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1 BOBBY DALE SIMS, JR. (SBN 202622)
GREGORY ESTABROOK (SBN 179228) 12/15/2020
2 SIMS, LAWRENCE & ARRUTI
2261 Lava Ridge Court
3 Roseville, CA 95661
Telephone: (916) 797-8881
4 Facsimile: (916) 253-1544
5 Attorneys for Defendants,
PERFECTION POOLS & SPAS, INC.
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF BUTTE
9
RONALD MARTIN FRAME AND DONNA Case No. 20CV00754
10 FRAME,
MEMORANDUM OF POINTS AND
11 Plaintiffs, AUTHORITIES IN SUPPORT OF
PERFECTION POOLS & SPAS, INC.’S
12 vs. MOTION FOR JUDGEMENT ON
PLEADINGS
13 PERFECTION POOLS & SPAS, INC., OLD
REPUBLIC SURETY COMPANY, DOES 1-10, Date: January 27, 2021
14 et al. Time: 9:00 a.m.
Dept.: 10
15 Defendants. Hon. Judge Robert A. Glusman
16
Complaint: March 12, 2020
17 Trial: October 18, 2021
18 I. INTRODUCTION
19 Pursuant to California Code of Civil Procedure section 438, moving party defendant
20 Perfection Pools & Spas, Inc. (“Perfection Pools”) has filed a Motion for Judgment on the
21 Pleadings based on the argument that plaintiffs Roland Frame and Donna Frame (“Plaintiffs”)
22 cannot state a cause of action against Perfection Pools in their complaint as all causes of action are
23 barred by statutes of limitation as evidence by the relevant complaint.
24 Plaintiffs filed a Complaint in Butte County Superior Court on March 12, 2020,
25 (“Complaint”). The Complaint names Perfection Pools and itssurety bond holder Old Republic
26 Surety Company as defendants.
27 The Complaint asserts causes of action for breach of contract (Code of Civil Procedure
28 Section 337), breach of implied warranty of merchantability (Code of Civil Procedure Sections
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 1792 and 1791.1), and recovery on contractor’s bond. The relevant statutes of limitation for
2 breach of written contract is four years under California Code of Civil Procedure section 337(a).
3 The relevant statute of limitations for breach of implied warranty of merchantability under the
4 Song-Beverly Consumer Warranty Act is one-year under California Civil Code §1791.1(c).
5 Plaintiffs’ Complaint alleges the following on its face:
6 Beginning in 2011 and continuing to the present Plaintiffs complained to Defendant
that the system was not working performing as promised or advertised but
7 Defendant Perfection Pools and Spas, Inc. failed and refused to make needed
repair, or even make a reasonable inspection. Instead, Defendant has insisted,
8 dispute facts and proof otherwise, that the system was working properly and that
any problem was the result of Plaintiffs’ lack of knowledge or maintenance.
9
10 The Complaint makes clear on its face that Plaintiffs had notice of the alleged breach of
11 contract and warranty in 2011. Plaintiffs filed their Complaint on March 12, 2020 – some nine
12 years later. The Complaint makes clear on its face that all causes of action asserted by Plaintiffs in
13 their Complaint are barred by relevant statutes of limitations. These facts cannot be reasonably
14 altered; therefore, the pleading cannot be cured.
15 Accordingly, pursuant to California Code of Civil Procedure section 438, defendant
16 Perfection Pools respectfully requests the Court grant its Motion for Judgment on the Pleadings
17 Under Code of Civil Procedure Section 438 without leave to amend.
18 II. STATEMENT OF FACTS
19 A. Facts As Alleged in Complaint
20 Plaintiffs filed a complaint in the Superior Court of California, Butte County, on March 12,
21 2020 – case number 20CV00754. The Complaint names Perfection Pools and its contractor’s
22 surety bond holder, Old Republic Surety Company, as sole defendants.
23 The Complaint asserts causes of action for breach of contract (Code of Civil Procedure
24 Section 337), breach of implied warranty of merchantability (Code of Civil Procedure Sections
25 1792 and 1791.1), and recovery on contractor’s bond.
26 a. Date of Contract as Alleged in Complaint
27 Page three of the Complaint states Plaintiffs and Perfection Pools entered a written contract
28 on or about January 28, 2011. A copy of the alleged contract was included with the Complaint and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 attached to the Complaint as Exhibit A. (See BC-1). (The pleading and all exhibits are collectively
2 referred to herein as the “Complaint”.) Please see the Complaint attached as Exhibit A to the
3 Declaration of Greg Estabrook (“Decl. Estabrook”) filed herewith.
4 b. Essential Terms of Contract as Alleged in Complaint
5 Page three of the Complaint states the essential terms of the contract were as follows:
6 “Plaintiffs would pay $32,816.59 and Defendant Perfection Pools, and Spas, Inc. would install a
7 5,000-watt solar system in a workmanlike manner and connect the solar system to PG&E and
8 Enphase/Enlighten (See BC-1).
9 c. Breach of Contract as Alleged in Complaint
10 Page three of the Complaint states defendant Perfection Pools breached the Contract on or
11 about June 1, 2011 (See BC-2).
