United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
Pending before the Court is the Motion for Summary Judgment (ECF No. 679) filed by Defendant DFT, Inc. dba The Cannon Management Company ("Cannon"). Plaintiff Copper Sands Homeowners Association, Inc. ("the HOA") filed a Response (ECF No. 698), and Defendants filed a Reply (ECF No. 699). Additionally, the Court held a hearing on this Motion on March 3, 2015. For the reasons discussed below, Cannon's Motion for Summary Judgment is GRANTED in part and DENIED in part.
This case arose from alleged defects in the Copper Sands condominiums ("Copper Sands") that were converted from apartment homes to condominiums and subsequently purchased by the individual plaintiffs. (Pls.' Third Am. Compl., ECF No. 154). On December 1, 2004, the HOA entered into an Association Management Agreement (the "Agreement") with Cannon, where Cannon agreed to be the HOA's managing agent with respect to Copper Sands. ( Id. ¶ 56; Ex. F to Def.'s Mot. for Summ. J., ECF No. 681-6).
Plaintiffs initially filed this action in state court on March 30, 2010, but Defendants removed the action to this Court on April 9, 2010. ( See Pet. for Removal, ECF No. 1). Subsequently, Plaintiffs filed their Third Amended Complaint on April 26, 2011, which lists twenty-two causes of action against a host of Defendants. (ECF No. 154). Notably, Plaintiffs asserted the following causes of action against Cannon: (1) Negligence; (2) Negligent Misrepresentation; (3) Breach of Contract; and (4) Breach of Implied Warranties. ( Id. ¶¶ 77-98, 118-50, 155-63).
II. LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.
At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.
A. Statute of Repose
Cannon asserts that Nevada's ten-year statute of repose for claims related to alleged deficient construction or any resulting injury bars Plaintiffs' claims as untimely. (Def.'s Mot. for Summ. J. 14:23-25, ECF No. 679). Particularly, Cannon asserts NRS 11.203 applies, which provides as follows:
1. Except as otherwise provided in NRS 11.202 and 11.206, no action may be commenced against the owner, occupier or any person performing or furnishing the design, planning, supervision or observation of construction, or the construction of an improvement to real property more than 10 years after the substantial completion of such an improvement, for the recovery of damages for:
(a) Any deficiency in the design, planning, supervision or observation of construction or the construction of such an improvement which is known or through the use of reasonable diligence should have been known to him or her;
2. Notwithstanding the provisions of NRS 11.190 and subsection 1 of this section, if an injury occurs in the 10th year after the substantial completion of such an improvement, an action for damages for injury to property or person, damages for wrongful death resulting from such injury or damages for breach of contract may be commenced within 2 years after the date of such injury, irrespective of the date of death, but in no event may an action be commenced more than 12 years after the substantial completion of the improvement.
Nev. Rev. Stat. § 11.203. Cannon also asserts that Nevada's eight-year statute of repose for latent deficiencies and six-year statute of repose for patent deficiencies apply. (Def.'s Mot. for Summ. J. 14:27-15:2). These statutes of repose protect "the owner, occupier or any person performing or furnishing the design, planning, supervision or observation of construction, or the construction of an improvement to real property." See Nev. Rev. Stat. §§ 11.203-05.
Here, the Court finds that the plain language of the statutes of repose asserted by Cannon demonstrate their inapplicability to Plaintiffs' claims against Cannon. Cannon concedes that it did not participate in the original construction of Copper Sands. (Def.'s Mot. for Summ. J. 17:21-24). Moreover, Cannon does not assert that it is, or ever was, an owner, occupier or any person performing or furnishing the design, planning, supervision or observation of construction, or the construction of an improvement to Copper Sands. Accordingly, the Nevada statutes of repose asserted by Cannon do not bar Plaintiffs' claims against Cannon as untimely and the Court denies Cannon's Motion on this basis.
B. Breach of Contract
In its Third Amended Complaint, Plaintiff alleges that Cannon breached the Agreement "by failing to maintain and repair the Subject Property, and by failing to collect adequate assessments." (TAC ¶ 145). Cannon asserts that Plaintiff has no evidence to support its claim of breach of contract. (Def.'s Mot. for Summ. J. 19:24-26). First, Cannon asserts that there is no evidence to support the allegation that it was obligated to repair allegedly deficient conditions created during original construction, explaining that "Plaintiff's lack of evidence in that regard is most immediately shown by the express contractual term withholding any authority for Cannon to incur expenses greater than $1, 000.00 without approval, compared to Plaintiff's alleged cost to repair of $11, ...