Opposition to Plaintiff's Motion for Preliminary Injunction and Memorandum of Law filed by City of Springfield, Capital Asset Construction (Filed in Barnstable Superior Court 8/8/24) August 27, 2024 (2024)

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SUPERIOR COURT BARNSTABLE, Ss. AUG 08 2024 COMMONWEALTH OF MASSACHUSE]YTS FILED cott W. Nickerson, Cl erkBARNSTABLE, SS. SUPERIOR COURT DEPARTMENT DOCKET NO. 2472CV0346CAPE COD BUILDERS, INC., Plaintiff OPPOSITION TO THE PLAINTIFF'S MOTION FOR v. PRELIMINARY INJUNCTION ANDCITY OF SPRINGFIELD and MEMORANDUM OF LAWDEPARTMENT OF CAPITAL ASSETCONSTRUCTION Defendants The Defendants, City of Springfield and the Department of Capital Asset Construction("Defendants" or “City”), respectfully submit this memorandum of law in opposition to thePlaintiff's Motion for Preliminary Injunction. 1. General Background Facts. In the spring of 2024, the City solicited bids to, among other things, repair and replacefour masonry chimneys located at the Barney Carriage House in Springfield, Massachusettspursuant to G.L. c. 149, et seg. On April 10, 2024, the bids were opened and Cape CodBuilders, Inc. (“Plaintiff”) was the apparent low bidder. On April 25, 2024, an award letterwas sent to the Plaintiff notifying them that they were going to be awarded the contract for theProject. On May 9, 2024 the City sent a contract to the Plaintiff for execution. Thereafter, (rbased on the statements and conduct of the Plaintiff, the City determined that the Plaintiff was not the lowest responsive and responsible bidder. The solicitation of bids for the Project contained a section entitled Section 06 80 00 -— Fiberglass Reinforced Fabrication (attached as Exhibit A) which clearly stated that replica chimneys would be installed as part of the Project after demolition of the existing chimneys. Despite that, the Plaintiff stated in an email to the City on June 18, 2024 that “[w]e are not doing the fiberglass chimney with out a fight. [sic] This is unorthodox and goes against all» preservation guidelines. Please explain why you want to murder this artifact.” (email attached as Exhibit B), On June 20, 2024, Plaintiff was informed that “[flailure to comply with these specifications would force the City to reject your bid as not being the lowest responsible bidder.” Exhibit B. Thereafter, Plaintiff called and conveyed to the Deputy Procurement Officer Neil Walker that they were willing to comply with the specifications for the Project. See Affidavit of Neil Walker, attached as Exhibit C. Subsequent emails and actions taken by the Plaintiff, however, belied Plaintiff's statements that they were willing to comply with the specifications for the Project. On June 25, 2024, Plaintiff stated in an email “Not sure why we are demolishing the chimneys ... they appear to be structurally sound and in my opinion the east chimney was built with a bow curve that way possibly to keep witches away. They are not being used. I would recommend repair and repoint then restore. We will do as you wish.” (email attached as Exhibit D). The final straw, however, occurred on July 10, 2024 when the Plaintiff emailed Alvin Allen, a Senior Planner for the City and stated:Dear Mr. Allen, I called you four weeks ago and brought to your attention there was a significant historical structure being demolished at the Bamey house that went against the preservation guidelines. I explained to you this artifact chimney and decorate top could not be replicated with historically acceptable material but could be repaired and saved by our team at CCB. You had no idea about this work at the Barney house and were going to get back to me. I have not heard back from you. Under the Springfield Historical Bylaws your committee is tequired to review the proposed changes, notify all abutters at least 14 days after application which was June 24" and then vote on the changes. Please inform us at CCB when this hearing is supposed to take place and the time. Email attached as Exhibit E. At that time, it was determined by the City that, despite Plaintiff saying theyme, would proceed with the Project, that Plaintiff would not responsibly complete the Project and that, therefore, they were not the lowest responsive and responsible bidder. As a result, the City, by and through counsel, notified Plaintiff that the bid award was being rescinded. Letter dated July 16, 2024 attached as Exhibit F, 2. Legal Standard When a party makes a motion for a preliminary injunction, the Court should evaluate whether the moving party is likely to succeed on the merits of the case and then determine whether a failure to grant the injunction would cause irreparable harm to that party, Packaging Industries Group, Ine. v. Cheney, 380 Mass. 609, 617 (1980). Then the Court must evaluate the risk of whether the opposing party would suffer irreparable harm and balance that with the irreparable harm to the moving party. Jd. Only if, taken in light of the party’s chance of success on the merits, “the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Id.“A preliminary injunction is an extraordinary remedy never awarded as of right,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and “should not be granted unless the plaintiffs have made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). Further, where, as here, “‘a party seeks to enjoin government action, the judge also must determine that the requested order promotes the public interest, or, alternatively that the equitable relief will not adversely affect. the public.” Boston Firefighters Union, Local 718, International Association of Firefighters, AFL-CIO, & others v. City of Boston, 491 Mass. 556, 562 (2023).Lue~ 3. Argument. A. Plaintiff Will Not Suffer Inreparable Harm As the moving party, the Plaintiff has the burden of showing that they will suffer an irreparable harm if the injunction is not granted. GTE Products Corp. v. Stewart, 414 Mass. 721, 726 (1993). Regardless of the likelihood of success on the merits, the Court should not issue an injunction where money damages will make the Plaintiff whole. See Packaging Industries Group, Inc. at 621 (preliminary injunction “must be denied” where money damages would adequately compensate for any harm that plaintiff may suffer before final judgment is entered, “‘ no matter how likely it may be that the moving party will prevail on the merits”); see also American Grain Products Processing Institute v. Department of Pub. Health, 392 Mass. 309, 326-29 (1984) (vacating preliminary injunction); Nolan v. Police Comm’r of Boston, 383 Mass. 625, 630 (1981)(same).Plaintiff's motion states that they have “expended time, energy, money and materials on this project.” Motion at pg. 5. All of these harms are clearly reparable with monetary damages if Plaintiff were to prevail on the merits. Since the only harms claimed are economic in nature, the Plaintiff is not entitled to injunctive relief as “[e]conomic harm alone . . . will not suffice as irreparable harm unless the ‘loss threatens the very existence of the movant’s business.” Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 227 (2001). Plaintiff has made no showing that the very existence of their business is at stake and, therefore, they will suffer no irreparable harm if their motion for an injunction is denied.NS B. Plaintiff Is Not Likely To Succeed On The Merits Of This Cas The intent of the competitive bid laws is to (a) achieve the lowest price for the public among responsible contractors; (b) achieve an open and host procedure for competition; and (c) place all bidders on equal footing. Interstate Eng’g Corp v. Fitchburg, 367 Mass. 751, 757-58. An awarding authority’s decision to accept or reject a bid based on whether a bidder is responsible is reviewed on an arbitrary and capricious standard. Catamount Const., Inc. v. Town of Pepperell, 7 Mass.App.Ct. 911, 912 (1979). The Supreme Judicial Court has held that where an awarding authority properly took into consideration the threat of disruption andNa the consequences that could flow from such a threatened disruption to a project, the awarding authority’s decision not to award a bid was neither arbitrary nor capricious. Modern Continental Const. Co., Inc. v. Massachusetts Port Authority, 369 Mass. 825, 829 (1976). Plaintiff's statements and conduct in this case conveyed to the City that the Plaintiff intended to disrupt the Project if the scope of the Project was not changed to a repair project 5rather than a replace project. Exhibits B and E, The perceived threat of disruption to the Project gave the City ample reason to rescind the award of the contract to the Plaintiff, To hold otherwise would