12 The Solar System was not installed in a workmanlike manner because: 1. It did not
produce the agreed amount of electricity; 2. It was not connected to the
13 Enphase/Enlighten; 3. It did not and does not deliver electricity to PG&E in a
consistent manner; and 4. When asked to bring the system into compliance with the
14 sales warranties Perfection Pools & Spas, Inc. refused.
15 d. Breach of Implied Warranty of Merchantability as Alleged in Complaint
16 Page four of the Complaint contains Attachment 1 that sets forth the Plaintiffs’ cause of
17 action against defendant Perfection Pools:
18 2. On or about January 28, 2011, Defendant Perfection Pools and Spas, Inc.
entered into a contract with Plaintiffs Martin Frame and Donna Frame. A
19 true and correct copy of that contract is attached hereto as Exhibit A. The
essential terms of the contact were that Defendant would provide and
20 install, in a workmanlike manner, a 5,000-watt solar system that was
connected to PG&E and Enhance/Enlighten. Plaintiffs paid to Defendant
21 the amount of $32,816.59.
22 3. This retail sale to Plaintiffs was accompanied by Defendant’s implied
warranties that the goods were merchantable and installed in a workmanlike
23 manner.
4. However, Defendant breached its warranties implied in the sale in that the
24 goods could not pass without objection in trade under the contract
description, were not fit for ordinary purposes for which goods are used in
25 that, the Solar System was not installed in a workmanlike manner because:
1. It did not produce the agreed amount of electricity; 2. It was not
26 connected to the Enphase/Enlighten; 3. It did not and does not deliver
electricity to PG&E in a consistent manner; and 4. When asked to bring the
27 system into compliance with the sale warranties Perfection Pools & Spas,
Inc. refused.
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 5. Because of the above defects, the solar system as installed by Perfection
Pools and Spas, Inc. proved defective upon delivery and was never
2 substantially completed.
6. Beginning in 2011 and continuing to the present, Plaintiffs complained to
3 Defendant that the system was not working performing as promised or
advertised but Defendant Perfection Pools and Spas, Inc. failed and refused
4 to make needed repair, or even make a reasonable inspection. Instead
Defendant has insisted, dispute facts and proof otherwise, that the system
5 was working properly and that any problem was the result of Plaintiffs’ lack
of knowledge or maintenance.
6
7 III. STATEMENT OF LAW
8 A. Motion for Judgment on the Pleadings:
9 A motion for judgment on the pleadings under Code of Civil Procedure (“CCP”) section
10 438(c) “performs the same function as a general demurrer and hence attacks only defects disclosed
11 on the face of the pleadings or by matters that can be judicially noticed.” Burnett v. Chimney
12 Sweep (2004) 123 Cal.Ap.4th 1057. 1064; see Fire Insurance Exchange v. Superior Court (2004)
13 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th
14 1761, 1767-1768.
15 As stated in Hightower v. Farmers Ins. Exchange (1995) 38 Cal.App.4th 853, 858:
16 "Because a motion for judgment on the pleadings is the functional equivalent of a general
17 demurrer, the same rules apply. See People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682,
18 691.” The motion is confined to the face of the pleading under attack and all facts alleged in the
19 complaint must be accepted as true. Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7.
20 The Court may grant leave to amend to remedy any defects identified by a motion for
21 judgment on the pleadings. (See CCP Section 438(s).) For the Court to grant leave to amend after
22 a general demurrer or motion for judgment on the pleadings, the Plaintiff must “show a reasonable
23 possibility of curing the defect in the complaint by amendment.” Heritage Pacific Financial, LLC
24 v. Monroy (2013) 215 Cal.App.4th 972, 994. The Plaintiff bears “the burden of proving an
25 amendment would cure the defect.” Ibid. The right to amend is not unqualified. If a party has had
26 several chances to amend a defective pleading and fails to do so (Hardy v. Admiral Oil
27 Co. (1961) 56 Cal.2d 836, 842), or if the defect is not curable by amendment
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 (Shabrick v. Moore (1961) 195 Cal.App.2d 56, 60), the court may grant the motion for judgment
2 on the pleadings without leave to amend.
3 Certain defects are not curable by amendment such as those that fail as a matter of law.
4 For example, in Shabrick v. Moore (1961) 195 Cal.App.2d 56, respondent filed a motion for
5 judgment on the pleadings arguing that the first cause of action set forth in Plaintiff’s complaint
6 was barred by the statute of frauds since appellant had alleged an oral contract made her a
7 beneficiary under the decedent's will. As a matter of law, oral contracts of this nature are
8 unenforceable under California Civil Code Section 1624. Because the facts pled in the complaint
9 must be taken as true and those pled facts established an affirmative defense, the trial court did not
10 err in granting judgment on the pleadings as to the first cause of action.
