Judge: Holly J. Fujie, Case: 20STCV42695, Date: 2023-12-13 Tentative Ruling

Case Number: 20STCV42695    Hearing Date: December 13, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Copa, LLC (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

This action arises out of alleged defects in the development and construction of a condominium development (the “Property”).  Plaintiff’s complaint (the “Complaint”) was filed on November 5, 2020 and alleges: (1) violation of Civil Code section 896; (2) breach of express warranties; (3) breach of implied warranties; (4) breach of fiduciary duty; and (5) breach of declaration of covenants, conditions, and restrictions.

In relevant part, the Complaint alleges: Moving Defendant oversaw the development and construction of the Property.  (Complaint ¶ 7.)  Plaintiff’s initial board of directors consisted entirely of Moving Defendant’s agents and employees.  (Complaint ¶ 11.)  Numerous defects in the construction of the Property have caused Plaintiff damages.  (See Complaint ¶ 16.)

Moving Defendant filed a motion for summary judgment/adjudication (the “Motion”) on the ground that there are no triable issues of material fact regarding Plaintiff’s claims because each cause of action is barred by the statute of limitations.

REQUEST FOR JUDICIAL NOTICE

            Moving Defendant’s Request for Judicial Notice is GRANTED.

EVIDENTIARY OBJECTIONS

Plaintiff’s objections to the Declaration of David N. Bregman (“Bregman Decl.”) are SUSTAINED in their entirety.

Plaintiff’s objections to the Declaration of David Essey (“Essey Decl.”) are OVERRULED.

Moving Defendant’s objections to the Declaration of Shane Neugass (“Neugass Decl.”) are OVERRULED.

Moving Defendant’s objection to the Declaration of Harvey Kreitenberg (“Kreitenberg Decl.”) is OVERRULED.

Moving Defendant’s objections to the Declaration of Jeffrey D. Tung (“Tung Decl.”) are OVERRULED.

Moving Defendant’s objection to the Declaration of Jesus Nunez is SUSTAINED.

DISCUSSION

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.  (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)       

Civil Code Section 941

            Under Civil Code section 941, subdivision (a), except as specifically set forth in this title, no action may be brought to recover under this title more than 10 years after substantial completion of the improvement but not later than the date of recordation of a valid notice of completion.  (Civ. Code § 941, subd. (a).)  The limitation prescribed by this section may not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement, at the time any deficiency in the improvement constitutes the proximate cause for which it is proposed to make a claim or bring an action.  (Id., subd. (c).) 

In support of the Motion, Moving Defendant provides evidence that Plaintiff is comprised of owners of condominium units, buildings, improvements, structures, and other fixtures built upon certain parcels of real estate.  (Separate Statement of Undisputed Material Facts (“UMF”) 2.)  Plaintiff has the right and duty to manage, control and restore the Property.  (Id.)  The Property was completed on July 24, 2009, when a Notice of Completion (the “NOC”) was filed with the County Recorder.  (UMF 3.)  Plaintiff’s Covenants, Conditions, and Restrictions (“CC&Rs”) were recorded on July 28, 2009.  (UMF 4.)   By 2015, Plaintiff was aware of problems in the Property and had consulted with an attorney.  (See UMF 5.)  The Notice to Builder and Complaint were submitted and filed over 10 years after the recordation of the NOC.  (See UMF 14, 16.)

            The Court observes that the Separate Statement does not provide any evidence to refute the Complaint’s allegation that Moving Defendant was in possession or control of the Property within the limitations period of Civil Code section 941.   (See Complaint ¶ 11.)  As a result, while it is undisputed that the NOC was filed more than 10 years before the Complaint was filed, Moving Defendant has not carried its burden to demonstrate that Plaintiff’s claims are barred under Civil Code section 941.  (See Civ. Code § 941, subd. (c).)  The Court therefore DENIES the Motion.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

   Dated this 13th day of December 2023