Judge: Blaine K. Bowman, Case: 37-2021-00047632-CU-BC-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2021-00047632-CU-BC-CTL ILKO VS POITRAS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant Will Poitras dba Southern California Poolscapes' request for judicial notice is GRANTED. Poitras' evidentiary objections 3 through 43 are OVERRULED. The court does not reach Poitras' evidentiary objections 1 and 2 because the court does not deem this evidence material to the disposition of this motion. CCP § 437c(q).

The court then rules as follows. Defendant Will Poitras dba Southern California Poolscapes' motion for summary judgment is DENIED. Poitras' alternate motion for summary adjudication is DENIED.

Breach of Contract Negligence Poitras raises two statute of limitations-based arguments as to these causes of action. The first argument Poitras raises is that both of these causes of action are barred by the CCP § 337.1(a)(1) four-year statute of limitations for patent defects. Subsection (e) defines 'patent deficiency' as 'a deficiency which is apparent by reasonable inspection.' In Poitras' memorandum of points and authorities Poitras argues 'Plaintiff admits that it noticed before November 9, 2017 all of the conditions at the north end of the Subject Pool that suggest there is a defect or defects in the Subject Pool.' Poitras cites to SSUMF No. 23 to support this argument. Poitras SSUMF 23 states: 23. Plaintiff alleges that sometime between November 2020 and November 2021, Plaintiff noticed 'efflorescence and other indications of water penetration and damage at vanishing edge weir wall, and at the catch basin.' Supporting Evidence RJN 1, Complaint, ¶ 6.

Nothing in SSUMF 23 evidences the referred to admission by Plaintiff. It appears Poitras instead relies on SSUMF No. 22 which states: 22. Plaintiff noticed damage to the north side of the SUBJECT POOL as detailed in his discovery responses before November 9, 2017.

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3099617  4 CASE NUMBER: CASE TITLE:  ILKO VS POITRAS [IMAGED]  37-2021-00047632-CU-BC-CTL Supporting Evidence: Decl. of K. Pfeifer, ¶ 12, Ex. I; ¶ 14, Ex. K, No. 34.

Decl. of K. Pfeifer, ¶ 15, Ex. L; ¶ 16, Ex. N., No. 17.1 (b) (RFA 34) Exhibits I and K are Poitras' requests for admission and Plaintiff's response. Poitras' Request for Admission No. 34 reads: 'Admit that YOU noticed damage to the catch basin (north side) of the SUBJECT POOL before November 9, 2017.' Plaintiff's response reads: 'Objection. Vague and ambiguous as to 'damage.' ' Plaintiff's 'Supplemented Response to Request for Admissions [Set One]' as to Request for Admission No. 34 reads: 'Objection. Vague and ambiguous as to 'damage.' Without waiving said objections, deny.' Exhibits L and N are Poitras' Form Interrogatories (Set Two) and Plaintiff's 'Supplemented Response to Form Interrogatories [Set Two]. Form Interrogatory No. 17.1 reads: 17.0 Responses to Request for Admissions 17.1 Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing .

Plaintiff's response as to Request for Admission No. 34 (contained in Plaintiff's supplemented response) reads: (a) Request for Admission No. 34.

(b) Responding party did notice the 'damage' to the north side of the SUBJECT POOL as detailed in his discovery responses before November 9, 2017.

(c) Daniel Ilko.

(d) None.

In opposition Plaintiff relies on Plaintiff's Errata to Supplemented Response to Form Interrogatories [Set Two] which Plaintiff states is attached to Plaintiff's Compendium of Exhibits as Exhibit 19 but which is actually attached as Exhibit 20. In Plaintiff's Errata, Plaintiff states that subsection (b) above should have read: 'Responding party did not notice the 'damage' to the north side of the SUBJECT POOL as detailed in his discovery responses before November 9, 2017.' [Emphasis added.] Preliminarily, the court finds Plaintiff's supplemented response to Request for Admission No. 34 ('. . . .

deny') is inconsistent with Plaintiff's supplemented response to Form Interrogatory No. 17.1 as to Request for Admission No. 34. Given this inconsistency, and Plaintiff's explanation of the omission of the word 'not' from Plaintiff's supplemented response to Form Interrogatory No. 17.1 as to Request for Admission No. 34, the court finds Poitras fails to establish the absence of triable issues of material fact as to whether Plaintiff noticed damage to the catch basin at the north end of the Subject Pool prior to November 9, 2017. Absent establishing that Plaintiff noticed damage to the north side of the Subject Pool before November 9, 2017, Poitras fails to establish that these causes of action are barred by the CCP § 337.1(a)(1) four-year statute of limitations applicable to patent defects.