11 In accordance with Code of Civil Procedure section 438, subdivision (e), a motion for
12 judgment on the pleadings must be made “within 30 days of the date the action is initially set for
13 trial … unless the court otherwise permits.” Nevertheless, the court may exercise its discretion to
14 allow a later date without any requirement of “good cause.” Burnett v. Chimney Sweep (2004) 123
15 Cal.App.4th 1057, 1063.
16 In addition to a statutory motion for judgment on the pleadings, parties are also permitted
17 to bring a motion for judgment on the pleadings under common law. Smiley v. Citibank (1995) 11
18 Cal.4th 138, 145; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5. A common law
19 motion for judgment on the pleadings may be made at any time either prior to trial or during the
20 trial itself. Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650. See Gerawan Farming, Inc. v.
21 Lyons (2000) 24 Cal.4th 468, 482 n.2 [recognizing both the statutory and common law motion,
22 stating: “Generally, as such motions were, so they remain”].
23 B. Statute of Limitations:
24 a. Breach of Contract:
25 The relevant statutes of limitation for breach of written contract is four years under
26 California Code of Civil Procedure section 337(a). Code of Civil Procedure Section 337(s) reads,
27 in relevant part:
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 CHAPTER 3. The Time of Commencing Actions Other Than for the Recovery
2 of Real Property [335 - 349.4]; Section 337.
3 Within four years:
4 (a) An action upon any contract, obligation or liability founded upon an instrument
5 in writing . . .
6 b. Breach of Implied Warranty:
7 There are two-time limits that are relevant to a cause of action for breach of implied
8 warranty of merchantability under the Song-Beverly Consumer Warranty Act.
9 First, under Code of Civil Procedure Section 1791.1(c), implied warranties exist for one
10 year following the sale of new good there is one-year. Code of Civil Procedure Section 1791.1(c)
11 reads, in relevant part:
12 (c) The duration of the implied warranty of merchantability and where present the
implied warranty of fitness shall be coextensive in duration with an express
13 warranty which accompanies the consumer goods, provided the duration of the
express warranty is reasonable; but in no event shall such implied warranty have a
14 duration of less than 60 days nor more than one year following the sale of new
15 consumer goods to a retail buyer. Where no duration for an express warranty is
stated with respect to consumer goods, or parts thereof, the duration of the implied
16 warranty shall be the maximum period prescribed above.
17 Therefore, “to state a breach of implied warranty claim, a plaintiff must allege [] that the
18 product is unfit or unmerchantable at the time of sale or in the one-year following the sale.” See
19 Mexia v. Rinker Boat Company, Inc. (2009) 174 Cal.App.4th1297, 1309.
20 Second, under California law, breach of implied warranty claims must be brought within
21 four years of the when the breach occurred. See California Commercial Code Section 2725.
22 California courts have held that the statute of limitations for an action for breach of warranty under
23 the Song-Beverly Act is governed by the same statute that governs the four-year statute of
24 limitations for warranties arising under the Uniform Commercial Code Section 2725. (Krieger v.
25 Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215, 285 Cal.Rptr. 717; Jensen v. BMW
26 of North America, Inc. (1995) 35 Cal.App.4th 112, 132, 41 Cal.Rptr.2d 295; Carrau v. Marvin
27 Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 297, 112 Cal.Rptr.2d 869.)
28 Under California Commercial Code Section 2725:
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 (1) An action for breach of any contract for sale must be commenced within four
years after the cause of action has accrued․ [¶] (2) A cause of action accrues
2 when the breach occurs, regardless of the aggrieved party's lack of knowledge
of the breach. A breach of warranty occurs when tender of delivery is made,
3
except that where a warranty explicitly extends to future performance of the
4 goods and discovery of the breach must await the time of such performance the
cause of action accrues when the breach is or should have been discovered.”
5 (U.Com.Code, § 2725, subds. (1), (2).)
6 IV. LEGAL ARGUMENT
7 The language on the face of Plaintiffs’ Complaint establishes that both the first cause of
8 action for breach of contract and the second cause of action for breach of implied warranty of
9 merchantability are barred by relevant four-year statutes of limitation. The cause of action for
10 both causes of action began to run on June 1, 2011. The statute of limitations expired on both
11 causes of action by June 2015. Plaintiffs filed their Complaint on March 12, 2020.
12 A. First Cause of Action for Breach of Implied Warranty of Merchantability is Barred
13 by the Statute of Limitations Under Code of Civil Procedure Section 1791.1(c)
14 Plaintiffs filed a Complaint naming defendant Perfect Pools as a defendant. The
15 Complaint’s first cause of action asserted against defendant Perfect Pools is that for breach of
16 contract.
17 As a matter of law, the statute of limitations for a cause of action for breach of written
18 contract is four years under California Code of Civil Procedure section 337(a).
