Gerlach v. K. Hovnanian's Four Seasons at Beaumont, LLC

• Decision Date: 17 August 2022
• Docket Number: E075228
• Citation: 82 Cal.App.5th 303,298 Cal.Rptr.3d 356
• Parties: Lynn GERLACH et al., Plaintiffs and Appellants, v. K. HOVNANIAN'S FOUR SEASONS AT BEAUMONT, LLC, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 303

298 Cal.Rptr.3d 356

Lynn GERLACH et al., Plaintiffs and Appellants,

v.K. HOVNANIAN'S FOUR SEASONS AT BEAUMONT, LLC, Defendant and Respondent.

E075228

Court of Appeal, Fourth District, Division 2, California.

Filed August 17, 2022

Certified for Partial Publication.^*

Milstein Jackson Fairchild & Wade, Keith G. Wileman, Los Angeles, and Mayo L. Makarczyk, Santa Monica, for Plaintiffs and Appellants.

Collinsworth, Specht, Calkins & Giampaoli, Scott D. Calkins, and Anthony P. Gaeta, San Diego, for Defendant and Respondent.

OPINION

MENETREZ J.

Plaintiffs Lynn Gerlach and Lola Seals appeal from the judgment entered in their action against defendant K. Hovnanian's Four Seasons at Beaumont, LLC under the Right to Repair Act (the Act), Civil Code section 895 et seq., concerning alleged construction defects.¹ (Undesignated statutory references are to the Civil Code.) We affirm. We publish this opinion in order to clarify that (1) a roof is a manufactured product within the meaning of section 896, subdivision (g)(3)(A) ( section 896(g)(3)(A) ), only if the roof is completely manufactured offsite, and (2) to prove a roof defect claim under subdivision (a)(4) or (g)(11) of section 896, a plaintiff must prove that water intrusion has actually occurred or roofing material has actually fallen from the roof.

BACKGROUND

A. The Dispute

Defendant developed Four Seasons at Beaumont (Four Seasons), a community for adults 55 and over. Gerlach and Seals own homes in Four Seasons. Gerlach's escrow closed on March 16, 2006. In August 2015, Seals purchased her home from the original owners, who closed escrow on the home in May 2007.

In October 2015 and January 2016, Gerlach and Seals served defendant with notices of claims under the Act. As to the roofs, both notices cited section 896, subdivisions (a)(4), (g)(3)(A), and (g)(11), and under the heading "Roof—Useful Life Reduction" described the following issues: "Roof eaves along the front, back, left, and right side of the home suffer from staining and/or deterioration due to a compromise to the roof's weatherproofing system. Roofing system exhibits evidence of excessive ponding of water, improper tile fastening, improper valley sheet metal installation, overexposed field tiles, loose field tiles over pan metal, broken field tiles, missing pipe collars and no drip edge eave metal."

According to the parties' stipulated facts, defendant "timely acknowledged the claims, inspected the homes, made offers to repair, and made various repairs to the homes."

B. The Lawsuit

In September 2016, plaintiffs filed suit against defendant to recover damages they allegedly suffered because of defendant's alleged failure to comply with the building standards set forth in section 896. In addition to the claims under the Act, plaintiffs brought claims for breach of contract and breach of warranty.

Among other alleged violations under the Act, plaintiffs alleged that the roofs were defective in numerous ways, including that the "[r]oofs, roofing systems, chimney caps, and ventilation components" "allow water to enter the structure or to pass beyond, around, or through the designed or actual moisture barriers, including, without limitations, internal barriers located within the systems themselves." Plaintiffs further alleged that "[r]oofing materials" had "fallen from the roof[s]." Plaintiffs also alleged that "manufactured products (product that is completely manufactured offsite), including, but not limited to, windows, doors, roofs, plumbing products and fixtures, fireplaces, electrical fixtures, HVAC units, countertops, cabinets, paint, and appliances" were "installed so as to interfere with the products' useful life."

Defendant filed an answer to the complaint, generally denying the allegations and raising numerous affirmative defenses, including that "the time period for filing actions as to the alleged violations bars the claimed violations." For the limitations defense, defendant cited section 945.5, subdivision (e). Defendant included the same affirmative defense in its answer to the first amended complaint. (The first amended complaint is not included in the record on appeal, and neither is the register of actions from the superior court, in violation of rule 8.122(b)(1)(F) of the California Rules of Court.)

