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1 MITCHELL B. GREENBERG, ESQ. (SBN 114878)
ELECTRONICALLY FILED
mgreenberg@abbeylaw.com Superior Court of California
2 JAIMEE A. MODICA, ESQ. (SBN 226872) County of Sonoma
jmodica@abbeylaw.com 3/8/2024 4:57 PM
3 DANIELLE N. PODSHADLEY, ESQ. (SBN 324177) Robert Oliver, Clerk of the Court
dpodshadley@abbeylaw.com By: Griselda Zavala, Deputy Clerk
4 ABBEY, WEITZENBERG, WARREN & EMERY, P.C.
100 Stony Point Road, Suite 200
5 Santa Rosa, CA 95401
Telephone: (707) 542-5050
6 Facsimile: (707) 542-2589
7 Attorneys for Plaintiffs
M.A. Silva and Foster Properties
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SONOMA
ABBEY, WEITZENBERG, WARREN & EMERY, P.C.
11
100 Stony Point Road, Suite 200, Santa Rosa, CA 95401
Telephone: (707) 542-5050 Facsimile (707) 542-2589
12 M.A. SILVA CORKS, USA, LLC; and ) Case No. SCV-268124
FOSTER PROPERTIES, LLC, )
13 ) Assigned for all purposes:
Plaintiffs, ) Hon. Christopher Honigsberg
14 ) Dept. 18
v. )
15 ) [PROPOSED] ORDER RE: DES’S
URSUS DEVELOPMENT GROUP, INC., dba ) MOTION FOR SUMMARY
16 WESTWIND BUSINESS PARK; BRIGITTA ) JUDGMENT
BRONDI; JENIFER STROBEL; ALSTON )
17 CONSTRUCTION COMPANY, INC.; )
GUDGEL ROOFING, INC., dba YANCEY ) Action Filed: April 1, 2021
18 ROOFING; GAF CORPORATION; and DOES ) Trial Date: September 20, 2024
1 THROUGH 50, INCLUSIVE. )
19 )
Defendants. )
20 )
21
22 The Motion for Summary Judgment of DES Architects + Engineers, Inc. came on for
23 hearing on February 7, 2024, at 3:00 p.m., before the Honorable Christopher Honigsberg in
24 Department 18 of the above-captioned Court. Jaimee Modica appeared on behalf of Plaintiffs
25 M.A. Silva Corks, USA, LLC and Foster Properties, LLC. Jonathan Blute appeared on behalf of
26 DES Architects + Engineers, Inc. (“DES”). Daniel Friedenthal appeared on behalf of Defendant
27 Alston Construction. Kevin Price appeared on behalf of Defendant Gudgel Roofing. Michael
28 Cochrane appeared on behalf of Cross-Defendant Henris Roofing, and Zshonette Reed appeared
-1-
[PROPOSED] ORDER RE: DES’S MOTION FOR SUMMARY JUDGMENT
1 on behalf of Cross-Defendant Gorman Roofing.
2 After consideration of the pleadings and records on file in this matter, the documents and
3 other evidence presented by the parties in connection with the Motion for Summary Judgment of
4 DES, argument of the parties’ counsel and good cause appearing, DES’s Motion for Summary
5 Judgment is DENIED, as set forth in the Court’s Tentative Ruling.
6 IT IS HEREBY ORDERED that the Tentative Ruling, a true and correct copy of which is
7 attached hereto as Exhibit A and incorporated herein by reference, is affirmed in its entirety as
8 the ruling of the Court.
9 IT IS SO ORDERED.
10
Date: _____________________________
3/8/24
ABBEY, WEITZENBERG, WARREN & EMERY, P.C.
11 Hon. Christopher Honigsberg
100 Stony Point Road, Suite 200, Santa Rosa, CA 95401
Telephone: (707) 542-5050 Facsimile (707) 542-2589
Judge of the Superior Court
12
13
14 APPROVAL AS TO FORM:
15
Pacific Legal Group, PC Friedenthal, Heffernan & Brown, LLP
16
By ______________________________ By ______________________________
17 Douglas A. Applegate Daniel Friedenthal
Attorneys for Jenifer Strobel and Brigitta Attorneys for Alston Construction
18 Brondi
19 Mokri, Vanis & Jones, LLP Walsworth WFBM, LLP
20 By ______________________________ /s/
By ______________________________
Kevin Price Jonathan Blute
21 Attorneys for Gudgel Roofing Attorneys for DES Architects + Engineers, Inc.
22
Clark Hill LLP Sims, Lawrence & Broghammer
23
By ______________________________ By ______________________________
24 James Earle Michael Cochrane
Attorneys for GAF Corporation Attorneys for Henris Roofing
25 Veliss Law, APC.
26 By ______________________________
Zshonette Reed
27 Attorneys for Gorman Roofing Services, Inc.
28
-2-
[PROPOSED] ORDER RE: DES’S MOTION FOR SUMMARY JUDGMENT
EXHIBIT A
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1. SCV-268124, M.A. Silva Corks, USA, LLC v. Ursus Development Group, Inc., et al.
Plaintiffs’ motion for judicial notice is GRANTED. Plaintiffs’ evidentiary objections are
OVERRULED in light of DES’s counsel’s supplemental declaration. DES’s evidentiary objections
are OVERRULED. DES’s motion for summary judgment (“MSJ”) is DENIED on the basis that
there are triable issues of material fact regarding its statute-of-limitations defense. Plaintiff
shall prepare the order pursuant to CRC 3.1312.
I. Underlying facts
Plaintiff M.A. Silva Corks (“Silva”), a manufacturer of wine packaging, began leasing a warehouse
in north Santa Rosa from defendant Ursus Development (“Ursus”) in 2014 with an option to
buy. Ursus agreed to make improvements to the building, including modification of the roof and
installation of batt insulation under the roof. Ursus hired defendant and moving party DES
Architect and Engineer (“DES”) to provide the architectural design for implementing those
improvements, and defendant Alston Construction (“Alston”) as the general contractor to
implement them. The roofing work was carried out by defendant Gudgel Roofing (“Gudgel”). In
March and April 2015, several rainstorms occurred at times when the wooden roof deck was in
place but not yet covered by a waterproof membrane. Construction was completed in or
around June 2015.
