Preview
1 BOBBY DALE SIMS, JR. (SBN 202622)
GREGORY ESTABROOK (SBN 179228)
2 SIMS, LAWRENCE & ARRUTI
2261 Lava Ridge Court 1/20/2021
3 Roseville, CA 95661
Telephone: (916) 797-8881
4 Facsimile: (916) 253-1544
5 Attorneys for Defendants,
PERFECTION POOLS & SPAS, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF BUTTE
10
11 RONALD MARTIN FRAME AND DONNA Case No. 20CV00754
FRAME,
12 PERFECTION POOLS & SPAS, INC.’S
Plaintiffs, REPLY TO PLAINTIFF’S OPPOSITION TO
13 THE MOTION FOR JUDGEMENT ON
vs. PLEADINGS
14
PERFECTION POOLS & SPAS, INC., OLD Date: January 27, 2021
15 REPUBLIC SURETY COMPANY, DOES 1- Time: 9:00 a.m.
10, et al. Dept.: 10
16 Hon. Judge Robert A. Glusman
Defendants.
17
Complaint: March 12, 2020
18 Trial: October 18, 2021
19 INTRODUCTION
20 Defendant Perfection Pools and Spas, Inc. (“Perfection Pools”) filed a Motion for
21 Judgment on the Pleadings (“Motion”). The Motion is based on the face of a March 12, 2020
22 Complaint 20CV00754 (“Complaint”) filed by plaintiffs Donna and Roland Frame (“Plaintiffs”).
23 The Complaint alleges a 2011 breach of contract and breach of implied warranty of
24 merchantability by Perfection Pools to provide and install a solar panel system. The Complaint
25 establishes that all claims are long barred by applicable statute of limitations. Therefore, as a
26 matter of law, Plaintiffs cannot state a cause of action against defendant Perfection Pools.
27 Plaintiffs’ Opposition to Motion for Judgment on the Pleadings (“Opposition”) does not
28 provides a basis for a denial of the Motion. Plaintiffs do not - and cannot - dispute that the face of
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
1 the Complaint shows all claims are time barred. Plaintiffs merely present the contradictory
2 argument that, yes, the alleged defects with the solar panel system were discovered in 2011 and
3 Plaintiffs complained about these defects, but, somehow, the alleged system defects also remained
4 latent and undiscovered until 2019. This argument is nonsensical and without any factual or legal
5 support or authority. Plaintiffs cannot cure the statute of limitations pleading defect. Accordingly,
6 defendant Perfection Pools respectfully requests the Court grant its Motion for Judgment on the
7 Pleadings without leave to amend.
8 UNDISPUTED FACTS EXPRESSED ON THE FACE OF THE COMPLAINT
9 Plaintiffs the Complaint in El Dorado County Superior Court on March 12, 2020. The
10 Complaint states that in 2011 Plaintiffs entered into a written contract with defendant Perfection
11 Pools to provide and install a solar panel system hooked to utility company PG&E and monitoring
12 company Enlighten/Enphase.
13 2. On or about February 28, 2011, Defendant Perfection Pools & Spas, Inc.
entered into a contract with Plaintiff Roland and Dona Frame. . . . The essential
14 terms of the contract were that Defendant would provide and install, in a
workmanlike manner, a 5000-watt solar system that was hooked up to PG&E and
15 Enphase/Enlighten. Plaintiffs paid to Defendant the amount of 32,816.59.
(Complaint, page 4, para. 2)
16
17 Plaintiffs’ Complaint then declares, in 2011, Plaintiffs formed the belief that the solar
18 panel system was not operating properly and/or in accordance with the terms of the written
19 contract. Plaintiffs’ Complaint states:
20 Beginning in 2011, and continuing to the present, Plaintiffs complained to
Defendant that the system was not performing as promised or advertised but
21 Defendant Perfection Pools and Spas, Inc. refused to make needed repairs, or even
make a reasonable inspection. Instead, Defendant has insisted, despite facts and
22 proof otherwise, that the system was working properly, and that any problem was
the result of Plaintiffs lack of knowledge or maintenance. (Complaint, page 4, para.
