the Misle Defendants’ first cause of action in the FACC for
breach of contract is OVERRULED.
The elements of a cause of action for breach of contract are: (1) the existence of a
contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s
breach; and (4) resulting damage. (Wall Street Network, Ltd. v. N.Y. Times Co. (2008) 164
Cal.App.4th 1171, 1178.) As to the first element, a contract is statutorily defined as “an
agreement to do or not to do a certain thing.” (Civ. Code, § 1549.) Along these lines, the Court
of Appeal has stated that, “[u]nder California law, a contract will be enforced if it is
sufficiently definite (and this is a question of law) for the court to ascertain the parties’
obligations and to determine whether those obligations have been performed or breached.”
(Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.)
Here, the Misle Defendants allege that Plaintiff executed an agreement on April 1,
2011, to which they are third-party beneficiaries. (FACC, ¶ 4.) The agreement was entitled
“Tung Tai Group Payoff Letter and Release Agreement” and is signed by Plaintiff’s President,
Joe Chen. (Id., ¶¶ 4, 5.) Pursuant to the terms of the agreement, Plaintiff agreed to take certain
actions upon the payment of a certain sum, including reconveying the Deed of Trust and
terminating any liens on the property encumbered by the Deed of Trust. (Misle Def.s’ Request
for Judicial Notice, Ex. A.) The Misle Defendants allege in the FACC that, “[o]n or about
April 21, 2011, . . . the sums designated in the Payoff Letter were wired to Tung Tai Group
accounts.” (FACC, ¶ 6.) The Misle Defendants further allege that Plaintiff breached the
agreement by failing to reconvey the Deed of Trust upon repayment of the subject loan with
interest. (Id., ¶ 8.) Finally, the Misle Defendants allege that they were damaged by the breach.
(Id., ¶¶ 9, 12.) These allegations are sufficient to state a claim for breach of contract. Plaintiff’s
argument that the “Payoff Letter and Release Agreement” is not a contract is belied by the fact
that the document is entitled an “agreement” and the fact that the document imposes
obligations on both parties. Further, while Plaintiff argues that there is a lack of consideration
because the agreement simply reiterated terms of another earlier written agreement entered into
by the parties, Plaintiff’s memorandum of points and authorities in support of the demurrer is
devoid of any legal authorities for the Court to draw upon in reaching the conclusion that
consideration is lacking in this case.
Plaintiff’s demurrer to the second cause of action for declaratory relief in the FACC is
OVERRULED. Plaintiff’s argument concerning the second cause of action hinges entirely
upon the contention that the Payoff and Release Agreement did not impose contractual
obligations. Because the Court has rejected that contention, the demurrer to the second case of
action necessarily fails.
- oo0oo -
Calendar line 4
Case Name: Avalos, et al. v. Balt Extrusion, et al.
Case No.: 1-14-CV-265371
Defendant Balt Extrusion SAS (“Balt”) moves to quash service of summons for
ineffective service of process and lack of personal jurisdiction.
Balt’s request for judicial notice is GRANTED. (Evid. Code, § 452, subds. (c), (f) and
(h).)
Balt’s motion to quash service of summons is GRANTED. Plaintiffs failed to serve the
summons and complaint in accordance with the procedures set forth in the Hague Service
Convention. Consequently, the purported service is void. (See Kott v. Superior Court (1996)
45 Cal.App.4th 1126, 1136 [stating that failure to comply with Hague Service Convention
procedures voids service].)
- oo0oo -
Calendar line 5
- oo0oo -
Calendar line 6
Case Name: BD. OF TRUSTESS OF CSU v. CLARK CONST. GROUP, INC., ET AL.