In July 2015, Silva assigned its purchase option to plaintiff Foster Properties (“Foster”), who
exercised it and purchased the property. During the winter of 2015, Silva began noticing water
coming into the building through the roof, walls, and window casings. Silva and Foster
(collectively “Plaintiffs”) notified Alston of the problems. Alston and defendant GAF Corp.
(“GAF”), the manufacturer of the roofing material, inspected the building and agreed to perform
repairs to stop the leaks. In late 2016, DES determined the steps it believed needed to be
taken. The work, consisting of applying a special coating to various parts of the roof, was
performed by Gudgel.
In June of 2017, Plaintiffs hired consultant Matt Cardle to determine why water was still
leaking into the building. Cardle reported that the leakage was due to the concrete walls
cracking because they were not thick enough. Plaintiffs notified DES and Alston of Cardle’s
findings, and DES proposed a plan to address the leakage by coating the exterior of the building
with a different waterproof coating than the one originally used, as well as checking the seals in
several places and resealing them if necessary. This work began in the late fall of 2017 and was
completed in February 2018.
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In January 2019, Plaintiffs informed Alston and DES that the walls were still leaking. Alston
hired consultant John Martin. In early 2020, Martin reported that the problems were due, at
least in part, to poor workmanship by some of Alston’s subcontractors. In the summer of 2020,
the insulation was removed from the underside of the roof deck, and wet insulation and
structural damage were observed.
In late 2020, Alston presented Plaintiffs with Martin’s recommendations for addressing the
leakage. The recommendations did not include replacing the roofing material. At this time
Alston suggested, for the first time, that the leakage was due to the batt insulation under the
roof trapping condensation under the roof deck, not to the poor workmanship identified in
Martin’s report.
At the same time, Alston declined to carry out any repairs unless Plaintiffs signed a general
release of liability. This lawsuit ensued a few months later.
II. Governing law
A party moving for summary judgment must show that there is no triable issue as to any
material fact and the moving party is entitled to a judgment as a matter of law. (CCP § 437c(c).)
“From commencement to conclusion,” the moving party bears the burden of persuasion and
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.) “Once the defendant or cross-
defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show
that a triable issue of one or more material facts exists as to the cause of action or a defense
thereto.” (Ibid.) If the plaintiff fails to do so, the defendant is entitled to judgment as a matter of
law. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) “There is no obligation on
the opposing party . . . to establish anything by affidavit unless and until the moving party has by
affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.”
(Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
III. Judicial notice
Plaintiffs’ motion for judicial notice of the original and First Amended complaints in this matter,
and of the instant motion and its attached proof of service, is granted pursuant to Evidence
Code § 452(d).
IV. Evidentiary objections
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A. Plaintiff’s objections
Several of Plaintiffs’ objections to the evidence accompanying DES’s motion are well-taken.
However, DES’s counsel has submitted a supplemental declaration that cures Plaintiffs’
authentication objections. In light of the fact that Plaintiffs did not challenge the actual
authenticity of any of DES’s evidence, and that they responded to it exactly as they would have
done if the objections had been overruled, the Court finds that they were not prejudiced by the
late submission of the authentication evidence. Plaintiffs’ authentication objections are
overruled both on those grounds and on the grounds that at least some cases suggest that a
“true and correct copy” declaration by counsel suffices to authenticate a document. (See, e.g.,
Landale-Cameron Court v. Ahonen (2007) 155 Cal.App.4th 1401, 1409, Hooked Media Group v.
Apple (2020) 55 Cal.App.5th 323, 338.)
Plaintiffs’ hearsay objections to Exhibits D, E, and F to counsel’s original declaration are
overruled on the basis that they are operative facts not proffered for the truth of the matter
asserted.
B. DES’s objections LISTNUM \l 1 \s 0
DES’s hearsay objections are overruled on the basis that the documents in question are
operative facts, not hearsay. The “contradicts prior interrogatory responses” objections are
discussed below.
V. Procedural arguments
Plaintiffs raise two procedural issues that, in their view, justify denying the instant motion. As
discussed next, the Court disagrees.
A. Failure to mention the proper pleading of the statute of limitations defense in the
separate statement.
DES’s rationale for the instant motion is that the causes of action against them are barred by
the applicable statutes of limitations. Plaintiffs argue that in order to assert that defense on
summary judgment, DES was required both to plead the defense in its answer and to state in
the MSJ and the supporting separate statement that it did so.
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The Court on its own motion takes judicial notice of DES’s answer, filed on June 27, 2022, which
recites that “The First Amended Complaint, and each cause of action therein, is barred by the
applicable statute of limitations stated in Part Two, Title II, Chapter 3, of the Code of Civil
Procedure, including, but not limited to, Sections 335.1, 337, 338, 339, 340, 340.5, 340.6 and
343.” The instant motion depends primarily on CCP § 338. Thus, the defense itself is properly
before the court as a general matter.
But, Plaintiffs argue, it is not properly before the court in the context of the instant motion
because of “the Golden Rule of Summary Adjudication: if it is not set forth in the separate
statement, it does not exist. Both the court and the opposing party are entitled to have all the
facts upon which the moving party bases its motion plainly set forth in the separate statement.”
(United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)
The Court is not persuaded that a technical point of pleading is the sort of “fact” that passage
refers to. However, even if it were, that would not mandate denial of the motion. “The failure to
comply with this requirement of a separate statement may in the court's discretion constitute a
sufficient ground for denying the motion.” (CCP § 437c(b)(1), emphasis supplied.) The Court
finds that DES’s failure to include “the statute of limitations defense was pled in our answer” in
its separate statement of undisputed facts is too minor an omission to justify such an exercise of
discretion.
B. Untimely service LISTNUM \l 1 \s 0
At the time the instant motion was filed, trial was set for February 16, 2024. (It has since been
continued to September 20, 2024.) An MSJ “shall be heard no later than 30 days before the
date of trial, unless the court for good cause orders otherwise.” (CCP § 437c(a)(3).) Thus, at the
time the motion was filed, the last day a hearing could be held, absent the Court’s finding of
good cause to change it, was January 17.
