Case Name: Naren Chaganti v. Cricket Communications, Inc., et al.
Case No.: 2015-1-CV-288323

I. Background

Plaintiff Naren Chaganti (“Plaintiff”) commenced this action against his former tenants, defendants Cricket Communications, Inc. (“Cricket”) and New Cingular Wireless PCS LLC (“New Cingular”) (collectively, “Defendants”), to recover damages for harm to his property.

Plaintiff owns property in Missouri upon which he operated a nursing home known as Whispering Oaks Residential Care Facility. There was a water tower on the property that supplied well water to the facility. Plaintiff leased space on the water tower to Defendants for the purpose of affixing telecommunications equipment and infrastructure. Plaintiff alleges Defendants unplugged a heating coil on the water tower thereby causing the pipes to freeze. As a result, Plaintiff suffered $3,000,000 in damages and had to shut down the nursing home. Plaintiff additionally alleges Cricket prematurely terminated its lease without good cause, New Cingular installed additional equipment outside the boundaries of the space it leased, and Defendants failed to purchase liability insurance despite their promise to do so.

Plaintiff asserts causes of action against Defendants for: (1) breach of contract (against Cricket); (2) fraud (against Cricket); (3) breach of contract (against New Cingular); and (4) negligence (against Defendants). Plaintiff seeks compensatory and punitive damages in connection therewith.

Currently before the Court is Defendants’ motion for summary adjudication, which is accompanied by a request for judicial notice.

II. Preliminary Procedural Matters

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Defendants state they seek summary adjudication of six different “issues.” (Not. of Mot. at p. 2:10-11.) But the only “issue” that may be summarily adjudicated is an “issue of duty” not simply any legal issue. (Code Civ. Proc., § 437c, subd. (f)(1); see also Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal.App.4th 226, 238-39.) The issues identified by Defendants concern the second, third, and fourth causes of action as well as Plaintiff’s claim for punitive damages. Unlike “issues,” the causes of action and claim for punitive damages are proper subjects of a motion for summary adjudication. (Code Civ. Proc., § 437c, subd. (f)(1).) Thus, Defendants’ choice of terminology is disregarded and the motion is treated as being directed to these three causes of action and the claim for punitive damages.

Having clarified the scope of Defendants’ motion, it is important to establish that the Court may consider it despite the denial of their previous motion for summary judgment or summary adjudication. Contrary to Plaintiff’s assertion, Code of Civil Procedure section 437c, subdivision (f)(2) does not prohibit successive motions for summary adjudication. It prohibits a party from moving for summary judgment based on issues asserted in a previous motion for summary adjudication that was denied unless the party shows there are new facts and circumstances or changes in the law. Defendants do not seek summary judgment, and so the limitation in Code of Civil Procedure section 437c, subdivision (f)(2) is not implicated here.

III. Standard of Review

“A motion for summary adjudication [ ] shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) Thus, a defendant moving for summary adjudication of a cause of action or claim for punitive damages bears the initial burden of showing it lacks merit. (Code Civ. Proc., § 437c, subd. (p)(2).) A claim lacks merit if it cannot be established or there is a complete defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this initial burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists [ ].” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff “must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient [ ].” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subd. (b)(2).)

Ultimately, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action [or] a claim for damages. . . .” (Code Civ. Proc., § 437c, subd. (f)(1).)

IV. Request for Judicial Notice

Defendants request judicial notice of court records from an earlier lawsuit amongst the parties. Plaintiff objects to this request.

Judicial notice is a substitute for formal proof. (Sosinky v. Grant (1992) 6 Cal.App.4th 1548, 1563-64.) The matters of law and fact that are proper subjects of judicial notice are set forth in Evidence Code sections 451 and 452. (Ibid.) A court may accept such matters as true instead of admitting evidence to prove their truth. (Ibid.) Even if authorized to do so, a court need not take judicial notice of a matter if it is not “necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.)