Case No.: 1-11-CV-214032
Requests for Judicial Notice
The request for judicial notice of seven documents (exhibits 1-7) by Defendants Clark
Construction Group, Inc., Clark Construction Group, LLC, Clark Construction GroupCalifornia LP and F.W. Spencer & Son, Inc (“Clark/Spencer Defendants”) is GRANTED
pursuant to Evid. Code §452(d) as to exhibits 1-5, Evid. Code §452(c) as to exhibit 6, and
Evid. Code §452(h) as to exhibit 7. Exhibit 1 is a copy of Plaintiff CSU’s original complaint in
this action filed on Nov. 30, 2011. Exhibit 2 is a copy of the operative 4th Amended Complaint
(“4AC”) filed Jan. 11, 2013. Exhibit 6 is a copy of the Certificate of Occupancy for the subject
structure issued on August 17, 2005. Exhibit 7 is a copy of the Notice of Completion for the
subject structure, recorded on Dec. 23, 2005. It establishes that Plaintiff CSU accepted the
project work as complete on Dec. 22, 2005. Substantial completion of construction occurs on
the earlier of the date of final inspection, the date of recordation of the notice of completion,
the date of occupancy, or one year after termination or cessation of work. See CCP §337.15.
Here substantial completion occurred on Aug. 17, 2005.
The joint request for judicial notice of four documents (exhibits 1-4) by Defendants
Niles Bolton Associates, Inc. (“NBA”) and WSP Flack + Kurtz, Inc. (“WSP”) is GRANTED
pursuant to Evid. Code §452(d).
The request for judicial notice of six documents (exhibits 1-6) by Defendant
Constructive Services, Inc. (“CTS”) is GRANTED pursuant to Evid. Code §452(d) as to
exhibits 1-4 and pursuant to Evid. Code §452(c) as to exhibits 5 and 6.
The request for judicial notice by Plaintiff California State University (“CSU”) of the
Court’s prior order of Dec. 31, 2012 on various demurrers in this action (exhibit FF) is
GRANTED pursuant to Evid. Code §452(d). However, the fact that an argument advanced in
a demurrer is overruled is not in itself a bar to the same argument being advanced as a basis for
summary judgment or adjudication.
Defendants’ Motions for Summary Judgment/Adjudication
The pleadings serve as the “outer measure of materiality” in a summary judgment
motion, and the motion may not be granted or denied on issues not raised by the pleadings.
See Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4th 60, 73 (“the
pleadings determine the scope of relevant issues on a summary judgment motion.”).
The moving party bears the initial burden of production to make a prima facie showing
that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850. “A defendant seeking summary judgment must show that at least one
element of the plaintiff’s cause of action cannot be established, or that there is a complete
defense to the cause of action. … The burden then shifts to the plaintiff to show there is a
triable issue of material fact on that issue.” Alex R. Thomas & Co. v. Mutual Service Casualty
Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted. A motion for summary
adjudication shall be granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty. CCP §437c(f)(1); McClasky v. California
State Auto. Ass’n (2010) 189 Cal App 4th 947, 975 (“If a cause of action is not shown to be
barred in its entirety, no order for summary judgment—or adjudication—can be entered.”)
“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable
finder of fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” Aguilar, supra, at 850.
The party opposing a motion for summary judgment or adjudication may be bound by
admissions made in deposition testimony or responses to discovery, and declarations filed in
opposition that conflict with such admissions will be disregarded. See D’Amico v. Board of
Med. Examiners (1974) 11 Cal 3d 1, 21; Scalf v. D.B. Lodge Homes, Inc. (2005) 128 Cal App
4th 1510, 1522 (“In a nutshell, the rule bars a party opposing summary judgment from filing a
declaration that purports to impeach his or her own prior sworn testimony.”)
1) Clark/Spencer Defendants’ Motion: The motion for summary judgment by the
Clark/Spencer Defendants is DENIED for failure to meet the initial burden to establish a
complete absence of triable issues of material fact as to all claims alleged against them by
Plaintiff in its operative 4th Amended Complaint (the 1st cause of action for breach of contract,
2nd for Negligence, 3rd for Professional Negligence, 5th for Implied Warranty, 6th for Express
Warranty, 7th for Express Indemnity and 8th for Private Nuisance).