subject municipalities to the whims of disgruntled contractors and impermissibly interfere with municipalities ability to contract for goods and services with responsible contractors. See Modern Continental Const. Co. at 829. As a threshold matter, it is unclear if Plaintiff believes that the contract is in full force and effect as evidenced by their filing of this suit in Barnstable County. The contract, attached to Plaintiffs motion as Exhibit L (“Contract”), states that “[a]ny action, whether at law or equity, shall be brought only in the Superior Court of Hampden County, or the Federal y District Court for the district of Massachusetts, sitting in Springfield.” Plaintiff's Exhibit L at pg. 22. Asa result, Defendants will be serving a motion to change venue pursuant to Superior Court Rule 9 A subsequent to filing this Opposition with the Court. Tf, however, the City is barred from rescinding the award of the Contract to the Plaintiff, the City is clearly entitled to terminate the Contract by its very terms. Article XXXI of the Contract controls termination of the Contract by the City, Plaintiffs Exhibit L at pg. 17.ns If the Plaintiff made an incorrect or incomplete representation in connection with the Contract4 i Documents (as defined in the Contract) or if the Plaintiff does not “diligently pursue the development of this project” then the City is entitled to terminate the Contract. /d. Simply put, Plaintiff's statement that “[w]e are not doing the fiberglass chimney with out a fight” in conjunction with Plaintiff fighting the specifications of the Project every step of the way up to July 10, 2024, gives the City clear grounds to terminate the Contract pursuant to Article 6XXXVLA and B. As a result, the Plaintiff is not likely to succeed on the merits of this case, regardless of whether Plaintiff's theory is a bid protest or a breach of contract, Defendants are well within their rights to rescind the award of the bid or to terminate the Contract, as the case may be. C. The City Will Suffer Greater Injury Than The Plaintiff Even if the Plaintiff has sustained its burden on its likelihood to succeed on the merits, and that it will be irreparably harmed, on balance, the City will suffer greater injury, owing toan the further delay in commencing construction, the irreconcilable differences that have arisen a between the parties, and the costs and potential liability for rescinding the award of the Project to the second lowest responsive and responsible bidder. As discussed above, compared with Plaintiffs purely economic harm, the harm to the City is concrete and. immediate if the preliminary injunction is granted. The Project is necessary to replace chimneys that are in need of repair. Further delays would not be in the public interest. 4, Conclusion WHEREFORE, Defendants, City of Springfield and the Department of Capital Asset Construction, respectfully request that the Court deny the Plaintiff's Motion for a Preliminary Injunction.Date: August 8, 2024 THE DEFENDANTS, CITY OF SPRINGFIELD and DEPARTMENT OF CAPITAL ASSET CONSTRUCTION By:_/s/ Devon W. Grierson Devon W. Grierson, Esq. BBO# 682724 City of Springfield Law Department 36 Court Street, 2™ Floor Springfield, MA 01201 dgrierson@springfieldcityhall.com (413) 787-6085 (tel) (413) 787-6173 (fax) Certificate of Service I, Devon W. Grierson , Esq., hereby certify that on this 8th of August, 2024 I have served a copy of the foregoing electronically and/or US First Class to the following interested parties: Adam R. Flynn 4650 Route 28, Unit 6 Cotuit, MA 02635 aflynn@capeattorneys.comNe /s/ Devon W. Grierson Devon W. Grierson, Esq.EXHIBIT A |City of Springfield 03/08/2024 Barney Carriage House Chimney and Roof Repair Project #24-191 SECTION 06 80 00 FIBERGLASS REINFORCED FABRICATIONS PAGE 1 OF 4 . SECTION 06 80 00 - FIBERGLASS REINFORCED FABRICATIONS PART 1 - GENERAL Vi SUMMARY Section Includes: 1 Glass-fiber-reinfarced plastic fabrications. 1.2 COORDINATIONaN Coordinate installation of anchorages for replica chimney fabrication, chimney frames, and supports.Nw Furnish setting drawings, templates, and directions for installing anchorages, including sleeves, concrete inserts, anchor bolts, and items with integral anchors, that are to be embedded in concrete or masonry. Deliver such items to Project site in time for installation. 13 ACTION SUBMITTALS Product Data: For glass-fiber-reinforced plastic fabrications. B, Shop Drawings: Include plans, sections, details, and attachments to other work, C Delegated Design Submittal: For fiberglass reinforced fabrications, including analysis data signed and sealed by the qualified professional engineer responsible for their preparation. 14 FIELD CONDITIONS ~ Field Measurements and Documentation: 1 Verify actual tacations of existing chimney and adjacent by field measurements prior to demolitions and before fabrication of replica chimney. Verify and document field measurements of existing chimney. 3. Document existing conditions with upclose photographs. 4, Sample various parts and pieces of existing chimney as needed for replication prior to demolition. PART 2 - PRODUCTS. 21 PERFORMANCE REQUIREMENTS A Delegated Design: Engage a qualified professional engineer, as defined in Section 01 40 00 "Quality Requirements," to design fiberglass reinforced fabrications. CONSTRUCTION DOCUMENTS BARNEY CARRIAGE HOUSE CHIMNEY AND ROOF REPAIR 03.08.2024 PROJECT NO.: B23015 AMENTA[EMMA ARCHITECTS. FIBERGLASS RE Ronn FABRICATIONS : Ve i wnCity of Springfield 03/08/2024 Barney Carriage House Chimney and Roof Repair Project #24-191 SECTION 06 80 00 FIBERGLASS REINFORCED FABRICATIONS. PAGE 2 OF 4 Structural Performance: Fabrications are to withstand the effects of gravity loads and wind loads and stresses within limits and under conditions indicated. 1 Wind Design Criteria: As indicated in Drawings. 2 Limit deflection to L/360 or 1/4 inch, whichever is less. 22 GLASS-FIBER-REINFORCED PLASTIC FABRICATIONS. Basis of Design; Subject to compliance with requirements, provide fiberglass reinforced polymer (FRP) fabrication replica of existing chimney by Cheyenne Company or approved equal product by one of the following manufacturers: L Architectural Fiberglass, Inc. 2. Royal Corinthian 3. Edon Composites ~~ i Fiberglass and Resin Materials; 1 Glass cloth, matt and “chop” equal to the products of PPG-Owens Corning. 2. Class A flame retardant promoted thixotropic polyester resin designed for use in hand layed-up and spray-up processes, This resin is specifically formulated for use in applications that require an ASTM-84, Class 1 flame spread rating, without the use of fillers or antimony trioxide, with an ASTM- 84 flame spread rating of 10 unfilled. Gel Coat part of a system specified at a 015° to 025” thickness with ultraviolet inhibitors, Final ratio of materials 40% fiber to 60% resin for the body of components. Shaft thickness 3/16" to 1/4” depending on size, Allowable Tolerances: a. Wind Load Resistance: es y FRP Components when installed resist all wind loading.N. 0 2) Minimum wind leading requirements as per Standard Building Code. Dimensional Tolerances of finished units: Q Dimensions 10 or less: +/- 1/4” 2) Dimensions 10’~ 20’; +/- 3/8” 3) Out of Square: 1/8” per 6 4) Warpage or Bowing: +/- 1/8” per ft. Physical Properties (1/8" Glass Laminate) Flexural Strength, (psi) @ 77°F 20,000 per ASTM D-790 Flexural Modulus, (psi) @ 77°F 550,000 ~ 700,000 per ASTM D-790 Tensile Strength, (psi) @ 77°F 12,000 ~ 18,000 per ASTM D-638 Tensile Modulus, (psi) @ 77°F 700,000 - 850,000 Barcol Hardness 45-55 Glass Content 0/0 30% Compression Strength, (psi) 17,000 — 20,000 Water Absorption A 05% CONSTRUCTION DOCUMENTS BARNEY CARRIAGE HOUSE CHIMNEY AND ROOF REPAIR 03.08.2024 PROJECT NO.: B23015 AMENTA|EMMA ARCHITECTS FIBERGLASS REINFORCED FABRICATIONS 06 8 -city of Spr ri ingfield 03/08/2024 Bammey riage House Chimney and Roof Repair Project #24-191 SECTION 06 80 00 FIBERGLASS REINFORCED FABRICATIONS PAGE 3 OF 4 i, Thermal Expansion (in./in./ft) 000011 ~ 000012 Flammability Properties ASTM E-84 Tunnel Test = 10 (unfilled) HLT-15 Rating = 100 C ASTM D-635-74 = AEB<1.0 CM, ATB<5 sec. ASTM D-2863-74 Oxygen Index = 36.5 Color: Finish to match existing. 23 FASTENERS General: Unless otherwise indicated, provide Type 304 stainless steel fasteners for exterior use and zinc-aN plated fasteners with coating complying with ASTM 8633 or ASTM F1941, Class Fe/Zn S, at exterior walls. Select fasteners for type, grade, and class required.ee Steel Bolts and Nuts; Regular hexagon-head bolts, ASTM A307, GradeA; with hex nuts, ASTM A563; and, where indicated, flat washers. Stainless Steel Bolts and Nuts: Regular hexagon-head annealed stainless steel bolts, nuts, and, where indicated, flat washers; ASTM F593 for bolts and ASTM F594 for nuts, Alloy Group 1. Anchor Bolts: ASTM F1554, Grade 36, of dimensions indicated; with nuts, ASTM A563; and, where indicated, flat washers. 