Here, the Court may take judicial notice of the court records pursuant to Evidence Code section 452, subdivision (d). With that said, Defendants appear to be improperly relying on the concept of judicial notice to simply draw the Court’s attention to the records as opposed to relying on it as a substitute for the presentation of evidence. As one court explained: “As a general rule, a party asserting a fact bears the burden of proving that fact with evidence. But judicial notice lets a party skip this production (and the accompanying authentication) for certain facts.” (Hsu v. Puma Biotechnology, Inc. (C.D.Cal. 2016) 213 F.Supp.3d 1275, 1280.) It follows that judicial notice is not a means of asking a court to literally notice the evidence presented. (Ibid.) Judicial notice should not be used to “get a court’s attention like a businessman who’s running late and trying to whistle down a taxi on a crowded downtown street.” (Ibid.) Such a use of this evidentiary procedure is contrary to its very function as a substitute for the presentation of evidence. Here, Defendants use judicial notice in this improper manner because the records are attached to the declaration of their attorney and presented as authentic evidence. It follows that the Court may simply consider these records as part of the evidence presented and need not take judicial notice of them. Defendants’ request for judicial notice is therefore DENIED.

This conclusion is reached irrespective of the unpersuasive points advanced by Plaintiff in his objection to the request. Plaintiff suggests the court records are not relevant and that Defendants impermissibly request judicial notice of the truth of findings and factual allegations therein. Although Plaintiff is correct that a matter must be relevant for a court to take judicial notice of it (Jordache Enterprises, supra, 18 Cal.4th at p. 748, fn. 6), these court records are undoubtedly relevant to the statute of limitations arguments advanced by Plaintiff and Defendants. Additionally, Plaintiff is correct that a court does not take judicial notice of the truth of statements or allegations in court records; rather, it takes judicial notice of the fact the records say what they say. (See Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608, fn. 3; see also Sosinsky, supra, 6 Cal.App.4th at p. 1564.) But Defendants do not ask the Court to rely on the truth of factual allegations or findings in the court records. They permissibly request judicial notice of the court records to show that there was another action, the date it was commenced, and the result of the action, namely that it was dismissed. For these reasons, Plaintiff’s arguments are not well-taken and have no impact on the disposition of Defendants’ request.

V. Discussion

As a preliminary matter, and as discussed in the Court’s previous order on Defendants’ motion for summary judgment or summary adjudication, the lease agreements at issue contain a choice-of-law clause. Consequently, it is necessary to determine the applicable law before evaluating the merits of Defendants’ arguments with respect to the second, third, and fourth causes of action as well as the claim for punitive damages.

“California has two different analyses for selecting which law should be applied in an action.” (Washington Mutual Bank, F.A. v. Super. Ct. (2001) 24 Cal.4th 906, 914-15.) “When the parties have an agreement that another jurisdiction’s law will govern their disputes, the appropriate analysis for the trial court to undertake is set forth in [Nedlloyd Lines B.V. v. Superior Court (“Nedlloyd”) (1992)] 3 Cal.4th 459, which addresses the enforceability of contractual choice-of-law provisions.” (Ibid.) “Alternatively, when there is no advance agreement on applicable law, but the action involves the claims of residents from outside California, the trial court may analyze the governmental interests of the various jurisdictions involved to select the most appropriate law.” (Ibid.)

Here, there is a contractual choice-of-law provision in Defendants’ lease agreements, and so the proper legal standard for evaluating its enforceability is the standard set forth in Nedlloyd.

In Nedlloyd, the California Supreme Court held that when “determining the enforceability of arm’s-length contractual choice-of-law provisions, California courts shall apply the principles set forth in Restatement section 187, which reflect a strong policy favoring enforcement of such provisions.” (Nedlloyd, supra, 3 Cal.4th at pp. 464-65.)

“Briefly restated, the proper approach under Restatement section 187, subdivision (2) is for the court first to determine either: (1) whether the chosen state has a substantial relationship to the parties or their transaction, or (2) whether there is any other reasonable basis for the parties’ choice of law.” (Nedlloyd, supra, 3 Cal.4th at p. 466.) “If neither of these tests is met, that is the end of the inquiry, and the court need not enforce the parties’ choice of law.” (Ibid.) “If, however, either test is met, the court must next determine whether the chosen state’s law is contrary to a fundamental policy of California.” (Ibid., original italics.) “If there is no such conflict, the court shall enforce the parties’ choice of law.” (Ibid.) “If, however, there is a fundamental conflict with California law, the court must then determine whether California has a ‘materially greater interest than the chosen state in the determination of the particular issue. . . .’ [Citation.]” (Ibid.) “If California has a materially greater interest than the chosen state, the choice of law shall not be enforced, for the obvious reason that in such circumstance [courts] will decline to enforce a law contrary to this state’s fundamental policy.” (Ibid.)