The Clark/Spencer Defendants’ alternative motion for summary adjudication of the 1st,
2 , 3 , 5th, 6th and 8th causes of action on the basis that each of them is time-barred under
either the 4-year statute of limitations in CCP §337, the 3-year limitations period set forth in
CCP §338 and/or the 4-year limitations period set forth in CCP §339 (5th cause of action only)
is GRANTED.
nd
rd
The operative 4th Amended Complaint alleges at 31 that the existence and causes of the
alleged defective conditions “were not reasonably discoverable more than two years before the
University filed this action. It was not until the final quarter of 2010 that the University had
reason to suspect the defective conditions were caused by the wrongdoing of defendants.” The
Court employs an objective standard in evaluating allegations of delayed discovery. “The
limitations period begins once the plaintiff has notice or information of circumstances to put a
reasonable person on inquiry. Subjective suspicion is not required. If a person becomes aware
of facts which would make a reasonably prudent person suspicious, he or she has a duty to
investigate further and is charged with knowledge of matters which would have been revealed
by such an investigation.” McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108, internal
citations omitted, emphasis added.
“[A] two-part analysis is used to assess when a claim has accrued under the discovery
rule. The initial step focuses on whether the plaintiff possessed information that would cause a
reasonable person to inquire into the cause of his injuries. Under California law, this inquiry
duty arises when the plaintiff becomes aware of facts that would cause a reasonably prudent
person to suspect his injuries were the result of wrongdoing. If the plaintiff was in possession
of such facts, thereby triggering his duty to investigate, it must next be determined whether
‘such an investigation would have disclosed a factual basis for a cause of action[.] [T]he
statute of limitations begins to run on that cause of action when the investigation would have
brought such information to light.’” Alexander v. Exxon Mobil (2013) 219 Cal App 4th 1236,
1251, internal citations omitted, emphasis added.
While resolution of the statute of limitations issue is normally a question of fact, where
the uncontradicted facts established through discovery are susceptible of only one legitimate
inference, summary judgment is proper. Mills v. Forestex Co. (2003) 108 Cal App 4th 625,
640. “The limitations periods of Code Civ. Proc., §§ 337 & 338, start to run upon discovery.
Discovery occurs when the plaintiff suspects, or reasonably should suspect, that someone has
done something wrong to the plaintiff, causing the injury. A plaintiff has reason to suspect
when he or she has notice or information of circumstances to put a reasonable person on
inquiry. In other words, sections 337 and 338 begin to run only after the damage is sufficiently
appreciable to give a reasonable person notice that he or she has a duty to pursue his or her
remedies.” Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal
App 4th 251, 258, internal citations and quotations omitted. As the moving defendants have
pointed out, “‘Repair suggests discovery of a latent defect and commencement of a shorter
period of limitation.’” Mills, supra, at 649.
The Clark/Spencer Defendants have submitted admissible evidence establishing that
they are alleged to have failed to construct the project in compliance with the contract
documents, including failure to resolve “discovered and anticipated problems concerning the
installation of the plumbing system” (4AC at 35-37), and to have installed the wrong number
of domestic hot water supply risers, failed to properly review the water balance report
submittal in 2005, failed to see that the water balance report in 2005 did not match the design
and did not match coordination drawings, failed to prepare riser shop drawings or as-built
drawings of the plumbing system, failed to ream pipes, over inserted copper piping at fittings,
left voids in pipe joints and applied excessive flux to the pipes. See Exhibit O to the
declaration of Rupa Patel at 4:11-26 (Plaintiff’s verified responses to interrogatories).
The Clark/Spencer Defendants have also submitted admissible evidence demonstrating
that by no later than January 2006 (and even earlier from substantial completion in Aug. 2005
through the end of 2005) Plaintiff was aware of problems with the design and construction of
the plumbing at Campus Village, believed that the various defendants, including the
Clark/Spencer Defendants, were to blame for the problems and defects, and that various
employees of Plaintiff had begun attempts to fix the defects. See Exhibit B to the Declaration
of Nick Jobe (Jan. 3, 2006 emails listing problems); Exhibits A and B to the Patel Declaration
(deposition testimony of Gary Kestel, Building Service Engineer for SJSU Housing, designated
as person-most-knowledgeable, describing problems with hot water system from occupation of
building in August 2005 and attempts to fix it by Plaintiff, including installation of expansion
tanks); Exhibit F to the Patel Declaration (Deposition testimony of Richard Sida, Supervising
Building Engineer for SJSU Housing, stating his knowledge of problems with the hot water
system from 2005 forward and attempts to fix it such as switching recirculation pumps to handoperation), Exhibit H to the Patel Declaration (Deposition testimony of Jack Byers, Facilities
Project Supervisor for SJSU Housing, describing knowledge of plumbing problems in late
2005, including review of email chain—attached as I to Patel Declaration—including email
from Jack Byers dated 12-15-05 listing such problems), Exhibit P to the Patel Declaration (Jan
2006 emails produced by Plaintiff in document production demonstrating knowledge of hot
water problems), and Exhibit Q to the Patel Declaration (Sept. 2005 emails produced by
Plaintiff in document production stating in pertinent part that “Domestic water system is still
being worked around and there is a question as to whether it has been installed correctly. . . .
