Geertz v. Ausonio

• Decision Date: 26 March 1992
• Docket Number: No. H008209,H008209
• Citation: 6 Cal.Rptr.2d 318,4 Cal.App.4th 1363
• Court: California Court of Appeals Court of Appeals
• Parties: Gordon L. GEERTZ et al., Plaintiffs and Appellants, v. Andrew E. AUSONIO et al., Defendants and Respondents.

Page 318

6 Cal.Rptr.2d 318

4 Cal.App.4th 1363

Gordon L. GEERTZ et al., Plaintiffs and Appellants, v. Andrew E. AUSONIO et al., Defendants and Respondents.

No. H008209.

Court of Appeal, Sixth District, California.

March 26, 1992.

Ralph W. Thompson, III, Murphy, Thompson & Gunter, for cross-defendants and appellants.

Michael P. Masuda, Harray & Pierce, for cross-complainants and respondents.

CAPACCIOLI, Associate Justice.

Statement of the Case

Plaintiffs Gordon and Joan Geertz filed an action against, among others, Ausonio Construction, Inc. (Ausonio) for personal injuries and property damage caused by an allegedly defective drainage system in a building Ausonio constructed in 1978. The Geertzes now appeal from a judgment entered after the trial court found the action barred by the four-year statute of limitations for patent defects. (CODE CIV.PROC., § 337.1. )¹ They claim the court erred in finding as a matter of law that the inadequate drainage system was a patent defect. We agree and reverse the judgment.

Standard of Review

"Summary judgment is properly granted only when the evidence in support of the motion establishes that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. [Citations.] Since a motion for summary judgment raises only questions of law regarding the construction and effect of the supporting and opposing papers, the appellate court independently reviews all of the papers, including the evidence presented in connection with the motion. [Citation.] Doubts as to the propriety of summary judgment are resolved against granting the motion. [Citations.]." (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 37, 241 Cal.Rptr. 539.)

The Undisputed Facts

Orval and Ann Mead contracted with Ausonio to construct a two-story building, with commercial spaces on the first floor and apartments and an exterior deck on the second floor. The building was completed in December 1978. ²

During the first year after completion, leaves clogged the deck's drains and rainwater collected on the deck and then flowed over a sill into the kitchen of an adjacent apartment. Such overflow had caused damage to the kitchen floor and some floor joists, which the Meads had had repaired. To prevent it from recurring, the Meads raised the height of the sill from the deck into the kitchen and specially instructed their daughter, Kimberly Evans, who managed the property and lived in the building, to clear leaves from the deck drains. Until 1989, the overflow problem did not recur.

In 1986, plaintiffs leased commercial space in the Meads' building directly below the apartment later occupied by Kimberly Evans. They operated an antique shop there.

Early in the morning of April 25, 1989, the Geertzes received a call advising them that the antique shop was flooded and water was coming through the ceiling from the kitchen floor in the apartment above. Plaintiffs went to their shop and saw that the ceiling sagged. Fearing it would fall and damage antiques and display cases Gordon Geertz borrowed a ladder from the Evanses. While attempting to remove a light fixture from the ceiling, he fell and was injured.

After the incident, Gordon Geertz learned from Orval Mead that the deck had no secondary overflow drains, i.e., scuppers, to allow water to drain if the primary drains became clogged or were otherwise unable to eliminate all of the water collecting on the deck.

General Principles re Patent and Latent Defects

Whether a construction defect is latent or patent depends on whether it is "apparent by reasonable inspection." (§§ 337.1, subd. (e); 337.15, subd. (b).) A patent defect " 'is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence. [Citations.] This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection. [Citations.]' " (Preston v. Goldman (1986) 42 Cal.3d 108, 123, 227 Cal.Rptr. 817, 720 P.2d 476, quoting Wagner v. State of California (1978) 86 Cal.App.3d 922, 927, 150 Cal.Rptr. 489.)

"Whether a defect is apparent by reasonable inspection is a question of fact." (Winston Square Homeowner's Assn. v. Centex West, Inc. (1989) 213 Cal.App.3d 282, 290, 261 Cal.Rptr. 605; see Anderson v. Brouwer (1979) 99 Cal.App.3d 176, 181, 160 Cal.Rptr. 65.) What constitutes a reasonable inspection "is a matter to be determined from the totality of circumstances of the particular case[ ]" and "must vary with the nature of the thing to be inspected and the nature and gravity of the harm which is sought to be averted." (Renown, Inc. v. Hensel Phelps Construction Co. (1984) 154 Cal.App.3d 413, 420, 201 Cal.Rptr. 242.) Whether a reasonable inspection would render a defect apparent is determined in light of "the reasonable expectations of the average consumer." (Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 511, 167 Cal.Rptr. 292; Preston v. Goldman, supra, 42 Cal.3d 108, 123, 227 Cal.Rptr. 817, 720 P.2d 476; but see Renown, Inc. v. Hensel Phelps Construction Co., supra, 154 Cal.App.3d 413, 201 Cal.Rptr. 242. ³