2 24 FABRICATION Shop Assembly: Shop fabricate-chimney sections to greatest extent possible to minimize field splicing and assembly. Disassemble units only as necessary for shipping and handling limitations. Use connections that maintain structural value of jained pieces, Clearly mark units for reassembly and coordinated installation. B. Cut, drill, and punch material cleanly and accurately, Remove burrs and ease edges to a radius ofSe approximately 1/32 inch unless otherwise indicated. Remove sharp or rough areas on exposed surfaces, Form chimney from materials of size, thickness, and shapes indicated, but not less than that needed to support indicated loads. Fit exposed connections accurately togetherto form hairline joints. Provide for anchorage of type indicated; coordinate with supporting structure. Fabricate and space the anchoring devices to secure chimney fabrication, frames, and supports rigidly in place and to support indicated loads. FB Fabricate cutouts in replica sections for penetrations of MEP items and arrange cutouts to permit removal without disturbing items penetrating fabrication and vice versa . 28 GRATING FRAMES AND SUPPORTS. CONSTRUCTION DOCUMENTS BARNEY CARRIAGE HOUSE CHIMNEY AND ROOF REPAIR 03.08.2024 PROJECT NO.: B23015 AMENTA|EMMA ARCHITECTS FIBERGLASS Ree OOTS FABRICATIONS ."City of Springfield 03/08/2024 Barney Carriage House Chimney and Roof Repair Project #24-191 SECTION 06 80 00 FIBERGLASS REINFORCED FABRICATIONS PAGE 4 OF 4 Frames and Supports for Glass-Fiber-Reinforced Plastic Fabrication: Fabricate from glass-fiber-reinforced plastic shapes of sizes, shapes, and profiles indicated and as necessary to receive chimney replica fabrication. Miter connections far perimeter angle frames. Cut, drill, and tap units to receive hardware and similar items. 1 Unless otherwise indicated, use shapes made fram same resin as fabrication. 2 Equip units indicated to be cast Into concrete or built Into masonry with integra! anchors. PART 3 - EXECUTION 31 INSTALLATION, GENERAL Fastening to In-Place Construction: Provide anchorage devices and fasteners where necessary for securingnA fabrication to in-place construction, Include threaded fasteners for concrete and masonry inserts, thraugh- bolts, tag bolts, and other connectors. Cutting, Fitting, and Placement: Perform cutting, drilling, and fitting required for installing fabrication. Set units accurately in location, alignment, and elevation; measured from established lines and levels and free of rack, Provide temporary bracing or anchors in formwork for items that are to be built into concrete or masonry. Fit exposed connections accurately together to form hairline joints. 3 32 INSTALLATION OF GLASS-FIBER-REINFORCED PLASTIC FABRICATIONS Comply with manufacturer's written instructions for installing fabrication. Use manufacturer's standard stainless steel anchor clips and hold-down devices for bolted connections, a END OF SECTION 06 80 00 CONSTRUCTION DOCUMENTS BARNEY CARRIAGE HOUSE CHIMNEY AND ROOF REPAIR 03.08.2024 PROJECT NO.: B23015 AMENTA[EMMA ARCHITECTS ' FIBERGLASS Ree BD RCED FABRICATIONS . 00-4 . .EXHIBIT BMwGrierson, Devon ts From: Walker, Neil Sent: Thursday, June 20, 2024 1:23 PM To: Cape Cod Builders Inc Ce; Robert E. Swain; James Regnier; Hatchett, My-Ron; Stabilo, Lauren Subject: RE: [External] Re: Submittals Good Afternoon Tom, '[ ' { Thank you for the phone call to discuss your concerns about the historic value of the original chimney. After checking i with the appropriate parties, the City would like to move forward with the fiberglass replica contained in the bid specs, Based on our conversation, you said that we should move forward with the contract, and would complete the work as specified. | will continue the contract process once I receive the bonds, and we can get started on this project. If anyone has any questions please reach out to me.Né Thank you, Neil Walker Deputy Procurement Officer City of Springfield Office of Procurement 36 Court Street, Room 307 Springfield, MA 01103 (p) 413-784-4898 (fax) 413-7: '-6295 Walk: ing fieldcityhali.co From: Walker, Nell : Sent: Thursday, June 20, 2024 10:06 AM To; Cape Cod Bullders Inc Ce: Robert E. Swain ; James Regnier ; Hatchett, My-Ron ; Stabilo, Lauren Subject: RE: [External] Re: Submittals Good Morning All, As referenced by the designer, please see the attached pages from the bid, specifications referencing the replacement of the current chimney with a fiberglass replica. This is the scope that Cape Cod Builders inc. bid on, and what the City of Springfield is looking to have completed through this project. Failure to comply with these specifications would force the City to reject your bid as not being the lowest responsible bidder. Please confirm to Amenta/Emma, the Department of Capital Asset Construction, and the Office of Procurement if Cape Cod Builders Inc. will be able to complete the work as described In the specifications. If the contractor will be unable to perform the work from the specifications, we request that you inform the City, so we can move to the lowest 1 |responsible and responsive bidder, In that scenario | will return the original bonding paperwork as soon as it reaches |my I office. Thank you, Nei Walker Deputy Procurement Officer City of Springfield Office of Procurement 36 Court Street, Room 307 Springfield, MA 01103 (p) 413-784-4898 (fax) 413-787-6295 Walker @springfieldcityhall.com From: Cape Cod Builders Inc Sent: Tuesday, June 18, 2024 1:31 PM To: James Regnier ; Hatchett, My-Ron ; Walker; Neil Cc: Robert E. Swain ; Cape Cod Builders Inc Subject: [External] Re: Submittals We are not doing the fiberglass chimney with out a fight. This is unorthodox and goes against all preservation guidelines. Please explain why you want to murder this artifact.? Thomas Pappas CCB 508-400-5578 On Jun 18, 2024, at 1:19 PM, Cape Cod Builders Inc wrote: We sent the original bonds in the mail yesterdayK As far as insurance | sent the CO{ over awhile ago, should | send hard copy of that also? c ChaseA Pappas, President Cape Cod Builders Inc 508-566-1510 Capecodbuildersinc.cam From: James Regnier Sent: Tuesday, June 18, 2024 1:15:37 PM To: Cape Cod Builders Inc ; Hatchett, My-Ron ; Walker, Neil Cc: Robert E. Swain Subject: Re: Submittals Chase,Thank you for these submittals. We will review and get back to you. Have you issued the bands and insurances required to perform the work? | know the client is waiting on this to proceed. Please also reference the bid specification document attached for reference of the fiberglass composite chimney. Best, James Regnier Job Captain AME aA ‘a lu AJIEMMA Design. Precisely. 242 TRUMBULL STREET, SUITE 201 | HARTFORD, CT 06103 office: 860.549.4725 XT. 138 BOSTON, MA | NEW YORK, NY WE AR E HIRING! ra i} From: Cape Cod Builders Inc Sent: Tuesday, June 18, 2024 11:46 AM To: Hatchett, My-Ron ; Walker, Neil ; James Regnier Subject: Re: SubmittalsMN Please see link to submittals for the Barney House Project https://www.dropbox.com/scl/fo/cv6anve7sob63edznitvS/AJVLc1- MPIRtG2quw2RBUdA?rikey=ysi7ctImininh7Amx32plwers&st=zsotnrsBSdl=0 Chase Chase A Pappas President (He/Him) | President's Office 230 Sandwich Rd, 24 floor Bourne MA 02532 Capecodbuildersinc.com ¢: 508-566-1510sel nae a Ce FS PS we i erase So ge a« ie S| oeFrom: Cape Cod Builders Inc Sent: Monday, June 17, 2024 6:30 PM To: Hatchett, My-Ron ; Walker, Neil ; James Regnier Subject: Drawing of Chimney proposal - Please see architectural drawing of proposed chimney work Chase A Pappas, President Cape Cod Builders inc 508-566-1510 Capecodbuildersinc.com CAUTION: This-emait originated outside our organization; please use caution.coc to.EXHIBIT CCOMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss SUPERIOR COURT DEPT. DOCKET NO: 2472CV0036 CAPE COD BUILDERS, INC. Plaintiff, v. AFFIDAVIT OF NEIL WALKER THE CITY OF SPRINGFIELD, et. al., Defendantsoo Affidavit of Neil Walker, Deputy Procurement Officer State of Massachusetts County of Hampden I, Neil Walker, Deputy Procurement Officer for the City of Springfield at 36 Court Street, Springfield, Massachusetts 01103, being duly sworn, do hereby depose and state as follows: Iam the Deputy Procurement Officer for the City of Springfield have been employed by the City for___ years. In this capacity, I am familiar with the facts surrounding the dispute between Cape Cod Builders, Inc. and the City of Springfield. In