[T]his has been an ongoing issue since the buildings opened. The hot water issue continues to
require a series of ‘fixes.’ The hydraulics of the building were never solved. The installation
issues are Clark’s. . . .”)
This evidence establishes that Plaintiff’s duty to investigate the plumbing system arose
by no later than January 2006. Plaintiff’s assertion in its consolidated opposition to all of the
present motions for summary judgment/adjudication that this case is somehow limited to leaks
in the plumbing system that it did not and could not have become aware of prior to 2009 is
unpersuasive in light of the evidence submitted by the Clark/Spencer Defendants (and the other
moving defendants), including the operative pleading, Plaintiff’s own verified discovery
responses and documentation generated by Plaintiff’s own personnel specifically blaming the
various defendants for problems with the plumbing system well before 2009. Unlike in the
decisions cited by Plaintiff for the proposition that knowledge of one defect does not
necessarily equate to knowledge of another separate defect, the later leaks here are directly
related to the earlier alleged negligent installation and design of the system that Plaintiff was
not only aware of by January 2006 but had blamed the various defendants, including the
Clark/Spencer Defendants, for. Plaintiff cannot evade accrual of its claims and the running of
applicable statutes of limitations by knowingly using a plumbing system that it had already
determined was defectively installed and designed by the various defendants by no later than
Jan. 2006 until further problems, caused by the already known defects, occurred. “The test is
whether a reasonable inspection and further inquiry after discovery of the initial defect would
have disclosed the full extent of the problem.” Mills, supra, at 650, fn. 15. Accordingly, as to
these causes of action, Plaintiff has failed to raise any triable issues of material fact as the
evidence would not allow a reasonable finder of fact to find the underlying facts in favor of
Plaintiff. See Aguilar, supra, at 850.
The Clark/Spencer Defendants’ alternative motion for summary adjudication of
Plaintiff’s 7th causes of action for Express Indemnity is DENIED for failure to meet their initial
burden. The sole argument advanced is that the claim fails for lack of evidence because
Plaintiff has not shown payments to third parties that it should be indemnified for. See
Clark/Spencer Defendants’ Notice of Motion at 3:19-22. This is insufficient to meet
Defendants’ burden to show a complete absence of triable issues. Nothing prevents
contracting parties from agreeing that their indemnification language applies to a direct action
between them. “[T]he California Supreme Court has defined ‘indemnity’ as the obligation
resting on one party to make good a loss or damage another party has incurred.’ This
definition is not limited to third party claims and is broad enough to include [one contracting
party's] direct breach of contract claim against [the other contracting party] . . . . Civil Code
section 2772 ‘plainly states that indemnity may apply to either direct or third party claims.’”
Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1025, citing Rossmoor Sanitation, Inc.
v. Pylon Inc. (1975) 13 Cal.3d 622, 628, emphasis added, further internal citations omitted.
See also Nicholas Laboratories, LLC v. Chen (2011) 199 Cal App 4th 1240, 1248. Defendants
have failed to show that the specific contractual language between the parties here limited
indemnity obligations to third party claims.
2) NBA and WSP Defendants’ Motions:
The Motion for Summary Judgment by Defendant NBA is DENIED for failure to meet
the initial burden to establish a complete absence of triable issues of material fact as to all
claims alleged against it by Plaintiff in the operative 4AC (the 1st cause of action for breach of
contract, 3rd for Professional Negligence, 6th for Breach of Express Warranty, 7th for Express
Indemnity and 8th for Private Nuisance).
Defendant NBA’s alternative motion for summary adjudication of the 1st, 3rd, 6th and 8th
causes of action on the basis that they are each barred by the 4-year statute of limitation in CCP
§337 or the 3-year statute of limitation in CCP §338 is GRANTED.