C. Pretrial Ruling Concerning Roof Claims

Before trial, defendant objected to plaintiffs' proposed jury instruction on the roof defect claims. Defendant's counsel argued that the jury should not be instructed on plaintiffs' claim that the roofs were defective under section 896(g)(3)(A), which requires that "manufactured products" "be installed so as not to interfere with the products' useful life, if any." The statute defines a manufactured product as "a product that is completely manufactured offsite." ( § 896, subd. (g)(3)(C).) Defense counsel argued that plaintiffs were improperly using section 896(g)(3)(A) "as a catchall" when other statutory standards were not directly on point. Counsel further explained that section 896(g)(3)(A) did not apply because "[a] roof is not a manufactured product."

The trial court agreed with defendant and concluded that plaintiffs could not proceed to trial on the theory that there were any roofing violations under section 896(g)(3)(A). The court explained in part that "a roof in and of itself is not a manufactured product" because it "is made up of components, where you have tiles or you have fabric," which are "put together at the home." The court indicated that in its view section 896(g)(3)(A) would apply only to "some sort of prefab manufactured roof, where it's coming in big chunks and you set it on a home."

Plaintiffs filed a motion asking the court to reconsider the ruling. According to plaintiffs, the trial court did not rule on the motion.

D. Plaintiffs' Roofing Expert

At trial, Gerald Vandewater testified as a roofing expert for plaintiffs. Vandewater had reviewed the roof plans and roofing contracts for plaintiffs' houses. Vandewater testified that in general tile roofs are unique because they are essentially a "double roof": "There is what we see, which is the tile, which is the primary material. And then there is a host of things underneath it ...."² There are many components—"a ton of integral parts"—in a tile roof other than just the tile, such as "underlayment, fasteners, [and] wood banisters." Tile roofs are subjected to more testing than any other roofing material.

Plaintiffs' counsel began asking Vandewater questions about how tile roofs are installed. Several questions into that line of questioning, defendant's counsel objected on the basis of relevance and cited Evidence Code section 352. The court gave plaintiffs' counsel "a little leeway" and allowed the line of questioning to continue. Plaintiffs' counsel inquired about whether plaintiffs' roofing contracts contained specific requirements related to installing the roofs, and defense counsel objected on the basis of relevance again. The court held an unreported sidebar, excused the jury, and then entertained argument outside the jury's presence.

After the jury left, the court indicated that during the sidebar discussion the court stated that it would allow any testimony regarding the standards found in section 896, subdivisions (a)(4) and (g)(11), relating to water intrusion and material falling from the roof, and violations of those standards. The court asked plaintiffs' counsel if the question to Vandewater concerning plaintiffs' roofing contracts related to a violation of either of these provisions. Counsel stated that Vandewater would explain that the specific installation process was completed in a manner that would allow water to pass beyond the moisture barrier or into the structure. Counsel proffered that Vandewater also would testify that there was "a substantial risk of materials falling from the roof when they either slipped or cracked."

Plaintiffs' counsel argued that a claim under section 896 did not require proof that damage had already occurred, such as materials having fallen from the roof or water having entered the structure. Plaintiffs' counsel noted that there had not been any leaks other than "a couple minor leaks on the asphalt felt that [Vandewater] felt were inconsequential at this point." Defendant's counsel countered that for there to be a violation of the provisions water must have already leaked through the roof or materials must have already fallen from the roof. Because there was no evidence that either of those things had happened, there was no evidence of a violation of section 896, subdivisions (a)(4) and (g)(11).

The court expressed concern that without evidence of actual leakage or material falling from the roofs, Vandewater's testimony would venture into the prohibited topic of the roofs' useful lives under section 896(g)(3)(A). The court concluded that it would not allow plaintiffs to present "testimony on the roofs other than specific violations of the standards; that being, water has entered the structure or passed beyond through the design or actual moisture barriers, or that roofing materials has fallen off the roof." The court ruled that any other testimony from the expert would not be relevant.

The court asked plaintiffs' counsel if Vandewater had any other testimony to offer, and counsel reiterated his belief that Vandewater should be able to give his opinion about whether the statute had been violated but that Vandewater otherwise did not have anything else to offer. Defendant's counsel moved to exclude Vandewater from testifying further. The court agreed and terminated Vandewater's testimony.

After a short recess, the court called the jury back and instructed the jury that "any claims regarding the roof in this case as it relates to [plaintiffs], those are no longer at issue. So that's why Mr. Vandewater is not going to continue with his testimony. I will advise you [that] you are not to speculate or guess or think about why those claims are...