the spring of 2024, the City solicited bids to, among other things, repair and replace four masonry chimneys located at the Barney Carriage House in Springfield, Massachusetts -oN pursuant to G.L. c. 149, et seq. On April 10, 2024, the bids were opened and Cape Cod Builders, Inc. (“Plaintiff’} was the apparent low bidder. On April 25, 2024, an award letter was sent to the Plaintiff notifying them that they were going to be awarded the contract for the Project. On May 9, 2024 the City sent a contract to the Plaintiff for execution. Thereafter, based on the statements and conduct of the Plaintiff, the City determined that the Plaintiff was not the lowest responsive and responsible bidder. The solicitation of bids for the Project contained a section entitled Section 06 80 00 - Fiberglass Reinforced Fabrication (attached as Exhibit A) which clearly stated that replica chimneys would be installed as part of the Project after demolition of the existing chimneys. Despite that, the Plaintiff stated in an email to the City on June 18, 2024 that “[w]e are not doing the fiberglass chimney with out a fight. [sic] This is unorthodox and goes against all preservation guidelines, Please explain why you want to murder this artifact.” riOn June 20, 2024, | informed the Plaintiff that “[flailure to comply with these specifications would force the City to reject your bid as not being the lowest responsible bidder.” Thereafter, Plaintiff called and conveyed to me that they were willing to comply with the specifications for the Project, The final straw, however, occurred on July 10, 2024 when the Plaintiff emailed Alvin Allen, a Senior Planner. for the City and stated: Dear Mr. Allen, I called you four weeks ago and brought to your attention there was a significant historical structure being demolished at the Barney house that went against the preservation guidelines. | explained to you this artifact chimney and decorate top could not be replicated with historically acceptable material but could be repaired and saved by our team at CCB, You had no idea about this work at the Barney house and were going to get back tome. | have not heard back from you. Under the Springfield Historical Bylaws your committee is required to review the proposed changes, notify all abutters at least 14 days after application which was June 24th and then vote on the changes. Please inform us at CCB when this hearing is supposed to take place and the time. At that time, it was determined by the City that, despite Plaintiff saying they would proceed with the Project, that Plaintiff would not responsibly complete the Project and that, therefore, they were not the lowest responsive and responsible bidder. As a result, the City, by and through counsel, notified Plaintiff that the bid award was being rescinded.reI declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed this 8th day of August, 2024. Lif thle —__ Neil Walker, Deputy Procurement Officer Commonwealth of Massachusetts HAMPDEN, ss. On this 8% day of August, before me, the undersigned notary public, Neil Walker personally appeared and proved to me through satisfactory evidence of identification, which was a Massachusetts Driver’s License, to be the person who signed the preceding or attached document in my presence and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. Notary Publ: My Commission expires:ro v , DEVON W. GRIERSON . Notary:Public. COMMONWEALTH OF MASSACHUSETTS] My Commission Expires On May 08, 2026EXHIBIT D“Grierson, Devon As To: Hatchett, My-Ron Subject: RE: [External] Re: [External] Re: [External] Re: [External] Bonds . ste a From: Hatchet, My-Ron : Sent: Wednesday, June 26, 2024 6:06 AM To: Garvey, PeterJ, Subject: Fwd: [External] Re: [External] Re: [External] Re: [External] Bonds Sent from my iPhone Begin forwarded message:Ne From: Cape Cod Builders Inc Dai June 25, 2024 at 5:30:42 PM EDT To: "Hatchett, My-Ron" Subject: [External] Re: [External] Re: [External] Re: [External] Bonds | have and | see the chimney gets demolished to the roof then rebuild with veneer trying to match the old brick which is Impossible it will never match Not sure why we are demolishing the chimneys They appear to be structurally sound and in my opinion the east chimney was built with a bow curve that way possibly to keep witches away. They are not being used. | would recommend repair and repoint then restore . We will do as you wish. Tom Thomas Pappas CCB 508-400-5578 .NY On Jun 25, 2024, at 2:59 PM, Hatchett, My-Ron wrote: Please rRead the entire note. Sent from my iPhone On Jun 25, 2024, at 4:51 PM, Cape Cod Builders Inc wrote: Here is the east and west pictures and notes to veneer after demolition to roof Thomas Pappas CCB 508-400-5578 T[image0.jpeg)[image1.png][image2.jpeg] On Jun 25, 2024, at 1:38 PM, Hatchett, My-Ron wrote: Tom, V'm getting worried about your comprehension of the documents, The other chimneys are Not a fake veneer as you call it, Please review your work with the architect, if necessary, My-Ron From: Cape Cod Builders Inc Sent: Tuesday, June 2s, 2024 3:15 PM To: Hatchett, My-Ron ~ Ce: Walker, Neil Ne Subject: [External] Re: [External] Bonds Niel Don’t mean to beat a dead horse but I'm sure your aware all the chimneys will be fake veneer in addition to the decorative being plastic This is incompressible but so be it Thomas Pappas CCB 508-400-5578 © On Jun 25, 2024, at 12:36 PM, Hatchett, My-Ronf{J > wrote: Yes, | received them in the mail and left them for Neil. Thank you. My-Ron From: Cape Cod Builders inc > Sent: Tuesday, June 25, 2024 9:04 AM To: Walker, Neil - >; Hatchett, My-Ron > 2 aiSubject: [External] Bonds Good Morning Gentlemen, Did one of you receive the P&P bond originals yet ? Please confirm Chase Chase A Pappas President (He/Him)oN President's Office 230 Sandwich Rd, 2nd floor Bourne MA 02532 Capecodbuildersinc.com ¢: 508-566-1510 CAUTION: This email originated outside our organization; please use caution. CAUTION: This email originated outside our organization; please use caution. CAUTION: This email originated outside our organization; please use ‘U caution. CAUTION: This email originated outside our organization; please use caution.EXHIBIT ENLGrierson, DevonTo: Walker, NeilSubject: RE; [External] Re: [External] Re: Barney Carriage HouseFrom: Markham, David Sent: Thursday, July 11, 2024 3:13 PMTo: Hebert, Mark ; Cape Cod Builders Inc ; Allen,;Alvin ; Hatchett, My-Ron Cc: Desilets, Steve ; Garvey, Peter J. ; Robert E.Swain ; Walker, Neil ; James Regnier; Stabilo, Lauren ; Dromey, Phil ‘Subject: RE: [External] Re: [External] Re: Barney Carriage HouseYes this one is with Yarelis now to go Into the system, should be all set by tomorrow. FYI, there was no address for the.permit application but is it under the Forest Park address, 299 Sumner Ave,, for reference when the contractors call forinspection,Thank you,David MarkhamSenior Building fnspectorCity of SpringfieldDesk: (413) 750-2088Office: (413) 787-6031From: Hebert, Mark Sent: Thursday, July 11, 2024 2:32 PMTo: Cape Cod Builders inc ; Allen, Alvin ; Hatchett, ly-Ron ; Markham, David Ce: Desilets, Steve ; Garvey, Peter J. ; Robert E.Swain ; Walker, Neil ; James Regnier; Stabilo, Lauren ; Dromey, Phil romet leldcityhall.com>Subject: RE: [External] Re: [External] Re: Barney Carriage HouseDave, All they all set with this. see email below.Mark E. HebertDeputy 8uilding CommissionerCity of Springfield70 Tapley StSpringfield, Ma.01104(413) 787-6038tmhebert@springfieldcityhall.comFrom: Cape Cod Bullders inc Sent: Thursday, July 11, 2024 2:27 PM To: Allen, Alvin ; Hatchett, My-Ron Cc: Hebert, Mark ; Desilets, Steve ; Garvey, Peter J. ; Robert E. Swain ; Walker, Neil ; James Regnier ; Stabilo, Lauren ; Dromey, Phil Subject: [External] Re: [External] Re: Barney Carriage House In this case, can we get an approval on our permit Mark ? Chase Chase A PappasC President (He/Him) President's Office 230 Sandwich Rd, 2" floor Bourne MA 02532 Capecodbuildersinc.com c: 508-566-1510 im ory aorte | siitts elope tated ee ate ALC nace} Building Better. From: Allen, Alvin Sent: Thursday, July 11, 2024 12:08 PM To: Cape Cod Builders Inc ; Hatchett, My-Ron ; Desilets, Steve ; Garvey, Peter J. ; Robert E. Swain ; Walker, Neil ; James Regnier ; Stabilo, Lauren ; Dromey, Phil Subject: Re: [External] Re: Barney Carriage House Good afternoon Mr. Pappas, { spoke with My-Ron Hatchett (Sr. Project Manager of Capital Asset Construction), whom is managing the project, after my conversation with you to get clarification on the project. The structure is neither located in a historic district or individually designated as historic. However, because the project is either municip

