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SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF'STANISLAUS
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BILL BUNNELL, ET'AL. I VS. JASON WRIGHT, ET AL.
PLAINTIFF(S) '
DEFENDANT(S)
NATURE 0F HEARING: Deféndant fiuncan Lyons dba Amerispec Inspection
Services’ Motion.for Summary Judgment OITA Summary Adjudication.
No. 2018041
JUDGE: ROGER M. BEAUCHESNE :Bailiff: R. Peagler Date: 06/15/2018
Clerk: C. Cruz ‘
:Reporter: None Modesto, California
‘
APPEARANCESE
None
This matter was regularly called for hearing.
There being no request for a hearing, the Court confirmed its tentative
ruling as follows:
Defendant Duncan Lyons dba Amerispec Inspection Services’ Motion for
Summary Judgment OITA Summary Adjudication —‘The Court grants Lyons’s‘
request fcr judicial notice and overrules his objections, which are not
dispositive of the outcome of'the motion. (See Reid V. Gaogle, Inc.
(2010) 50 Cal. 4th 512, 532— 533. ) The Court GRANTS summary judgment
because all four -grounds of Defendant Lyons' s motion are successful for
the reasons described below:
Statute of limitations
The inspection agreement contains a contractual one—year limit on the
right to bring “any legal action arising from this Agreement or from the
Services and Report.” The inspection by Lyons occurred in December 2013,
plaintiffs admit they discovered the‘mold by the end of February 2014, but
they did not file suit until December 15, 2015. Ordinarily, a customer of
-a home inspector has four years to bring suit related to the inspection.
(Bus. & Prof;-Code, § 7199.) -“It is true California courts have afforded
contracting parties considerable freedom to.modify the length of a statute
of limitations. Courts generally enforce parties' agreements for a
shorter.limitations period than otherwise provided‘by statute, providedvit
is reasonable. ‘Reasonable’ in this context.means the shortened period
nevertheless provides sufficient time to effectively pursue a judicial
remedy. ‘It is a well—settled.pr0position of law that the parties to a
contract may stipulate therein for a period of limitation, shorter than
that fixed by the statute'of limitations, and that such stipulation ,
violates no principle of public policy, provided the period fixed be not
”
so unreasonable as to show imposition or undue advantage in some way,’
(Mbreno v. Sanchez (2003) lO6:Cal.App.4th 1415, 1430 (Mbreno).)
Plaintiffs counter Lyons’s arguments 0n this issue by contending that
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limitations periods can be shOItened on contract‘claims, but not on causes
of action sounding in tort. However, in Zamora V. Lehman (20;3) 214
Cal.App.4th 193 (Zamora), the Court affirmed.a trial court order granting
summary judgment on a cause of action for breach of fiduciary duty on the
ground that it was untimely as judged by contractual language demanding
notice of claim within a certain period. (Zamora, 214 Cal.App.4th at pp.
208—209.) Unlike Mbreno, Zamdra held that “a contractual notice provision
is enforceable with respect to a claim against a professional Qr.skilled
expert as long as the provisidn incorporates the delayed discovery rule.”
(Id. at p. 209.) While Mbreno and Zamora both required a contract that
shortened a limitations period to contain language allowing that period to
run from discovery of the right of action, rather than from the occurrence
of a fixed event like the dissemination of an inspection report, the lack
of such language does not invalidate the claUSe at issue here because here
there is no dispute that plaintiffs learned about the mold shortly after
taking possessidn and definitely well within a year of the December 2013
inspection. In fact, Kym Bunnell’s declaration explicitly says that
plaintiffs “immediately contacted our agent, [Gesselin], for advice
concerning the mold,” and that they‘contacted a different inspector on
February 25, 2014. The Court‘finds no reason why the one year period
allowed by the inspection agreement was insufficient fOr plaintiffs to be
able to pursue a judicial remedy. William L. Lyon & Associates, Inc. v.
Superior Court (2012) 204 Cal. App. 4th 1294, 1295, is distinguishable
because there the contract language shortening the limitations period Only
applied to “breach of this Agreement, or any obligation arising therefrom,
while here the limitations period clause is much broader and applies not
just to claims obviously based in contract, but also to “any legal action
arising from this Agreement or from the Services and Report." On the
issue of the limitations period, the Court finds that Lyons met his
initial burden by offering the contract language and proof that plaintiffs
filed their complaint more than a year after discovering the defects.
Plaintiffs offered no contradictory evidence and offered only unavailing
legal arguments in opposition and therefore failed to meet their burden.