19 Plaintiffs’ Complaint states that, on January 28, 2011, Plaintiffs and defendant Perfection
20 Pools entered into a written contract to install a 5,000-watt solar system.
21 Plaintiffs’ Complaint states Plaintiffs were aware the Solar system never worked properly.
22 Plaintiffs Complaint states Plaintiff believed defendant Perfection Pools was in breach of its
23 written contract by June 1, 2011.
24 Plaintiffs’ Complaint states there was no tolling of the statute of limitations for repairs.
25 Beginning in 2011 and continuing to the present, Plaintiffs complained to
26 Defendant that the system was not working performing as promised or advertised
but Defendant Perfection Pools and Spas, Inc. failed and refused to make needed
27 repair, or even make a reasonable inspection. Instead Defendant has insisted,
dispute facts and proof otherwise, that the system was working properly and that
28 any problem was the result of Plaintiffs’ lack of knowledge or maintenance.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 According to the Complaint, therefore, the statute of limitations began to run on this cause
2 of action on or about June 1, 2011. As a matter of law, the limitations period for this cause of
3 action ended on or about May 30, 2015.
4 Plaintiffs filed their Complaint and its cause of action for breach of written contract on
5 March 12, 2020. This is almost five years after the statute of limitations expired on this cause of
6 action.
7 B. Second Cause of Action for Breach of Written Contract is Barred by the Statute of
8 Limitations Under Civil Code Section 337(a)
9 Plaintiffs filed a Complaint naming defendant Perfect Pools as a defendant. The
10 Complaint’s second cause of action asserted against defendant Perfect Pools is for breach of
11 implied warranty of merchantability under that for breach of contract pursuant to Code of Civil
12 Procedure Section 1791.1(c).
13 As a matter of law, the statute of limitations for a cause of action for breach of implied
14 warranty of merchantability pursuant to Code of Civil Procedure Section 1791.1(c) is governed by
15 California Commercial Code Section 2725. Under California Commercial Code Section 2725, the
16 relevant statute of limitations is four years from when the date when the breach occurred.
17 The Complaint filed by Plaintiffs states the following:
18 2. On or about January 28, 2011, Defendant Perfection Pools and Spas, Inc.
entered into a contract with Plaintiffs Martin Frame and Donna Frame. A
19 true and correct copy of that contract is attached hereto as Exhibit A. The
essential terms of the contact were that Defendant would provide and
20 install, in a workmanlike manner, a 5,000-watt solar system that was
connected to PG&E and Enhase/Enlighten. Plaintiffs paid to Defendant the
21 amount of $32,816.59.
...
22 3. This retail sale to Plaintiffs was accompanied by Defendant’s implied
warranties that the goods were merchantable and installed in a workmanlike
23 manner.
24 4. However, Defendant breached its warranties implied in the sale in that the
goods could not pass without objection in trade under the contract
25 description, were not fit for ordinary purposes for which goods are used in
that, the Solar System was not installed in a workmanlike manner because:
26 1. It did not produce the agreed amount of electricity; 2. It was not
connected to the Enphase/Enlighten; 3. It did not and does not deliver
27 electricity to PG&E in a consistent manner; and 4. When asked to bring the
system into compliance with the sale warranties Perfection Pools & Spas,
28 Inc. refused.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
1 5. Because of the above defects, the solar system as installed by Perfection
Pools and Spas, Inc. proved defective upon delivery and was never
2 substantially completed.
6. Beginning in 2011 and continuing to the present, Plaintiffs complained to
3 Defendant that the system was not working performing as promised or
advertised but Defendant Perfection Pools and Spas, Inc. failed and refused
4 to make needed repair, or even make a reasonable inspection. Instead
Defendant has insisted, dispute facts and proof otherwise, that the system
5 was working properly and that any problem was the result of Plaintiffs’ lack
of knowledge or maintenance.
6
7 Plaintiffs filed their Complaint and its cause of action for breach of implied warranty of
8 merchantability on March 12, 2020. This is almost five years after the statute of limitations
9 expired on this cause of action. Plaintiffs first cause of action for breach of implied warranty of
10 merchantability is barred by the appliable statute of limitations set forth under Code of Civil
11 Procedure Section 1791.1(c) and California Commercial Code Section 2725. Under California
12 Commercial Code Section 2725, the relevant statute of limitations is four years from when the
13 date when the breach occurred.
14 V. CONCLUSION
15 The Complaint makes clear on its face that all causes of action asserted by Plaintiffs in
16 their Complaint are barred by relevant statutes of limitations. These facts cannot be reasonably
17 altered; therefore, the pleading cannot be cured.