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Ruling

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.

Aug 27, 2024 |CVG21-0000494

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.Case Number: CVG21-0000494Tentative Ruling: Plaintiff Members 1st Credit Union moves for an award of attorney’s fees in the amount of$23,666.00 pursuant to Civil Code Section 1717. In reviewing the file, the Court previously noted defects withthe pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, theCourt requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefingwhich has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees areaddressed below.Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, theEstate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of theEstate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicatethe sum of assets and liabilities of a decedent. Bright’s Estate v. Western Air Lines (1951) 104 Cal.App.2d 827,828. An estate can neither sue nor be sued. Id. at 829. For these reasons, Plaintiff was required to file suit againstthe Personal Representative of the Estate but did not do so.Additionally, the Estate was purportedly served on May 3, 2021 on Virgina E. Smith as the “Registered Agent”of the Estate. Estates do not have Registered Agents. The Court takes judicial notice of the filing in the Estateof Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of theEstate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the PersonalRepresentative at the time of service and had no authority to act on behalf of the Estate. A fact made clear byVirgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as PersonalRepresentative. The answer was made on behalf of herself as “an individual.” It also pointed out on multipleoccasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yetbeen appointed.Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smithas the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personaljurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improperservice of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus anyensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representativewas never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity asthe Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf andas the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, asan individual, and as against the Estate. Generally, one who is not named in the complaint is not a properdefendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in thecomplaint. Id. at 1146. A voluntary appearance is a waiver of any failure to name that party in the complaint.Farmers & Merchants Nat. Bank of Los Angeles v. Peterson (1936) 5 Cal.2d 601, 606. The Court finds that Ms.Smith voluntarily appeared as the Personal Representative at the trial on October 11, 2023, and therefore waivedany defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for thelack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived anydefects in service. A general appearance is the equivalent to service of the summons. Dial 800 v. Fesbinder(2004) 118 Cal.App.4th 32, 52. “A general appearance operates as a consent to jurisdiction of the person,dispensing with the requirement of service of process, and curing defects in service.” Id.; citing 2 Witkin, Cal.Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756). “A general appearance occurs when the defendant takespart in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates inan action in some manner which recognizes the authority of the court to proceed. It does not require any formalor technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry ofa judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Courtto proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, theCourt finds that Ms. Smith appeared as the personal representative and made a general appearance excusing theneed for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as thePersonal Representative as the Estate. The judgment is valid.Attorney’s Fees: By stipulation of the parties, the Court has already issued a judgment that attorney’s fees arerecoverable by Plaintiff. The attorney’s fees are based on a contract which was executed by the Decedent.Therefore, attorney’s fees will only be awarded against the Estate.Civil Code § 1717 entitles a prevailing party on a contract to “reasonable attorney’s fees” as fixed by the court.Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP § 1033.5(c)(5). “[T]he feesetting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expendedmultiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A courtassessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” (Ketchumv. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward bythe court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factorsthat may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved,2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) thecontingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324,348. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is thebest judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995)9 Cal.4th 738, 752.Here, the Declaration of Laurel Adams provides the evidentiary basis for the attorney’s fees. Ms. Adamsidentifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for thiscommunity and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that areasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and areview appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, theCourt finds the number of hours requested to be reasonable.

Ruling

NOVA SKILLED HOME HEALTH, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS NOVA SKILLED HOME HEALTH, INC., A CALIFORNIA CORPORATION, ET AL.

Aug 29, 2024 |22STCV38726

Case Number: 22STCV38726 Hearing Date: August 29, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT NOVA SKILLED HOME HEALTH, LLC, Plaintiff, vs. NOVA SKILLED HOME HEALTH, INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22STCV38726 [TENTATIVE] ORDER SUSTAINING DEMURRER; GRANTING MOTION TO STRIKE Dept. 48 8:30 a.m. August 29, 2024 On December 13, 2022, Nova Skilled Home Health, LLC (Nova-Buyer) filed this action against Nova Skilled Home Health, Inc. (Nova-Seller), Julita P. Fraley AKA Julie Fraley, and Carol Vega AKA Carol Vega Aguilar. On February 3, 2023, Nova-Seller, Julita P. Fraley, Carol Vega, and Nelson Rolando Aguilar (collectively, Cross-Complainants) filed a Cross-Complaint against Nova-Buyer, Jonathan Sassover, Michael Davidov, and Pine Street Healthcare Holdings, LLC (collectively, Cross-Defendants). The Court sustained Cross-Defendants demurrer to the cross-complaint and granted in part a motion to strike. On October 19, 2023, Cross-Complainants filed a first amended cross-complaint (FACC). On November 16, 2023, Cross-Defendants filed a demurrer and motion to strike. DEMURRER A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. A. The Alter Ego Allegations Lack Supporting Facts. Cross-Defendants argue that the alter ego allegations are boilerplate and insufficient. (Demurrer at pp. 11-14.) In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) As with the original cross-complaint, Cross-Complainants allege that Cross-Defendants, and each of them, were the agents, employees, managing agents, supervisors, conspirators, parent corporation, joint employers, alter ego, and/or joint ventures of the other Cross-Defendants, and each of them, and in doing the things alleged herein, were acting at least in part within the course and scope of said agency, employment, conspiracy, joint employment, alter ego status, and/or joint venture and with the permission and consent of each of the other Cross-Defendants. (FACC ¶ 10.) The FACC adds that Nova-Buyer is a mere shell entity and does not conduct business operations and Cross-Defendants Sassover, Davidov, Pine Street, and Nova-Buyer have such a unity of interest and ownership that the separate personalities of the businesses and owners do not exist. As such, an inequitable result will occur if the acts and damages alleged in this Cross-Complaint are treated as those of solely one individual or business. (FACC ¶ 17.) Although Cross-Complainants need not allege specific facts to support an alter ego theory when the Cross-Defendants may be assumed to possess superior facts, they still must allege some facts, not just conclusions, demonstrating unity of interest. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236; First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915-916.) Allegations that Nova-Buyer is a shell entity, there is a unity of interest and ownership, and there will be an inequitable result are still conclusory. The demurrer is sustained. B. Cross-Complainants Do Not Properly Allege Contract Claims Against Non-Parties to the Contract (First, Third Causes of Action). The first cause of action alleges breach of written contract, and the third cause of action alleges breach of the implied covenant of good faith and fair dealing. The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other partys right to receive the benefits of the agreement actually made. The covenant thus cannot be endowed with an existence independent of its contractual underpinnings. [Citation.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.) The FACC alleges that Cross-Complainant Nova-Seller and Cross-Defendants executed the Asset Purchase Agreement. (FACC ¶¶ 24, 34.) However, the original cross-complaint alleged that Cross-Defendant Nova-Buyer executed the Asset Purchase Agreement; Sassover, Davidov, and Pine Street were not alleged to be parties to the contract. (Cross-Complaint ¶¶ 19, 29.) The Court previously found that the contract-based claims are not properly brought against the non-parties to the contract. [A] plaintiff cannot avoid allegations that are determinative to a cause of action simply by filing an amended complaint which omits the problematic facts or pleads facts inconsistent with those alleged in the original complaint. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1248.) The alter ego allegations are insufficient to make non-signatory Cross-Defendants liable on behalf of Nova-Buyer. The demurrer to the first and third causes of action is sustained. C. Cross-Complainants Do Not Allege Fraud With Specificity (Second, Fourth Causes of Action). The second cause of action alleges intentional misrepresentation, and the fourth cause of action alleges negligent misrepresentation. The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. [Citations.] (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.] A plaintiffs burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Citation.] (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The original cross-complaint did not allege the date or manner of misrepresentation with specificity, nor did it allege with specificity any misrepresentation by Nova-Buyer or Pine Street. The FACC contains some facts about those circ*mstances, but not enough. Cross-Complainants allege that between November 2020 and July 2021, [d]uring the months of due diligence and negotiation leading up to the execution of the [Asset Purchase Agreement], Cross-Defendants repeatedly made certain representations to Carol and Julie. (FACC ¶¶ 41; see FACC ¶ 25-26.) This does not allege the speaker with specificity, but the original cross-complaint alleged that Sassover and Davidov made the representations. (Cross-Complaint ¶ 36; see Cross-Complaint ¶¶ 20, 49.) The representations included (a) that Nova-Buyer would pay the Holdback Amount to Nova-Seller, (b) that Nova-Buyer would pay the accounts receivables Nova-Seller earned prior to closing, and (c) that Nova-Buyer would continue to operate the Business as a going concern to facilitate its growth. (FACC ¶¶ 25, 42, 57.) These representations were made [f]rom December 2020 to July 2021, during written and oral discussions regarding the terms of the sale of the Business. (FACC ¶¶ 42, 57; see FACC ¶ 22.) This still does not allege the date or manner of misrepresentation with specificity. The demurrer to the second and fourth causes of action is sustained. D. Conclusion The demurrer is SUSTAINED with 30 days leave to amend. MOTION TO STRIKE The court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).) Cross-Defendants move to strike Cross-Complainants allegations about and prayer for punitive damages. (Motion at pp. 2-3 A plaintiff can recover punitive damages in tort cases where the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).) The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circ*mstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.] (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) The allegations that Cross-Defendants misrepresentations are clear acts of oppression and malice (FACC ¶¶ 47, 54) and the acts were committed with oppression, fraud and malice, and with the wrongful intention of injuring Cross-Complainants, and in conscious disregard of Cross-Complainants rights (FACC ¶¶ 48, 55) are conclusory. Moreover, the Court concurrently sustains the demurrer to the fraud causes of action, and there are no other specific facts showing oppression or malice. The motion to strike is GRANTED with 30 days leave to amend. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 29th day of August 2024 Hon. Thomas D. Long Judge of the Superior Court

Ruling

Battistone, David et al vs. FCA US LLC

Sep 09, 2024 |S-CV-0052680

Ruling

STERLING vs FORD MOTOR COMPANY

Aug 28, 2024 |CVSW2404035

STERLING VS FORD DEMURRER TO COMPLAINT BY FORDCVSW2404035MOTOR COMPANY MOTOR COMPANYTentative Ruling:The Demurrer is OVERRRULED. An Answer is due in 10 days.

