Liptak v. Diane Apartments, Inc.
| Decision Date | 27 August 1980 |
| Citation | 109 Cal.App.3d 762,167 Cal.Rptr. 440 |
| Court | California Court of Appeals Court of Appeals |
| Parties | George P. LIPTAK and Virginia M. Liptak, Plaintiffs and Appellants, v. DIANE APARTMENTS, INC., a corporation; Puente Knolls Development Company; Toups Engineering, Inc., a corporation; Donald R. Warren Company; Fullmer and Petty; Consolidated Engineering Company; Altfillisch and Fulton; W. A. Wahler and Associates; Al Baccaro; Jessie Jaurequi; Robert Courson, Defendants and Respondents. Civ. 57654. |
Russell, Schureman & Hancock by Robert W. Hancock, and Chase, Rotchford, Drukker & Bogust by Vincent Fish and Scott D. Miller, Los Angeles, for defendants and respondents.
*
The home of appellants George P. Liptak and Virginia M. Liptak was damaged by earth movements. Appellants brought suit to recover for such damages and among the defendants sued respondents named P. R. C. Toups (Toups) and Donald Warren Company (Warren), each of whom were involved in the grading and filling of the slope that moved and caused the damage. Toups and Warren demurred to the complaint on the ground that it was barred on its face by the statute of limitations, Code of Civil Procedure, section 337.15. 1 The demurrers were sustained and judgments of dismissal were entered as to both Toups and Warren. Appellants appeal from the judgment of dismissal.
In 1966 Puente Knolls Development Company undertook the development of Tract Appellants purchased a home in Tract 27874 which was located below Tract 27920. Warren was also involved in the grading and maintaining of the slopes in Tract 27874. About March 4, 1978, rains caused significant earth movement in the slopes of Tract 27920, which was to the rear of appellants' home. Appellants' home was damaged thereby in the sum of $200,000.
27920. Toups and Warren were each involved in the grading, filling, and maintaining of the slopes of the tract. Such work was completed during 1967; however, substantial completion of the homes and housing tract did not take place until June 1972.
Appellants filed a complaint against the developers of both tracts to recover their damage and included as defendants Warren, Toups, and others. Warren filed a demurrer to the complaint and appellants filed a first amended complaint setting forth 27 causes of action.
The fourth cause of action alleged that Puente Knolls Development Company, themselves or through their sub-contractors Warren and Toups, filled and maintained the slope of Tract 27920 behind, and adjacent to appellants' property to protect the homes eventually to be built below the slope from earth movement; that the slope was not properly graded, filled and maintained. Appellants set forth in their fifth cause of action that Warren and Toups filled and maintained the slope of Tract 27920, and provided for drainage in a negligent manner. The seventh cause of action referred to Tract 27920 and alleged that Warren performed the soil tests during the grading and filling operations and prepared the final report and certification and did so negligently and carelessly. The seventeenth cause of action alleged that Warren filled and maintained the slopes of Tract 27874 in a negligent and careless manner. The nineteenth cause of action alleges Warren negligently and carelessly performed soil tests during grading operations upon and adjacent to and surrounding Tract 27874.
Toups demurred to the fourth and fifth causes of action on the grounds that they were barred by section 337.15 of the Code of Civil Procedure. 2 Warren demurred to the fifth and seventh causes of action of the first amended complaint on the grounds that they were barred by section 337.15 and to the seventeenth and nineteenth cause of action on the ground that they were uncertain in that the date of substantial completion of the development of the property described therein could not be ascertained from the allegations.
The demurrers of Toups and Warren came on to be heard and were submitted. The court sustained the demurrers without leave to amend. Judgment of dismissal as to Warren was thereafter entered reciting that the fifth, seventh, seventeenth and nineteenth causes of action were barred by the "Statute of Limitations," 3 namely, section 337.15. Judgment of dismissal as to Toups was entered reciting that the first amended complaint insofar as it pertained to Toups "is barred by the applicable Statute of Limitations, Code of Civil Procedure Section 337.15." Appellants appeal from the judgment of dismissal.
Appellants contend that the ten-year period prescribed by section 337.15 does not commence until the particular tract home involved is completed, so that there is but one date for the commencement of the statute of limitations relating to real property purchased by the consumer. Toups and Warren contend that the period prescribed by section 337.15 commenced as to a particular sub-contractor at the time the sub-contractor Appellants further contend that as section 337.15 was not enacted until 1972, it would be unconstitutional to give the section retroactive effect and apply it against appellants under the specific facts of the matter at bench. Appellants also urge that the demurrer for uncertainty to the seventeenth and nineteenth causes of action against Warren was improperly sustained as the facts therein were sufficient and not uncertain.
substantially completed the particular improvement involved.
The ten-year period provided by section 337.15 commences to run in respect to a person contributing to an improvement on real property at the time the improvement is substantially completed. Section 337.15 was constitutional in its application to appellants as there was a reasonable time after the section's enactment for appellants to avail themselves of their remedy. The demurrers were properly sustained as to each of the causes of action, excepting the seventeenth and nineteenth causes of action.
Prior to the enactment of section 337.15, damage resulting from slippage caused by improper cutting, filling, and compaction was subject to either the three-year limitation of section 338, subdivision 2, or the four-year limitation of section 337, depending upon whether the action was predicated on negligence or breach of warranty. However, the three or four-year period, as the case may be, did not commence to run until the consequential damage caused by the subsidence or lateral movement was sufficiently appreciable to a reasonable man that he had a duty to expeditiously pursue his remedies. (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 255, 73 Cal.Rptr. 127; Avner v. Longridge Estates (1969) 272 Cal.App.2d 607, 616-617, 77 Cal.Rptr. 633.) The time when consequential damages reaches such a point in a question of fact. (Schaefer v. Berinstein (1960) 180 Cal.App.2d 107, 129, 4 Cal.Rptr. 236, disapproved on other grounds in Jefferson v. J. E. French Co. (1960) 54 Cal.2d 717, 719-720, 7 Cal.Rptr. 899, 355 P.2d 643; Oakes v. McCarthy Co., supra, 267 Cal.App.2d at p. 255, 73 Cal.Rptr. 127.) Section 337.15 imposes an absolute requirement that a suit arising from such damage be brought against the developer, or other persons named in the statute, within ten years of the date of "substantial completion of such development or improvement."
Section 338, subdivision 2, limits the bringing of the present action to three years after discovery of the defect, and section 337.15 read together with section 338, subdivision 2, limits the total time available for bringing the action to ten years. Thus, the sections are mutually exclusive and the action must be filed within the shorter of the two periods. (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.)
In the matter at bench, question does not arise as to a bar by section 338, subdivision 2, as the filing of the action was within three years of the discovery of the defect. The question is directed solely to the bar, if any, of section 337.15 and the effective date of commencement of the ten-year period prescribed therein.
In determining the interpretation to be given a statute, the presumption exists that every word, phrase and provision employed in the statute is intended to have meaning. (Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 233, 273 P.2d 5.) In attempting to ascertain legislative intent from the language of section 337.15, effect should be given, whenever possible, to the section as a whole and to every word, phrase or clause threof; leaving no part or provision useless or deprived of meaning. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 638, 268 P.2d 723; Weber v. County of Santa Barbara (1940) 15 Cal.2d 82, 86, 98 P.2d 492.)
Such "(w)ords and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, . . . are to be construed according to such peculiar and appropriate meaning or definition." (Civ. Code, § 13.)
Section 337.15 extends protection to two separate categories of people: (1) any "person who develops real property," (2) or any person "who . . . performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property . . . ." (Emphasis added.)
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