18 Accordingly, pursuant to California Code of Civil Procedure section 438, defendant
19 Perfection Pools respectfully requests the Court grant its Motion for Judgment on the Pleadings
20 Under Code of Civil Procedure Section 438 without leave to amend.
21
Dated: December 15, 2020 SIMS, LAWRENCE & ARRUTI
22
23
By
24 BOBBY DALE SIMS, JR.
GREGORY ESTABROOK
25 Attorneys for Defendant,
PERFECTION POOLS & SPAS, INC.
26
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S
MOTION FOR JUDGEMENT ON PLEADINGS
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1 BOBBY DALE SIMS, JR. (SBN 202622) GREGORY ESTABROOK (SBN 179228) 12/15/2020 2 SIMS, LAWRENCE & ARRUTI 2261 Lava Ridge Court 3 Roseville, CA 95661 Telephone: (916) 797-8881 4 Facsimile: (916) 253-1544 5 Attorneys for Defendants, PERFECTION POOLS & SPAS, INC. 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF BUTTE 9 RONALD MARTIN FRAME AND DONNA Case No. 20CV00754 10 FRAME, MEMORANDUM OF POINTS AND 11 Plaintiffs, AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S 12 vs. MOTION FOR JUDGEMENT ON PLEADINGS 13 PERFECTION POOLS & SPAS, INC., OLD REPUBLIC SURETY COMPANY, DOES 1-10, Date: January 27, 2021 14 et al. Time: 9:00 a.m. Dept.: 10 15 Defendants. Hon. Judge Robert A. Glusman 16 Complaint: March 12, 2020 17 Trial: October 18, 2021 18 I. INTRODUCTION 19 Pursuant to California Code of Civil Procedure section 438, moving party defendant 20 Perfection Pools & Spas, Inc. (“Perfection Pools”) has filed a Motion for Judgment on the 21 Pleadings based on the argument that plaintiffs Roland Frame and Donna Frame (“Plaintiffs”) 22 cannot state a cause of action against Perfection Pools in their complaint as all causes of action are 23 barred by statutes of limitation as evidence by the relevant complaint. 24 Plaintiffs filed a Complaint in Butte County Superior Court on March 12, 2020, 25 (“Complaint”). The Complaint names Perfection Pools and itssurety bond holder Old Republic 26 Surety Company as defendants. 27 The Complaint asserts causes of action for breach of contract (Code of Civil Procedure 28 Section 337), breach of implied warranty of merchantability (Code of Civil Procedure Sections -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 1792 and 1791.1), and recovery on contractor’s bond. The relevant statutes of limitation for 2 breach of written contract is four years under California Code of Civil Procedure section 337(a). 3 The relevant statute of limitations for breach of implied warranty of merchantability under the 4 Song-Beverly Consumer Warranty Act is one-year under California Civil Code §1791.1(c). 5 Plaintiffs’ Complaint alleges the following on its face: 6 Beginning in 2011 and continuing to the present Plaintiffs complained to Defendant that the system was not working performing as promised or advertised but 7 Defendant Perfection Pools and Spas, Inc. failed and refused to make needed repair, or even make a reasonable inspection. Instead, Defendant has insisted, 8 dispute facts and proof otherwise, that the system was working properly and that any problem was the result of Plaintiffs’ lack of knowledge or maintenance. 9 10 The Complaint makes clear on its face that Plaintiffs had notice of the alleged breach of 11 contract and warranty in 2011. Plaintiffs filed their Complaint on March 12, 2020 – some nine 12 years later. The Complaint makes clear on its face that all causes of action asserted by Plaintiffs in 13 their Complaint are barred by relevant statutes of limitations. These facts cannot be reasonably 14 altered; therefore, the pleading cannot be cured. 15 Accordingly, pursuant to California Code of Civil Procedure section 438, defendant 16 Perfection Pools respectfully requests the Court grant its Motion for Judgment on the Pleadings 17 Under Code of Civil Procedure Section 438 without leave to amend. 18 II. STATEMENT OF FACTS 19 A. Facts As Alleged in Complaint 20 Plaintiffs filed a complaint in the Superior Court of California, Butte County, on March 12, 21 2020 – case number 20CV00754. The Complaint names Perfection Pools and its contractor’s 22 surety bond holder, Old Republic Surety Company, as sole defendants. 23 The Complaint asserts causes of action for breach of contract (Code of Civil Procedure 24 Section 337), breach of implied warranty of merchantability (Code of Civil Procedure Sections 25 1792 and 1791.1), and recovery on contractor’s bond. 26 a. Date of Contract as Alleged in Complaint 27 Page three of the Complaint states Plaintiffs and Perfection Pools entered a written contract 28 on or about January 28, 2011. A copy of the alleged contract was included with the Complaint and -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 attached to the Complaint as Exhibit A. (See BC-1). (The pleading and all exhibits are collectively 2 referred to herein as the “Complaint”.) Please see the Complaint attached as Exhibit A to the 3 Declaration of Greg Estabrook (“Decl. Estabrook”) filed herewith. 4 b. Essential Terms of Contract as Alleged in Complaint 5 Page three of the Complaint states the essential terms of the contract were as follows: 6 “Plaintiffs would pay $32,816.59 and Defendant Perfection Pools, and Spas, Inc. would install a 7 5,000-watt solar system in a workmanlike manner and connect the solar system to PG&E and 8 Enphase/Enlighten (See BC-1). 