B. No breach of the duty of'caré
Lyons submitted a declaration from one Michael Casey, who has-been a home
inspector for 32 years after working as a contractor. -CaSey Says Lyons
complied with‘the standard oflcare because, under standards promulgated by
the American Society of Home Inspectors (ASHI), an inspector need only
look at things that are visible and “is not required to determine ‘the
presence [of] life forms and substances that may be hazardous or harmful
to humans, including, but not.limited to, . . . molds and mold—like
substances." (Casey decl. fl ll.) Plaintiffs respond to this part of the
separate statement with nothing but an allegation that Lyons can’t
contract out of his duty to “conduct a home inspection with the degree of
care that a reasonably prudent home inspector would exercise.” (Bus. &
Prof. Code, 7196; see also Bus. & Prof. Code, § 7198 [“Contractual
provisions that purport to waive the duty owed pursuant to Section 7196,
or limit the liability of the home inspector to the cost of the home
inspection report, are contrary to public policy and invalid.].) Lyons
met his burden on the issue oi duty by filing an expert declaration.
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Plaintiffs failed to present evidence in opposition to'create a triable
issue of material fact. Instead, they argue the.jury should get to decide
whether Lyons acted like a reasonable homeowner would. While
reasonableness is often a jury question (see, e.g., Ky. Fried Chicken of
Cal. V. Superior Court (1997) l4 Cal.4th 814, 840),-here the Court cannot
find it reasonable to expect Lyons to 100k for and report on mold when
the contract he and plaintiffs signed explicitly excludes mold from the
scope of services, ahd when Lyons’s expert, Casey, opines that the ASHI
standards do not require an inspector to look for mold. ‘TheSe facts
defeat plaintiffs’ contention that Lyons asked them to contract out of
responsibilities imposed on Lyons by Business and Professions Code section
7196. (See Bus. & Prof. Code, § 7198.) Plaintiffs also appear to contend
that Lyons was obligated to keep searching for mold after seeing visible
signs of it on the toe kick, but, as explained in.the rulings on the
earlier summary judgment motions in this case, the evidence does not
support the assertion that the mold was actually visible. The Court
quotes from its May ll, 2018, order granting GOSselin's summary judgment’
'
motion;
“In a number of material respects, Plaintiff’s declaration contradicts her
prior sworn testimony in this case. Therefore, the Court will disregard
_it. D’Amico v. Board of Medical Ekaminers (1974) ll Cal.3d l. A party
opposing summary judgment cannot create disputes of material fact by
contradicting her earlier deposition testimony‘with a subsequent
declaration.
As an example of the concerns the Court has with regard to the Plaintiffs’
alleged factual disputes, the Court notes Plaintiffs’ opposition to
Defendants’ UMF No. 5, which states:‘ ‘Plaintiffs were‘advised in writing
that real estate agents’ duty to inspect is limited to reasonably and
normally accessible areas of the property and that real estateragents will
not inspect areas that are not reasonably and normally accessible and will
not look into cabinets.’ -
Plaintiffs’ ‘dispute’ of this fact states: ‘Toe kick with mold was easily
viewable and is a dispute that should be left to the trier of fact.”’
However, this statement of ‘fact’, while “supported” by‘Plaintiff Kym>
Bunnell's Declaration, is actually false as set forth in Plaintiff.Kym
Bunnell’s deposition testimony:
Q: Okay. Did you — was there mold — could you see mold on that
kickboard or where the kickboard should have
been I should say?
A: Nb. It just looked kind of — I don't know. Kind of beat;up
looking, but I mean I don’t know how to describe it
other than that. It just looked beat—up.”
The same issue is present on this motion, and the Court therefore
disregards Kym Bunnell’s declaration to the extent to which it asserts
that mold was Visible on the toe kick. In addition to the toe kick,
plaintiffs assert the wall behind the refrigerator Was badly damaged, but
they present no evidence that,this damage was visible‘when the
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refrigerator was present, and they offer no authority requiring Lyons to
move the appliance as part of the inspection. To the contrary, Casey
stated that Lyons only had to “inspect[] readily aCCessible, visually
observable areas.” (Casey decl, fl lO.) The wall behind the refrigerator
is not “visually observable,” and plaintiffs admit the Wrights did not
,move the refrigerator until after the inspection. (Kym Bunnell decl.
$10.) The only photo of the refrigerator cavity is.of the space after the
sheetrock had been removed, so it has no bearing on what the wall would
have looked like on the day of the inspection. Plaintiffs have again
presented no actual evidence that the mold was “visible” in any meaningful
way when Lyons inspected the property.