The court is not persuaded by Poitras' arguments that Plaintiff's Errata should be disregarded. It is evident from a comparison of Plaintiff's supplemented response to Request for Admission No. 34 and Plaintiff's supplemented response to Form Interrogatory No. 17.1 as to Request for Admission No. 34 that the two responses are inconsistent. Had Plaintiff admitted Request for Admission No. 34, no response to Form Interrogatory No. 17.1 as to Request for Admission No. 34 would have been required.

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3099617  4 CASE NUMBER: CASE TITLE:  ILKO VS POITRAS [IMAGED]  37-2021-00047632-CU-BC-CTL However, Plaintiff provided a response. That Plaintiff omitted the word 'not' from such response is a logical and consistent conclusion. Such circumstances do not require application of the contradictory testimony authorities Poitras relies on.

The second argument Poitras raises is that both of these causes of action are barred by the CCP § 337.15 ten-year statute of repose applicable to latent defects. Subsection (b) defines 'latent deficiency' as 'a deficiency which is not apparent by reasonable inspection.' Subsection (g) provides: The 10-year period specified in subdivision (a) shall commence upon substantial completion of the improvement, but not later than the date of one of the following, whichever first occurs: (1) The date of final inspection by the applicable public agency.

(2) The date of recordation of a valid notice of completion.

(3) The date of use or occupation of the improvement.

(4) One year after termination or cessation of work on the improvement.

The date of substantial completion shall relate specifically to the performance or furnishing design, specifications, surveying, planning, supervision, testing, observation of construction or construction services by each profession or trade rendering services to the improvement.

Poitras submits evidence which Poitras contends establishes that Poitras did not perform any work at the Subject Property or related to the Subject Pool after April 28, 2011 [SSUMF 18]. As evidence Poitras cites to ¶ 19 and ¶ 20 of his own declaration wherein Poitras states: 9. The last Unconditional Waiver and Release I issued to Mar Mesa Trust regarding the Subject Pool was on April 28, 2011. See Exhibit 4.

10. I did not perform any work at the Subject Property or related to the Subject Pool after April 28, 2011.

In opposition Plaintiff submits evidence which Plaintiff contends establish that Poitras performed work, including work to heighten the catch basin wall, through June, 2011 [Plaintiff's response to SSUMF 18].

As evidence Plaintiff cites to ¶ 16 of his own declaration wherein Plaintiff states: 16. I believed that the increase in the height of the catch basin wall was something that Mr. Poitras should pay for since it was a failure of the original design and construction, not new or additional work; however, Mr. Poitras advised that he was short on funds, and needed some money to purchase materials and help pay his employees. I agreed to pay Mr. Poitras cash for some of the work as reflected in Exhibits 1 through 4 to the Poitras Declaration, but Mr. Poitras did not complete his work on the Pool as of April 28, 2011, as he claims. Mr. Poitras continued to perform work on the Pool, at his expense, (which why there are no additional invoices from Mr. Poitras) well into the early summer (at least through June) of 2011. I remember my family was disappointed and frustrated that we are not able to use the Pool when school was out and summer vacation began because Mr. Poitras was still doing work.

The court finds Plaintiff's evidence sufficient to create triable issues of material fact as to whether Poitras ceased performing any work at the Subject Property as of April 28, 2011. Without establishing the absence of triable issues of material fact at to the date of substantial completion, Poitras fails to establish that these causes of action are barred by the CCP § 337.15 ten-year statute of repose.

The court is not persuaded by Poitras' arguments with respect to Plaintiff's declaration. The court finds Plaintiff provides sufficient foundation for Plaintiff's statement that Poitras continued work at the property through June, 2011. Issues of credibility are not properly before the court on motion for summary judgment/summary adjudication.