9 c. Breach of Contract as Alleged in Complaint 10 Page three of the Complaint states defendant Perfection Pools breached the Contract on or 11 about June 1, 2011 (See BC-2). 12 The Solar System was not installed in a workmanlike manner because: 1. It did not produce the agreed amount of electricity; 2. It was not connected to the 13 Enphase/Enlighten; 3. It did not and does not deliver electricity to PG&E in a consistent manner; and 4. When asked to bring the system into compliance with the 14 sales warranties Perfection Pools & Spas, Inc. refused. 15 d. Breach of Implied Warranty of Merchantability as Alleged in Complaint 16 Page four of the Complaint contains Attachment 1 that sets forth the Plaintiffs’ cause of 17 action against defendant Perfection Pools: 18 2. On or about January 28, 2011, Defendant Perfection Pools and Spas, Inc. entered into a contract with Plaintiffs Martin Frame and Donna Frame. A 19 true and correct copy of that contract is attached hereto as Exhibit A. The essential terms of the contact were that Defendant would provide and 20 install, in a workmanlike manner, a 5,000-watt solar system that was connected to PG&E and Enhance/Enlighten. Plaintiffs paid to Defendant 21 the amount of $32,816.59. 22 3. This retail sale to Plaintiffs was accompanied by Defendant’s implied warranties that the goods were merchantable and installed in a workmanlike 23 manner. 4. However, Defendant breached its warranties implied in the sale in that the 24 goods could not pass without objection in trade under the contract description, were not fit for ordinary purposes for which goods are used in 25 that, the Solar System was not installed in a workmanlike manner because: 1. It did not produce the agreed amount of electricity; 2. It was not 26 connected to the Enphase/Enlighten; 3. It did not and does not deliver electricity to PG&E in a consistent manner; and 4. When asked to bring the 27 system into compliance with the sale warranties Perfection Pools & Spas, Inc. refused. 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 5. Because of the above defects, the solar system as installed by Perfection Pools and Spas, Inc. proved defective upon delivery and was never 2 substantially completed. 6. Beginning in 2011 and continuing to the present, Plaintiffs complained to 3 Defendant that the system was not working performing as promised or advertised but Defendant Perfection Pools and Spas, Inc. failed and refused 4 to make needed repair, or even make a reasonable inspection. Instead Defendant has insisted, dispute facts and proof otherwise, that the system 5 was working properly and that any problem was the result of Plaintiffs’ lack of knowledge or maintenance. 6 7 III. STATEMENT OF LAW 8 A. Motion for Judgment on the Pleadings: 9 A motion for judgment on the pleadings under Code of Civil Procedure (“CCP”) section 10 438(c) “performs the same function as a general demurrer and hence attacks only defects disclosed 11 on the face of the pleadings or by matters that can be judicially noticed.” Burnett v. Chimney 12 Sweep (2004) 123 Cal.Ap.4th 1057. 1064; see Fire Insurance Exchange v. Superior Court (2004) 13 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 14 1761, 1767-1768. 15 As stated in Hightower v. Farmers Ins. Exchange (1995) 38 Cal.App.4th 853, 858: 16 "Because a motion for judgment on the pleadings is the functional equivalent of a general 17 demurrer, the same rules apply. See People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 18 691.” The motion is confined to the face of the pleading under attack and all facts alleged in the 19 complaint must be accepted as true. Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7. 20 The Court may grant leave to amend to remedy any defects identified by a motion for 21 judgment on the pleadings. (See CCP Section 438(s).) For the Court to grant leave to amend after 22 a general demurrer or motion for judgment on the pleadings, the Plaintiff must “show a reasonable 23 possibility of curing the defect in the complaint by amendment.” Heritage Pacific Financial, LLC 24 v. Monroy (2013) 215 Cal.App.4th 972, 994. The Plaintiff bears “the burden of proving an 25 amendment would cure the defect.” Ibid. The right to amend is not unqualified. If a party has had 26 several chances to amend a defective pleading and fails to do so (Hardy v. Admiral Oil 27 Co. (1961) 56 Cal.2d 836, 842), or if the defect is not curable by amendment 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 (Shabrick v. Moore (1961) 195 Cal.App.2d 56, 60), the court may grant the motion for judgment 2 on the pleadings without leave to amend. 3 Certain defects are not curable by amendment such as those that fail as a matter of law. 4 For example, in Shabrick v. Moore (1961) 195 Cal.App.2d 56, respondent filed a motion for 5 judgment on the pleadings arguing that the first cause of action set forth in Plaintiff’s complaint 6 was barred by the statute of frauds since appellant had alleged an oral contract made her a 7 beneficiary under the decedent's will. As a matter of law, oral contracts of this nature are 8 unenforceable under California Civil Code Section 1624. Because the facts pled in the complaint 9 must be taken as true and those pled facts established an affirmative defense, the trial court did not 10 err in granting judgment on the pleadings as to the first cause of action. 