Judge: Marcella O. Mclaughlin, Case: 37-2021-00051726-CU-PO-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00051726-CU-PO-CTL COURNEDE VS WAVE CREST RESORTS II LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 12/07/2023

Defendant Quality Cabinet & Fixtures Company's motion for summary judgment of plaintiffs' complaint is DENIED.

A. As an initial matter, the court declines to consider the opposition papers filed by defendant Wave Crest Oceanfront. Code of Civil Procedure section 473c(p)(2) provides that once a defendant or cross-defendant has met its burden 'the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.' Here, although both Quality Cabinet and Wave Crest filed cross-complaints (ROA 16, 52), the instant summary judgment motion is not directed at either pleading. Rather, Quality Cabinet seeks 'an order granting Summary Judgment on Plaintiffs' Complaint[.]' (Notice at 1:28.) Under these circumstances, the burden will never shift to Wave Crest and its papers cannot defeat the motion.

B. The 'completed and accepted' is a complete defense to a claim for negligence. See CACI 4552.

Under the doctrine, once work has been completed and accepted by the owner, the contractor is not liable to third parties for patent defects. Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 972. 'A patent defect can be discovered by the kind of inspection made in the exercise of ordinary care and prudence, whereas a latent defect is hidden and would not be discovered by a reasonably careful inspection.' Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 255.

Here, liberally construing plaintiffs' evidence, the court finds there is a triable issue of material fact regarding whether the defect involving the ball catch hardware was patent. See Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256 ('The test to determine whether a construction defect is patent...generally presents a question of fact[.]'). The evidence that creates this triable issue includes: (i) the declaration of Rick Dempsey; (ii) the depositions of Robert Given, Raul Sandoval, Dale Hinrichs, George Garcia, and John Robbins; and (iii) NOL Exs. 3 and 5.

C. In issuing this ruling, the court has not considered Quality Cabinet's reply separate statement. ROA 214. There is no authority for the filing of such a document. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.

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