23 6)
24 Accordingly, the Complaint establishes that in 2011 Plaintiffs formed the belief that
25 defendant Perfection Pools was in breach of contract and breach of an implied warranty of
26 merchantability. Plaintiffs also establish that since 2011 Plaintiffs were aware that defendant
27 Perfection Pools refused to perform any repairs or remedy any alleged breach of contract.
28 ///
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
1 Plaintiffs’ March 12, 2020, Complaint asserts two causes of action against defendant
2 Perfection Pools: breach of written contract and breach of implied warranty of merchantability.
3 There is a four-year statute of limitations under Code of Civil Procedure Section 337(a) to bring
4 an action for breach of written contract. There is a one-year statute of limitations under Business
5 and Professions Code Section 1791.1(c) to bring a cause of action for breach of implied warranty
6 of merchantability (See CACI 3212).
7 Plaintiffs filed their Complaint on March 12, 2020.
8 LEGAL ARGUMENT
9 A. Plaintiffs Complaint States it Discovered Alleged Breach and Defects in 2011;
10 Contradictorily Complain of the Presence of Defects Since 2011 and Argue the
11 Defects Were Latent and Not discovered Until 2019
12 Plaintiffs present the contradictory argument that they discovered the alleged defective
13 performance and breach of contract/warranty in 2011 but, somehow, the statute of limitations did
14 not begin to run in 2011 because the alleged defects remained latent until 2019. This argument has
15 no legal support and ignores the most fundamental misunderstanding of the nature of latent defects
16 – i.e.,once Plaintiffs discovered and complained about the alleged breach in 2011, the 10-year
17 statute of repose under Code of Civil Procedure Section 337.15 to discover alleged defects in the
18 solar panel system was rendered moot. As a matter of law, once Plaintiffs discovered the alleged
19 defects in 2011, Plaintiffs had the legal duty to investigate the alleged solar panel system
20 deficiencies and initiate associated legal action.
21 A cause of action accrues – i.e., the statute of limitations begins to run - when the
22 homeowner “discovers” the cause of action. Regents v. Hartford Accident & Indemnity (1978) 21
23 Cal.3d 624, 630. As the California Supreme Court explained in Norgart v. Upjohn Co. (1999) 21
24 Cal.4th 383:
25 [T]he plaintiff discovers the cause of action when he at least suspects a factual
basis, as opposed to a legal theory, for its elements, even if he lacks knowledge
26 thereof-when, simply put, he at least ‘suspects ․ that someone has done something
wrong’ to him [citation], ‘wrong’ being used, not in any technical sense, but rather
27 in accordance with its lay understanding.” Id. at 397-398.
28 ///
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
1 A plaintiff has reason to discover the cause of action when he “has reason at least to
2 suspect a factual basis for its elements.” Id. at 398; See Mills v. Forestex Co. (2003) 108
3 Cal.App.4th 625, 642; Regents v. Hartford Accident & Indemnity (1978) 21 Cal.3d 624, 630.
4 “Once the plaintiff has the suspicion of wrongdoing, and therefore has incentive to sue, she must
5 decide whether to file suit or sit on her rights. So long as suspicion exists, it is clear that the
6 plaintiff must go find the facts; she cannot wait for the facts to find her.” Jolly v. Eli Lilly & Co.
7 (1988) 44 Cal. 3d 1103, 1110-1111, fn. 4.
8 Plaintiffs’ Opposition admits “[i]t is undisputed that Plaintiffs have alleged that since the
9 beginning of 2011 the contracted-for solar system was not functioning as promised and that
10 defendant [Perfection Pools] failed and refused to make necessary repairs.” (Opposition, Page 5,
11 lines 5-8.). These facts establish that Plaintiffs discovered the actionable causes of action in 2011
12 and, consequently, the applicable statutes of limitation began to run on all causes of action in
13 2011.
14 Accordingly, starting in 2011 when they understood the solar panel system was not
15 operating properly, Plaintiffs had the legal duty to investigate the deficiencies of the solar panel
16 system and initiate legal action. As a matter of law, once Plaintiffs had notice of the alleged
17 defects in 2011, Plaintiffs could not “sit on their hands”, fail to investigate the alleged deficiencies,
18 and then seek protection behind Code of Civil Procedure Section 337.15 claiming it had no idea
19 the solar panel system had one particular defect or another.
