Rudrich Family Management v. RHA Engineering CA4/2 (2013) · DecisionDepot
Rudrich Family Management v. RHA Engineering CA4/2
California Court of Appeal Jul 23, 2013 No. E054865Unpublished
Filed 7/23/13 Rudrich Family Management v. RHA Engineering CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RUDRICH FAMILY MANAGEMENT,
Plaintiff and Respondent, E054865
v. (Super.Ct.No. CIVDS901248)
RHA ENGINEERING, INC. OPINION
Defendant;
WEIL & DRAGE, APC et al.,
Objectors and Appellants.
APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.
Reversed.
Weil & Drage APC, Jean A. Weil and Anthony D. Platt, for Objectors and
Appellants.
No appearance for Plaintiff and Respondent.
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No appearance for Defendant.
I. INTRODUCTION
Objectors and appellants Weil & Drage, APC, Jean A. Weil, and Anthony D. Platt
appeal from an order directing them to pay $5,000 in monetary sanctions. They contend
the trial court abused its discretion in issuing the order because the allegedly frivolous
motion for summary adjudication was based on newly discovered facts that were not
asserted in a prior motion for summary judgment.
Plaintiff and respondent Rudrich Family Management (Rudrich Family) has not
filed a respondent‟s brief in this matter. We therefore consider the appeal on the basis of
the record, the opening brief and oral argument, if any. (Cal. Rules of Court, rule
8.220(a)(2).)
II. FACTS AND PROCEDURAL BACKGROUND
In February 2009, Rudrich Family filed an action against RHA Engineering, Inc.,
(RHA) and other corporations and individuals, alleging causes of action for injunction,
negligence, private nuisance, and trespass to real property. The complaint alleged that
RHA had provided engineering services in connection with a 2004 subdivision project
adjacent to a mobilehome park owned by Rudrich Family, and water and dirt were
seeping through a retaining wall between the properties resulting in property damage.
Objectors represented RHA in that action.
In October 2009, objectors filed a motion for summary judgment or summary
adjudication (the first motion) on behalf of RHA on the ground that the action was barred
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by applicable statutes of limitation. The separate statement of undisputed facts
supporting the first motion was based principally on Rudrich Family‟s responses to
special interrogatories 27 and 28 indicating that Rudrich Family first discovered evidence
of water seepage through the wall in June 2005. The separate statement of undisputed
facts supporting the first motion did not mention evidence of movement or deflection of
the wall or cracking in the wall.
The trial court denied the motion, determining that Rudrich Family “first learned
of „appreciable harm‟ from [RHA‟s] breach of duty in October of 2008,” (capitalization
omitted), and the complaint had therefore been brought within the two- and three-year
statutes of limitation for actions for professional negligence (Code Civ. Proc.,1 § 339,
subd. (1)) and injury to real property (§ 338, subd. (b)), respectively.2
Thereafter, objectors continued discovery, including taking additional depositions.
During the November 2010 deposition of Mike Aparacio, a licensed contractor, Aparacio
testified that he had visited the retaining wall accompanied by Jacob Rudrich, and “it was
readily ascertainable that the wall was not in vertical plum[b] but that it was considerably
leaning.” Aparacio described the wall as having “rotated out of plum[b],” and he advised
1 All statutory references are to the Code of Civil Procedure.
2 Although the trial court stated it was making a finding as to the date Rudrich Family first learned of appreciable harm, in ruling on the motion for summary judgment or summary adjudication, the trial court could appropriately merely determine that a triable issue of material fact existed. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
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Jacob to “contact the [C]ity of Yucaipa.” He stated the wall was “grossly out of
plum[b],” meaning “[a] leaning of more than two percent of a 90 degree right angle.” In
a December 2005 exchange of emails with other members of the Rudrich Family,
Aparacio proposed the language of a letter that should be sent to the city.
Objectors also took the deposition of Lawrence Strahm,3 a professional engineer,
in September 2010. Strahm testified that he had visited the property in May 2006 and
had prepared a report dated August 22, 2006, based on his observations and findings from
that visit. He testified he had been asked “to come out and investigate the wall because
they had some indications that it was moving or failing.” During the visit, the on-site
manager pointed out cracking in the wall and told him that “cracks had worsened since
they had first been observed.” Strahm also reported seeing some lateral displacement of
the wall. He testified the owner had told him the lateral displacement “occurred
subsequent to grading” on the adjacent subdivision project. Strahm determined that the
top of the wall was out of vertical by one inch horizontally, and he measured the “lateral
bow in the wall” with a tape measure. He concluded the cracks and displacement
constituted “slight distress” in a specified portion of the wall and recommended to
Rudrich Family that “„the wall should be reviewed to assess stability.‟”
In March 2011, objectors filed a motion for summary adjudication (hereafter, the
second motion) again asserting that the cause of action for negligence was barred by the
3 Also referred to in the record as Lawrence “Straham.”
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statutes of limitation in sections 339, subdivision (1) and 338, subdivision (b). The
separate statement of undisputed facts filed in support of the second motion was based
primarily on Aparacio‟s and Strahm‟s deposition testimonies as discussed above.
The trial court hearing the second motion found that the facts asserted in the
second motion were not newly discovered, because “it was incumbent on the lawyers to
get it in admissible form before bringing the [original] motion for summary judgment.”
The court further held that it was “inherently an issue of fact . . . [w]hen was it that
plaintiff knew or should have known.”
