Lorton vs. Peak Power Solutions, Inc.

The meet and confer effort is sufficient. The parties are at an impasse.

Statute of Limitations (SOL) Moving Defendants argue that the SOL has run on every claim because the Complaint acknowledges that any work done by Peak Power Solutions on Plaintiffs’ Property was done in 2012. (Compl., ¶9.)

This argument is based on extrinsic facts and inferences that the Court can neither consider nor make.

In 2012, Plaintiffs contracted with Peak Power to install a solar panel system on the roof of their property at 22675 Ledana, Mission Viejo, CA 92691, including related roofing work. As part of the contract, Defendants provided a 20-year transferable guarantee against water leaks in the roof area worked on, issued by Guardian Roofs (the “Warranty” or “20-year Roof Warranty”). (Compl., ¶9, Ex. A.)

Plaintiffs allege that “Defendants’ concealment of faulty workmanship on the solar panel installation” was not discovered until around December 4, 2023, when a roofing inspection revealed concealed debris and defects beneath the solar panels. This discovery established the root cause of the mold as roof leaks from the faulty solar panel installation by Defendants Peak Power and Guardian Roofs. (Compl., ¶12.)

Moving Defendants argue that there should be no delayed discovery because Plaintiffs were on notice of defects immediately following completion of the roof and solar panel system installations, since Plaintiffs could or would have had the installations inspected upon completion. Moving Defendants reason that Plaintiffs allege the removal of two 55-gallon bags of debris and 80 extra tiles that were stacked around the entire solar array, which Plaintiffs attribute as the source of their alleged damages and injuries. (Compl. ¶¶ 20-21.)

Specifically, Defendant reason that “City inspectors, if not Plaintiffs, would have identified defective or improperly performed work during final inspections in 2012, during the statute of limitations period.” (Reply, p. 1:26-28.) “Moreover, if private roofers were able to identify such defects and debris nearly fourteen years after the fact, City inspectors would have similarly identified such upon completion of work in 2012.” (Reply, p. 2:26-28.)

But the Court cannot make these assumptions in Defendants’ favor on demurrer. The complaint must be “liberally construed, with a

view to substantial justice between the parties.” (CCP § 452; see Stevens v. Sup.Ct. (API Ins. Services, Inc.) (1999) 75 Cal.App.4th 594, 601.) Where allegations are subject to different reasonable interpretations, court must draw “inferences favorable to the plaintiff, not the defendant”. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

On reply for the first time, Defendants argue that the Court must judicially notice the Building Permit pulled for this work showing that the final inspection was April 20, 2012. (RJN, Exs. A and B.) Using this new evidence provided on reply, Moving Defendants argue that despite at least four official inspections by the City on April 20, April 26, May 1, and May 3, 2012, Plaintiffs maintain that their claims are timely and actionable under the delayed discovery rule.

The Request is denied as it was presented on reply with no opportunity for a response.

Moreover, even if considered, the scope of the inspections cannot be adjudicated by a document showing dates of inspections.

Thus, the Court must accept as true the allegations of delayed discovery and fraudulent concealment clearly made in the Complaint.

Moving Defendants also argue that the Complaint admits that the Guardian Roof Defendants installed the roof and issued the warranty and thus are responsible. But this too ignores the properly pled factual allegations in the Complaint about Moving Defendants’ bad acts, which the Court must accept as true on demurrer.

Finally, Moving Defendants take issue with allegations regarding “Defendants”. However, in conjunction with the background facts and the alleged dispute between Defendants as to who did the installation in this case, these allegations are sufficient.

Thus, the Demurrer to the first through fifth causes of action are overruled.

Declaratory Relief Declaratory relief claims are used “to obtain a judicial declaration on the rights and duties of the parties under a contract.” (City of Tiburon v. Northwestern Pac R.R. Co. (1970) 4 Cal. App. 3d 160, 170.)

Moving Defendants argue that declaratory relief is not a tool to redress past wrongs but instead operates prospectively to settle

controversies before they escalate to a repudiation of obligations, invasion of rights, or the commission of wrongs. (Travers v. Louden (1967) 254 Cal.App.2d 926, 931; Monterey Coastkeeper v. Central Coast Regional Water Quality Control Bd. (2022) 76 Cal.App.5th 1, 13—”declaratory relief operates to declare future rights, not to address past wrongs”.)

In opposition, Plaintiffs argue that an actual controversy exists regarding the parties’ rights and duties under the 20-year roof warranty and the 2012 contract. (Complaint ¶¶ 106, 110.)

Here, in this claim, Plaintiffs seek an adjudication that a warranty exists, but this is already pled in the first cause of action for breach of contract to address past wrongs.

Thus, the Demurrer is sustained to this cause of action. Plaintiffs have not shown how they can amend.

Motion to Strike Defendants seek to strike a litany of factual allegations, punitive damages, and attorney’s fees. The Motion is granted as to attorney’s fees only; the remainder is denied.

The Code allows a motion to strike on the ground that the pleadings contain “irrelevant, false, or improper matter” or where the pleadings are drawn in violation of a law, rule or court order. (CCP § 436.) But falsity must appear on the face of the pleading under attack, or from matters which the court may judicially notice (e.g., the court’s own files or records). (CCP § 437; CPF Agency Corp. v. R&S Towing Service (2005) 132 Cal.App.4th 1014, 1032.)

To get around the factual disputes, Moving Defendants argue that the facts alleged are conclusory, specifically because the Complaint admits the Peak Power installed the solar panels and not the roof. But this ignores that the Complaint allege that Peak Power intentionally concealed substantial construction debris (broken tiles, shingles, nails, and paper) under the solar panels, and the stacking of extra tiles to obstruct inspection and discovery. (See e.g. Compl., ¶¶ 10, 20, 93–97, 100–101.)

Moving Defendants next argue that “Defendants” are lumped together. But the facts specifically allege Defendants’ conduct in the background section.

Punitive Damages Defendants seek to strike punitive damages in the two fraud claims.

“When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. [Citation.] When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. [Citations.]” (Smith v. Superior Ct. (1992) 10 Cal. App. 4th 1033, 1041.)

In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true: “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.)

Here, Plaintiffs allege that Defendants were not just negligent in their construction work and lied about a warranty (putting it in another company’s name improperly). (Compl., ¶¶12, 20, 26, 54, 100.) The Court finds sufficient facts are alleged at the pleadings stage.

Attorney’s Fees Code of Civil Procedure § 1021 codifies the “American rule” that each party must bear the expense of its own attorney’s fees. 14 Cal.5th at 417. (Java Oil Ltd. v Sullivan (2008) 168 Cal.App.4th 1178, 1189–1192 (California courts may enforce foreign money judgments that automatically award attorney’s fees to successful litigant, e.g., under “English rule” that generally requires loser to pay winner’s attorney’s fees; these awards are not contrary to California public policy).

Here, Plaintiffs argue in opposition that Civil Code §1717 provides for attorney’s fees when provided for in a contract. But there is no allegation of any contract containing an attorney’s fees clause. Thus, the request for attorney’s fees is stricken.

Moving Defendants are ordered to serve notice.