2010-00087341-CU-OR

Ventana Planned Unit Development vs. Sandino Enterprises

Nature of Proceeding:    Motion for Summary Judgment and/or Adjudication

Filed By:   Ng, Brittany Y.

Defendant Sandino Enterprises, dba Weatherite’s Motion for Summary Judgment
and/or Adjudication is denied.

Weatherite’s Evidentiary Objections are overruled.

In 2004 Plaintiff Homeowner Association (“Ventana”) hired Weatherite to install vinyl
siding over the existing siding on the 56 townhomes and clubhouse (a total of 15
buildings) at the Development. Shortly after the work was completed in the Fall of
2005, the homeowners prepared a punchlist of concerns.  However, it is undisputed
that none of the homeowner’s concerns as of January 23, 2006 were  due to the vinyl
siding because Weatherite had investigated the leaks and determined that none of
them were caused by the vinyl siding.  (UMF 12)  On March 23, 2006 the Ventana
Board had a meeting and was reviewing siding damage claims. One of the owners
made a survey of the claims by circulating a questionnaire.  On September 28, 2006
owner Griggs gave the members of Ventana’s Board a copy of the “Siding Deficiency
Sheet” which also included concerns that were not related to the siding.   Five of the
56 owners made complaints thought to be related to siding.  However three of those
complaints were previously determined by Weatherite to not be related to siding.   On
October 16, 2006, the Board minutes state “The Board will contract to make the siding
repairs related to Weatherite and then take the necessary legal action against
Weatherite for reimbursement.”  (UMF 33)   In May of 2009 Weatherite began the
installation of 27 squares of warped siding at the Ventana development.   The
Complaint was filed September 13, 2010.
As to each cause of action, Weatherite contends that Ventana was on notice of the
defects in the siding no later than January 23, 2006, based on the receipt of the nine
complaints that Ventana refers to as punch list items.   However, it is also undisputed
that none of the punch list items that comprised the nine complaints as of that date
were caused by the vinyl siding. (UMF 12, 28, 47, 63, 79)  Weatherite does not argue
any other accrual date in its moving points and authorities.

Ventana contends that it was not until 2009 when Weatherite performed the repairs
that the damage became “sufficiently appreciable to give a reasonable person notice
that they had a duty to pursue their remedies.”    Creekridge v Townhome Association,
Inc. v REO Roofing Company (2009) 177 Cal.App.4th 251, 258.

“Limitations issues may be resolved in summary judgment if the facts are
uncontroverted and susceptible of only a single legitimate inference.” San Diego
Unified School District v. County of San Diego (2000) 170 Cal.App.4″‘ 288, 300.
The Court finds that there is a triable issue of material fact based on the evidence
submitted by Ventana as to when Ventana was on notice of damage that was
sufficiently appreciable to warrant pursuit of its remedy.  Ventana has raised an issue
of fact as to Weatherite’s assertion that the statute of limitations began to run on
January 23, 2006.

To prevail on summary judgment, the movant must “conclusively negate” all disputes
as to any triable issues of material fact. (Code of Civ. Proc. § 437c(c);  Varni Bros.
Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886.) In reviewing the evidence,
the court must resolve all doubts of whether any disputed, material, or triable issues of
fact exist in favor of the party opposing summary judgment. (Podolsky v. First
Healthcare Corp. (1996) 50 Cal.App.4th 632, 642.) Moreover, a fact is “undisputed”
only where there is no evidence contradicting it. (Hanson v. Grode (1999) 76
Cal.App.4th 601, 604.) Applying these standards, where the opposing party can show
“there is a triable issue as to one or more material facts,” the court must deny the
motion for summary judgment. (Code of Civ. Proc. § 437c(g).)  Moreover, it is well-
established that in ruling on the motion, the moving party’s papers are to be strictly
construed, while the opposing party’s papers are liberally construed. (Sanchez v.
Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465.) Therefore, all evidence
submitted to the Court on the motion shall be viewed in the light most favorable to
Ventana. (Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1179 at fn. 3.) The
Court, additionally, must consider not only all the evidence Ventana has produced in
opposition to the motion, but also “all inferences reasonably deducible from the
evidence.” (Code Civ. Proc. § 437c(c).)

The Court is not considering the statements in the Reply that are directly contradictory
to the material facts submitted with the moving papers.  For example, Weatherite
attempts to recharacterize the undisputed material fact that it was determined that the
complaints as of January 2006 were not related to siding.  This is not the same as
saying that Weatherite was denying responsibility for suspected defective siding.  If it
is undisputed that the damaged complained of was not due to siding defects then the
statute of limitations would not begin running in January of 2006.

1st cause of action Breach of Implied Warranty (four years):  Motion for Summary
Adjudication is denied.  There is a triable issue of material fact as to when the damage
became sufficiently appreciable to put plaintiff on notice that it had a duty to pursue its
remedies.  It is undisputed that the complaints as of January 2006 were not causally              connected to the vinyl siding.  Therefore a trier of fact could infer that plaintiff was not
“aware of the deficiencies with the vinyl siding” no later than January 23, 2006, as
argued by defendant.

2nd cause of action Negligence (three years property damage: Motion for
Summary Adjudication is denied.  There is a triable issue of material fact as to when
the damage became sufficiently appreciable to put plaintiff on notice that it had a duty
to pursue its remedies.  It is undisputed that the complaints as of January 2006 were
not causally connected to the vinyl siding.  Therefore a trier of fact could infer that
plaintiff was not “aware of the deficiencies with the vinyl siding” no later than January
23, 2006, as argued by defendant.

3rd cause of action Breach of Contract (four years): Motion for Summary
Adjudication is denied.  There is a triable issue of material fact as to when the damage
became sufficiently appreciable to put plaintiff on notice that it had a duty to pursue its
remedies. It is undisputed that the complaints as of January 2006 were not causally
connected to the vinyl siding.  Therefore a trier of fact could infer that plaintiff was not
“aware of the deficiencies with the vinyl siding” no later than January 23, 2006, as
argued by defendant.

4th cause of action Breach of Implied Covenant of Good Faith and Fair Dealing
(four years): Motion for Summary Adjudication is denied.  There is a triable issue of
material fact as to when the damage became sufficiently appreciable to put plaintiff on
notice that it had a duty to pursue its remedies.  It is undisputed that the complaints as
of January 2006 were not causally connected to the vinyl siding.  Therefore a trier of
fact could infer that plaintiff was not “aware of the deficiencies with the vinyl siding” no
later than January 23, 2006, as argued by defendant.

5th cause of action Breach of Express Warranty (four years): Motion for Summary
Adjudication is denied.  There is a triable issue of material fact as to when the damage
became sufficiently appreciable to put plaintiff on notice that it had a duty to pursue its
remedies.  It is undisputed that the complaints as of January 2006 were not causally
connected to the vinyl siding.  Therefore a trier of fact could infer that plaintiff was not
“aware of the deficiencies with the vinyl siding” no later than January 23, 2006, as
argued by defendant.

The motion for summary judgment is denied.

The Court will sign the proposed formal order.