In this regard, we note that if a reasonable inspection would reveal only the manifestation of a defect but not its cause, i.e., the defect itself, then the defect is not necessarily patent. (See Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 184 Cal.Rptr. 245; Winston Square Homeowner's Assn. v. Centex West, Inc., supra, 213 Cal.App.3d 282, 261 Cal.Rptr. 605; see also 8 Miller & Starr, California Real Estate (2d ed.1990) § 25:36, p. 348.)

For example, in Baker v. Walker & Walker, Inc., supra, 133 Cal.App.3d 746, 184 Cal.Rptr. 245, the temperature in a building fluctuated between 53 and 88 degrees. There was no dispute that in general the heating/cooling system was defective. However, since no one, including the manufacturer, general contractor, or subcontractor, could pinpoint or correct problem, the court concluded that the defect was latent, i.e., not discoverable upon a reasonable inspection. (Id. at p. 762, 184 Cal.Rptr. 245.)

On the other hand, in Winston Square Homeowner's Assn. v. Centex West, Inc., supra, 213 Cal.App.3d 282, 261 Cal.Rptr. 605, water would not drain from landscaped areas of a housing development. The homeowner's association claimed the defect was latent, arguing that although the manifestation of the defect (standing water/inadequate drainage) was reasonably apparent, the defective cause was not. The court disagreed, noting that numerous homeowners and the property management company were aware of the ponding problem and that "[s]everal witnesses testified the cause of the problem was obvious--the contours of the land and the slant of the pavement did not allow proper drainage." (Id. at p. 291, 261 Cal.Rptr. 605.)

Discussion

In this case, the alleged construction defect is the lack of an overflow drainage system, that is, the lack of scuppers.

The Geertzes contend that the four-year limitations period for patent defects in section 337.1 should not apply to them regardless of whether the lack of scuppers was a patent defect. They point to undisputed evidence that they did not have access to the deck and therefore could not have inspected it. They urge us to create an exception for injured plaintiffs who neither knew about nor could have discovered the alleged defect during the limitations period. We decline the request.

Section 337.1 is an "economic regulation" designed to protect contractors. (Salinero v. Pon (1981) 124 Cal.App.3d 120, 128, 177 Cal.Rptr. 204.) "A contractor is in the business of constructing improvements and must devote his capital to that end; the need to provide reserves against an uncertain liability extending indefinitely into the future could seriously impinge upon the conduct of his enterprise." (Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 633, fn. 2, 147 Cal.Rptr. 486, 581 P.2d 197.) The statute promotes the construction of improvements, "since it frees those associated with it from the specter of lawsuits in the distant future. Those who fear venturing into such activities will be less deterred when a ceiling is placed on the period for which they can be held liable. The concept of promoting construction tends to harmonize with the public policy favoring the full enjoyment and use of real property." (Wagner v. State of California (1978) 86 Cal.App.3d 922, 929-930, 150 Cal.Rptr. 489.)

Turning to the language of section 337.1, we note that it is clear and unambiguous: "Except as otherwise provided in this section, no action shall be brought to recover damages ...." (See fn. 1, ante, p. 319.) The statute explicitly incorporates the familiar rule of construction, expressio unius est exclusio alterius: where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed. (In re Michael G. (1988) 44 Cal.3d 283, 291, 243 Cal.Rptr. 224, 747 P.2d 1152.) We presume the Legislature included all the exceptions it intended to create. (Rothschild v. Superior Court (1930) 109 Cal.App. 345, 347, 293 P. 106.) Since the statute does not expressly exempt actions by those who lacked an opportunity to inspect for and find patent defects during the limitations period, we may not properly engraft such an exception to the statute under the guise of judicial construction. (Reynolds v. Reynolds (1960) 54 Cal.2d 669, 681, 7 Cal.Rptr. 737, 355 P.2d 481; see § 1858.) This is especially so since doing so would not only usurp the legislative function but reduce the breadth of immunity now provided (i.e., "no action shall be brought etc.") by allowing actions against contractors, where the injured plaintiff's first encounter with a building having a patent defect occurs more than four years after construction of the building is completed. As such, the proposed exception is inconsistent with ...