Sep 02, 2014


TUESDAY, SEPTEMBER 2, 2014 - 8:30 a.m.

COURTROOM 19 – Judge Arthur A. Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403


Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call CourtCall directly at (888) 882-6878.

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., FRIDAY, AUGUST 29, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-253110 Cotati Brand Eggs v. Cary & Associates:

            This is on calendar for the Defendant/Cross-Complainant Cary & Associates Builders, Inc.’s (Cary) second Motion for Summary Judgment. Similar to Cary’s first motion, this motion argues that the Plaintiffs’ claims are barred by the statute of limitations. However, unlike the first motion, Cary relies on a contractual provision which provides: “No action of any character arising from or related to this contract, to the performance thereof, shall be commenced by either party against the other more than two years after completion or cessation of the work.” (See Cary Dec. Exhibit A at § 9.) The crux of Cary’s argument is that once the notice of completion was filed and recorded (which occurred on April 25, 2003) the Plaintiffs had two years to file suit. The Plaintiffs did not file suit until January 24, 2013—nearly ten years later. Cary contends that the legal effect of § 9 not only shortened the statute of limitations to two years (instead of the four years for an action on a written contract), but also eliminated any application of the “delayed discovery” rule. (Citing Brisbane Lodging, L.P. v. Webcor Builders, Inc. (2013) 216 Cal.App.4th 1249.) 

The Plaintiffs oppose, arguing that Cary argued that the four year statute of limitations in CCP § 337 controlled—effectively waiving the two year limitation on actions in the agreement that Cary now relies on.  The Plaintiffs further argue that even if Cary has not waived the two year statute, the shortening of the statute of limitations is in against public policy and patently unreasonable. The Plaintiffs further dispute the applicability of the holding in Brisbane to the instant case arguing that the Plaintiffs in this case are not as sophisticated as the plaintiff in Brisbane. The Plaintiffs have interposed evidentiary objections, which are sustained.

Brisbane concerned whether sophisticated parties to a construction contract could abrogate the so-called delayed discovery rule, which operates to extend the statute of limitations for a cause of action when it applies. Here, like Brisbane, the contract provided for a date certain to start the statute of limitations, namely, the “completion or cessation of the work.” It is undisputed that the work was completed in April, 2003. Cary argues that this abrogates any delayed discovery. Cary raised this same argument in its reply to the first motion for summary judgment. The argument with respect to the abrogation of the delayed discovery rule, and the shortened statute of limitations was not raised in Cary’s original motion for summary judgment until reply, and therefore was not considered at that time.

The touchstone for an analysis of the agreement is the sophistication of the parties and the respective bargaining power of the parties. (See Brisbane.) Here, the Plaintiffs had, on at least two occasions, contracted with Cary for the construction of a warehouse and freezers. The contract at issue here was to be the third such contract. The value of the contract here was over $1.7 million. Moreover, Cary adduces evidence that each of the prior two contracts between the parties contained the same exact language at issue here, which abrogated the delayed discovery rule, and shortened the relevant statute of limitations to two years.  For the Plaintiffs to argue that they were “unsophisticated” in the construction arena simply does not square with the evidence.

Importantly, however, the Brisbane court cited fact that the parties negotiated over the terms of the agreement and employed attorneys to help draft the agreement. Here, there is no evidence that the parties employed attorneys to negotiate, explain, and draft the agreement in question. Further, there is conflicting evidence with respect to whether the parties themselves actually discussed, let alone “negotiated,” the contract terms.

Here, however, the agreement purports to both abrogate the delayed discovery rule and shorten the period to investigate potential problems. This is substantially different than the agreement in Brisbane. As explained in Zamora v. Lehman [(2013) 214 Cal.App.4th 193, 208-209]  a shortened statute of limitations period is valid “with respect to a claim against a professional or skilled expert as long as the provision incorporates the delayed discovery rule.” (Id. at 209.) The agreement in question here, unlike Brisbane shortened the statute of limitations, and unlike the agreement in Zamora abrogated the delayed discovery rule.

Accordingly, under the circumstances herein, the agreement to abrogate the delayed discovery rule and shorten the statute of limitations period to two years is unreasonable, and unenforceable. As the court found previously, the delayed discovery rule applies to the instant controversy, and the action was filed within the applicable statute of limitations. The Plaintiffs shall draft an order consistent with this ruling.


2.  MCV-225872 Persolve v. Johnson:

            Appearance of the defendant/judgment debtor is required along with all records specified in the Court’s Order to Show Cause.


3.  MCV-232671 Wolfe v. Mann:

            This is a petition to confirm a binding fee arbitration award.  On April 21, 2014 Petitioner Wolfe dba Eric Wolfe construction was awarded $2,123.03 plus interest thereon after the arbitration hearing. On April 21, 2014 the award was served on all parties. Petitioner now seeks to confirm this award and enter judgment.

The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286.) If the award is confirmed, an enforceable judgment is entered with the same force and effect as a judgment in a civil action. (CCP § 1287.4.)