20 Here, it is undisputed and is plainly stated on the face of the Complaint that in 2011
21 Plaintiff discovered and complained that the solar panel system was not working as stated in the
22 contract documents. Defendant Perfection Pools refused to perform repairs. The causes of action
23 for breach of contract and implied warranty of merchantability accrued – i.e., began to run - in
24 2011 with Plaintiffs’ “discovery” of the breach of contract and breach of implied warranty of
25 merchantability. At that point, Plaintiffs had the legal obligation (and had four years – until 2015)
26 to investigate the solar panel system and bring an appropriate lawsuit. Plaintiff failed to do so until
27 March 12, 2020 – over four years after the expiration of the applicable statute of limitations.
28 ///
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
1 B. Purpose of Statute of Limitations is to Protect Right of Defendants
2 Statutes of limitation are in place to protect defendants from stale claims. The face of the
3 Complaint establishes, as a matter of law, Plaintiffs’ claims are stale. Plaintiffs cannot revive these
4 claims through artful pleading.
5 A statute of limitations is "designed to promote justice by preventing surprises through the
6 revival of claims that have been allowed to slumber until evidence has been lost, memories have
7 faded, and witnesses have disappeared.” Adams v. Paul (1995) 11 Cal. 4th 583, 592.
8 The fundamental purpose of the statute [of limitations] is to give defendants reasonable
9 repose, that is, to protect parties from defending stale claims. A second policy underlying the
10 statute is to require plaintiffs to diligently pursue their claims. Jolly v. Eli Lilly & Co. (1988) 44
11 Cal. 3d 1103, 1112.
12 It is well established that the primary purpose of statutes of limitation is to “prevent the
13 assertion of stale claims by plaintiffs who have failed to file their action until evidence is no longer
14 fresh and witnesses are no longer available. ‘[T]he right to be free of stale claims in time comes to
15 prevail over the right to prosecute them.’ ” Addison v. State of California, (1978) 21 Cal. 3d 314,
16 317; Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 349. Civil statutes of limitations
17 protect defendants from having to defend stale claims due to lack of diligence by plaintiffs Davies
18 v. Krasna (1975) 14 Cal. 3d 502, 512 [emphasis added]. “The statutes, accordingly, serve a
19 distinct public purpose, preventing the assertion of demands which through the unexcused lapse of
20 time, have been rendered difficult or impossible to defend.” Addison, supra, 21 Cal. 3d at 317.
21 C. Defendant Perfection Pools’ Motion for Judgment on the Pleadings Should be
22 Granted with Prejudice
23 Defendant Perfection Pools respectfully requests the Court grant is Motion with prejudice
24 as Plaintiffs cannot state a cause of action against defendant Perfection Pools (statute of
25 limitations) and cannot cure the pleading issue. "The standard for granting a motion for judgment
26 on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the
27 state of the pleadings, together with matters that may be judicially noticed, it appears that a party
28 ///
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
1 is entitled to judgment as a matter of law. (Code of Civil Procedure§ 438, subdivision (d); Smiley
2 v. Citibank (1995) 11 Cal.4th 138, 146.) [Footnote omitted.]
3 A statutory motion for judgment on the pleadings in California is authorized by the
4 provisions of Code of Civil Procedure § 438 which states in pertinent part that:
5 (b) (1) A party may move for judgment on the pleadings.
(2) The court may upon its own motion grant a motion for judgment on the pleadings.
6 (c) (1) The motion provided for in this section may only be made on one of the following
grounds:
7 ...
(B) If the moving party is a defendant, that either of the following conditions exist:
8 ...
(ii) The complaint does not state facts sufficient to constitute a cause of action.
9
10 Plaintiffs cannot state a cause of action against defendant Perfection Pools due to the face
11 of the Complaint establishing, as a matter of law, that Plaintiffs claims are barred by the relevant
12 statutes of limitation. Plaintiffs cannot cure this pleading defect. Accordingly, defendant
13 Perfection Pools respectfully requests the Court its Motion without leave to amend.
14 Dated: January 20, 2021 SIMS, LAWRENCE & ARRUTI
15
By
16 BOBBY DALE SIMS, JR.
GREGORY ESTABROOK
17 Attorneys for Defendant,
PERFECTION POOLS & SPAS, INC.
18
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
1 PROOF OF SERVICE
2
I, SHELBY JONES, certify and declare as follows:
3 I am over the age of 18 years, and not a party to this action. My business address is 2261 Lava
Ridge Court – Roseville, CA. I am employed in the County of Placer where this service occurs.
4
On the date set forth below, following ordinary business practice, I served a true copy of the
5 foregoing document(s) described as:
6 PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE
MOTION FOR JUDGEMENT ON PLEADINGS
7
8 (BY FAX) I transmitted via facsimile transmission from a facsimile transmission machine/ service
called FAXWAVE whose business facsimile number is (916) 253-1544 to the following fax
9 number(s), as stated on the attached service list, on this date before 5:00 p.m.