Ruling

Aug 30, 2024 |19GDCV00389

Case Number: 19GDCV00389 Hearing Date: August 30, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT JAMES P. MURPHY CONSTRUCTION, Plaintiff(s), vs. T.B. PENICK & SONS, INC., et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 19GDCV00389 (Lead Case) Consolidated w/: 19GDCV00733, 20GDCV00029, 19GDCV00828, 20GDCV00375, 19GDCV00857, 19GDCV01208, 19STCV16372, 19STCV19656, 19STCV21267, 19STCV34276, 19GDCV01062, 19GDCV01599, 22STCV12353 [TENTATIVE] ORDER RE: PASEO PASADENA HOTEL INVESTMENT, LLCS MOTION FOR SUMMARY JUDGMENT; T.B. PENICK & SONS, INC.S MOTION FOR SUMMARY ADJUDICATION Dept. 3 8:30 a.m. August 30, 2024 I. INTRODUCTION On March 27, 2019, this action was filed by James P. Murphy Construction against T.B. Penick & Sons (Penick), Paseo Pasadena Hotel Investment, LLC (Paseo), and CAPREF Paseo LLC (CAPREF). This action arises from a dispute related to the construction of the Hyatt Place Pasadena Hotel (Hotel) located at 399 East Green Street in Pasadena. This action was later deemed related to 15 other cases and consolidated with 13 of the 15 related cases involving subcontractors for the Hotel as the parties disputed who bore liability for additional costs which were incurred during construction. After a series of settlements and dismissals, the only parties remaining in this litigation are Penick, the general contractor, and Paseo, the ground leaseholder for the Hotel. The operative pleadings are Paseo Pasadenas cross-complaint (XC), filed on May 6, 2019, and Penicks First Amended Cross-Complaint (FACC) filed on July 29, 2024. In its cross-complaint against Penick, Paseo alleges that on or around July 6, 2017, it entered into a prime contract with Penick for the construction of the Hotel (Prime Contract) with a Guaranteed Maximum Price (GMP) of $28.15 million, which was later increased to $30,214,540.55 in a change order approved on January 1, 2019. Paseo asserts causes of action for declaratory relief, breach of contract, bad faith, negligence, and breach of fiduciary duty. As for Penicks FACC, Penick alleges that Paseo breached the Prime Contract by failing and refusing to pay invoices, change orders, claims, and requests for monies due. Penick also asserts quasi-contract claims for quantum meruit, open book account, and account stated, along with the foreclosure of a mechanics lien recorded on the Property and recovery on a mechanics lien bond. II. PROCEDURAL HISTORY Paseo previously brought a motion for summary adjudication which was heard and granted by the Honorable Teresa Sanchez-Gordon in this department. As stated in Judge Sanchez-Gordons order, dated February 18, 2022, Paseo sought and obtained summary adjudication as to the following issue: Penick has no, and cannot obtain, written approved change orders increasing the GMP above $30,214,540.55 and is thus financially responsible for any additional subcontractor costs. (2/18/2022 Order, p. 2.) Judge Sanchez-Gordon added, [T]he issue here is from which party may the subcontractors seek payment for services rendered, noting that [u]nder the Prime Contract, Paseo is responsible for payment of subcontractor work up to the GMP and work without prior written authorization from Paseo is Penicks responsibility. (Order, p. 5.) Due to the limited scope of the issue presented by the motion, Judge Sanchez-Gordon rejected Penicks argument that the GMP was increased due to additional subcontractor costs because written notice prior to performing work was required if Penick wanted to increase the GMP and there was no evidence that Penick provided such written notice. On December 21, 2022, the Honorable Colin P. Leis issued an order pursuant to stipulation that Judge Gordon-Sanchezs ruling did not resolve several issues raised by Penick in its opposition brief. (12/21/2022 Order, p. 7.) These issues include: waiver, Penicks claims due to Paseos allegedly misleading plans and specifications, and whether the contract between Paseo and Penick was abandoned. On June 13, 2024, Paseo filed a motion for summary judgment against Penick on Penicks FACC. Paseo argues that Penick is not entitled to any additional payment over and above the GMP because no written notice was provided before the work at issue was performed. On June 21, 2024, Penick filed a motion for summary adjudication of Paseos noncontract claims as well as Paseos claims for consequential damages. III. LEGAL STANDARD In reviewing a motion for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponents claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) 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 as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action. (Ibid.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Id., subd. (f)(2).) IV. PASEOS MOTION FOR SUMMARY JUDGMENT Penick and Paseo do not dispute the general events underlying this action. The parties agree that on or about July 6, 2017, Paseo retained Penick to act as the general contractor on the Project by entering into an American Institute of Architects (AIA) Form A102- 2007 and A201-2007 written contract (Prime Contract). (UMF No. 1.) The parties also agree that pursuant to the Prime Contract, all change order work must be approved by Paseo in writing prior to the commencement of the work. (UMF No. 3.) Additionally, the parties agree that the GMP for the Prime Contract was initially $28,150,000 but, as of the last executed Prime Contract Change Order (PCCO) No. 15, dated December 17, 2018, the GMP was increased to $30,214,540.55. (UMF Nos. 2, 18.) Last, the parties do not dispute that Penick does not have any executed PCCOs other than PCCO No. 15. (UMF No. 19.) A. Evidentiary Objections The Court disregards Paseos objections to the Declarations of Tim Penick, Rich Petersen, Tony Lee, Michelle Mangan because those declarations were not submitted with Penicks opposing papers. The Court OVERRULES Paseos objections to the declarations of Matt Adams and Phillip McDowell. Both experts premise their opinions on admissible documents including construction documents, change orders, and construction schedules. B. Paseos Moving Papers To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiffs performance of the contract or excuse for nonperformance, (3) the defendants breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Penick alleges that Paseo breached the Prime Contract by failing and refusing to pay Penicks invoices, change orders, claims and requests for monies incurred by Penick which are due and owing to Penick as required by the Prime Contract. (FACC, ¶ 12.) Penick contends that it has incurred at least $5,215,836 in damages. (FACC, ¶ 13.) First, Paseo argues that Penicks breach of contract claim fails because it is not required to pay Penick anything over and above the GMP, which was already determined to be $30,214,540.55 by Judge Sanchez-Gordon. Paseo submits the declaration of Conrad Garner, its representative who states that Paseos business records show that Paseo paid Penick $26,552,066, in addition to paying $3,262,942 to subcontractors who should have been paid by Penick but were not. (Paseos Ex. O, ¶¶ 2-3.) Therefore, Paseo states, a total of $30,295,818 has been paid to Penick and subcontractors, which exceeds the GMP. Paseo contends that Penick is not entitled to additional money due to any Claims because Judge Sanchez-Gordon already found that no written approval was obtained before the work at issue in those Claims was performed, and prior written approval was necessary to increase the GMP. Second, Paseo argues that Penick cannot recover under quantum meruit or the asserted common counts because there was no understanding or expectation that Penick would be compensated for more than the GMP, nor was there any relationship other than the Prime Contract. To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circ*mstances were such that the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made. [Citation.] (E. J. Franks Construction, Inc. v. Sahota (2014) 226 Cal.App.4th 1123, 11271128.) Last, Paseo argues that the Prime Contract establishes the amount it is obligated to pay Penick and therefore precludes Penicks mechanics lien or any recovery on the Mechanics Lien Release Bond. C. Penicks Opposition In opposition, Penick contends that an issue of fact remains as to whether the plans and specifications provided by Paseo breached the implied warranty that the plans are correct. (Opp., p. 8.) Penick claims that the factfinder must determine whether Paseo breached its implied warranty of correctness, and whether this breach of contract entitles Penick to additional compensation. The Court finds this argument unavailing, however. As previously determined by Judge Sanchez-Gordon, the Prime Contract establishes a procedure by which Penick was supposed to submit a request for an increase to the GMP and which required prior written approval. Accordingly, if Penick determined that there were issues with the plans and specifications which would have increased its costs, Penick would be able to assert a claim for an increase in the GMP. It is undisputed that none of the work for which Penick requests compensation was performed with prior written authorization. Therefore, Penicks claim for damages pursuant to the terms of the Prime Contract fails. As an alternate theory of recovery, however, Penick argues that it may recover under quantum meruit because triable issues of fact exist as to whether Paseo abandoned the Prime Contracts scope and provisions for extra work, and consequently, the GMP. (Opp., p. 10.) In C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d 628, 640 (Peterson), the Court of Appeal affirmed the trial courts finding that the owner had breached a construction contract and, as a result of the owners breach and abandonment of the contract, the contractor was entitled to recover the reasonable value of the work it performed on a quantum meruit basis, without being limited by the original contract