The Petition is granted.  The Petitioner is to draft an order and judgment consistent with this ruling.


4.  MSC-184146 Incom Mechanical v. Wolff Construction:

            Plaintiff failed to appear at the trial of this matter on June 23, 2014.  Judgment was entered against plaintiff on plaintiff’s Claim and Judgment was entered in favor of defendant on defendant’s Claim in the amount of $4,658.50, plus costs of $145.

            The subject Judgment was mailed to plaintiff on June 24, 2014.  Plaintiff filed its Notice of Motion to Vacate (Cancel) Judgment on June 30, 2014.

            Plaintiff had 30 days[1] within which to timely file its motion.  Plaintiff met this requirement.

            As to the reason offered by plaintiff for its failure to appear, namely: “I was sick and unable to show up,” such appears to satisfy the good faith requirement which serves as a basis for the motion.

            Accordingly, it is the court’s intent to grant the motion.

            Appearances are required at the Law and Motion hearing on September 2, 2014 at 8:30am in Department 19 at which time a new trial date will be set for the hearing of both plaintiff and defendant’s Claims.


5.  SCV-247545 STRS v. AAA Energy Systems:

            This is on calendar for B&L Glass Co., Kleinfelder, Inc. and Sunshade Awning Co., Inc.’s motions for determination of good faith settlement.  Each of these motions was either set on shortened notice or advanced for a later hearing date.  Due to the settings, the court allowed opposition to these motions to be filed up to August 29, 2014.  As a result, the court would be unable to review the oppositions prior to the deadline for posting tentative rulings.

            Therefore, the court will require appearances of the moving parties and any party opposing the instant motions.


6.  SCV-250892 Cropsey v. Ensign:

            This is on calendar for the defendant’s motion to tax the plaintiff’s memorandum of costs.  The court notes that the plaintiff has also filed a motion for attorney fees.  The court would prefer to hear these motions at the same time, therefore defendant’s motion to tax costs and the plaintiff’s motion for attorney fees will both be heard on the law and motion calendar on October 28, 2014 at 8:30am in this department.


7.  SCV-253340 Bogue v. Fannie Mae:

            This is on calendar for the Plaintiff’s request for rehearing of the court’s ruling on Defendant Onewest’s demurrer to the Second Amended Complaint (SAC). The Plaintiff contends that the tentative ruling indicated that the court was sustaining the demurrer to the fraud and misrepresentation causes of action with leave to amend. As a result he did not seek to oppose the tentative at the hearing. The Plaintiff argues that the final ruling of the court indicated that those causes of action were sustained without leave to amend. The Plaintiff now seeks a rehearing to argue that he should be allowed to amend the SAC as to the fraud and misrepresentation causes of action. The Plaintiff has also attached documents and proposed amendments to the SAC that he contends demonstrate that he can state causes of action for fraud and misrepresentation.

Defendant Onewest opposes arguing that the tentative ruling was internally inconsistent, in that in one place indicated that the demurrer was sustained without leave to amend, and in the conclusion stated that the demurrer was sustained with leave to amend. Defendant Onewest contends that the Plaintiff should have appeared at the original hearing to request clarification.

The court will grant the request for rehearing on the discrete issue of whether the demurrer to the fraud and misrepresentation causes of action should have been sustained with or without leave to amend. The court has reviewed the Plaintiff’s materials in support of his contention that the final ruling on the demurrer should allow additional amendment. The court is not persuaded that the Plaintiff can amend the SAC to state a cause of action for fraud or misrepresentation against Defendant Onewest.

Accordingly, the court grants the request for rehearing; however, it is the court’s intention not to disturb its ruling to sustain the demurrer to the fraud and misrepresentation causes of action, without leave amend.


8.  SCV-254040 Hernandez v. McCannell Construction:

            This is on calendar for the Plaintiff’s motion to stay proceedings pending a decision on a pending worker’s compensation case that involves the same parties.  The Plaintiff contends that the worker’s compensation claim is moving apace, and will determine the issue of whether there is an employee/employer relationship between the Plaintiff and Defendant McCannell Construction. The motion is unopposed.

            It is well-settled that “[a] party may obtain an order preventing [a] second tribunal from acting pending determination by the first tribunal of [a] jurisdictional question.” (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 976.)

            Here, the Plaintiff has sought a determination of his employment status in front of the WCAB which will likely be dispositive to some of his claims for personal injury in this case. (See Taylor v. Superior Court, In and For Los Angeles County (1956) 47 Cal. 2d 148.) Accordingly, the motion to stay proceedings pending the outcome of the WCAP case is granted.

            The Plaintiff shall draft an order consistent with this ruling.


9.  SPR-86879 Estate of Robert James Asbra:

            The court approves the Petition for Letters of Administration.

10. SCV-254820 Hogan v. Cenlar, et al:

            The hearing on State Farm's Demurrer to plaintiff's first amended complaint is continued to the Law and Motion Calendar on November 4, 2014 at 8:30am in  Department 19.

[1] Code of Civil Procedure section 116.710(a).

© 2014 Superior Court of Sonoma County