10 The above-described transmission was reported as complete without error by a transmission report
issued by the facsimile upon which the said transmission was made immediately following the
11 transmission. A true and correct copy of the said transmission report is attached hereto and
incorporated herein by this reference.
12
13 (BY MAIL) I am readily familiar with my employer's normal business practice for collection and
processing of correspondence for mailing with the U.S. Postal Service. Correspondence so
14 collected and processed is deposited with the U.S. Postal Service that same day in the ordinary
course of business. I placed for deposit in the United States Postal Service in a sealed envelope,
15 with postage fully prepaid, to the addressee(s) below.
16
(BY PERSONAL SERVICE) I personally delivered the above document(s) by hand between 9:00
17 a.m. and 5:00 p.m. to the office of the addressee(s) below.
18
(BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by
19 Federal Express an express service carrier, or delivered to a courier or driver authorized by said
express service carrier to receive such envelope(s) to be delivered by overnight delivery, with
20 delivery fees paid or provided for, addressed to the person(s) on whom it is to be served below.
21
(BY ELECTRONIC SERVICE) I transmitted via electronic service through LexisNexis to the
22 offices of the addressee(s) below as stated on the attached service list on this date before 5:00 p.m.
SEE ATTACHED SERVICE LIST
23
24 (State) I certify and declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
25
Executed on: January 20, 2021 _______________________________
26 SHELBY JONES
27
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
1 SERVICE LIST
2
3 Stephan R. Wattenberg Attorneys for Plaintiffs
Claire E. Greene
4 LAW OFFICE OF STEPHAN R.
WATTENBERG
5
1074 East Ave., Ste C
6 Chico, CA 95926
T: (530) 342-8930
7 F: (530) 342-5625
srwattny@pacbell.net
8
Carlos E. Sosa Attorneys for Old Republic Surety Company
9
Law Offices of Hausman & Sosa
10 20750 Ventura Blvd., Suite 105
Woodland Hills, CA 91364
11 T: (818) 654-9000
F: (818) 654-9050
12 csosa@hausmansosa.com
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PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON
PLEADINGS
Preview
1 BOBBY DALE SIMS, JR. (SBN 202622) GREGORY ESTABROOK (SBN 179228) 2 SIMS, LAWRENCE & ARRUTI 2261 Lava Ridge Court 1/20/2021 3 Roseville, CA 95661 Telephone: (916) 797-8881 4 Facsimile: (916) 253-1544 5 Attorneys for Defendants, PERFECTION POOLS & SPAS, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE 10 11 RONALD MARTIN FRAME AND DONNA Case No. 20CV00754 FRAME, 12 PERFECTION POOLS & SPAS, INC.’S Plaintiffs, REPLY TO PLAINTIFF’S OPPOSITION TO 13 THE MOTION FOR JUDGEMENT ON vs. PLEADINGS 14 PERFECTION POOLS & SPAS, INC., OLD Date: January 27, 2021 15 REPUBLIC SURETY COMPANY, DOES 1- Time: 9:00 a.m. 10, et al. Dept.: 10 16 Hon. Judge Robert A. Glusman Defendants. 17 Complaint: March 12, 2020 18 Trial: October 18, 2021 19 INTRODUCTION 20 Defendant Perfection Pools and Spas, Inc. (“Perfection Pools”) filed a Motion for 21 Judgment on the Pleadings (“Motion”). The Motion is based on the face of a March 12, 2020 22 Complaint 20CV00754 (“Complaint”) filed by plaintiffs Donna and Roland Frame (“Plaintiffs”). 23 The Complaint alleges a 2011 breach of contract and breach of implied warranty of 24 merchantability by Perfection Pools to provide and install a solar panel system. The Complaint 25 establishes that all claims are long barred by applicable statute of limitations. Therefore, as a 26 matter of law, Plaintiffs cannot state a cause of action against defendant Perfection Pools. 27 Plaintiffs’ Opposition to Motion for Judgment on the Pleadings (“Opposition”) does not 28 provides a basis for a denial of the Motion. Plaintiffs do not - and cannot - dispute that the face of -1- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 1 the Complaint shows all claims are time barred. Plaintiffs merely present the contradictory 2 argument that, yes, the alleged defects with the solar panel system were discovered in 2011 and 3 Plaintiffs complained about these defects, but, somehow, the alleged system defects also remained 4 latent and undiscovered until 2019. This argument is nonsensical and without any factual or legal 5 support or authority. Plaintiffs cannot cure the statute of limitations pleading defect. Accordingly, 6 defendant Perfection Pools respectfully requests the Court grant its Motion for Judgment on the 7 Pleadings without leave to amend. 