As explained in the Court’s order denying Defendants’ previous motion, Missouri clearly has a substantial relationship to the parties and their transaction because the property at issue is in Missouri. Consequently, the parties’ choice of Missouri law must be enforced unless it conflicts with a fundamental public policy of California.

The parties do not identify and it does not appear there is any conflict between Missouri law and a fundamental public policy of California. Indeed, courts have held that even a material difference between foreign and California law does not amount to a conflict between the foreign law and a fundamental public policy. (See, e.g., Tri-Union Seafoods, LLC v. Starr Surplus Lines Insurance Co. (S.D.Cal. 2015) 88 F.Supp.3d 1156, 1166-68, citing Nedlloyd, supra, 3 Cal.4th at p. 468.) Thus, even accepting that there are some differences between Missouri and California law, there is no basis for concluding there is a conflict with a fundamental public policy of California. Consequently, the parties’ choice of Missouri law must be enforced.

With that said, the Court must also determine what claims are subject to the parties’ choice of law. The clause in each lease agreement states the agreement “shall be construed in accordance with” Missouri law. (Bolaño Decl., Exs. A-B.) The California Supreme Court has held “a valid choice-of-law clause, which provides that a specified body of law ‘governs’ the ‘agreement’ between the parties, encompasses all causes of action arising from or related to that agreement, regardless of how they are characterized, including tortious breaches of duties emanating from the agreement or the legal relationships it creates.” (Nedlloyd, supra, 3 Cal.4th at p. 470.) Courts typically treat the terms “governed by” and “construed in accordance with” as “linguistic equivalents.” (John F. Coyle, The Canons of Construction for Choice-of-Law Clauses (2017) 92 Wash. L. Rev. 631, 656-60 [compiling cases].) It follows, and is not disputed by the parties, that Missouri law applies to both the contract claims and the related tort claims in this action.

As for Plaintiff’s claim for punitive damages, Defendants assert in a conclusory manner that California law applies, relying on the governmental interest test. In opposition, Plaintiff asserts Missouri law should apply because punitive damages “are substantive.” (Opp. at p. 3:24.) Plaintiff does not provide a clear explanation in support of this assertion.

As the moving party, Defendants must substantiate their assertion that the claim for punitive damages lacks merit based on the applicable law. (See Code Civ. Proc., § 437c, subd. (p)(2); see also Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) But Defendants do not articulate, in the first instance, why Plaintiff’s claim for punitive damages is beyond the scope of the parties’ choice-of-law clause. Additionally, Defendants do not provide any explanation or authority to support the conclusion that the Court should, thus, apply the governmental interest test to determine the applicable law. And so even assuming the governmental interest test applies, Defendants’ analysis is underdeveloped.

The governmental interest analysis consists of three steps. (Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1202.) “First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different.” (Ibid. [internal citation and quotation marks omitted].) “Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists.” (Ibid. [internal citation and quotation marks omitted].) “Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state, and then ultimately applies the law of the state whose interest would be the more impaired if its law [was] not applied.” (Ibid. [internal citation and quotation marks omitted].)

Defendants do not identify whether there is any difference between California and Missouri law in the first instance. Defendants also skip the second step of the analysis and simply conclude, without citation to any legal authority, that “[b]ecause Plaintiff has invoked California jurisdiction, California has the greater interest in seeing its law and policy regarding punitive damages enforced.” (Mem. of Pts. & Auth. at p. 11:12-13.) Thus, Defendants’ governmental interest analysis is incomplete, conclusory, and insufficient to establish the law applicable to the claim for punitive damages based on that test.

In summary, Defendants do not demonstrate the governmental interest test should be applied to determine the law applicable to the claim for punitive damages in the first instance. Furthermore, their governmental interest analysis is inadequate. Because Defendants do not substantiate their position on choice of law, they do not adequately lay the legal foundation for their arguments about the claim for punitive damages. Consequently, Defendants’ motion for summary adjudication with respect to the claim for punitive damages is unsubstantiated and only the second, third, and fourth causes of action are addressed below.