11 In accordance with Code of Civil Procedure section 438, subdivision (e), a motion for 12 judgment on the pleadings must be made “within 30 days of the date the action is initially set for 13 trial … unless the court otherwise permits.” Nevertheless, the court may exercise its discretion to 14 allow a later date without any requirement of “good cause.” Burnett v. Chimney Sweep (2004) 123 15 Cal.App.4th 1057, 1063. 16 In addition to a statutory motion for judgment on the pleadings, parties are also permitted 17 to bring a motion for judgment on the pleadings under common law. Smiley v. Citibank (1995) 11 18 Cal.4th 138, 145; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5. A common law 19 motion for judgment on the pleadings may be made at any time either prior to trial or during the 20 trial itself. Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650. See Gerawan Farming, Inc. v. 21 Lyons (2000) 24 Cal.4th 468, 482 n.2 [recognizing both the statutory and common law motion, 22 stating: “Generally, as such motions were, so they remain”]. 23 B. Statute of Limitations: 24 a. Breach of Contract: 25 The relevant statutes of limitation for breach of written contract is four years under 26 California Code of Civil Procedure section 337(a). Code of Civil Procedure Section 337(s) reads, 27 in relevant part: 28 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 CHAPTER 3. The Time of Commencing Actions Other Than for the Recovery 2 of Real Property [335 - 349.4]; Section 337. 3 Within four years: 4 (a) An action upon any contract, obligation or liability founded upon an instrument 5 in writing . . . 6 b. Breach of Implied Warranty: 7 There are two-time limits that are relevant to a cause of action for breach of implied 8 warranty of merchantability under the Song-Beverly Consumer Warranty Act. 9 First, under Code of Civil Procedure Section 1791.1(c), implied warranties exist for one 10 year following the sale of new good there is one-year. Code of Civil Procedure Section 1791.1(c) 11 reads, in relevant part: 12 (c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express 13 warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a 14 duration of less than 60 days nor more than one year following the sale of new 15 consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied 16 warranty shall be the maximum period prescribed above. 17 Therefore, “to state a breach of implied warranty claim, a plaintiff must allege [] that the 18 product is unfit or unmerchantable at the time of sale or in the one-year following the sale.” See 19 Mexia v. Rinker Boat Company, Inc. (2009) 174 Cal.App.4th1297, 1309. 20 Second, under California law, breach of implied warranty claims must be brought within 21 four years of the when the breach occurred. See California Commercial Code Section 2725. 22 California courts have held that the statute of limitations for an action for breach of warranty under 23 the Song-Beverly Act is governed by the same statute that governs the four-year statute of 24 limitations for warranties arising under the Uniform Commercial Code Section 2725. (Krieger v. 25 Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215, 285 Cal.Rptr. 717; Jensen v. BMW 26 of North America, Inc. (1995) 35 Cal.App.4th 112, 132, 41 Cal.Rptr.2d 295; Carrau v. Marvin 27 Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 297, 112 Cal.Rptr.2d 869.) 28 Under California Commercial Code Section 2725: -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued․ [¶] (2) A cause of action accrues 2 when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, 3 except that where a warranty explicitly extends to future performance of the 4 goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” 5 (U.Com.Code, § 2725, subds. (1), (2).) 6 IV. LEGAL ARGUMENT 7 The language on the face of Plaintiffs’ Complaint establishes that both the first cause of 8 action for breach of contract and the second cause of action for breach of implied warranty of 9 merchantability are barred by relevant four-year statutes of limitation. The cause of action for 10 both causes of action began to run on June 1, 2011. The statute of limitations expired on both 11 causes of action by June 2015. Plaintiffs filed their Complaint on March 12, 2020. 12 A. First Cause of Action for Breach of Implied Warranty of Merchantability is Barred 13 by the Statute of Limitations Under Code of Civil Procedure Section 1791.1(c) 14 Plaintiffs filed a Complaint naming defendant Perfect Pools as a defendant. The 15 Complaint’s first cause of action asserted against defendant Perfect Pools is that for breach of 16 contract. 17 As a matter of law, the statute of limitations for a cause of action for breach of written 18 contract is four years under California Code of Civil Procedure section 337(a). 19 Plaintiffs’ Complaint states that, on January 28, 2011, Plaintiffs and defendant Perfection 20 Pools entered into a written contract to install a 5,000-watt solar system. 21 Plaintiffs’ Complaint states Plaintiffs were aware the Solar system never worked properly. 22 Plaintiffs Complaint states Plaintiff believed defendant Perfection Pools was in breach of its 23 written contract by June 1, 2011. 