“Notice of the motion and supporting papers shall be served on all other parties to the action at
least 75 days before the time appointed for hearing.” (CCP § 437c(a)(2).) That subdivision
increases the 75-day notice period for service by mail, fax, or overnight delivery, but does not
explicitly mention an extension for email service. However, CCP § 1010.6, which sets forth the
rules for electronic service, extends the 75-day notice period by two days. (Cole v. Superior Court
(2022) 87 Cal.App.5th 84, 87-88.) Thus, DES needed to serve the instant motion and all its
supporting documents 77 days before the hearing date.
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Plaintiffs argue that the hearing date was no later than January 17 because of the “no later than
30 days before trial” rule. The motion was served on November 3, which is only 75 days before
January 17. (And, even worse in Plaintiffs’ view, counsel’s supporting declaration was not
served until November 6.) DES points out that the hearing date assigned by the clerk’s office at
the time the motion was filed was March 13, and that the motion and supporting papers were
served substantially more than 77 days before that.
The March 13 date is immaterial because it makes no sense to suppose that an MSJ would be
heard almost a month into a trial of the same matter and a timely filed motion must be heard
prior to trial. (CCP § 437c(a)(3).) While Plaintiff is technically correct in that the MSJ must have
been filed at least 105 days prior to the February 16, 2024, trial plus two days for email service,
the Court will exercise its discretion and find good cause to hear the motion on the merits.
Neither party has presented the Court with authority that the Court lacks jurisdiction to hear
this motion based on the late filing and the Court does not find any prejudice to the plaintiff.
VI. There are triable issues of material fact regarding the applicability of the statute of
limitations.
DES’s sole argument in the instant motion is that each cause of action is time-barred by the
applicable statute of limitations. “The resolution of a statute of limitations defense is typically a
factual question for the trier of fact. However, summary judgment is proper if the court can
draw only one legitimate inference from uncontradicted evidence about the limitations issue.”
(San Francisco Unified School Dist. v. W.R. Grace (1995) 37 Cal.App.4th 1318, 1325-1326.) The
Court cannot do that here. For the reasons discussed below, the Court finds that there are
triable issues of fact related to the statute-of-limitations claim.
A. Date when DES became a party.
DES was not named as a defendant in the First Amended Complaint filed on August 19, 2021.
DES became a defendant as the result of a Doe substitution filed on January 18, 2022.
Ordinarily, a Doe substitution relates back to the date the complaint was originally filed. (CCP §
474; Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.) However, a further requirement is
that the plaintiff must have been “genuinely ignorant of [the substituted-in defendant’s] identity
at the time [it] filed the original complaint.” (Ibid.; see also Optical Surplus, Inc. v. Superior Court
(1991) 228 Cal.App.3d 776, 783-784.)
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Plaintiffs’ First Amended Complaint alleges that “Ursus contracted with DES Architects &
Engineers, Inc. (‘DES’), an architectural and engineering firm, to prepare the plans and
specifications for the tenant improvements . . . .” That establishes that DES’s identity was known
to Plaintiffs at the time they filed the FAC, which precludes the operation of the relation-back
principle. Therefore, DES became a party to this action when the Doe substitution was filed on
January 18, 2022.
B. Accrual of causes of action
The question, then, is whether any limitation period on any of the causes of action brought
against DES expired before January 18, 2022. DES argues that “Specifically, Plaintiffs sue DES
for breach of contract, nuisance, breach of implied and express warranty,” citing for that
proposition to the entire cause-of-action section of the First Amended Complaint. However,
each cause of action in that section is denoted as being either “Against All Defendants,” which
includes all Doe defendants, or against some subset of the named defendants “and Does 1
through 50.” Since DES was substituted for Doe 1, all seven causes of action, including those
identified by DES but also including negligence, negligence per se, and strict product liability,
are now deemed to have been filed against DES.
There are disputed issues of fact regarding when these causes of action accrued. The general
rule is that the “statute of limitations begins to run when the plaintiff suspects or should suspect
that her injury was caused by wrongdoing.” (Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1110.)
DES argues that this occurred when Plaintiffs first discovered water intrusion in 2015, based on
Silva’s statement in an interrogatory response that they “first noticed water intrusion into the
property during the winter of 2015.” In DES’s view, that satisfies the above-quoted Jolly
standard. But Jolly makes clear in its next sentence that this is an objective standard: “the
limitations period begins once the plaintiff has notice of information of circumstances to put a
reasonable person on inquiry.” (Id. at p. 1110-1111, internal quotation marks removed, emphasis
supplied.) The question of whether a hypothetical reasonable person would have interpreted
the amount of water entering the building in 2015, in the particular manner in which it entered,
as an injury caused by someone else’s wrongdoing is not one that the Court can resolve as a
matter of law. (See, e.g., Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 351 [objective
standards resolved by trier of fact].)
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DES notes that Plaintiffs were warned as early as May 2014 of “concerns with moisture in the
batt insulation with the night cooling proposed for the warehouse,” and that Silva executed a
Waiver and Release Agreement in April 2015 acknowledging that Alston “does not recommend
installing batt insulation under the warehouse roof deck due to concerns with mold, dry rot, and
roof failure occurring from condensation being trapped between the batt insulation and the
wood roof deck.” Therefore, DES argues, “when Plaintiffs first noticed water ‘dripping from the
roof in field areas’ in December 2015, they certainly were aware of sufficient fact and evidence
to put them on inquiry notice that their decision to use batt insulation was a possible cause that
needed to be investigated.”
The operative phrase there is “their decision.” Jolly explains that the kind of “wrongdoing” it
refers to in the above-quoted standard is “someone has done something wrong to [the
defendant],” which rules out self-inflicted injuries. (Jolly, supra (1988) 44 Cal.3d at p. 1110.)
After being warned in no uncertain terms that batt insulation might cause roof failure, and then
observing evidence of roof failure, Plaintiffs might reasonably have concluded that it was their
own fault for using the batt insulation rather than the more expensive rigid insulation, just as
Alston had warned them. That is not necessarily what Plaintiffs did conclude, of course, but the
question of what conclusions Plaintiffs drew from the multiple warnings about possible roof
failure when they discovered that the roof had in fact failed is a triable issue of fact and is
material to the question of when the causes of action accrued.