A. Second Cause of Action

Defendants argue the second cause of action lacks merit because Plaintiff “fails to state a cause of action for fraud.” (Mem. of Pts. & Auth. at p. 7:19.) Failure to state facts sufficient to constitute a cause of action is a statutory ground for a demurrer (Code Civ. Proc., § 430.10, subd. (e)) or motion for judgment on the pleadings (Code Civ. Proc., § 438, (c)(1)(B)(ii)), not a motion for summary adjudication (Code Civ. Proc., § 437c, subd. (f)(1)). Plaintiff points this out and argues Defendants are improperly attempting to demur. (Opp. at p. 5:15-22.) But Plaintiff’s characterization of Defendants’ position as improper is flawed.

Because the pleading delimits the issues for purposes of a motion for summary adjudication, such a motion necessarily tests the sufficiency of the pleading. (Hansra v. Super. Ct. (1992) 7 Cal.App.4th 630, 638-39.) “Where a complaint does not state a cognizable claim, it is not necessary to [consider the defendant’s evidence], since a defendant has no obligation to present evidence to negate a legally inadequate claim.” (Ibid.; accord Leek v. Cooper (2011) 194 Cal.App.4th 399, 412.) Although not articulated by Defendants, under those circumstances, a court may simply conclude the cause of action lacks merit for purposes of evaluating the motion for summary adjudication or treat the motion as one for judgment on the pleadings. (Hansra, supra, 7 Cal.App.4th at pp. 647-48.) This first approach is permissible when the pleading defect cannot be cured, but if the defect can be cured through amendment, courts typically treat the motion as one for judgment on the pleadings and give the plaintiff leave to amend. (Ibid.)

With this clarification in mind, Defendants’ reasoning otherwise is not a model of clarity and they do not demonstrate there is either a curable or an incurable pleading defect. Defendants take the position that the fraud claim is duplicative of the first cause of action for breach of contract. They argue that “the duty Plaintiff alleges [ ] arises from [the] lease” and “failure to perform a contract is not a basis for liability in tort.” (Mem. of Pts. & Auth. at p. 7:20-28.)

To the extent Defendants are asserting a plaintiff can never maintain tort and contract claims arising from the same underlying events, they are incorrect. (See Reis v. Peabody (1999) 997 S.W.2d 49, 68.) Although a plaintiff cannot rely on a contractual duty alone to establish a negligence claim, he or she can recover for breach of contract and negligence if a legal duty can otherwise be established for purposes of the negligence claim. (Ibid.) Similarly, “a plaintiff may recover under both breach of contract and fraud theories if the plaintiff establishes [the] independent tort.” (Ibid.; see generally Minor v. Terry (2014) 475 S.W.3d 124, 136 [establishing elements of fraud claim].)

Otherwise, Defendants do not substantiate their assertion that the second cause of action is simply a duplicative breach of contract claim and does not contain allegations to support the essential elements of a fraud claim. It is true that “[t]he mere breach of a promise or failure to perform does not constitute a misrepresentation of fact. . . .” (Titan Construction Co. v. Mark Twain Kansas City Bank (1994) 887 S.W.2d 454, 459.) But a fraud claim based merely on a breach of a promise is different from a claim for “fraudulent inducement to enter into a contract,” which claim is permissible. (Ibid.) Plaintiff alleges Cricket made promises without any intention of performing them and did so to induce him to lease the premises. And so, absent a clear explanation from Defendants or analysis of analogous legal authority, it is not obvious that the second cause of action is merely based on breach of a promise.

For these reasons, Defendants do not substantiate their argument. Accordingly, they do not carry their initial burden of demonstrating the second cause of action lacks merit for purposes of showing they are entitled to either summary adjudication or judgment on the pleadings.

B. Third Cause of Action

Defendants argue Plaintiff’s third cause of action for breach of contract lacks merit because it is barred by the statute of limitations. To substantiate their argument, Defendants must demonstrate (1) which statute of limitations applies and (2) when the cause of action accrued. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-16.)

“Missouri has two statutes of limitation relating generally to contract actions: sections 516.110 and 516.120 [of the Missouri Revised Statutes].” (Hughes Development Co. v. Omega Realty Co. (1997) 951 S.W.2d 615, 616.)