8 UNDISPUTED FACTS EXPRESSED ON THE FACE OF THE COMPLAINT 9 Plaintiffs the Complaint in El Dorado County Superior Court on March 12, 2020. The 10 Complaint states that in 2011 Plaintiffs entered into a written contract with defendant Perfection 11 Pools to provide and install a solar panel system hooked to utility company PG&E and monitoring 12 company Enlighten/Enphase. 13 2. On or about February 28, 2011, Defendant Perfection Pools & Spas, Inc. entered into a contract with Plaintiff Roland and Dona Frame. . . . The essential 14 terms of the contract were that Defendant would provide and install, in a workmanlike manner, a 5000-watt solar system that was hooked up to PG&E and 15 Enphase/Enlighten. Plaintiffs paid to Defendant the amount of 32,816.59. (Complaint, page 4, para. 2) 16 17 Plaintiffs’ Complaint then declares, in 2011, Plaintiffs formed the belief that the solar 18 panel system was not operating properly and/or in accordance with the terms of the written 19 contract. Plaintiffs’ Complaint states: 20 Beginning in 2011, and continuing to the present, Plaintiffs complained to Defendant that the system was not performing as promised or advertised but 21 Defendant Perfection Pools and Spas, Inc. refused to make needed repairs, or even make a reasonable inspection. Instead, Defendant has insisted, despite facts and 22 proof otherwise, that the system was working properly, and that any problem was the result of Plaintiffs lack of knowledge or maintenance. (Complaint, page 4, para. 23 6) 24 Accordingly, the Complaint establishes that in 2011 Plaintiffs formed the belief that 25 defendant Perfection Pools was in breach of contract and breach of an implied warranty of 26 merchantability. Plaintiffs also establish that since 2011 Plaintiffs were aware that defendant 27 Perfection Pools refused to perform any repairs or remedy any alleged breach of contract. 28 /// -2- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 1 Plaintiffs’ March 12, 2020, Complaint asserts two causes of action against defendant 2 Perfection Pools: breach of written contract and breach of implied warranty of merchantability. 3 There is a four-year statute of limitations under Code of Civil Procedure Section 337(a) to bring 4 an action for breach of written contract. There is a one-year statute of limitations under Business 5 and Professions Code Section 1791.1(c) to bring a cause of action for breach of implied warranty 6 of merchantability (See CACI 3212). 7 Plaintiffs filed their Complaint on March 12, 2020. 8 LEGAL ARGUMENT 9 A. Plaintiffs Complaint States it Discovered Alleged Breach and Defects in 2011; 10 Contradictorily Complain of the Presence of Defects Since 2011 and Argue the 11 Defects Were Latent and Not discovered Until 2019 12 Plaintiffs present the contradictory argument that they discovered the alleged defective 13 performance and breach of contract/warranty in 2011 but, somehow, the statute of limitations did 14 not begin to run in 2011 because the alleged defects remained latent until 2019. This argument has 15 no legal support and ignores the most fundamental misunderstanding of the nature of latent defects 16 – i.e.,once Plaintiffs discovered and complained about the alleged breach in 2011, the 10-year 17 statute of repose under Code of Civil Procedure Section 337.15 to discover alleged defects in the 18 solar panel system was rendered moot. As a matter of law, once Plaintiffs discovered the alleged 19 defects in 2011, Plaintiffs had the legal duty to investigate the alleged solar panel system 20 deficiencies and initiate associated legal action. 21 A cause of action accrues – i.e., the statute of limitations begins to run - when the 22 homeowner “discovers” the cause of action. Regents v. Hartford Accident & Indemnity (1978) 21 23 Cal.3d 624, 630. As the California Supreme Court explained in Norgart v. Upjohn Co. (1999) 21 24 Cal.4th 383: 25 [T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge 26 thereof-when, simply put, he at least ‘suspects ․ that someone has done something wrong’ to him [citation], ‘wrong’ being used, not in any technical sense, but rather 27 in accordance with its lay understanding.” Id. at 397-398. 28 /// -3- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 1 A plaintiff has reason to discover the cause of action when he “has reason at least to 2 suspect a factual basis for its elements.” Id. at 398; See Mills v. Forestex Co. (2003) 108 3 Cal.App.4th 625, 642; Regents v. Hartford Accident & Indemnity (1978) 21 Cal.3d 624, 630. 