La Jolla Village Homeowners' Assn. v. Superior Court
| Decision Date | 03 August 1989 |
| Docket Number | No. D009328,D009328 |
| Citation | 261 Cal.Rptr. 146,212 Cal.App.3d 1131 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , Prod.Liab.Rep. (CCH) P 12,277 LA JOLLA VILLAGE HOMEOWNERS' ASSOCIATION, INC., Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent. QUALITY ROOFING, INC. et al., Real Parties in Interest. |
No appearance for respondent.
Mower, Koeller & Nebeker, William A. Nebeker, Scott P. Cranny, Rose Marie Garner, Law Offices of David W. Brennan, Inc., Lynne Pearson, Detisch, Christensen & Wood, Donald W. Detisch, Charles B. Christensen, Law Offices of Stephen R. Mulligan, James M. Ledakis, David E. Hausfeld, Gade and Gade, San Diego, Kevin T. Cauley, Sacramento, Gray, Cary, Ames & Frye, Marcelle E. Mihaila, Kenneth S. Klein, Richard W. McAlister, San Diego, Portigal, Hammerton & Allen, Michael A. Portigal, Santa Ana, Donna Bader, Laguna Beach, Leland & Lanigar, Michael Saydah, El Centro, Bacalski, Holdway & Prindle, Dan Bacalski, San Diego, Glen S. Robinson, Oakland, Margaret Byrne, Haasis, Pope & Correll, Denis Long and A. David Mongan, San Diego, for real parties in interest.
La Jolla Village Homeowners' Association, Inc. (Village) seeks mandate review of the superior court's order striking from its third amended complaint the second cause of action for strict liability and the sixth cause of action for nondisclosure, as to all subcontractors, respectively (Real Parties in Interest, referred to hereafter collectively as "Subcontractors"), and its order granting the motions filed by Subcontractors for judgment on the pleadings without leave to amend as to those same causes of action. Village specifically requests we issue an order compelling the San Diego Superior Court to vacate that portion of its November 21, 1988, status conference order, filed December 2, 1988, and amended December 15, 1988, striking the second and sixth causes of action and granting judgment based on the pleadings of those two causes in favor of Subcontractors, and to enter a new order directing the superior court to 1) grant Village's motion to file the second and sixth causes of action of the third amended complaint as to Subcontractors, 2) deny Subcontractors' motions for judgment on the pleadings, and 3) grant such other relief as may be just and proper.
We shall conclude the trial court properly ruled as a matter of law Village could state no cause of action against Subcontractors for strict liability in tort and for nondisclosure of known building code violations. We therefore deny the writ.
Village represents the owners of La Jolla Village Southpointe (Southpointe), a project comprised of 419 condominium units. In this capacity, on November 21, 1984, Village filed an action to recover damages for numerous alleged construction defects and land subsidence at Southpointe. The complaint contained causes of action for negligence, nuisance, strict liability, and breach of warranty against the developer of Southpointe, Donald L. Bren Company et al. (Bren), and numerous Doe defendants.
Village amended the complaint twice, once in March 1986 and again in November of 1987, to name as Doe defendants the Sometime in 1987, pursuant to San Diego Superior Court local rules, the lawsuit was designated as complex litigation and assigned for all purposes to the Honorable Jack R. Levitt. After Judge Levitt retired, the case was reassigned to the Honorable Ben W. Hamrick.
design professionals and engineers and the subcontractors involved in "constructing and manufacturing"[212 Cal.App.3d 1137] the alleged defective chimneys, retaining walls, roofs, concrete and tile stairways, building pads and drainage systems.
On August 3, 1988, Village filed a notice of motion and motion for leave to file a third amended complaint. The proposed third amended complaint eliminated the nuisance cause of action, added a fifth and seventh cause of action against Bren only for fraud and deceit and breach of fiduciary duty, respectively, and added a sixth cause of action for nondisclosure (fraudulent concealment) against Bren and Subcontractors: C.E. Rodgers Masonry Contractor, Inc., dba Rodgers Masonry (Rodgers); Tailored Construction, Inc. (Tailored); Certified Roofers, Inc., dba Coast Roofing (Coast); Quality Roofing, Inc., dba Xeric Corporation, now known as Hess Roofing, Inc. (Hess); and Scott Roofing Company (Scott). The proposed complaint also added to the second cause of action for strict liability new language as the basis of recovery against Bren and certain Subcontractors: Rodgers; Tailored; Coast; Hess; Scott; Ferrell, Signs & Pinnick, Inc., now known as Signs & Pinnick, Inc. (Signs); Ruhm Tile & Marble, Inc. (Ruhm); Cass Construction, Inc. (Cass); Donald Pollock Excavating, Inc. (Pollock); Ben E. Smith, Inc. (Smith); Western Tile Company (Western); K-Tile Company, dba San Diego Tile Company (K-Tile); S & H Framing, Inc. ( S & H); R.E. Hazard Contracting Company (Hazard); Rancho Landscape Company (Rancho); Nalco Plumbing & Heating Co. (Nalco); and James B. Coles, Inc. (Coles).
Subcontractors Rodgers, Scott, Hess, Smith, Coast, S & H, and Tailored, as well as several other defendants and cross-defendants not parties to this petition, filed oppositions or joinders in opposition to the motion to amend the complaint. Then in October 1988 Tailored filed a motion for judgment on the pleadings as to the second cause of action of the proposed third amended complaint or alternatively as to the corresponding strict liability cause of action in the second amended complaint. Subcontractors Scott, Hess, Signs, Pollock, Western, Cass, Rodgers, Ruhm, K-Tile, S & H, Smith and Coast followed suit by filing additional motions or joinders in the motion for judgment on the pleadings. Village opposed these motions.
The motions for judgment on the pleadings and the motion to amend, along with other motions not pertinent here, were set for hearing at 10 a.m. on November 21, 1988. At that time, Judge Hamrick stated: "As Judge Whopner [sic] would say, I have read your complaints and the responses, I am prepared to make rulings on the motions, unless counsel wants to argue the matters." After asking everyone if they were willing to submit the matters of concern here, and receiving no objections, Judge Hamrick ruled:
Asked for clarification, Judge Hamrick stated he meant to say the second cause of action was stricken only as to the subcontractors and then gave his tentative ruling granting the motions for judgment on the pleadings as to the strict liability cause of The court stated it was granting the motion to amend with certain limitations first and then reaching the issue of the judgment on the pleadings motions so as to have them address the third amended complaint; the judgment on the pleadings motions were granted as to all subcontractors without leave to amend. 1 The court also stated it had stricken the nondisclosure cause of action from the proposed, and now filed, third amended complaint without leave to further amend. Gratuitously, Judge Hamrick added that while his ruling affected only those defendants, Subcontractors, who brought the motions, his feeling was "that there is no strict liability on the part of the subcontractors who furnished primarily services as opposed to a component part like a furnace or something of that nature." After discussing additional status matters, the court rescheduled the April 1989 trial date for September 11, 1989.
action. After discussion of other matters, Village sought further clarification on the court's rulings on the motions.
On December 2, 1988, a written order embodying the court's rulings and titled Status Conference Order of November 21, 1988, was filed. That order provides in pertinent part:
An amended order was subsequently filed December 15, 1988, to accurately reflect Bren and its joint venture relationships as defendants in the order. 2
On January 10, 1989, Village filed this instant petition for writ of mandate challenging the trial court's rulings included in these orders and naming the 13 Subcontractors who brought motions for judgment on the pleadings as the Real Parties in Interest; Bren is not named as a party to these proceedings. We issued an order to show cause why the relief...
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