Defendants assert the applicable statute of limitations is five years under Missouri Revised Statutes section 516.120 (“Section 516.120”), which applies to “[a]ll actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110, and except upon judgments or decrees of a court of record, and except where a different time is herein limited.” In opposition, Plaintiff argues the contract claim is subject to the 10-year statute of limitations in Missouri Revised Statutes section 516.110 (“Section 516.110”), which applies to “[a]n action upon any writing for the payment of money or property.” Courts have defined such writings as contracts containing an explicit promise to pay money or property. (Hughes Development Co., supra, 951 S.W.2d at pp. 616-17.) For example, indemnity agreements and insurance contracts typically come within this definition. (Ibid.) Promissory notes are another example of writings for the payment of money. (Lonergan v. Bank of America, N.A. (W.D.Mo. Jan. 16, 2013, Case No. 12-CV-42226-NKL) 2013 WL 176024 at p. 4.) Plaintiff does not cite and there does not appear to be any case interpreting a written lease agreement as a “writing for the payment of money or property” within the meaning of Section 516.110. Consequently, Section 516.110 does not apply. Because the lease agreement does not come within Section 516.110, Defendants are correct that the ordinary five-year statute of limitations for contract claims applies.

The next issue is whether Plaintiff commenced this action more than five years after his claim accrued. In Missouri, “the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.” (Mo. Rev. Stat., § 516.100.) Put differently, “[t]he triggering event of the applicable statute of limitations is when damage is sustained and becomes capable of ascertainment.” (Real Estate Investors Four, Inc. v. American Design Group, Inc. (2001) 46 S.W.3d 51, 59.) “The capable-of-ascertainment standard is objective.” (Best Buy Stores, L.P. v. Walters Acquisitions, Inc. (W.D.Mo. Feb. 9, 2014, Case No. 14-CV-04299-NKL) 2015 WL 545569 at p. 4.) “The relevant inquiry is when would a reasonable person have been put on notice that an injury may have occurred.” (Ibid.)

Here, Plaintiff alleges New Cingular breached its lease agreement by “using more space than it contracted for without payment or permission, and [ ] not purchasing liability insurance as required under the contract.” (Compl., ¶ 21.)

Defendants present evidence clearly showing Plaintiff could ascertain and did, in fact, know about the use of extra space in June 2009. (Bolaño Decl., Ex. E at p. 10 [Pl. Resp. to SI No. 23].) Plaintiff disputes this fact and asserts Defendants are relying on a mischaracterization of a discovery response he provided. (Pl. Sep. Stat., ¶ 28.) In actuality, Plaintiff relies on a mischaracterization of his discovery response as he stated he learned about the unauthorized use of space in June 2009 and not, as he represents, “after” June 2009. (Pl. Sep. Stat., ¶ 28.) Plaintiff otherwise presents no evidence to actually controvert this fact. And so it is indisputable that Plaintiff knew about one of the alleged breaches in June 2009.

Next, Defendants present evidence showing Plaintiff could ascertain and did in fact know about the failure to purchase liability insurance in June 2010 because he sent a demand letter to New Cingular’s insurer specifically stating it was “in default of the contract for the lease in that it did not secure an insurance policy. . . .” (Bolaño Decl., Ex. F.) Plaintiff again disputes this fact but does not provide any clear explanation or present any evidence to support his assertion. Thus, it is also indisputable that Plaintiff knew of the second alleged breach in June 2010.

Thus, Defendants present evidence showing Plaintiff’s damages were ascertainable and, thus, the third cause of action accrued in June 2010. Because Plaintiff commenced this action in November 2015, more than five years after his claim accrued, Defendants carry their initial burden of showing the third cause of action is time-barred.

In opposition, Plaintiff argues the third cause of action is, nevertheless, subject to Missouri’s savings statute. Apparently anticipating this argument, Defendants argue it is not.

Section 516.230 of the Missouri Revised Statutes provides “[i]f any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit. . . such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered. . . .” “Generally, a nonsuit occurs when a court order terminates a cause of action without prejudice.” (Williams v. Southern Union Co. (2011) 364 S.W.3d 228, 232 [internal quotation marks and citation omitted].) “[I]t has practically been held that the word ‘nonsuit’. . . means any judgment or discontinuance or dismissal whereby the merits are left untouched.” (Ibid. [internal quotation marks and citation omitted].) Upon the occurrence of a nonsuit, “[t]he right to bring a new action is given only to the plaintiff in the original action.” (Aufenkamp v. Grabill (2005) 165 S.W.3d 191, 194.)