Plaintiffs, for their part, argue that the damages addressed by this litigation were caused by
water intrusion following the repairs that concluded in February 2018, and that those damages
were not discovered until February 2019, citing for those propositions to the declaration of
Silva’s principal officer Neil Foster. Plaintiffs submit that, therefore, the causes of action
accrued in February 2019. If that is correct, DES’s entry into the litigation on January 18, 2022
was within the three-year statutes of limitations for injury to real property and physical damage
to private property (CCP § 338(b) and (j)) and the four-year statute for patent construction
defects (CCP § 337.1(a)(1)). But whether it is correct or not turns on whether, prior to January
18, 2019, Plaintiffs were sufficiently on notice of DES’s wrongdoing, as distinct from some other
reason for the leakage problems, to satisfy the “put a reasonable person on inquiry” standard.
Again, that is a question of fact for the jury.
However, even if the Court were able to decide as a matter of law that the causes of action
accrued when DES argues that they did – which, again, it is not – there would still be triable
issues of fact, as discussed next.
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C. Equitable tolling
The question then arises whether the statutes of limitations were tolled at any time between
the accrual of the causes of action and DES’s becoming a party. Plaintiffs and DES agree that
the applicable standard is set forth in Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384:
“(1) if one potentially liable for a construction defect represents, while the limitations period is
still running, that all actionable damage has been or will be repaired, thus making it unnecessary
to sue, (2) the plaintiff reasonably relies on this representation to refrain from bringing a timely
action, (3) the representation proves false after the limitations period has expired, and (4) the
plaintiff proceeds diligently once the truth is discovered [citation], the defendant may be
equitably estopped to assert the statute of limitations as a defense to the action.”
DES argues that prong (1) of that standard is not met because DES never represented that they
would repair the damage. For that proposition, DES cites to one of Plaintiffs’ interrogatory
responses, which indicates that Craig Ivancovich and Steve Mincey of DES “participated in the
meetings with the contractor regarding the proposed repairs.” DES argues that this does not
rise to “an affirmative, explicit promise from DES to repair any or all of Plaintiffs’ defects, or to
otherwise compensate Plaintiffs for the alleged defects.” Therefore, DES argues, there was no
tolling, and therefore Plaintiffs’ claims are time-barred.
Indeed, the evidence DES cites does not prove that they agreed to fix the problems. More
importantly from their point of view, neither does it prove that they did not agree to fix the
problems. To put it another way, the evidence upon which DES relies amply demonstrates that
there is a triable issue of fact underlying the question of whether the statute of limitations was
equitably tolled: what exactly did Mr. Ivancovich and/or Mr. Mincey say at those meetings? Did
it rise to an agreement to repair the defects causing the water incursion that satisfies prong (1)
of the Lantzy standard?
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Plaintiffs answer that question in the affirmative. They cite to the declaration of Silva principal
Neil Foster, in which Mr. Foster declares that during the two years following the initial discovery
of water incursion in 2015, Silva met with Alston and DES personnel many times; that at these
meetings, “Mr. Ivancovich of DES and Alston’s agents assured us that they would work together
to repair the water intrusion problems at the Property”; and that Silva “relied on their
assurances.” The declaration goes on to state that more such meetings occurred in the fall of
2017, that Alston and Mr. Ivancovich committed to work together to address the leakage
issues, and that Silva relied on their assurances. The assurances Mr. Foster describes might or
might not be sufficient to initiate equitable tolling under the Lantzy standard; the Court cannot
“draw only one legitimate inference” on that point from the evidence before it. (San Francisco
Unified School Dist., supra, 37 Cal.App.4th at p. 1325.) Did Mr. Ivancovich say “we will absolutely
fix the problem and you don’t have to worry about a thing”? Did he say “We’ll be available to
answer any questions Alston may have, but this is their problem and not ours”? Since neither
party has submitted undisputed facts that answer those questions, this is a triable issue of
material fact for the jury.
DES also relies on a passage from Silva’s response to DES’s interrogatories in which Silva states
that DES “repeatedly promised to repair some of the defective conditions.” Focusing on the
word “some,” DES argues that this was a concession by Plaintiffs that “DES did not promise to
repair all of the actionable damage in this lawsuit – just some of it.” Here is the full context of
that passage:
“Beginning in approximately December 2015, M.A. Silva began to experience frequent
occurrences of water intrusion through the walls and roof, especially during heavy rains. These
problems were reported to all Defendants. [DES] repeatedly promised to repair some of the
defective conditions, including but not limited to patching cracks in the walls, reapplying
caulking and sealant, and repainting the exterior of the building. Notwithstanding the attempts
to repair the defects multiple times, all remediable efforts have failed and additional leaks and
cracks in the walls have emerged.”
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That passage is not necessarily inconsistent with the notion that DES might have promised to
remedy the particular defective conditions that it considered to be responsible for the water
incursion, while explaining that it did not need to remedy other defective conditions because
while unfortunate, they were not the cause of the incursion. That is, DES could, at least in
theory, have promised to remedy “all actionable damage” in the sense of “all construction
defects responsible for the damages that could be the basis for a lawsuit,” but not promised to
fix defects that, in its view, were not causing the problems. The Court considers it unlikely that
any DES agent said anything like “We’ll fix some of the problems, but you should be aware that
after we do that, the roof might still leak.” Of course, the Court does not know exactly what the
DES agents said, but the point is precisely that that cannot be determined from the evidence
presently before the Court. Thus, the exact nature of DES’s promises to Plaintiffs is an issue of
fact that is very much material to whether DES’s statute-of-limitations defense succeeds.
Because of the unclarity of what the “some of the defective conditions” comment means, the
Court overrules DES’s evidentiary objections to certain passages from Neil Foster’s declaration
on the grounds that they “contradict prior interrogatory responses.”
