Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc.

• Decision Date: 01 September 2009
• Docket Number: No. C059458.,No. C058300.,C058300.,C059458.
• Citation: 99 Cal. Rptr. 3d 258,177 Cal.App.4th 251
• Court: California Court of Appeals Court of Appeals
• Parties: CREEKRIDGE TOWNHOME OWNERS ASSOCIATION, INC., Plaintiff and Appellant, v. C. SCOTT WHITTEN, INC., Defendant and Respondent. CREEKRIDGE TOWNHOME OWNERS ASSOCIATION, INC., Plaintiff and Appellant, v. REO ROOFING COMPANY et al., Defendants and Respondents.

177 Cal.App.4th 251

99 Cal. Rptr. 3d 258

CREEKRIDGE TOWNHOME OWNERS ASSOCIATION, INC., Plaintiff and Appellant, v. C. SCOTT WHITTEN, INC., Defendant and Respondent.

CREEKRIDGE TOWNHOME OWNERS ASSOCIATION, INC., Plaintiff and Appellant, v. REO ROOFING COMPANY et al., Defendants and Respondents.

No. C058300.

No. C059458.

Court of Appeals of California, Third District.

September 1, 2009.

Angius & Terry, Paul P. Terry, Jr., Bradley J. Epstein and Sam Y. Chon for Plaintiff and Appellant.

Klinedinst, G. Dale Britton, Natalie P. Vance and Jason W. Schaff for Defendant and Respondent C. Scott Whitten.

Law Offices of Robles & Castles, William A. Robles and Ranjani Ramakrishna for Defendant and Respondent Monier Inc.

Anwyl, Scoffield & Stepp, Lindy H. Scoffield and Pamela A. Lewis for Defendant and Respondent REO Roofing Company.

OPINION

BUTZ, J.

This is a construction defect case involving a reroofing of 11 buildings that house 61 units in a townhome community. The trial court granted summary judgment to the roofing defendants. The trial court found that the plaintiff townhome association did not meet the statute of limitations because the association had notice of a water moisture problem inside the window of one unit as a result of the new roof, and this unit reported several broken roof tiles.

(1) We shall reverse. We conclude there are triable issues of material fact on the two statute of limitations issues: (1) whether the alleged defect was patent (i.e., apparent to an average consumer from a reasonable inspection) and (2) whether the defect can be deemed discovered in the latent defect context because the damage was sufficiently appreciable so that plaintiff suspected or reasonably should have suspected that defendants had done something wrong to plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 2004, plaintiff Creekridge Townhome Owners Association, Inc. (plaintiff), filed a construction defect lawsuit, concerning a reroofing project, against defendants C. Scott Whitten, Inc. (Whitten), REO Roofing Company (REO), and Monier Inc. (Monier). Whitten was the roofing manager and inspector, REO was the roofer, and Monier was the roofing supplier.

The lawsuit involves the reroofing of 11 buildings, comprising 61 units, in plaintiff's townhome community. The reroofing was completed in early 1997, and replaced the buildings' old shake roofs with Cedarlite concrete tile roofs.¹

In late June 1997, one owner in plaintiff's community described in a letter to plaintiff's board that she had a water moisture problem inside her second-story bedroom window as a result of the new tile roof; she also reported several broken roof tiles. The summary judgment record contains no other evidence of any other roof problems until 2003.

In the winter of 2003, plaintiff suffered numerous roof leaks. The following spring, plaintiff hired a roofing consultant, Randy Davis, who found multiple causes for the leaks and multiple types of roof defects.

As noted, on June 18, 2004, plaintiff sued Whitten, REO and Monier for these alleged roof defects. Plaintiff set forth causes of action for breach of warranty (express and implied), breach of contract, and negligence.

Whitten moved for summary judgment on statute of limitations grounds. After tentatively denying this motion, the trial court reversed course and granted it, citing an opinion decided during the summary judgment proceedings, Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401 (Landale).

REO and Monier in turn obtained a stipulated judgment in their favor on the same grounds as the Whitten summary judgment.² This stipulated judgment resulted in a second appeal by plaintiff, C059458, which we have consolidated with the Whitten appeal, C058300.

DISCUSSION

We uphold a summary judgment if all the evidentiary papers associated with it—which we review independently—show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We do not resolve factual issues but ascertain whether there are any to resolve. (Code Civ. Proc., § 437c, subd. (c);³ Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305 (Colores); Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475 .)

Because a summary judgment denies the losing party its day in court, we liberally construe the evidence in support of that party and resolve doubts concerning the evidence in that party's favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 [12 Cal.Rptr.3d 615, 88 P.3d 517]; Colores, supra, 105 Cal.App.4th at p. 1305.)