In August 2013, Plaintiff, Whispering Oaks Residential Care Facility LLC, and Whispering Oaks RCF Management Company, Inc. filed a petition in the Circuit Court for St. Louis County asserting claims nearly identical to those asserted here. (Bolaño Decl., Ex. G.) The action was removed to federal court, and in October 2014, Plaintiff’s claims were dismissed on the ground of lack of subject matter jurisdiction based on a finding that he failed to establish standing to sue. (Bolaño Decl., Ex. H.) Shortly thereafter, Plaintiff was suspended indefinitely from practicing law in Missouri and had to cease representing the entities in the lawsuit. (Bolaño Decl., Ex. I.) The entities could not legally represent themselves and did not hire a new attorney, and so the Court dismissed their claims without prejudice in December 2014. (Bolaño Decl., Ex. J.)

Contrary to what Plaintiff appears to be suggesting, he did not suffer a nonsuit in December 2014. Rather, the Whispering Oaks entities suffered a nonsuit in December 2014 when their claims were dismissed without prejudice. And so only the entities, and not Plaintiff, had the right to refile the action by December 2015. Plaintiff’s claims were dismissed in October 2014. Thus, even assuming the dismissal for lack of subject matter jurisdiction constitutes a nonsuit for purposes of the savings statute, Plaintiff did not refile his claims within a year; he waited until November 2015.

In summary, Missouri’s savings statute does not render the third cause of action timely.

Plaintiff additionally presents arguments about tolling and equitable estoppel.

Plaintiff’s tolling argument is not a model of clarity. This is problematic because he bears the burden of establishing tolling. (Adams v. Division of Employment Security (2011) 353 S.W.3d 668, 673.) In any event, Plaintiff states the statute of limitations was tolled while he “took steps to reopen the nursing home” and appears to be relying on the doctrine of equitable tolling. (Opp. at p. 10:4-27.)

The Missouri Supreme Court has stated “Missouri law provides that a ‘statute of limitations may be suspended or tolled only by specific disabilities or exceptions enacted by the legislature and the courts are not empowered to extend those exceptions.’ [Citation.]” (Rolwing v. Nestle Holdings, Inc. (2014) 437 S.W. 180, 184.) More recently, the Missouri Supreme Court explained that while “prior cases have recognized the fairness of adopting [ ] equitable tolling in regard to the statute of limitations. . . these cases have emphasized that it is up to the legislature to determine whether to adopt [ ] equitable tolling in a particular case. . . .” (Ambers-Phillips v. SSM DePaul Health Center (2015) 459 S.W. 3d 901, 907.)

Here, Plaintiff does not cite any authority to support the proposition that Missouri law authorizes equitable tolling of the statute of limitations here. And in any event, Plaintiff does not demonstrate equitable tolling is otherwise justified under these particular circumstances. Equitable tolling typically applies “when the plaintiff was prevented from timely filing suit by the defendant’s actions or other pending litigation.” (Rolwing, supra, 437 S.W.3d at p. 184.) But Plaintiff does not assert either of those circumstances are present here. Plaintiff does not explain and it is not otherwise obvious how the circumstances surrounding the reopening of the nursing home support his tolling argument, and he does not cite any authority illuminating his position.

For these reasons, Plaintiff does not demonstrate the statute of limitations was tolled.

Next, “[t]he purpose of the doctrine of equitable estoppel is to prevent a party from taking inequitable advantage of a situation he or she caused.” (State ex rel. Beisly v. Perigo (2015) 469 S.W.3d 434, 441 [internal quotation marks and citation omitted].) A defendant will be equitably estopped from relying on the statute of limitations as a defense to an action “only if that party made positive efforts to avoid the bringing of the suit [ ] or misled the claimants.” (Ibid.) Plaintiff does not argue or present any evidence showing Defendants misled him or engaged in inequitable conduct to induce him into waiting to file this lawsuit. Rather, Plaintiff states, the parties “agreed not to litigate until all related disputes were resolved in order to determine the scope of damages.” (Opp. at p. 15-17.) Plaintiff does not attempt to clarify this vague statement by identifying what related disputes he is referring to or whether this agreement predates the Missouri lawsuit. Plaintiff’s declaration is similarly unilluminating. Furthermore, although not explicitly cited by Plaintiff, none of the email correspondence with insurance personnel and corporate counsel, which he presents in support of his opposition, shows any such agreement. Thus, Plaintiff does not demonstrate Defendants should be equitably estopped from raising the statute of limitations as a defense.