Breach of Warranty Calendar No.: Event ID:  TENTATIVE RULINGS

3099617  4 CASE NUMBER: CASE TITLE:  ILKO VS POITRAS [IMAGED]  37-2021-00047632-CU-BC-CTL Poitras raises several arguments as to this cause of action. Poitras argues that the lifetime warranty expired when Poitras' pool company went out of business in 2012. Poitras fails to provide any authority to support such arguments. Poitras also argues that there is no legal authority to support a lifetime warranty cause of action. The authorities Plaintiff relies on allow for an enforceable lifetime warranty.

See, Keith v. Buchanan (1985) 173 Cal.App.3d 13. Poitras relies on Civil Code § 1797.93 (erroneously cited to by Poitras as 'Code of Civil Procedure section 1797.93') applicable to home roof warranties and attempts to analogize this code section to pool warranties. CC § 1797.93 provides: 'If any warranty subject to this chapter, uses the term 'lifetime,' 'life,' or a similar representation to describe the duration of the warranty, then the warranty shall disclose with such clarity and prominence as will be noticed and understood by prospective purchasers, the life to which the representation refers.' Poitras fails to articulate how such language renders the 'Lifetime non-transferable warranty on pool shell' provision contained in the Contract, drafted by Poitras, unenforceable against Poitras. Poitras raises issues as to Plaintiff's alleged delay in filing suit, but fails to provide any authority recognizing a statute of limitations applicable to a 'lifetime' warranty.

The last argument Poitras raises is that Plaintiff does not have any evidence to establish a defect in the pool shell. Poitras relies on evidence including the Declaration of Derek Downey, Poitras' pool expert, who states: 'I did not observe any cracks, separations, holes, or other conditions that could be considered defects or potentially caused by defects in the pool shell' [¶ 16] and 'I did not observe any leaks from the pool shell to the exterior walls, or around the footing of the Subject Pool' [¶ 18]. In opposition Plaintiff relies on evidence including the Declaration of Richard A. Young, Plaintiff's pool expert, who states: 16. I am informed that a leak detection company, San Diego Leak Specialists, subsequently performed a dye test at the area of the Ilkos' swimming pool where the water was found. A dye test uses a colored dye to determine whether water is flowing out of the pool through a leak in the pool shell. I have reviewed San Diego Leak Specialists' leak detection report (Exhibit 15) as well as photographs of the dye test performed by the defense expert (Exhibit 16). The leak detection report concludes that the there is a leak in the pool wall below the pipe penetration in the pool shell, and the photographs of the dye clearly show the dye moving from the pool, through a leak in the pool shell, and into the water accumulating in the soils south of the pool.

17. I am informed that when the technician from San Diego Leak Specialists returned to temporarily patch the leak he had located, he identified a crack in the interior surface of the northwest corner of the Pool. I have reviewed the video that Mr. Ilko references in his declaration at Paragraph 33, which is the basis for Exhibits 21 and 22, and seen the water coming through the 'return' wall that intersects perpendicularly with the northwestern corner of the vanishing edge wall. . . . Under proper conditions water should not be coming through that wall as shown in the video. In my opinion that condition indicates a leak in the pool shell that should be further investigated.

18. In my opinion the additional discoveries since my January, 2024 inspection referenced above further support my conclusion that the pool shell, in addition to the spa and the catch basin, is leaking, and that the structural integrity of the Pool is questionable.

[Emphasis added.] The court finds this evidence sufficient to create triable issues of material fact as to whether there is a defect in the pool shell.

The court is not persuaded by the arguments Poitras raises on this issue. The Young declaration resolves any issues with respect to Plaintiff's alleged 'factually devoid' discovery responses. To the extent Poitras disputes Plaintiff's definition of 'pool shell' such dispute evidences triable issue of material fact. Similarly, Poitras fails to establish the absence of triable issues of material fact as to what physical manifestations on the pool evidence pool shell defects, the effect of the alleged lack of pool maintenance Calendar No.: Event ID:  TENTATIVE RULINGS

3099617  4 CASE NUMBER: CASE TITLE:  ILKO VS POITRAS [IMAGED]  37-2021-00047632-CU-BC-CTL and the cause of the alleged pool shell defects.

In light of this ruling the court does not reach Plaintiff's requests for a continuance to conduct discovery and/or amend the complaint.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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