VII. Conclusion
The motion for summary judgment is DENIED because there are triable issues of fact pertaining
to DES’s statute-of-limitations defense that need to be resolved by a jury.
https
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&,9 $77251(<253$57<:,7+287$77251(< )25&285786(21/< Jaimee A. Modica (SBN. 226872); Mitchell B. Greenberg (SBN 114878) $EEH\:HLW]HQEHUJ:DUUHQ (PHU\3& 6WRQ\3RLQW5RDG6XLWH 6DQWD5RVD &$ !""# $ !""# $ % jmodica@abbeylaw.com; mgreenberg@abbeylaw.com &'( ) * QDPH 683(5,25&28572)&$/,)251,$&2817<2) +,+& - . ("$/ 0 3/$,17,))3(7,7,21(5 M.A. SILVA CORKS, USA, LLC; and FOSTER +1233 '()(1'$175(6321'(17 URSUS DEVELOPMENT GROUP, INC.; BRIGITTA BRONDI; JENIFER STROBEL; ALSTON CONSTRUCTION COMPANY, INC; GUDGEL ROOFING 4$ -% &KHFNRQH ; 81/,0,7('&$6( /,0,7('&$6( 72$//3$57,(6 $MXGJPHQWGHFUHHRURUGHUZDVHQWHUHGLQWKLVDFWLRQRQ GDWH 05%5 !"# 5 5 /&6 ; 3DJHRI !"# $% &'( )! *+"%,%'( +&,%( #'(%# &%' -./012! *'&+' 3/451567 &'( &,9 3/$,17,))3(7,7,21(5 M.A. SILVA CORKS, USA, LLC; and FOSTER +1233 4$ -% '()(1'$175(6321'(17 URSUS DEVELOPMENT GROUP, INC.; BRIGITTA BRONDI; ! $ %" " #" $% "& $ # ! " " & ! " ' VSHFLI\ $ ( !"# '" ( ! ! # "! ! ! ( ! ) * + * ( ' ! ( ! # ! # # ' , ! $ "# - " ! ! # ! " #' ) * + * ( . ' # / . ( ! # 0 #! ( 0 #! ( * * 1 " 1 " * 2! * 2! ' 0 #! ( 0 #! ( * * 1 " 1 " * 2! * 2! 0 # ! ( ! 0 ' #! $ ! "#! " # * #1 # # -./012! *'&+' 3/451567 &'( 1 MITCHELL B. GREENBERG, ESQ. (SBN 114878) ELECTRONICALLY FILED mgreenberg@abbeylaw.com Superior Court of California 2 JAIMEE A. MODICA, ESQ. (SBN 226872) County of Sonoma jmodica@abbeylaw.com 3/8/2024 4:57 PM 3 DANIELLE N. PODSHADLEY, ESQ. (SBN 324177) Robert Oliver, Clerk of the Court dpodshadley@abbeylaw.com By: Griselda Zavala, Deputy Clerk 4 ABBEY, WEITZENBERG, WARREN & EMERY, P.C. 100 Stony Point Road, Suite 200 5 Santa Rosa, CA 95401 Telephone: (707) 542-5050 6 Facsimile: (707) 542-2589 7 Attorneys for Plaintiffs M.A. Silva and Foster Properties 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA ABBEY, WEITZENBERG, WARREN & EMERY, P.C. 11 100 Stony Point Road, Suite 200, Santa Rosa, CA 95401 Telephone: (707) 542-5050 Facsimile (707) 542-2589 12 M.A. SILVA CORKS, USA, LLC; and ) Case No. SCV-268124 FOSTER PROPERTIES, LLC, ) 13 ) Assigned for all purposes: Plaintiffs, ) Hon. Christopher Honigsberg 14 ) Dept. 18 v. ) 15 ) [PROPOSED] ORDER RE: DES’S URSUS DEVELOPMENT GROUP, INC., dba ) MOTION FOR SUMMARY 16 WESTWIND BUSINESS PARK; BRIGITTA ) JUDGMENT BRONDI; JENIFER STROBEL; ALSTON ) 17 CONSTRUCTION COMPANY, INC.; ) GUDGEL ROOFING, INC., dba YANCEY ) Action Filed: April 1, 2021 18 ROOFING; GAF CORPORATION; and DOES ) Trial Date: September 20, 2024 1 THROUGH 50, INCLUSIVE. ) 19 ) Defendants. ) 20 ) 21 22 The Motion for Summary Judgment of DES Architects + Engineers, Inc. came on for 23 hearing on February 7, 2024, at 3:00 p.m., before the Honorable Christopher Honigsberg in 24 Department 18 of the above-captioned Court. Jaimee Modica appeared on behalf of Plaintiffs 25 M.A. Silva Corks, USA, LLC and Foster Properties, LLC. Jonathan Blute appeared on behalf of 26 DES Architects + Engineers, Inc. (“DES”). Daniel Friedenthal appeared on behalf of Defendant 27 Alston Construction. Kevin Price appeared on behalf of Defendant Gudgel Roofing. Michael 28 Cochrane appeared on behalf of Cross-Defendant Henris Roofing, and Zshonette Reed appeared -1- [PROPOSED] ORDER RE: DES’S MOTION FOR SUMMARY JUDGMENT 1 on behalf of Cross-Defendant Gorman Roofing. 2 After consideration of the pleadings and records on file in this matter, the documents and 3 other evidence presented by the parties in connection with the Motion for Summary Judgment of 4 DES, argument of the parties’ counsel and good cause appearing, DES’s Motion for Summary 5 Judgment is DENIED, as set forth in the Court’s Tentative Ruling. 6 IT IS HEREBY ORDERED that the Tentative Ruling, a true and correct copy of which is 7 attached hereto as Exhibit A and incorporated herein by reference, is affirmed in its entirety as 8 the ruling of the Court. 9 IT IS SO ORDERED. 10 Date: _____________________________ 3/8/24 ABBEY, WEITZENBERG, WARREN & EMERY, P.C. 11 Hon. Christopher Honigsberg 100 Stony Point Road, Suite 200, Santa Rosa, CA 95401 Telephone: (707) 542-5050 Facsimile (707) 542-2589 Judge of the Superior Court 12 13 14 APPROVAL AS TO FORM: 15 Pacific Legal Group, PC Friedenthal, Heffernan & Brown, LLP 16 By ______________________________ By ______________________________ 17 Douglas A. Applegate Daniel Friedenthal Attorneys for Jenifer Strobel and Brigitta Attorneys for Alston Construction 18 Brondi 19 Mokri, Vanis & Jones, LLP Walsworth WFBM, LLP 20 By ______________________________ /s/ By ______________________________ Kevin Price Jonathan Blute 21 Attorneys for Gudgel Roofing Attorneys for DES Architects + Engineers, Inc. 22 Clark Hill LLP Sims, Lawrence & Broghammer 23 By ______________________________ By ______________________________ 24 James Earle Michael Cochrane Attorneys for GAF Corporation Attorneys for Henris Roofing 25 Veliss Law, APC. 26 By ______________________________ Zshonette Reed 27 Attorneys for Gorman Roofing Services, Inc. 28 -2- [PROPOSED] ORDER RE: DES’S MOTION FOR SUMMARY JUDGMENT EXHIBIT A 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma 1. SCV-268124, M.A. Silva Corks, USA, LLC v. Ursus Development Group, Inc., et al. Plaintiffs’ motion for judicial notice is GRANTED. Plaintiffs’ evidentiary objections are OVERRULED in light of DES’s counsel’s supplemental declaration. DES’s evidentiary objections are OVERRULED. DES’s motion for summary judgment (“MSJ”) is DENIED on the basis that there are triable issues of material fact regarding its statute-of-limitations defense. Plaintiff shall prepare the order pursuant to CRC 3.1312. I. Underlying facts Plaintiff M.A. Silva Corks (“Silva”), a manufacturer of wine packaging, began leasing a warehouse in north Santa Rosa from defendant Ursus Development (“Ursus”) in 2014 with an option to buy. Ursus agreed to make improvements to the building, including modification of the roof and installation of batt insulation under the roof. Ursus hired defendant and moving party DES Architect and Engineer (“DES”) to provide the architectural design for implementing those improvements, and defendant Alston Construction (“Alston”) as the general contractor to implement them. The roofing work was carried out by defendant Gudgel Roofing (“Gudgel”). In March and April 2015, several rainstorms occurred at times when the wooden roof deck was in place but not yet covered by a waterproof membrane. Construction was completed in or around June 2015. In July 2015, Silva assigned its purchase option to plaintiff Foster Properties (“Foster”), who exercised it and purchased the property. During the winter of 2015, Silva began noticing water coming into the building through the roof, walls, and window casings. Silva and Foster (collectively “Plaintiffs”) notified Alston of the problems. Alston and defendant GAF Corp. (“GAF”), the manufacturer of the roofing material, inspected the building and agreed to perform repairs to stop the leaks. In late 2016, DES determined the steps it believed needed to be taken. The work, consisting of applying a special coating