Finally, Plaintiff advances several other points in opposition that do not raise a triable issue of material fact, namely that there is a continuing breach, an indemnity claim is not ripe, and the matter was referred to insurance. (Opp. at pp. 12-14.) Plaintiff’s logic and reasoning in support of these points are fundamentally unclear and they are not supported by any legal analysis. A plaintiff cannot successfully oppose a motion for summary adjudication by advancing points that are “essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, supra, 106 Cal.App.4th at p. 11.) And in general, when “‘a point is merely asserted [ ] without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ [Citation.]” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) Consequently, the Court need not discuss Plaintiff’s remaining conclusory assertions.

For the reasons set forth above, Defendants carry their initial burden of showing the third cause of action is time-barred and Plaintiff fails to raise a triable issue of material fact in opposition to the motion. Accordingly, the third cause of action may be summarily adjudicated.

C. Fourth Cause of Action

Defendants argue the fourth cause of action for negligence is time-barred.

Defendants assert, and Plaintiff does not dispute, that the statute of limitations for a negligence claim is five years under Section 516.120. Section 516.120 applies to both contract claims (as discussed above) as well as actions based “upon a liability created by a statute other than a penalty or forfeiture,” such as negligence claims. (Twin Chimneys Homeowners Assn. v. J.E. Jones Construction Co. (2005) 168 S.W.3d 488, 501.)

The same capable-of-ascertainment standard applies for purposes of determining when a negligence claim accrues. (Twin Chimneys Homeowners Assn., supra, 168 S.W.3d at p. 501, citing Mo. Rev. Stat., § 516.100.) Here, Defendants’ evidence shows Plaintiff knew about the alleged negligence, namely the disconnection of the heating coil that caused the pipes to freeze, immediately after it occurred in January 2010. (Bolaño Decl., Ex. E at pp. 10-11 [Pl. Resp. to SI No. 24].) This fact is confirmed by a demand letter Plaintiff sent several months later. (Bolaño Decl., Ex. F.) Thus, Plaintiff’s negligence claim accrued in January 2010. Indeed, Plaintiff does not present any argument or evidence to support a contrary conclusion.

Plaintiff did not commence this action until November 2015, more than five years after his claim accrued. Consequently, it is indisputable that the fourth cause of action is time-barred.

Although not clearly or explicitly articulated by Plaintiff in his opposition, to the extent he intended to rely on the same arguments discussed with respect to the third cause of action, these arguments are unavailing for the same reasons set forth above. To be clear, these arguments include those about the savings statute, equitable tolling, and equitable estoppel as well as the conclusory assertions summarily addressed.
In conclusion, the fourth cause of action is time-barred and may be summarily adjudicated.

In light of this conclusion, it is not necessary to consider whether the fourth cause of action lacks merit based on Defendants’ additional argument about the doctrine of res ipsa loquitur, which argument suffers from a significant lack of clarity. “Res ipsa loquitur doctrine is a rule of evidence that permits a jury to infer from circumstantial evidence that the defendant is negligent without requiring that the plaintiff prove defendant’s specific negligence.” (Weaks v. Rupp (1998) 966 S.W.2d 387, 393.) Although Defendants appear to take the position that Plaintiff cannot rely on this doctrine, they do not clearly articulate why. They do not argue or present evidence to support the conclusion that Plaintiff cannot establish he is entitled to rely on that theory based on the nature or circumstances of his injury. Otherwise, Defendants assert a plaintiff cannot rely on both res ipsa loquitur and specific proof of negligence, but it is not obvious Plaintiff intends to do so here. Furthermore, Defendants do not articulate why such an election cannot be made, for example, before trial as part of the preparation of jury instructions. Thus, Defendants’ argument about this doctrine is not an additional basis for concluding the fourth cause of action lacks merit.

D. Conclusion

In conclusion, Defendants’ motion for summary adjudication is GRANTED IN PART and DENIED IN PART. Defendants’ motion is GRANTED with respect to the third and fourth causes of action and DENIED with respect to the second cause of action and claim for punitive damages.