24 Plaintiffs’ Complaint states there was no tolling of the statute of limitations for repairs. 25 Beginning in 2011 and continuing to the present, Plaintiffs complained to 26 Defendant that the system was not working performing as promised or advertised but Defendant Perfection Pools and Spas, Inc. failed and refused to make needed 27 repair, or even make a reasonable inspection. Instead Defendant has insisted, dispute facts and proof otherwise, that the system was working properly and that 28 any problem was the result of Plaintiffs’ lack of knowledge or maintenance. -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 According to the Complaint, therefore, the statute of limitations began to run on this cause 2 of action on or about June 1, 2011. As a matter of law, the limitations period for this cause of 3 action ended on or about May 30, 2015. 4 Plaintiffs filed their Complaint and its cause of action for breach of written contract on 5 March 12, 2020. This is almost five years after the statute of limitations expired on this cause of 6 action. 7 B. Second Cause of Action for Breach of Written Contract is Barred by the Statute of 8 Limitations Under Civil Code Section 337(a) 9 Plaintiffs filed a Complaint naming defendant Perfect Pools as a defendant. The 10 Complaint’s second cause of action asserted against defendant Perfect Pools is for breach of 11 implied warranty of merchantability under that for breach of contract pursuant to Code of Civil 12 Procedure Section 1791.1(c). 13 As a matter of law, the statute of limitations for a cause of action for breach of implied 14 warranty of merchantability pursuant to Code of Civil Procedure Section 1791.1(c) is governed by 15 California Commercial Code Section 2725. Under California Commercial Code Section 2725, the 16 relevant statute of limitations is four years from when the date when the breach occurred. 17 The Complaint filed by Plaintiffs states the following: 18 2. On or about January 28, 2011, Defendant Perfection Pools and Spas, Inc. entered into a contract with Plaintiffs Martin Frame and Donna Frame. A 19 true and correct copy of that contract is attached hereto as Exhibit A. The essential terms of the contact were that Defendant would provide and 20 install, in a workmanlike manner, a 5,000-watt solar system that was connected to PG&E and Enhase/Enlighten. Plaintiffs paid to Defendant the 21 amount of $32,816.59. ... 22 3. This retail sale to Plaintiffs was accompanied by Defendant’s implied warranties that the goods were merchantable and installed in a workmanlike 23 manner. 24 4. However, Defendant breached its warranties implied in the sale in that the goods could not pass without objection in trade under the contract 25 description, were not fit for ordinary purposes for which goods are used in that, the Solar System was not installed in a workmanlike manner because: 26 1. It did not produce the agreed amount of electricity; 2. It was not connected to the Enphase/Enlighten; 3. It did not and does not deliver 27 electricity to PG&E in a consistent manner; and 4. When asked to bring the system into compliance with the sale warranties Perfection Pools & Spas, 28 Inc. refused. -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS 1 5. Because of the above defects, the solar system as installed by Perfection Pools and Spas, Inc. proved defective upon delivery and was never 2 substantially completed. 6. Beginning in 2011 and continuing to the present, Plaintiffs complained to 3 Defendant that the system was not working performing as promised or advertised but Defendant Perfection Pools and Spas, Inc. failed and refused 4 to make needed repair, or even make a reasonable inspection. Instead Defendant has insisted, dispute facts and proof otherwise, that the system 5 was working properly and that any problem was the result of Plaintiffs’ lack of knowledge or maintenance. 6 7 Plaintiffs filed their Complaint and its cause of action for breach of implied warranty of 8 merchantability on March 12, 2020. This is almost five years after the statute of limitations 9 expired on this cause of action. Plaintiffs first cause of action for breach of implied warranty of 10 merchantability is barred by the appliable statute of limitations set forth under Code of Civil 11 Procedure Section 1791.1(c) and California Commercial Code Section 2725. Under California 12 Commercial Code Section 2725, the relevant statute of limitations is four years from when the 13 date when the breach occurred. 14 V. CONCLUSION 15 The Complaint makes clear on its face that all causes of action asserted by Plaintiffs in 16 their Complaint are barred by relevant statutes of limitations. These facts cannot be reasonably 17 altered; therefore, the pleading cannot be cured. 18 Accordingly, pursuant to California Code of Civil Procedure section 438, defendant 19 Perfection Pools respectfully requests the Court grant its Motion for Judgment on the Pleadings 20 Under Code of Civil Procedure Section 438 without leave to amend. 21 Dated: December 15, 2020 SIMS, LAWRENCE & ARRUTI 22 23 By 24 BOBBY DALE SIMS, JR. GREGORY ESTABROOK 25 Attorneys for Defendant, PERFECTION POOLS & SPAS, INC. 26 27 28 -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERFECTION POOLS & SPAS, INC.’S MOTION FOR JUDGEMENT ON PLEADINGS