NBA has submitted admissible evidence establishing that it is alleged to have breached
its contract with Plaintiff and to have provided defective design and engineering work by
failing to design a plumbing system that “minimized the total lifecycle costs of ownership, or
design for the efficient operation and configuration of the plumbing system to provide for
maintenance, repair or replacement with minimal disturbance of occupied spaces.” See 4AC at
52 and 68.
Similar to the Clark/Spencer Defendants, NBA has also submitted admissible evidence
establishing that, by no later than January 2006, Plaintiff was well aware of design, operation
and maintenance problems with the plumbing system at Campus Village. See Exhibit D
(deposition testimony of Gary Kestel), Exhibit E (Sept. 21, 2005 email produced by Plaintiff
describing problems with “Domestic water system (design flow),” Exhibit F (Jan. 3, 2006
email produced by Plaintiff giving count of calls of water problems), Exhibit G (Jan 3, 2006
email chain describing hot water system problems), Exhibit H (additional emails from Dec.
2005 to Jan. 2006 produced by Plaintiff describing hot water system problems), Exhibit K
(emailed notes on Jan. 31, 2006 meeting discussing problems with water system) Exhibit M
(deposition testimony of Richard Sida) and Exhibit R (deposition testimony of Gary Kestel) to
the Declaration of Verita Molyneaux. This evidence establishes that Plaintiff’s duty to fully
investigate any problems with the plumbing system arose by no later than Jan. 2006.
Plaintiff’s joint opposition to all of the present motions fails to raise any triable issue of
material fact as to the running of the statutes of limitation as to the 1st, 3rd, 6th and 8th causes of
action as alleged against Defendant NBA well before the original complaint was filed.
Defendant NBA’s alternative motion for summary adjudication of the 7th cause of
action for Breach of Express Indemnity is DENIED for failure to meet the initial burden. As
with the motion by the Clark/Spencer Defendants, the sole argument advanced for adjudication
of the claim is that it fails because Plaintiff has failed to produce evidence of payments to third
parties. See NBA Notice of Motion at 2:25-26. As already described above, this is insufficient
to meet the initial burden to show a complete lack of triable issues of material fact as to this
cause of action.
Defendant WSP’s Motion for Summary Judgment of the claims alleged against it: the
3rd cause of action for Professional Negligence, 4th cause of action for Breach of Contract as
Third Party Beneficiary and the 8th cause of action for Private Nuisance is GRANTED on the
basis that all three causes of action are barred by the 3-year statute of limitations in CCP §338
and/or the 4-years statute of limitation in CCP §337.
Defendant WSP has submitted admissible evidence establishing that it is alleged to
have failed to use adequate care in designing and/or engineering the plumbing systems for the
Project, including but not limited to the system supplying hot water to the buildings, and also
in designing, installing and testing the system. See 4AC at 73-74.
Defendant WSP has also submitted admissible evidence, similar to that submitted by
the Clark/Spencer Defendants and Defendant NBA, establishing that Plaintiff was aware of the
alleged failures and had a duty to investigate them by no later than Jan. 2006. See Exhibits 1
and 2 (Jan. 2006 emails) to the declaration of Denise Sutherland.
As noted above, when the burden shifts to Plaintiff, the argument that it did not and
could not have become aware of plumbing leaks until 2009 fails to raise any triable issues of
material fact.
3) Defendant CTS’ Motion for Summary Judgment/Adjudication: The motion for
summary judgment by Defendant CTS is DENIED for failure to meet the initial burden to
establish a complete absence of triable issues of material fact as to all of the claims alleged
against it by Plaintiff in the operative 4AC; the 1st cause of action for Breach of Contract, the
2nd cause of action for Negligence, the 7th cause of action for Breach of Express Indemnity and
the 8th cause of action for Private Nuisance.
Defendant CTS’ alternative motion for summary adjudication of the 1st, 2nd and 8th
causes of action on the basis that they are time-barred by the statutes of limitation CCP §§337
and 338 (see CTS Notice of Motion at 2:6-17) is GRANTED.
Defendant CTS has established through admissible evidence that it is alleged to have
failed to provide adequate testing, inspection and quality control assurance service, to have
failed to ensure that construction was done according to specifications, and to have failed to
use reasonable care to prevent harm to Plaintiff. See 4AC at 43 and 59.