4 “Once the plaintiff has the suspicion of wrongdoing, and therefore has incentive to sue, she must 5 decide whether to file suit or sit on her rights. So long as suspicion exists, it is clear that the 6 plaintiff must go find the facts; she cannot wait for the facts to find her.” Jolly v. Eli Lilly & Co. 7 (1988) 44 Cal. 3d 1103, 1110-1111, fn. 4. 8 Plaintiffs’ Opposition admits “[i]t is undisputed that Plaintiffs have alleged that since the 9 beginning of 2011 the contracted-for solar system was not functioning as promised and that 10 defendant [Perfection Pools] failed and refused to make necessary repairs.” (Opposition, Page 5, 11 lines 5-8.). These facts establish that Plaintiffs discovered the actionable causes of action in 2011 12 and, consequently, the applicable statutes of limitation began to run on all causes of action in 13 2011. 14 Accordingly, starting in 2011 when they understood the solar panel system was not 15 operating properly, Plaintiffs had the legal duty to investigate the deficiencies of the solar panel 16 system and initiate legal action. As a matter of law, once Plaintiffs had notice of the alleged 17 defects in 2011, Plaintiffs could not “sit on their hands”, fail to investigate the alleged deficiencies, 18 and then seek protection behind Code of Civil Procedure Section 337.15 claiming it had no idea 19 the solar panel system had one particular defect or another. 20 Here, it is undisputed and is plainly stated on the face of the Complaint that in 2011 21 Plaintiff discovered and complained that the solar panel system was not working as stated in the 22 contract documents. Defendant Perfection Pools refused to perform repairs. The causes of action 23 for breach of contract and implied warranty of merchantability accrued – i.e., began to run - in 24 2011 with Plaintiffs’ “discovery” of the breach of contract and breach of implied warranty of 25 merchantability. At that point, Plaintiffs had the legal obligation (and had four years – until 2015) 26 to investigate the solar panel system and bring an appropriate lawsuit. Plaintiff failed to do so until 27 March 12, 2020 – over four years after the expiration of the applicable statute of limitations. 28 /// -4- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 1 B. Purpose of Statute of Limitations is to Protect Right of Defendants 2 Statutes of limitation are in place to protect defendants from stale claims. The face of the 3 Complaint establishes, as a matter of law, Plaintiffs’ claims are stale. Plaintiffs cannot revive these 4 claims through artful pleading. 5 A statute of limitations is "designed to promote justice by preventing surprises through the 6 revival of claims that have been allowed to slumber until evidence has been lost, memories have 7 faded, and witnesses have disappeared.” Adams v. Paul (1995) 11 Cal. 4th 583, 592. 8 The fundamental purpose of the statute [of limitations] is to give defendants reasonable 9 repose, that is, to protect parties from defending stale claims. A second policy underlying the 10 statute is to require plaintiffs to diligently pursue their claims. Jolly v. Eli Lilly & Co. (1988) 44 11 Cal. 3d 1103, 1112. 12 It is well established that the primary purpose of statutes of limitation is to “prevent the 13 assertion of stale claims by plaintiffs who have failed to file their action until evidence is no longer 14 fresh and witnesses are no longer available. ‘[T]he right to be free of stale claims in time comes to 15 prevail over the right to prosecute them.’ ” Addison v. State of California, (1978) 21 Cal. 3d 314, 16 317; Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 349. Civil statutes of limitations 17 protect defendants from having to defend stale claims due to lack of diligence by plaintiffs Davies 18 v. Krasna (1975) 14 Cal. 3d 502, 512 [emphasis added]. “The statutes, accordingly, serve a 19 distinct public purpose, preventing the assertion of demands which through the unexcused lapse of 20 time, have been rendered difficult or impossible to defend.” Addison, supra, 21 Cal. 3d at 317. 21 C. Defendant Perfection Pools’ Motion for Judgment on the Pleadings Should be 22 Granted with Prejudice 23 Defendant Perfection Pools respectfully requests the Court grant is Motion with prejudice 24 as Plaintiffs cannot state a cause of action against defendant Perfection Pools (statute of 25 limitations) and cannot cure the pleading issue. "The standard for granting a motion for judgment 26 on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the 27 state of the pleadings, together with matters that may be judicially noticed, it appears that a party 28 /// -5- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 1 is entitled to judgment as a matter of law. (Code of Civil Procedure§ 438, subdivision (d); Smiley 2 v. Citibank (1995) 11 Cal.4th 138, 146.) [Footnote omitted.] 