Judge William A. Crowfoot, Case Number: 22AHCV00817, Date: 2024-03-15 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00817, Date: 2024-03-15 Tentative Ruling

On October 13, 2022, plaintiffs Robert E. Wolfe and Kelly J. Koelker (collectively, “Plaintiffs”) filed this action against the City of Pasadena (“City”) and Spiniello Co. (“Defendant”).

On May 22, 2023, after obtaining leave of Court, Plaintiffs filed the operative First Amended Complaint (“FAC”). Plaintiffs assert causes of action for general negligence and breach of contract against Defendant relating to their installation of a water line near their residence at 736 Linda Vista Avenue in Pasadena, California (“Property”). With respect to Plaintiffs’ negligence claim, Plaintiffs allege that Defendant negligently “failed to provide a space of at least one foot between the water line and Plaintiffs’ sewer line, and also failed to install slurry or other material between the lines to protect [their] sewer line from the weight of the water line installed directly above it.” (FAC, p. 4.) Plaintiffs allege that Defendant’s actions deviated from City’s job specifications as well as the terms of Defendant’s own proposal to the City and were the result of a “deliberate and knowing decision to cut corners for cost savings and to rush the completion of the project.” (Id.) With respect to Plaintiffs’ breach of contract claim, Plaintiffs allege that they were the intended beneficiary of City’s contract with Defendant to install a water main. (FAC, p. 5.)

On November 15, 2023, Defendant filed this motion for summary judgment asserting the statute of limitations as a defense.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) A 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).)

Defendant submitted boilerplate “evidentiary objections” to the deposition testimony of City’s PMQs. Defendant admits their objections are “not to the [e]xhibit itself, but to how Plaintiffs try to utilize [it].” This is not a proper evidentiary objection but merely a disagreement over the credibility and weight of City’s PMQs’ testimony. Therefore, the objections are OVERRULED.

Plaintiffs request the Court take judicial notice of a services contract between Defendant and City attached as Exhibit A to City’s cross-complaint, as well as 8 other exhibits attached to the cross-complaint, including proposals, insurance documents, bidding invitation notices and instructions, documents containing City’s specifications for the job and for providing labor and materials, an agenda report, and correspondence, identifying specifications. Defendant objects to Plaintiffs’ request for judicial notice of these documents attached to City’s cross-complaint. These objections are disregarded because Defendant relies on those same documents in their moving papers. (Zwarg Decl., ¶¶ 3-6.)

Defendant argues that summary judgment should be granted because Plaintiffs’ negligence and contract claims are barred by the statute of limitations. The applicable statute, Code of Civil Procedure section 337.15, provides that the statute of limitations period for a latent construction defect claim is 10 years after “substantial completion of the project.” (Code Civ. Proc., § 337.15.) Subsection (f) of section 337.15 excludes actions based on willful misconduct or fraudulent concealment. To avail themselves of 337.15(f), the plaintiff must prove “(1) there was willful misconduct involved in the construction of [the plaintiff’s] home, (2) such willful misconduct resulted in the alleged latent construction defects and (3) such willful misconduct was committed by the defendants or the facts and circumstances are such that the willful misconduct of others is appropriately chargeable to them. (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1286.) “‘[W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’” (Acosta, supra, 128 Cal.App.4th at p. 1293 [quoting Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 402].)

Defendant argues that Plaintiffs’ claims are time-barred because it completed its work on the water main line for the City in 2005, more than 10 years before Plaintiffs filed this Complaint on October 13, 2022. (Motion at pp. 12-13.) The start and completion date of Defendant’s work is undisputed. Therefore, the burden shifts to Plaintiffs to show that triable issues of fact exist with respect to the issue of willful misconduct. (Acosta, supra, 128 Cal.App.4th at p. 1293.)

In opposition, Plaintiffs rely on testimony from City’s PMQs, Jose Luis Contreras and Jose Flores included as Exhibits G and H in Defendant’s appendix of evidence. Plaintiffs argue that it can be reasonably inferred that Defendant knew, or should have known, that their installation of the water main was “seriously flawed” and “in violation of both [City’s] contract specifications and [Defendant’s] own job proposal.” (Opp., pp. 6-7.) Plaintiffs contend that the contract between City and Defendant required Defendant to perform all work “in accordance with current provisions of standard specifications for public works construction, popularly known as the ‘green book.’” (AMF No. 5, citing to Def.’s Ex. H, 20:11-22:3, 25:6-9.)

Plaintiffs specifically contend that pursuant to the terms of the contract, Defendant had to ensure a minimum space of 12 inches (but preferably 36 inches) between the water line and Plaintiffs’ sewer line. But Flores’s testimony belies this contention. Flores testified that he had no knowledge of the job specifications applicable to Defendant’s work at the time the work was completed. And, he also qualified the significance of those specifications by stating that they “aren’t the guidelines, the preferable measurement” and that “there’s other things that come into play because there’s underground work done on a daily basis.” Flores stated, “Like 36 inches separation for a lateral, you pretty much don’t see that, to be honest, unless your lateral is really deep on the location of your house. Then you might get that separation. But otherwise, that’s not really the case, not on this big project.” (Def.’s Ex. H, 22:18-23:6.) Furthermore, Flores testified that “[b]reakage of sewer lines” would “happen on a daily basis.” (Ex. H, p. 23:7-24:10.)

Plaintiffs also argue that Defendant’s knowledge of the possibility of serious consequences can be inferred because Defendant implemented “three makeshift measures” to maintain appropriate spacing in the form of unreinforced rubber coupling, a plastic bag to wrap around the rubber coupling, and a two-by-four plank, instead of using slurry or pea gravel. Again, however, Plaintiffs only emphasize that these methods of reinforcement are not in the “blue book” or “green book” while ignoring that Mr. Contreras also stated that he has seen the use of a plastic bag to wrap a line in a different sewer. Plaintiffs also fail to establish that any interpretation of a “blue book” or “green book” would be applicable to Defendant’s conduct at the time the work was performed and Mr. Contreras also stated that he did not know “what their specs called for as far as backfill is concerned.” (Def.’s Ex. G, pp. 35:3-40; 42:9-43:3.)

Last, Plaintiffs argue that it can be reasonably inferred that Defendant acted recklessly in order to “cut corners” because the job was supposed to be completed within 80 working days but Defendant did not complete the job for nearly 15 months. The Court disagrees. It would be speculative to infer “a positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences” based merely on a failure to adhere to a predetermined schedule and no other accompanying facts. (Acosta, supra, 128 Cal.App.4th at p. 1294.)

Accordingly, Plaintiffs have failed to meet their burden to show that triable issues of fact exist regarding any alleged “willful misconduct” by Defendant which would bar the application of the statute of limitations.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.