Whitten based its summary judgment motion entirely on two interrogatory answers that plaintiff furnished, as read in light of the gravamen of plaintiff's complaint.

The two interrogatories, propounded by Monier to plaintiff, were:

"No. 14: Identify the date when you first became aware that the Cedarlite tile roof was leaking.

"No. 15: Referencing your previous response, how did you become aware that the Cedarlite tile roof was leaking[?]"

Plaintiff provided the same answer to both interrogatories:

"Homeowner Heidi Goodman of 7434 Creekridge Lane wrote a letter to the Board that was discussed in open session at the 6/24/97 board meeting minutes describing a water moisture problem inside her second[-]story bedroom window as a result of the tile roofs, in addition to reporting several broken roof tiles."

The gravamen of plaintiff's complaint alleges that the reroofing "deficiencies include, among other things, the following: [¶] a. Water infiltration through roofs and roof materials, and within roof systems."

With this background in mind, we now turn to the two statute of limitations issues of patent defect and latent defect/discovery.

I. Patent Construction Defect

(2) Section 337.1 sets forth a statute of limitations of four years for a "patent" construction defect, which starts running when the construction is substantially completed. (§ 337.1, subd. (a)(1).)

(3) The test to determine whether a construction defect is patent is an objective test that asks "whether the average consumer, during the course of a reasonable inspection, would discover the defect. The test assumes that an inspection takes place." (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1370 ; see § 337.1, subd. (e); 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 606, pp. 787-788.) This test generally presents a question of fact, unless the defect is obvious in the context of common experience; then a determination of patent defect may be made as a matter of law (including on summary judgment). (Preston v. Goldman (1986) 42 Cal.3d 108, 110-111, 123 [227 Cal.Rptr. 817, 720 P.2d 476] (Preston); Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 644 (Mills); Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1339 (Tomko); Geertz, supra, 4 Cal.App.4th at p. 1368.)

Here, the only evidence of defect presented by defendant Whitten in its summary judgment motion regarding the 1997 reroof construction was an interrogatory answer that referenced a letter a homeowner in plaintiff's community had written to plaintiff's board. According to the interrogatory answer, this letter "was discussed in open session at the 6/24/97 board meeting . . . [and] describ[ed] a water moisture problem inside [the homeowner's] second[-]story bedroom window as a result of the tile roofs, in addition to reporting several broken roof tiles."

Plaintiff countered this evidence with a declaration from the roofing consultant whom plaintiff had hired after incurring many roof leaks in 2003. The consultant found multiple defects regarding the 1997 reroofing, and stated that these defects "would not be readily apparent to a lay person."

Based on this evidence, we cannot say that the reroofing defects alleged here were patent defects as a matter of law. Only one roof-related "water moisture problem" in one unit of a 61-unit, 11-building complex—and that problem was inside a window—coupled with a report of several broken roof tiles from that unit's owner, were presented. That is it. This evidence pales in comparison to situations involving obvious defects in the context of common experience, in which a patent defect has been found as a matter of law: for example, a backyard pond with only a one-foot-high wall around it, into which a toddler fell (Preston, supra, 42 Cal.3d at pp. 110-111, 121-123); and a visible defect in pedestrian pavement substantial enough to cause a pedestrian to trip and fall (Tomko, supra, 46 Cal.App.4th at p. 1339).

The four-year statute of limitations for a patent construction defect does not provide a basis on which to grant summary judgment here. That leads us to the statute of limitations concerning a latent construction defect and the discovery of such a defect.

II. Latent Construction Defect/Discovery

(4) A "latent" construction defect is one that is "not apparent by reasonable inspection." (§ 337.15, subd. (b).) As to a latent defect that is alleged in the context of the challenged causes of action here—negligence, breach of warranty, and breach of contract—three statutes of limitations are in play: sections 338, 337 and 337.15. "The interplay between these [three] statutes sets up a two-step process: (1) actions for a latent defect must be filed within three years (§ 338 [injury to real property]) or four years (§ 337 [breach of written contract]) of discovery, but (2) in any event must be filed within ten years (§ 337.15) of substantial completion." (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 27 (North Coast); see Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 640-641 [147 Cal.Rptr. 486, 581 P.2d 197]; Landale, supra, 155 Cal.App.4th at p. 1407; Mills, supra, 108 Cal.App.4th at pp. 643-644.)⁴

(5) As noted, the limitations periods of sections 337 and 338 start to run upon "discov...