to various parts of the roof, was performed by Gudgel. In June of 2017, Plaintiffs hired consultant Matt Cardle to determine why water was still leaking into the building. Cardle reported that the leakage was due to the concrete walls cracking because they were not thick enough. Plaintiffs notified DES and Alston of Cardle’s findings, and DES proposed a plan to address the leakage by coating the exterior of the building with a different waterproof coating than the one originally used, as well as checking the seals in several places and resealing them if necessary. This work began in the late fall of 2017 and was completed in February 2018. https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 3/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma In January 2019, Plaintiffs informed Alston and DES that the walls were still leaking. Alston hired consultant John Martin. In early 2020, Martin reported that the problems were due, at least in part, to poor workmanship by some of Alston’s subcontractors. In the summer of 2020, the insulation was removed from the underside of the roof deck, and wet insulation and structural damage were observed. In late 2020, Alston presented Plaintiffs with Martin’s recommendations for addressing the leakage. The recommendations did not include replacing the roofing material. At this time Alston suggested, for the first time, that the leakage was due to the batt insulation under the roof trapping condensation under the roof deck, not to the poor workmanship identified in Martin’s report. At the same time, Alston declined to carry out any repairs unless Plaintiffs signed a general release of liability. This lawsuit ensued a few months later. II. Governing law A party moving for summary judgment must show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (CCP § 437c(c).) “From commencement to conclusion,” the moving party bears the burden of persuasion and 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.) “Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) If the plaintiff fails to do so, the defendant is entitled to judgment as a matter of law. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) “There is no obligation on the opposing party . . . to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) III. Judicial notice Plaintiffs’ motion for judicial notice of the original and First Amended complaints in this matter, and of the instant motion and its attached proof of service, is granted pursuant to Evidence Code § 452(d). IV. Evidentiary objections https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 4/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma A. Plaintiff’s objections Several of Plaintiffs’ objections to the evidence accompanying DES’s motion are well-taken. However, DES’s counsel has submitted a supplemental declaration that cures Plaintiffs’ authentication objections. In light of the fact that Plaintiffs did not challenge the actual authenticity of any of DES’s evidence, and that they responded to it exactly as they would have done if the objections had been overruled, the Court finds that they were not prejudiced by the late submission of the authentication evidence. Plaintiffs’ authentication objections are overruled both on those grounds and on the grounds that at least some cases suggest that a “true and correct copy” declaration by counsel suffices to authenticate a document. (See, e.g., Landale-Cameron Court v. Ahonen (2007) 155 Cal.App.4th 1401, 1409, Hooked Media Group v. Apple (2020) 55 Cal.App.5th 323, 338.) Plaintiffs’ hearsay objections to Exhibits D, E, and F to counsel’s original declaration are overruled on the basis that they are operative facts not proffered for the truth of the matter asserted. B. DES’s objections LISTNUM \l 1 \s 0 DES’s hearsay objections are overruled on the basis that the documents in question are operative facts, not hearsay. The “contradicts prior interrogatory responses” objections are discussed below. V. Procedural arguments Plaintiffs raise two procedural issues that, in their view, justify denying the instant motion. As discussed next, the Court disagrees. A. Failure to mention the proper pleading of the statute of limitations defense in the separate statement. DES’s rationale for the instant motion is that the causes of action against them are barred by the applicable statutes of limitations. Plaintiffs argue that in order to assert that defense on summary judgment, DES was required both to plead the defense in its answer and to state in the MSJ and the supporting separate statement that it did so. https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 5/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma The Court on its own motion takes judicial notice of DES’s answer, filed on June 27, 2022, which recites that “The First Amended Complaint, and each cause of action therein, is barred by the applicable statute of limitations stated in Part Two, Title II, Chapter 3, of the Code of Civil Procedure, including, but not limited to, Sections 335.1, 337, 338, 339, 340, 340.5, 340.6 and 343.” The instant motion depends primarily on CCP § 338. Thus, the defense itself is properly before the court as a general matter. But, Plaintiffs argue, it is not properly before the court in the context of the instant motion because of “the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist. Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) The Court is not persuaded that a technical point of pleading is the sort of “fact” that passage refers to. However, even if it were, that would not mandate denial of the motion. “The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.” (CCP § 437c(b)(1), emphasis supplied.) The Court finds that DES’s failure to include “the statute of limitations defense was pled in our answer” in its separate statement of undisputed facts is too minor an omission to justify such an exercise of discretion. B. Untimely service LISTNUM \l 1 \s 0 At the time the instant motion was filed, trial was set for February 16, 2024. (It has since been continued to September 20, 2024.) An MSJ “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (CCP § 437c(a)(3).) Thus, at the time the motion was filed, the last day a hearing could be held, absent the Court’s finding of good cause to change it, was January 17. “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” (CCP § 437c(a)(2).) That subdivision increases the 75-day notice period for service by mail, fax, or overnight delivery, but does not explicitly mention an extension for email service. However, CCP § 1010.6, which sets forth the rules for electronic service, extends the 75-day notice period by two days. (Cole v. Superior Court (2022) 87 Cal.App.5th 84, 87-88.) Thus, DES needed to serve the instant motion and all its supporting documents 77 days before the hearing date. https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 6/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma Plaintiffs argue that the hearing date was no later than January 17 because of the “no later than 30 days before trial” rule. The motion was served on November 3, which is only 75 days before January 17. (And, even worse in Plaintiffs’ view, counsel’s supporting declaration was not served until November 6.) DES points out that the hearing date assigned by the clerk’s office at the time the motion was filed was March 13, and that the motion and supporting papers were served substantially more than 77 days before that. The March 13 date is immaterial because it makes no sense to suppose that an MSJ would be heard almost a month into a trial of the same matter and a timely filed motion must be heard prior to trial. (CCP § 437c(a)(3).) While Plaintiff is technically correct in that the MSJ must have been filed at least 105 days prior to the February 16, 2024, trial plus two days for email service, the Court will exercise its discretion and find good cause to hear the motion on the merits. Neither party has presented the Court with authority that the Court lacks jurisdiction to hear this motion based on the late filing and the Court does not find any prejudice to the plaintiff. VI. There are triable issues of material fact regarding the applicability of the statute of limitations. DES’s sole argument in the instant motion is that each cause of action is time-barred by the applicable statute of limitations. “The resolution of a statute of limitations defense is typically a factual question for the trier of fact. However, summary judgment is proper if the court can draw only one legitimate inference from uncontradicted evidence about the limitations issue.” (San Francisco Unified School Dist. v. W.R. Grace (1995) 37 Cal.App.4th 1318, 1325-1326.) The Court cannot do that here. For the reasons discussed below, the Court finds that there are triable issues of fact related to the statute-of-limitations claim. A. Date when DES became a party. DES was not named as a defendant in the First Amended Complaint filed on August 19, 2021. DES became a defendant as the result of a Doe substitution filed on January 18, 2022. Ordinarily, a Doe substitution relates back to the date the complaint was originally filed. (CCP § 474; Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.) However, a further requirement is that the plaintiff must have been “genuinely ignorant of [the substituted-in defendant’s] identity at the time [it] filed the original complaint.” (Ibid.; see also Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783-784.) https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 7/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma Plaintiffs’ First Amended Complaint alleges that “Ursus contracted with DES Architects & Engineers, Inc. (‘DES’), an architectural and engineering firm, to prepare the plans and specifications for the tenant improvements . . . .” That establishes that DES’s identity was known to Plaintiffs at the time they filed the FAC, which precludes the operation of the relation-back principle. Therefore, DES became a party to this action when the Doe substitution was filed on January 18, 2022. B. Accrual of causes of action The question, then, is whether any limitation period on any of the causes of action brought against DES expired before January 18, 2022. DES argues that “Specifically, Plaintiffs sue DES for breach of contract, nuisance, breach of implied and express warranty,” citing for that proposition to the entire cause-of-action section of the First Amended Complaint. However, each cause of action in that section is denoted as being either “Against All Defendants,” which includes all Doe defendants, or against some subset of the named defendants “and Does 1 through 50.” Since DES was substituted for Doe 1, all seven causes of action, including those identified by DES but also including negligence, negligence per se, and strict product liability, are now deemed to have been filed against DES. There are disputed issues of fact regarding when these causes of action accrued. The general rule is that the “statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing.” (Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1110.) DES argues that this occurred when Plaintiffs first discovered water intrusion in 2015, based on Silva’s statement in an interrogatory response that they “first noticed water intrusion into the property during the winter of 2015.” In DES’s view, that satisfies the above-quoted Jolly standard. But Jolly makes clear in its next sentence that this is an objective standard: “the limitations period begins once the plaintiff has notice of information of circumstances to put a reasonable person on inquiry.” (Id. at p. 1110-1111, internal quotation marks removed, emphasis supplied.) The question of whether a hypothetical reasonable person would have interpreted the amount of water entering the building in 2015, in the particular manner in which it entered, as an injury caused by someone else’s wrongdoing is not one that the Court can resolve as a matter of law. (See, e.g., Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 351 [objective standards resolved by trier of fact].) https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 8/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma DES notes that Plaintiffs were warned as early as May 2014 of “concerns with moisture in the batt insulation with the night cooling proposed for the warehouse,” and that Silva executed a Waiver and Release Agreement in April 2015 acknowledging that Alston “does not recommend installing batt insulation under the warehouse roof deck due to concerns with mold, dry rot, and roof failure occurring from condensation being trapped between the batt insulation and the wood roof deck.” Therefore, DES argues, “when Plaintiffs first noticed water ‘dripping from the roof in field areas’ in December 2015, they certainly were aware of sufficient fact and evidence to put them on inquiry notice that their decision to use batt insulation was a possible cause that needed to be investigated.” The operative phrase there is “their decision.” Jolly explains that the kind of “wrongdoing” it refers to in the above-quoted standard is “someone has done something wrong to [the defendant],” which rules out self-inflicted injuries. (Jolly, supra (1988) 44 Cal.3d at p. 1110.) After being warned in no uncertain terms that batt insulation might cause roof failure, and then observing evidence of roof failure, Plaintiffs might reasonably have concluded that it was their own fault for using the batt insulation rather than the more expensive rigid insulation, just as Alston had warned them. That is not necessarily what Plaintiffs did conclude, of course, but the question of what conclusions Plaintiffs drew from the multiple warnings about possible roof failure when they discovered that the roof had in fact failed is a triable issue of fact and is material to the question of when the causes of action accrued. Plaintiffs, for their part, argue that the damages addressed by this litigation were caused by water intrusion following the repairs that concluded in February 2018, and that those damages were not discovered until February 2019, citing for those propositions to the declaration of Silva’s principal officer Neil Foster. Plaintiffs submit that, therefore, the causes of action accrued in February 2019. If that is correct, DES’s entry into the litigation on January 