Defendant CTS has also established through admissible evidence that Plaintiff was well
aware with such alleged failures and various problems with the plumbing system, and had
begun attempts to fix them itself by Jan. 2006. See Exhibits A and B (deposition testimony of
Gary Kestel), Exhibit F (deposition testimony of Richard Sida), Exhibit H (deposition
testimony of Jack Byers) Exhibit I (Jan. 2006 emails re: troubleshooting of hot water system),
Exhibit P (Jan. 2006 emails produced by Plaintiff), Exhibit Q (Sept. 21, 2005 email produced
by Plaintiff) and Exhibit S (Jan. 3, 2006 emails produced by Plaintiff) to the Declaration of
Christopher Mezzetti.
As stated above, when the burden shifts to Plaintiff its argument in its consolidated
opposition brief that defects in the plumbing system were not apparent until late 2009 fails to
raise nay triable issues of material fact concerning the running of the statutes of limitation as to
the 1st, 2nd and 8th causes of action as alleged against Defendant CTS.
Defendant CTS’ alternative motion for summary adjudication of the 7th cause of action
for Breach of Express Indemnity is DENIED for failure to meet the initial burden to establish a
complete absence of triable issues of material fact as to this cause of action. The sole basis
advanced for adjudication is that the claim fails for lack of evidence because Plaintiff has not
provided evidence of payments to third parties. See CTS Notice of Motion at 2:10-12. As
stated above, this argument fails to establish a complete absence of triable issues of material
fact as to this claim as alleged against CTS.
- oo0oo -
Calendar line 7
Case Name: Large v. Intero Real Estate Services, Inc., et al.
Case No.: 1-12-CV-230975
Defendant Kathleen Sims moves for summary judgment, or in the alternative, summary
adjudication as to the claims asserted against her in the complaint filed by plaintiff Lisa Large
(“Plaintiff”).
Sims’ request for judicial notice is GRANTED. (Evid. Code, ¶ 452, subd. (d).)
After full consideration of the evidence, separate statements and authorities submitted
by each party, Sims’ motion for summary judgment is DENIED. Sims’ alternative motion for
summary adjudication is GRANTED as to the seventh (breach of contract) and eighth (breach
of the implied covenant) causes of action and otherwise DENIED.
As to Plaintiff’s contract claims, Plaintiff does not dispute that there is no clause, term
or provision in the Purchase Contract upon which the claims are based which provides that
property taxes will not be increased or that monthly lease payments will be tax deductible.
While Plaintiff is correct that a duty to disclose all material facts in a real estate transaction
arises out of a contractual relationship between the parties to that transaction (see Civ. Code, §
1572; see also Goodman v. Kennedy (1976) 18 Cal.3d 335), the language in the Purchase
Contract and Supplement to the Transfer Disclosure Statement cited by her as the basis for the
breach merely advises the seller of the duty of disclosure to which she is beholden under
California law, but does not create a contractual obligation. (See Plaintiff’s Separate Statement
of Undisputed Material Facts (“UMF”) Nos. 103, 106.) There is nothing, in either the
Purchase Contract or the circumstances surrounding it, which suggests that the disclosure
obligations referred to were intended to bind Sims as a matter of contract. The language
utilized is not obligative in nature, which would be the case if instead of simply describing
what is required under California law it was declared that the seller shall do a particular thing,
i.e., disclose to the buyer all material facts. Plaintiff cannot maintain a breach of contract claim
where none of the terms of the subject contract have actually been breached. It follows that
she also cannot maintain her claim for breach of the implied covenant. (See Digerati Holdings,
LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885 [“[t]he scope of
conduct prohibited by the implied covenant depends on the purposes and express terms of the
contract”].)