On May 27, 2011, Rudrich Family filed a motion for sanctions under section 128.7
on the ground that objectors‟ justification for the second motion was “knowingly false
and made in bad faith.” The trial court granted the motion and awarded sanctions against
objectors in the amount of $5,000.
The action was eventually terminated by settlement, and this appeal ensued.
Additional facts are set forth in the discussion of the issues.
III. DISCUSSION
“[A] party may not move for summary judgment based on issues asserted in a
prior motion for summary adjudication and denied by the court, unless that party
establishes to the satisfaction of the court, newly discovered facts or circumstances or a
change of law supporting the issues reasserted in the summary judgment motion.”
(§ 437c, subd. (f)(2).)
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In Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181
Cal.App.4th 60 (Nieto), the court observed that a party‟s motion for summary judgment
fell outside section 437c, subdivision (f)(2) “as the prior motion was one for summary
judgment rather than summary adjudication . . . .”4 (Nieto, supra, at p. 72.) Here,
likewise, objectors‟ second motion falls outside the plain language of section 437c,
subdivision (f)(2) because the second motion sought summary adjudication, not summary
judgment. As in Nieto, however, we will address the issue on the merits.
In the present case, the trial court imposed sanctions under section 128.7 on the
ground that the second motion was frivolous. We apply an objective standard for
determining frivolity for purposes of section 128.7. (Guillemin v. Stein (2002) 104
Cal.App.4th 156, 167 (Guillemin).) “[T]here are basically three types of submitted
papers that warrant sanctions: factually frivolous (not well grounded in fact); legally
frivolous (not warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law); and papers interposed for an improper purpose.
[Citations.]” (Ibid.) Our sanction rule “must not be construed so as to conflict with the
primary duty of an attorney to represent his or her client zealously. Forceful
representation often requires that an attorney attempt to read a case or an agreement in an
innovative though sensible way. Our law is constantly evolving, and effective
4 In Nieto, the court held that the trial court did not abuse its discretion in determining that a second motion was permissible because the first motion did not address the elements of fraud, whereas the second motion “addressed this previously omitted issue.” (Nieto, supra, 181 Cal.App.4th at p. 72.)
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representation sometimes compels attorneys to take the lead in that evolution.” (Id. at pp.
167-168.)
We therefore examine the record to determine whether objectors‟ conduct was
objectively reasonable. More specifically, we must determine whether the second motion
was based on new facts or merely on newly discovered evidence. In doing so, we
compare the statements of undisputed material facts submitted to support the first and
second motions.
Both motions asserted that Rudrich Family‟s claims were barred by the two-year
statute of limitations applicable to claims for professional negligence (§ 339, subd. (1))
and the three-year statute of limitations applicable to claims for negligent injury to real
property (§ 338, subd. (b).)
As recounted above, the first motion was based on Rudrich Family‟s responses to
special interrogatories stating that water seepage through the wall had been observed in
2005.
The second motion was based principally on Strahm‟s and Aparacio‟s deposition
testimonies as set forth above in the statement of facts. The focus of the second motion
was thus on those witnesses‟ observations of cracks and leaning of the wall observed in
2005 and 2006 and those witnesses‟ reports to and discussions with Rudrich Family
about those observations. Thus, this case is unlike Bagley v. TRW, Inc. (1999) 73
Cal.App.4th 1092. In that case, the plaintiff sued his former employer for various causes
of action based on his termination. (Id. at p. 1094.) The employer filed a motion for
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summary judgment or summary adjudication, and the trial court granted the motion for
summary adjudication in part. (Id. at p. 1095.) The employer then brought a second
motion for summary judgment, which the trial court granted. (Id. at p. 1096.) The
appellate court reversed, holding that the second motion was improper because it was
identical to the original motion, although “reformatted, condensed, and cosmetically
repackaged.” (Id. at p. 1097.) The court observed that it had been “unable to find a
material fact in [the] second separate statement of undisputed facts [citation] that was not
included in its first separate statement of undisputed facts.” (Ibid.) Here, in contrast, the
statements of undisputed facts supporting the two motions are completely dissimilar.
Rather, this case is more like Jefferson v. Qwik Korner Market, Inc. (1994) 28
Cal.App.4th 990, an action for personal injuries based on a car driving over a concrete
curb onto the sidewalk in front of a convenience store. In that case, the court held that
declarations filed after the original motion for summary judgment contained new facts,
specifically, that the parking lot design met city standards, and there had been no
previous similar incident. (Id. at p. 997, fn. 4; see also Pender v. Radin (1994) 23
Cal.App.4th 1807, 1812 [holding that a renewed motion for summary judgment/summary
adjudication was proper because the defendant had discovered new facts in depositions of
plaintiffs after the first motion, and the new facts made a newly published case applicable
to the lawsuit].)
We conclude the second motion was not frivolous within the meaning of section
128.7.
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IV. DISPOSITION
The order appealed from is reversed. Parties shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST J. We concur:
RAMIREZ P.J.
MCKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court abused its discretion in imposing sanctions under Code of Civil Procedure section 128.7 because the second motion for summary adjudication was based on new evidence obtained through depositions and was not frivolous.
Issues
Whether a second motion for summary adjudication based on new deposition testimony constitutes a frivolous filing under Code of Civil Procedure section 128.7.
Whether the trial court abused its discretion in awarding sanctions for a motion that presented distinct facts from a prior unsuccessful motion.
Disposition. Reversed.
Quotations verified verbatim against the opinion
“We conclude the second motion was not frivolous within the meaning of section 128.7.”
“the statements of undisputed facts supporting the two motions are completely dissimilar.”