18, 2022 was within the three-year statutes of limitations for injury to real property and physical damage to private property (CCP § 338(b) and (j)) and the four-year statute for patent construction defects (CCP § 337.1(a)(1)). But whether it is correct or not turns on whether, prior to January 18, 2019, Plaintiffs were sufficiently on notice of DES’s wrongdoing, as distinct from some other reason for the leakage problems, to satisfy the “put a reasonable person on inquiry” standard. Again, that is a question of fact for the jury. However, even if the Court were able to decide as a matter of law that the causes of action accrued when DES argues that they did – which, again, it is not – there would still be triable issues of fact, as discussed next. https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 9/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma C. Equitable tolling The question then arises whether the statutes of limitations were tolled at any time between the accrual of the causes of action and DES’s becoming a party. Plaintiffs and DES agree that the applicable standard is set forth in Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384: “(1) if one potentially liable for a construction defect represents, while the limitations period is still running, that all actionable damage has been or will be repaired, thus making it unnecessary to sue, (2) the plaintiff reasonably relies on this representation to refrain from bringing a timely action, (3) the representation proves false after the limitations period has expired, and (4) the plaintiff proceeds diligently once the truth is discovered [citation], the defendant may be equitably estopped to assert the statute of limitations as a defense to the action.” DES argues that prong (1) of that standard is not met because DES never represented that they would repair the damage. For that proposition, DES cites to one of Plaintiffs’ interrogatory responses, which indicates that Craig Ivancovich and Steve Mincey of DES “participated in the meetings with the contractor regarding the proposed repairs.” DES argues that this does not rise to “an affirmative, explicit promise from DES to repair any or all of Plaintiffs’ defects, or to otherwise compensate Plaintiffs for the alleged defects.” Therefore, DES argues, there was no tolling, and therefore Plaintiffs’ claims are time-barred. Indeed, the evidence DES cites does not prove that they agreed to fix the problems. More importantly from their point of view, neither does it prove that they did not agree to fix the problems. To put it another way, the evidence upon which DES relies amply demonstrates that there is a triable issue of fact underlying the question of whether the statute of limitations was equitably tolled: what exactly did Mr. Ivancovich and/or Mr. Mincey say at those meetings? Did it rise to an agreement to repair the defects causing the water incursion that satisfies prong (1) of the Lantzy standard? https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 10/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma Plaintiffs answer that question in the affirmative. They cite to the declaration of Silva principal Neil Foster, in which Mr. Foster declares that during the two years following the initial discovery of water incursion in 2015, Silva met with Alston and DES personnel many times; that at these meetings, “Mr. Ivancovich of DES and Alston’s agents assured us that they would work together to repair the water intrusion problems at the Property”; and that Silva “relied on their assurances.” The declaration goes on to state that more such meetings occurred in the fall of 2017, that Alston and Mr. Ivancovich committed to work together to address the leakage issues, and that Silva relied on their assurances. The assurances Mr. Foster describes might or might not be sufficient to initiate equitable tolling under the Lantzy standard; the Court cannot “draw only one legitimate inference” on that point from the evidence before it. (San Francisco Unified School Dist., supra, 37 Cal.App.4th at p. 1325.) Did Mr. Ivancovich say “we will absolutely fix the problem and you don’t have to worry about a thing”? Did he say “We’ll be available to answer any questions Alston may have, but this is their problem and not ours”? Since neither party has submitted undisputed facts that answer those questions, this is a triable issue of material fact for the jury. DES also relies on a passage from Silva’s response to DES’s interrogatories in which Silva states that DES “repeatedly promised to repair some of the defective conditions.” Focusing on the word “some,” DES argues that this was a concession by Plaintiffs that “DES did not promise to repair all of the actionable damage in this lawsuit – just some of it.” Here is the full context of that passage: “Beginning in approximately December 2015, M.A. Silva began to experience frequent occurrences of water intrusion through the walls and roof, especially during heavy rains. These problems were reported to all Defendants. [DES] repeatedly promised to repair some of the defective conditions, including but not limited to patching cracks in the walls, reapplying caulking and sealant, and repainting the exterior of the building. Notwithstanding the attempts to repair the defects multiple times, all remediable efforts have failed and additional leaks and cracks in the walls have emerged.” https://sonoma.courts.ca.gov/online-services/tentative-rulings/civil-tentative-rulings/law-motion-calendar-courtroom-18 11/21 2/6/24, 1:56 PM Law & Motion Calendar - Courtroom 18 | Superior Court of California | County of Sonoma That passage is not necessarily inconsistent with the notion that DES might have promised to remedy the particular defective conditions that it considered to be responsible for the water incursion, while explaining that it did not need to remedy other defective conditions because while unfortunate, they were not the cause of the incursion. That is, DES could, at least in theory, have promised to remedy “all actionable damage” in the sense of “all construction defects responsible for the damages that could be the basis for a lawsuit,” but not promised to fix defects that, in its view, were not causing the problems. The Court considers it unlikely that any DES agent said anything like “We’ll fix some of the problems, but you should be aware that after we do that, the roof might still leak.” Of course, the Court does not know exactly what the DES agents said, but the point is precisely that that cannot be determined from the evidence presently before the Court. Thus, the exact nature of DES’s promises to Plaintiffs is an issue of fact that is very much material to whether DES’s statute-of-limitations defense succeeds. Because of the unclarity of what the “some of the defective conditions” comment means, the Court overrules DES’s evidentiary objections to certain passages from Neil Foster’s declaration on the grounds that they “contradict prior interrogatory responses.” VII. Conclusion The motion for summary judgment is DENIED because there are triable issues of fact pertaining to DES’s statute-of-limitations defense that need to be resolved by a jury. https