Because Lyons met his initial burden but plaintifES'did not meet their
burden of producing evidence creating a triable issue of material fact,
the second ground of the motion is successful.
Whether the mold was there in December 2013
Lyons met his initial burden of showing that plaintiffs’ have no evidence
the mold was there when he inspected the house in December 2013, as
opposed to when plaintiffs moved in in February 2014. (See‘Aguilar V.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 [describing Standard for
meeting initial burden on MSJ in California].) First, Lyons himself
offers a declaration saying he‘saw no mold. (Lyons decl. fl ll.) The
inspection report doeS’not mention mold. (Exhibit B to Lyons decl.)
Also, Bill Bunnell testified unequivocally that no one ever told him how»
long the mold had been there, and-Kym Bunnell testified she saw no mold
before entering eScrow. (Exhibit B to Broomand decl. (Lyons’s counsel)
138:2—138:12; Exhibit C to Broomand decl. 85:12—85:14.) Kym Bunnell also
said she did not know how long‘the mold had been there, and that an expert
opinion would be needed to decide that. (Exhibit C to Broomand decl
158:6—158:l3.) Kym explained, “I remember it being explained like, ‘This
has been here for a little while.” (Exhibit C to Broomand decl. 159:2—
159z8, 160:4—160:8.) When asked if the mold was there on inspection day,
Kym said, “I don’t know if it was there or not. I’ve just been told the
mold was there a long time." (Exhibit C to Broomand decl. 193:7—193zll.)
Lyons, then, has shown not just that plaintiffs do not currently have
evidence, but that they “cannot reasonably obtain” the-evidence they
need. He has met his initial burden. Plaintiffs knew they needed an ,
expert. They did not obtain one, and did not request a continuance to \
conduct additional discovery ahd acquire an expert opinion. (Code Civ.
Proc., § 437C, subd. (h).) Plaintiffs failed to meet their burden in
opposition.
The contract with Lyons excluded mold_inspection
Finally, Lyons argues he cannot be liable for not reporting mold given
'that the inspection contract said he would do no such inspecting.
Plaintiffs respond that the mold was so visible that Lyons should have
noted it anyway. Not only is there no authority for making him note a
defect he said he was not going to examine, but, as di8cussed above, there
is no evidence that the-mold was actually “visible” in the way plaintiffs
contend when the inspection-occurred. The final-ground of the motion
therefore also supports summary judgment.
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:1 ( - A— .1 a SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF'STANISLAUS - BILL BUNNELL, ET'AL. I VS. JASON WRIGHT, ET AL. PLAINTIFF(S) ' DEFENDANT(S) NATURE 0F HEARING: Deféndant fiuncan Lyons dba Amerispec Inspection Services’ Motion.for Summary Judgment OITA Summary Adjudication. No. 2018041 JUDGE: ROGER M. BEAUCHESNE :Bailiff: R. Peagler Date: 06/15/2018 Clerk: C. Cruz ‘ :Reporter: None Modesto, California ‘ APPEARANCESE None This matter was regularly called for hearing. There being no request for a hearing, the Court confirmed its tentative ruling as follows: Defendant Duncan Lyons dba Amerispec Inspection Services’ Motion for Summary Judgment OITA Summary Adjudication —‘The Court grants Lyons’s‘ request fcr judicial notice and overrules his objections, which are not dispositive of the outcome of'the motion. (See Reid V. Gaogle, Inc. (2010) 50 Cal. 4th 512, 532— 533. ) The Court GRANTS summary judgment because all four -grounds of Defendant Lyons' s motion are successful for the reasons described below: Statute of limitations The inspection agreement contains a contractual one—year limit on the right to bring “any legal action arising from this Agreement or from the Services and Report.” The inspection by Lyons occurred in December 2013, plaintiffs admit they discovered the‘mold by the end of February 2014, but they did not file suit until December 15, 2015. Ordinarily, a customer of -a home inspector has four years to bring suit related to the inspection. (Bus. & Prof;-Code, § 7199.) -“It is true California courts have afforded contracting parties considerable freedom to.modify the length of a statute of limitations. Courts generally enforce parties' agreements for a shorter.limitations period than otherwise provided‘by statute, providedvit is reasonable. ‘Reasonable’ in this context.means the shortened period nevertheless provides sufficient time to effectively pursue a judicial remedy. ‘It is a well—settled.pr0position of law that the parties to a contract may stipulate therein for a period of limitation, shorter than that fixed by the statute'of limitations, and that such stipulation , violates no principle of public policy, provided the period fixed be not ” so unreasonable as to show imposition or undue advantage in some way,’ (Mbreno v. Sanchez (2003) lO6:Cal.App.4th 1415, 1430 (Mbreno).) Plaintiffs counter Lyons’s arguments 0n this issue by contending that MINUTE_ORDER 111:? r PA ‘i Page Case 2 2018041 . 