amount. The Peterson court stated: In the specific context of construction contracts . . ., it has been held that when an owner imposes upon the contractor an excessive number of changes such that it can fairly be said that the scope of the work under the original contract has been altered, an abandonment of the contract properly may be found. [Citations.] In these cases, the contractor, with the full approval and expectation of the owner, may complete the project. [Citations.] Although the contract may be abandoned, the work is not. Under this line of reasoning, the trial court was well justified in determining that, by their course of conduct, the parties had abandoned the terms of the written contract while proceeding to complete the [] project. (Peterson, 172 Cal.App.3d at p. 640.) The Peterson court cited to Opdyke & Butler v. Silver (1952) 111 Cal.App.2d 912 (Opdyke), in which the parties disputed whether, during the course of performance, the written agreement with a maximum limit as to costs had been an abandoned and an oral agreement substituted for it. (Peterson, supra, 172 Cal.App.3d at p. 640.) The Peterson court noted that in Opdyke, the owner constantly changed his mind concerning the construction, and the completed project differed markedly from the original plans and specifications. (Ibid.) The Peterson court further noted that the appellate court in Opdyke enumerated 20 changes which materially increased the contractors costs and caused performance of the work to be done under disadvantageous circ*mstances. (Id. at p. 641.) Turning to the case before it, the Peterson court drew comparisons to the facts in Opdyke, pointing out that there was evidence of hundreds of changes, many of them significant, resulting in extra work having to be performed by [the contractor]. (Ibid.) Additionally, as in Opdyke, the requirement for written change orders was ignored during most of the project period, and it was completely abandoned during the critical shutdown stage. Similarly, in Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 155, an owners changes resulted in a nearly $3 million dollar increase to a contract price because the project was completely redesigned and an experienced manager stated he had never seen anything comparable to the changes ordered by the owner, the project was the most poorly engineered he had ever seen, and this resulted in the enormous change orders. The Daughterty court concluded that due to numerous changes, a triable issue existed as to whether the contract had been abandoned by the parties. Relying on this collection of cases, Penick argues that Paseo abandoned the contract. Penick cites to various potential change orders and applications for payment in support of its claim that on multiple occasions, Paseo approved change orders for work and paid for work that was performed prior to written authorization being obtained from Paseo. (AMF Nos. 35-36.) Penick also cites to the deposition testimony of Rogers Stevenson, who identifies himself as Paseos representative and testified in deposition that it was customary for him to approve work over the phone and have Penick send emails afterwards to keep a record of the authorization. (Penicks Ex. 3, p. 121:10-20.) Rich Peterson, Penicks PMQ, testified that as project manager, he had an understanding that all change orders had to be approved by Paseo in writing before work commenced, but that this understanding changed when Paseos management gave [him] direct verbal [sic] on certain items to just get them done and submit the paperwork to avoid delay of the project. (Paseos Ex. 3, 30:14-25.) Penick also submits the declaration of Matt Adams (Adams). Adams identifies himself as the principal of Devcon CPM LLC and states that he has: (1) 40 years of experience with respect to construction management services and (2) significant experience consulting as an owners representative in connection with construction projects. (Adams Decl., ¶ 3.) Adams states that at least 179 of Penicks claims were based on changes to the original scope of work with a value of approximately $1.3 million and that these changes affected nearly every trade involved in the project from drywall to mechanical to electrical. (Adams Decl., ¶¶ 8-9.) Adams opines that scope changes of this quantity, type and magnitude are excessive and have the effect of fundamentally impacting both a contractors costs and its time for performance of work. (Adams Decl., ¶ 10.) Penick also submits the expert declaration of Phillip McDowell, who declares that he has significant experience with the forensic analysis of construction schedules and evaluation of project delays. (McDowell Decl., ¶ 3.) He states that he has analyzed the project delays that occurred during the construction project and determined that there were at least 141 days of excusable delays for which Penick was owed extensions of time to complete its work, and that Penick managed to mitigate at least 105 days, which amounts to a 75% reduction in project delay, despite a 33% increase in project duration. (McDowell Decl., ¶¶ 12, 14.) McDowell states that the increase in project duration, followed with acceleration to reduce any resulting delays by 75% is a significant change that fundamentally affects a contractors costs. (McDowell Decl., ¶ 15.) D. Paseos Reply In its reply brief, Paseo argues that Penick is precluded from arguing that the Prime Contract was abandoned because the issue was not raised in its original cross-complaint, or FACC. (Reply, pp. 3-4.) However, Penick asserted a claim for quantum meruit, which would only apply if the contract was abandoned. Paseo also claims that Penick has never raised the issue of abandonment in this litigation, which is a patently untrue statement. In 2022, Penick argued on pages 12 and 13 of its brief in opposition to Paseos previous MSA that Paseo waived the requirement for prior written authorization for additional work. Also, on page 15 of Penicks brief, the heading for Section IX states: THERE ARE TRIABLE ISSUES OF MATERIAL FACT REGARDING WHETHER THE CONTRACT WAS ABANDONED. The parties additionally stipulated that the issues of waiver or abandonment were not encompassed by Judge Sanchez-Gordons ruling; therefore, Paseos argument that Penick is not entitled to additional payment under the Prime Contract due to a prior ruling is unavailing. Paseos argument that the terms of the Prime Contract prohibit recovery on the theory of abandonment is also unpersuasive because the theory of abandonment would render the terms of the Prime Contract irrelevant. Furthermore, the Court additionally notes that Paseos response to Penicks additional material facts appears to be responding to an entirely different document because its responses do not correspond with any of the additional material facts listed in Penicks Separate Statement. Based on the evidence submitted by Penick, triable issues of material fact exist regarding whether the Prime Contract was abandoned and whether Penick is entitled to recover the reasonable value of its services under quantum meruit. Accordingly, Paseos motion for summary judgment is DENIED. V. PENICKS MOTION FOR SUMMARY ADJUDICATION Penick moves for summary adjudication on Paseos noncontract claims and Paseos claim for consequential damages. As an initial matter, Penick cannot seek summary adjudication on a claim for consequential damages. Code of Civil Procedure section 437c(f)(1) states, in relevant part: A party may move for summary adjudication as & one or more claims for damages, & if the party contends that & there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code. In DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 412, the court of appeal affirmed a trial courts denial of a motion for summary adjudication of the plaintiffs lost opportunity damages. The appellate court stated that a single item of compensatory damage which does not dispose of an entire cause of action is not a proper subject for summary adjudication. (Id. at p. 422.) Here, Penick concedes that it is not seeking to summarily adjudicate Paseos contract claim and does not identify any particular breach of contract which could be a deemed a basis for summary adjudication as a separate cause of action. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848.) Therefore, the motion is DENIED as to Paseos claims for consequential damages. The remainder of Penicks motion addresses Paseos noncontract claims for bad faith, negligence, and breach of fiduciary duty. Penick essentially argues that Paseo cannot assert a basis for tort liability because all of Paseos claims arise from their contractual relationship under the Prime Contract. However, as stated above, the Court finds that Penick raises a triable issue of fact as to whether the Prime Contract was abandoned. Therefore, Penick cannot bar Paseos tort claims by hiding behind a contract that it claims was abandoned by both parties. Accordingly, Penicks motion for summary adjudication is DENIED. VI. CONCLUSION In light of the foregoing, Paseos motion for summary judgment is DENIED. Penicks motion for summary adjudication is DENIED. Moving party to give notice. Dated this 30th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Ruling

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.

Aug 30, 2024 |CVG21-0000494

Ruling

Michael A. Thompson et al vs. Kamajie Miller et al

Aug 26, 2024 |CU24-05339

CU24-05339Petition to Compel ArbitrationTENTATIVE RULINGPlaintiffs’ petition to compel arbitration is denied without prejudice.Plaintiffs have failed to establish that Defendant has refused to arbitrate. (Mansouri v.Superior Court (2010) 181 Cal.App.4th 633, 641-642.) The court notes that Plaintiffs,not Defendant, initiated this action by filing the complaint for damages and, althoughPlaintiffs claim to have made a demand to arbitrate the matter (Decl. of Thompson, ¶19), they make no attempt to show that Defendant refused this demand however it mayhave been made.