The Court finds Sims’ remaining arguments relative to the first (fraudulent
misrepresentation), second (fraudulent concealment), third (negligent misrepresentation) and
sixth (negligence- disclosure) causes of action to be without merit. With respect to the
contractual disclosures contained in the Purchase Contract, the Disclosure and Advisory packet
and the PRDS Disclosure Regarding Real Estate Agents Relationship, Sims’ reliance on
Carleton v. Tortosa (1993) 14 Cal.App.4th 745 for the proposition that Wong is immune from
liability due to the disclosures advising Plaintiff that she should seek tax advice elsewhere is
misplaced. Sims ignores critical distinctions between Carleton and the case at bar; in contrast
to the broker in Carleton, notwithstanding the fact that Wong and Kalish were not tax
professionals, they elected to affirmatively provide information concerning the tax
consequences of the transaction to Plaintiff. Having done so, they cannot now claim that the
disclosures absolve them from liability. (See Valdez v. Taylor Auto. Co. (1954) 129
Cal.App.2d 810, 817 [stating that a person may assume a duty, even if one would not have
otherwise been imposed, by voluntarily performing a service].)
The Court also rejects Sims’ contention that Plaintiff could not have reasonably relied
on Wong’s representations in the face of language in the Purchase Contract stating that
California law mandates a reassessment of the value of a property upon a change of ownership.
Plaintiff testified at her deposition that she understood the foregoing language to be irrelevant
to the Addison Property transaction because, as the contract was for the lease of the property,
ownership was not changing hands. (See Deposition of Lisa Large, 131:11-133:22.) The
question of “whether a plaintiff reasonably relied on a defendant’s misrepresentations or failed
to exercise reasonable diligence is [] ordinarily a question of fact for the trier of fact.” (Furla
v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1078-1079.)
With respect to Sims’ argument regarding a lack of actual reliance by Plaintiff, Plaintiff
raises a triable issue of material fact regarding whether representations made by Wong were a
substantial factor in her ultimate decision to purchase the leasehold interest in the Addison
Property. (See Large Depo., 122:1-2, 131:21-132:7, 148:22-23.) Reasonable reliance may be
based on multiple representations so long as each representation is a substantial factor in
inducing the plaintiff to act. (See Wennerholm v. Stanford University School of Medicine
(1942) 20 Cal.2d 713, 717 [“i]n actions for fraud it is not required that a defendant’s
representations be the sole cause of the damage. If they are a substantial factor in inducing the
plaintiff to act, even though he also relies in part upon the advice of others, reliance is
sufficiently shown”].)
Finally, Sims’ assertion that Plaintiff cannot establish justifiable reliance because under
California law a buyer of real estate may not reasonably rely upon representations concerning
future assessments of levies of taxes fails for two reasons. First, not all of the alleged
representations concern future tax consequences but rather existing obligations, and “reliance
may be made by a buyer of real estate upon representations as to existing tax liens, amounts of
taxes for current or prior years, or assessed values for current or former years. (Holder v.
Home Savings & Loan Association of Los Angeles (1968) 267 Cal.App.2d 91.) Second, to the
extent that the alleged misrepresentations do concern future assessments, the exception
articulated in Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 applies.
Here, Wong had a statutory duty to not make false statements in the MLS listing pursuant to
Civil Code section 1088. Sims, as Wong’s principal, is liable for his misconduct. (See, e.g.,
Ach v. Finkelstein (1968) 264 Cal.App.2d 667, 677 [“[w]here an agent acting within his actual
or apparent authority procures a sale of property by means of fraud, the principal is jointly
liable … even though the principal is innocent of personally participating in the fraud, when he
accepts and retains the benefits of the transaction”].)
- oo0oo -
Calendar line 8
- oo0oo -
Calendar line 9
- oo0oo -
Calendar line 10
- oo0oo -
Calendar line 11
- oo0oo -
Calendar line 12
- oo0oo -
Calendar line 13
- oo0oo -
Calendar line 14
- oo0oo -
Calendar line 15
- oo0oo -
Calendar line 16
- oo0oo --
Calendar line 17
- oo0oo -
Calendar line 18
- oo0oo -
Calendar line 19
- oo0oo -
Calendar line 20
- oo0oo -
Calendar line 21
- oo0oo -
Calendar line 22
- oo0oo -
Calendar line 23
- oo0oo -
Calendar line 24
- oo0oo -
Calendar line 25
- oo0oo -
Calendar line 26
-
oo0oo –
Calendar line 27
- oo0oo -
Calendar line 28
- oo0oo -
Calendar line 29
- oo0oo -
Calendar line 30
-
oo0oo –