0 Bunnell vs. Wright limitations periods can be shOItened on contract‘claims, but not on causes of action sounding in tort. However, in Zamora V. Lehman (20;3) 214 Cal.App.4th 193 (Zamora), the Court affirmed.a trial court order granting summary judgment on a cause of action for breach of fiduciary duty on the ground that it was untimely as judged by contractual language demanding notice of claim within a certain period. (Zamora, 214 Cal.App.4th at pp. 208—209.) Unlike Mbreno, Zamdra held that “a contractual notice provision is enforceable with respect to a claim against a professional Qr.skilled expert as long as the provisidn incorporates the delayed discovery rule.” (Id. at p. 209.) While Mbreno and Zamora both required a contract that shortened a limitations period to contain language allowing that period to run from discovery of the right of action, rather than from the occurrence of a fixed event like the dissemination of an inspection report, the lack of such language does not invalidate the claUSe at issue here because here there is no dispute that plaintiffs learned about the mold shortly after taking possessidn and definitely well within a year of the December 2013 inspection. In fact, Kym Bunnell’s declaration explicitly says that plaintiffs “immediately contacted our agent, [Gesselin], for advice concerning the mold,” and that they‘contacted a different inspector on February 25, 2014. The Court‘finds no reason why the one year period allowed by the inspection agreement was insufficient fOr plaintiffs to be able to pursue a judicial remedy. William L. Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal. App. 4th 1294, 1295, is distinguishable because there the contract language shortening the limitations period Only applied to “breach of this Agreement, or any obligation arising therefrom, while here the limitations period clause is much broader and applies not just to claims obviously based in contract, but also to “any legal action arising from this Agreement or from the Services and Report." On the issue of the limitations period, the Court finds that Lyons met his initial burden by offering the contract language and proof that plaintiffs filed their complaint more than a year after discovering the defects. Plaintiffs offered no contradictory evidence and offered only unavailing legal arguments in opposition and therefore failed to meet their burden. B. No breach of the duty of'caré Lyons submitted a declaration from one Michael Casey, who has-been a home inspector for 32 years after working as a contractor. -CaSey Says Lyons complied with‘the standard oflcare because, under standards promulgated by the American Society of Home Inspectors (ASHI), an inspector need only look at things that are visible and “is not required to determine ‘the presence [of] life forms and substances that may be hazardous or harmful to humans, including, but not.limited to, . . . molds and mold—like substances." (Casey decl. fl ll.) Plaintiffs respond to this part of the separate statement with nothing but an allegation that Lyons can’t contract out of his duty to “conduct a home inspection with the degree of care that a reasonably prudent home inspector would exercise.” (Bus. & Prof. Code, 7196; see also Bus. & Prof. Code, § 7198 [“Contractual provisions that purport to waive the duty owed pursuant to Section 7196, or limit the liability of the home inspector to the cost of the home inspection report, are contrary to public policy and invalid.].) Lyons met his burden on the issue oi duty by filing an expert declaration. MINUTE ORDER I s v" , " ‘ ’- F ‘ u; ‘z/A 'Page 3 Case 2018041 Bunnell vs. Wright Plaintiffs failed to present evidence in opposition to'create a triable issue of material fact. Instead, they argue the.jury should get to decide whether Lyons acted like a reasonable homeowner would. While reasonableness is often a jury question (see, e.g., Ky. Fried Chicken of Cal. V. Superior Court (1997) l4 Cal.4th 814, 840),-here the Court cannot find it reasonable to expect Lyons to 100k for and report on mold when the contract he and plaintiffs signed explicitly excludes mold from the scope of services, ahd when Lyons’s expert, Casey, opines that the ASHI standards do not require an inspector to look for mold. ‘TheSe facts defeat plaintiffs’ contention that Lyons asked them to contract out of responsibilities imposed on Lyons by Business and Professions Code section 7196. (See Bus. & Prof. Code, § 7198.) Plaintiffs also appear to contend that Lyons was obligated to keep searching for mold after seeing visible signs of it on the toe kick, but, as explained in.the rulings on the earlier summary judgment motions in this case, the evidence does not support the assertion that the mold was actually visible. The Court quotes from its May ll, 2018, order granting GOSselin's summary judgment’ ' motion; “In a number of material respects, Plaintiff’s declaration contradicts her prior sworn testimony in this case. Therefore, the Court will disregard _it. D’Amico v. Board of Medical Ekaminers (1974) ll Cal.3d l. A party opposing summary judgment cannot create disputes of material fact by contradicting her earlier deposition testimony‘with a subsequent declaration. As an example of the concerns the Court has with regard to the Plaintiffs’ alleged factual disputes, the Court notes Plaintiffs’ opposition to Defendants’ UMF No. 5, which states:‘ ‘Plaintiffs were‘advised in writing that real estate agents’ duty to inspect is limited to reasonably and normally accessible areas of the property and that real estateragents will not inspect areas that are not reasonably and normally accessible and will not look into cabinets.’ - Plaintiffs’ ‘dispute’ of this fact states: ‘Toe kick with mold was easily viewable and is a dispute that should be left to the trier of fact.”’ However, this statement of ‘fact’, while “supported” by‘Plaintiff Kym> Bunnell's Declaration, is actually false as set forth in Plaintiff.Kym Bunnell’s deposition testimony: Q: Okay. Did you — was there mold — could you see mold on that kickboard or where the kickboard should have been I should say? A: Nb. It just looked kind of — I don't know. Kind of beat;up looking, but I mean I don’t know how to describe it other than that. It just looked beat—up.” The same issue is present on this motion, and the Court therefore disregards Kym Bunnell’s declaration to the extent to which it asserts that mold was Visible on the toe kick. In addition to the toe kick, plaintiffs assert the wall behind the refrigerator Was badly damaged, but they present no evidence that,this damage was visible‘when the MINUTE ORDER i‘fir Page 4 ,~ Case 2018041 k/ A iv! Bunnell vs.eright refrigerator was present, and they offer no authority requiring Lyons to move the appliance as part of the inspection. To the contrary, Casey stated that Lyons only had to “inspect[] readily aCCessible, visually observable areas.” (Casey decl, fl lO.) The wall behind the refrigerator is not “visually observable,” and plaintiffs admit the Wrights did not ,move the refrigerator until after the inspection. (Kym Bunnell decl. $10.) The only photo of the refrigerator cavity is.of the space after the sheetrock had been removed, so it has no bearing on what the wall would have looked like on the day of the inspection. Plaintiffs have again presented no actual evidence that the mold was “visible” in any meaningful way when Lyons inspected the property. Because Lyons met his initial burden but plaintifES'did not meet their burden of producing evidence creating a triable issue of material fact, the second ground of the motion is successful. Whether the mold was there in December 2013 Lyons met his initial burden of showing that plaintiffs’ have no evidence the mold was there when he inspected the house in December 2013, as opposed to when plaintiffs moved in in February 2014. (See‘Aguilar V. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 [describing Standard for meeting initial burden on MSJ in California].) First, Lyons himself offers a declaration saying he‘saw no mold. (Lyons decl. fl ll.) The inspection report doeS’not mention mold. (Exhibit B to Lyons decl.) Also, Bill Bunnell testified unequivocally that no one ever told him how» long the mold had been there, and-Kym Bunnell testified she saw no mold before entering eScrow. (Exhibit B to Broomand decl. (Lyons’s counsel) 138:2—138:12; Exhibit C to Broomand decl. 85:12—85:14.) Kym Bunnell also said she did not know how long‘the mold had been there, and that an expert opinion would be needed to decide that. (Exhibit C to Broomand decl 158:6—158:l3.) Kym explained, “I remember it being explained like, ‘This has been here for a little while.” (Exhibit C to Broomand decl. 159:2— 159z8, 160:4—160:8.) When asked if the mold was there on inspection day, Kym said, “I don’t know if it was there or not. I’ve just been told the mold was there a long time." (Exhibit C to Broomand decl. 193:7—193zll.) Lyons, then, has shown not just that plaintiffs do not currently have evidence, but that they “cannot reasonably obtain” the-evidence they need. He has met his initial burden. Plaintiffs knew they needed an , expert. They did not obtain one, and did not request a continuance to \ conduct additional discovery ahd acquire an expert opinion. (Code Civ. Proc., § 437C, subd. (h).) Plaintiffs failed to meet their burden in opposition. The contract with Lyons excluded mold_inspection Finally, Lyons argues he cannot be liable for not reporting mold given 'that the inspection contract said he would do no such inspecting. Plaintiffs respond that the mold was so visible that Lyons should have noted it anyway. Not only is there no authority for making him note a defect he said he was not going to examine, but, as di8cussed above, there is no evidence that the-mold was actually “visible” in the way plaintiffs contend when the inspection-occurred. The final-ground of the motion therefore also supports summary judgment. MINUTE ORDER