Ruling

BEN KAPLAN VS NBCUNIVERSAL MEDIA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Sep 03, 2024 |20STCV35842

Case Number: 20STCV35842 Hearing Date: September 3, 2024 Dept: 34 Kaplan v. NBCUniversal Media, LLC, et al. (20STCV35842) The Motion for Judgment on the Pleadings is DENIED. BACKGROUND On September 18, 2020, Plaintiff Ben Kaplan filed his Complaint against Defendants NBCUniversal Media, LLC; Working Title Group, LLC; Focus Features LLC; Gary Oldman; Douglas Urbanski; and Jim Osborne. The causes of action in the Complaint arise from the alleged wrongful appropriation of Plaintiffs movie script. On October 13, 2020, Plaintiff amended his Complaint to substitute Does 11 and 12 with Douglas Management, Ltd. and Douglas Management Group LLC, respectively. On March 12, 2021, all of the Defendants filed their Answer to Plaintiffs First Amended Complaint. (Plaintiffs First Amended Complaint had not yet been filed with the Court.) On April 13, 2021, Plaintiff filed his First Amended Complaint (FAC). On February 6, 2024, the court dismissed without prejudice Defendant Douglas Management Group, LLC from the FAC. On April 24, 2024, Defendants Working Title Group LLC, Gary Oldman, Douglas Urbanski, Douglas Management, Ltd., and Jim Osborne (Moving Defendants) filed their Motion for Judgment on the Pleadings (MJOP). In support of their MJOP, Moving Defendants concurrently filed: (1) Declaration of David Grossman; (2) Request for Judicial Notice; and (3) Proposed Order. On May 10, 2024, Plaintiff filed his Opposition to the MJOP. In support of his Opposition, Plaintiff concurrently filed his Declaration. On May 16, 2024, Moving Defendants filed their Reply in support of the MJOP. Moving Defendants concurrently filed their Supplemental Request for Judicial Notice. I. Request for Judicial Notice In the original Request for Judicial Notice and the Supplemental Request for Judicial Notice, Moving Defendants request that the court take judicial notice of: (1) various filings in this matter, including orders by this Court and the Court of Appeal; (2) the reporters transcript of the June 18, 2021 hearing; and (3) Norman v. Ross (2024) 101 Cal.App.5th 617, which was issued on April 23, 2024. The court GRANTS judicial notice as to Items Nos. 1-2, and DENIES judicial notice as to Item No. 3. II. Legal Standard A party may move for judgment on the pleadings. (Code Civ. Proc., § 438, subd. (b)(1).) The motion provided for in this section may only be made on one of the following grounds: . . . (B) If the moving party is a defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B).) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999, citations omitted.) In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged. (Fire Ins. Exch. v. Super. Ct. (2004) 116 Cal.App.4th 446, 452.) III. Discussion A. The Parties Arguments Moving Defendants move for judgment on the pleadings regarding all of Plaintiffs causes of action (except for the second cause of action). (MJOP, p. 21:1517.) Moving Defendants argue: (1) that the failure to pay Plaintiff for the use of his ideas cannot serve as the basis for his joint venture claims; (2) that Plaintiff is judicially estopped from arguing that his injuries arose after March 2015, when the loss of Oldman occurred; and (3) that Plaintiffs joint venture claims are time-barred. (MJOP, pp. 14:2122, 17:34, 20:8.) Plaintiff disagrees, arguing: (1) that the challenged claims arise, in part, from the misappropriation of Plaintiffs ideas; (2) that the judicial estoppel argument has no basis and misrepresents Plaintiffs claims; (3) that the delayed discovery rule applies here; (4) that true damages from the breach of the joint venture only arose once it became clear that Churchill would not be the first Winston Churchill movie to market; and (5) that to the extent additional facts are needed, amendment should be permitted. (Opposition, pp. 8:2, 10:1011, 12:7, 14:1617, 15:6.) In their Reply, Moving Defendants: (1) reiterate their argument that the joint venture claims are time-barred; (2) reiterate their argument that Plaintiff is precluded from arguing that his joint venture claims arose upon the films 2017 release; (3) argue that the recent case of Norman v. Ross (2024) 101 Cal.App.5th 617 stands for the proposition that the Court must dismiss Plaintiffs claims if the Court accepts Plaintiffs new arguments; (4) reiterate their judicial estoppel argument; and (5) argue that delayed discovery does not apply to Plaintiffs claims. (Reply, pp. 4:2, 5:78, 6:1819, 7:14, 8:24.) B. The Discovery Rule 1. Legal Standard The statute of limitations usually commences when a cause of action accrues, and it is generally said that an action accrues on the date of injury. Alternatively, it is often stated that the statute commences upon the occurrence of the last element essential to the cause of action. These general principles have been significantly modified by the common law discovery rule, which provides that the accrual date may be delayed until the plaintiff is aware of her injury and its negligent cause. (Bernson v. Browning-Ferris Indus. (1994) 7 Cal.4th 926, 931, cleaned up.) A close cousin of the discovery rule is the well accepted principle of fraudulent concealment. It has long been established that the defendant's fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it. Like the discovery rule, the rule of fraudulent concealment is an equitable principle designed to effect substantial justice between the parties; its rationale is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an otherwise diligent plaintiff in discovering his cause of action. (Bernson, supra, at p. 931, cleaned up.) While ignorance of the existence of an injury or cause of action may delay the running of the statute of limitations until the date of discovery, the general rule in California has been that ignorance of the identity of the defendant is not essential to a claim and therefore will not toll the statute. As we have observed, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. Aggrieved parties generally need not know the exact manner in which their injuries were effected, nor the identities of all parties who may have played a role therein. (Bernson, supra, at p. 932, cleaned up.) 2. Discussion Here, the crux of the Parties current disagreement is whether most of the alleged conduct was beyond the various applicable statutes of limitations at the time Plaintiff filed his Complaint on September 18, 2020 and his FAC on April 13, 2021. Among other things, Plaintiff alleges in the pleading: (1) that [o]n March 10, 2015, Mr. Oldman abruptly pulled out of Churchill; (2) that [d]espite repeated requests for an explanation for this sudden about-face, Mr. Oldmans representatives gave no reason to Mr. Lamb and Mr. Kaplan for the decision; (3) that [i]t was later announced that Mr. Oldman was in talks, and then engaged, to play the role of Winston Churchill in Working Titles motion picture Darkest Hour; (4) that Mr. Urbanski and Mr. English were also engaged by Working Title to perform the very same services on Darkest Hour that they would have performed for Churchill; and (5) that Darkest Hour premiered at film festivals starting in September 2017 to great critical acclaim. (FAC, ¶¶ 4243.) Contrary to Moving Defendants arguments, the statute of limitations issues here are not purely questions of law. Rather, due to possible issues with discovering the alleged misconductissues that are consistent with the allegations made in the FACthese are mixed questions of law and fact. If a trier of fact finds facts that would support a determination that the applicable statutes of limitations were tolled until September 2017, then there should be no issue with the causes of action that have four-year statutes of limitations given that the FAC was filed on April 13, 2021. As to the two-year statutes of limitations, Plaintiff submits three tolling agreements that appear to have tolled [t]he running of all periods of limitation from August 12, 2019 to August 31, 2020. (Decl. Kaplan, Exhs. 13.) Furthermore, Plaintiff accurately notes that Emergency Rule 9 tolled statutes of limitations from April 6, 2020 until October 1, 2020. (Opposition, p. 9:1621.) Given that the Complaint was filed on September 18, 2020 and Moving Defendants have not disputed that the alleged conduct in the FAC relates back to alleged conduct in the Complaint, it would similarly appear a later determination by a trier of fact that applicable statutes of limitations were tolled until September 2017 would mean there are no issues with the two-year statutes of limitations. C. The Allegations at Issues The Parties disagree about exactly what conduct is at issue in the pleadings. Because the statutes of limitations involve discovery-related questions of fact that are unrelated to this question (and obviate granting judgment on the pleadings due to the statutes of limitations), the court need not, and does not, resolve this issue at this time. D. Judicial Estoppel 1. Legal Standard Judicial estoppel is an equitable doctrine that applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. The application of judicial estoppel, even when all necessary elements are present, is discretionary. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 842, quoting Aguilar v. Lerner (2004) 32 Cal.4th 974, 986987, also citing MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.) 2. Discussion For the same reason stated above in Section III.C., the court does not reach the question of whether Plaintiff is judicially estopped. IV. Conclusion The Motion for Judgment on the Pleadings is DENIED.