Judge: Robert B. Broadbelt, Case: 20STCV35336, Date: 2023-01-09 Tentative Ruling

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Case Number: 20STCV35336    Hearing Date: January 9, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Frontier Communications

RESPONDING PARTIES:    Plaintiffs Henry Ponce and Marie Ponce

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court grants defendant Frontier Communications’ request for judicial notice.  (Evid. Code, § 452, subd. (d).)

The court grants plaintiffs Henry Ponce and Marie Ponce’s request for judicial notice as to Exhibit A.  (Evid. Code, § 452, subd. (d).  The court denies plaintiffs Henry Ponce and Marie Ponce’s request for judicial notice as to Exhibit B and facts 1-2. 

EVIDENTIARY OBJECTIONS 

The court sustains Plaintiffs’ evidentiary objections nos. 1 and 2 to the declaration of Ricardo Buenrostro, filed on December 22, 2022.

The court declines to rule on Defendant’s evidentiary objections, filed January 4, 2023, because the objections are directed to evidence that is not material to the court’s disposition of this motion.  (Code Civ. Proc., § 437c, subd. (q).)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant or cross-defendant has met that 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 the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

1.     First Cause of Action for Negligence

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.”  (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

The court finds that Defendant has not met its burden of showing that the first cause of action for negligence has no merit because Defendant has not shown that there is a complete defense to this claim under Code of Civil Procedure section 337.15. 

Section 337.15, a statute of repose, provides that “[n]o action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for” either (1) any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to real property, or (2) injury to property, real or personal, arising out of such latent deficiency.  (Code Civ. Proc., § 337.15, subd. (a); Inco Development Corp. v. Superior Court (2005) 131 Cal.App.4th 1014, 1021 [“section 337.15 is a statute of repose”].)  “[T]he 10-year period in section 337.15 imposes an ‘absolute requirement’ that a lawsuit to recover damages for latent defects be brought within 10 years of substantial completion of the construction, whether or not the defect was or even could have been discovered within that period.”  (Inco Development Corp., supra, 131 Cal.App.4th at p. 1020.)  “‘[T]he purpose of section 337.15 is to protect contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work.’”  (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 374.)

In order to establish the applicability of the defense set forth in section 337.15, Defendant must present evidence showing that Plaintiffs’ action for injury arising out of latent construction defects was brought more than 10 years after the substantial completion of the development of or the improvement to real property.  (Code Civ. Proc., § 337.15, subd. (a); Lantzy, supra, 31 Cal.4th at p. 373.)  The only evidence presented by Defendant to establish that it constructed improvements to Plaintiffs’ property more than 10 years before Plaintiffs filed this action is the declaration of Ricardo Buenrostro.  However, Buenrostro’s statements lack foundation and are not based on personal knowledge.  While Buenrostro states that he has been a line worker with Defendant since 2005, he does not state facts establishing that he has personal knowledge of, that he was in a position to know, or the basis for the facts stated in his declaration concerning the installation of fiber optic cable on Plaintiffs’ property and that it was done “prior to the end of April 2009.”  (Buenrostro Decl., ¶¶ 1-2 [“I have been a line worker with [Defendant] since 2005”].)  Accordingly, the court has sustained Plaintiffs’ objections to paragraphs 2 and 3 of the declaration of Ricardo Buenrostro, and therefore may not consider the statements in those paragraphs to determine whether Defendant has met its burden to show that this cause of action has no merit.  (Code Civ. Proc., § 437c, subd. (c) [the court must consider all the papers submitted “except the evidence to which objections have been made and sustained by the court”].)

Defendant has not submitted any other evidence establishing that it made improvements to Plaintiffs’ property by installing the fiber optic cable at their home on a date more than 10 years before Plaintiffs filed this action.  The court therefore finds that Defendant has not met its burden of showing that there is a complete defense to Plaintiffs’ cause of action for negligence pursuant to Code of Civil Procedure section 337.15. 

The court therefore denies Defendant’s motion for summary judgment.

ORDER

            The court denies defendant Frontier Communications’ motion for summary judgment.

The court orders plaintiffs Henry Ponce and Marie Ponce to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 9, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court