3 A statutory motion for judgment on the pleadings in California is authorized by the 4 provisions of Code of Civil Procedure § 438 which states in pertinent part that: 5 (b) (1) A party may move for judgment on the pleadings. (2) The court may upon its own motion grant a motion for judgment on the pleadings. 6 (c) (1) The motion provided for in this section may only be made on one of the following grounds: 7 ... (B) If the moving party is a defendant, that either of the following conditions exist: 8 ... (ii) The complaint does not state facts sufficient to constitute a cause of action. 9 10 Plaintiffs cannot state a cause of action against defendant Perfection Pools due to the face 11 of the Complaint establishing, as a matter of law, that Plaintiffs claims are barred by the relevant 12 statutes of limitation. Plaintiffs cannot cure this pleading defect. Accordingly, defendant 13 Perfection Pools respectfully requests the Court its Motion without leave to amend. 14 Dated: January 20, 2021 SIMS, LAWRENCE & ARRUTI 15 By 16 BOBBY DALE SIMS, JR. GREGORY ESTABROOK 17 Attorneys for Defendant, PERFECTION POOLS & SPAS, INC. 18 19 20 21 22 23 24 25 26 27 28 -6- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 1 PROOF OF SERVICE 2 I, SHELBY JONES, certify and declare as follows: 3 I am over the age of 18 years, and not a party to this action. My business address is 2261 Lava Ridge Court – Roseville, CA. I am employed in the County of Placer where this service occurs. 4 On the date set forth below, following ordinary business practice, I served a true copy of the 5 foregoing document(s) described as: 6 PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 7 8 (BY FAX) I transmitted via facsimile transmission from a facsimile transmission machine/ service called FAXWAVE whose business facsimile number is (916) 253-1544 to the following fax 9 number(s), as stated on the attached service list, on this date before 5:00 p.m. 10 The above-described transmission was reported as complete without error by a transmission report issued by the facsimile upon which the said transmission was made immediately following the 11 transmission. A true and correct copy of the said transmission report is attached hereto and incorporated herein by this reference. 12 13 (BY MAIL) I am readily familiar with my employer's normal business practice for collection and processing of correspondence for mailing with the U.S. Postal Service. Correspondence so 14 collected and processed is deposited with the U.S. Postal Service that same day in the ordinary course of business. I placed for deposit in the United States Postal Service in a sealed envelope, 15 with postage fully prepaid, to the addressee(s) below. 16 (BY PERSONAL SERVICE) I personally delivered the above document(s) by hand between 9:00 17 a.m. and 5:00 p.m. to the office of the addressee(s) below. 18 (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by 19 Federal Express an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive such envelope(s) to be delivered by overnight delivery, with 20 delivery fees paid or provided for, addressed to the person(s) on whom it is to be served below. 21 (BY ELECTRONIC SERVICE) I transmitted via electronic service through LexisNexis to the 22 offices of the addressee(s) below as stated on the attached service list on this date before 5:00 p.m. SEE ATTACHED SERVICE LIST 23 24 (State) I certify and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 Executed on: January 20, 2021 _______________________________ 26 SHELBY JONES 27 28 -7- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS 1 SERVICE LIST 2 3 Stephan R. Wattenberg Attorneys for Plaintiffs Claire E. Greene 4 LAW OFFICE OF STEPHAN R. WATTENBERG 5 1074 East Ave., Ste C 6 Chico, CA 95926 T: (530) 342-8930 7 F: (530) 342-5625 srwattny@pacbell.net 8 Carlos E. Sosa Attorneys for Old Republic Surety Company 9 Law Offices of Hausman & Sosa 10 20750 Ventura Blvd., Suite 105 Woodland Hills, CA 91364 11 T: (818) 654-9000 F: (818) 654-9050 12 csosa@hausmansosa.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- PERFECTION POOLS & SPAS, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO THE MOTION FOR JUDGEMENT ON PLEADINGS