Mills v. Forestex Co.
| Decision Date | 14 April 2003 |
| Docket Number | No. F039423.,F039423. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lori MILLS et al. Plaintiffs and Appellants, v. FORESTEX COMPANY et al. Defendants and Respondents. |
Kroloff, Belcher, Smart, Perry & Christopherson and Ron A. Northup, Stockton, for Plaintiffs and Appellants.
Steven H. Gurnee & Associates, Gurnee, Wolden & Daniels, Steven H. Gurnee, Roseville, David M. Daniels, Curtis W. Cable and Kirk J. Wolden, Roseville, for Defendants and Respondents Forestex Company.
Caulfield, Davies & Donahue, Bruce E. Leonard and Michael C. Mah, Sacramento, for Defendants and Respondents Mike Wunder and Wunder Wood Construction.
In 1990, Lori and Robert Mills (the Mills) hired Mike Wunder, doing business as Wunder Wood Construction (collectively Wunder), to build them a house in Jamestown in Tuolumne County. They hired him again the following year to build a garage, which would be connected to the house by a deck. The hardboard siding Wunder installed on both the house and the garage had been manufactured by the Stimson Lumber Company, doing business as Forestex Company (collectively Forestex).
Within a year or so after the buildings were completed, the siding started to warp and buckle. Despite Wunder's early efforts to correct the problem, it grew progressively worse. By 1993 the paint on the siding had begun to peel, and nails started backing out the year after that. The Mills finally contacted Forestex in 1996. Forestex inspected the house and told them the siding had been installed improperly.
The Mills initiated the present action in 2000 by filing a complaint for damages against Wunder and Forestex alleging violation of the Song-Beverly Consumer Warranty Act (Civ.Code, § 1790 et seq.), breach of express warranty, breach of implied warranty, and strict products liability. Eventually, both Wunder and Forestex moved for summary judgment on the ground the applicable statutes of limitation had run on all the causes of action. The trial court granted their motions, and this appeal followed. We will affirm the judgments.
The Mills filed their initial, unverified complaint on September 15, 2000. Starting with the complaint, and continuing on through their appellate briefs, the Mills's pleadings generally have failed to designate the particular legal theories or statutory bases for their claims, and to specify the party or parties against whom the claims are made: Wunder or Forestex, or both. Moreover, the complaint alleged Wunder's work was deficient in other respects unrelated to the siding, e.g., the plumbing leaked and the decking was defective, but the Mills did not seek to recover damages for harm caused by these other problems.
The first cause of action alleged Forestex had willfully violated the Song-Beverly Consumer Warranty Act,1 and also had breached an express warranty on the siding.2 The second cause of action alleged the house was "defective in design and construction" and "unfit and unsafe for its intended purpose," and "[d]efendants, and each of them, knew or should have known of these defects [but] failed to warn plaintiff...." Thus, this appears to be a claim for strict product liability directed at both Wunder and Forestex.3 The third cause of action alleged the poor design and construction of the house and its components breached implied warranties of fitness and merchantability.4
This cause of action appears to be directed at Wunder only, but here again the complaint fails to specify.
The complaint stated the Mills had discovered the siding was failing to perform properly—"warping, separating, and buckling"—in May of 1996, and they had formally revoked their acceptance of the siding in July of 1997.
Wunder filed an answer to the complaint in which he generally denied the Mills's allegations and asserted numerous affirmative defenses, including that all causes of action were barred by the applicable statutes of limitation, and that a lack of privity barred the causes of action for breach of express or implied warranty.
Forestex demurred to the complaint on similar grounds.5 In their opposition to the demurrer, the Mills asserted they had been in discussions with Forestex in the 14 months between their discovery of the siding problem in May of 1996 and their final rejection of the siding in July of 1997. They argued the limitations period therefore was equitably tolled during this period, and Forestex should be estopped in any case to assert the statute of limitations because it had induced them thereby to postpone filing their complaint. Forestex disputed these claims in its reply to the Mills's opposition. The court sustained the demurrer as to all three causes of action, with leave to amend.
The Mills filed a first amended complaint on February 2, 2001. They alleged additional facts regarding their discussions with Forestex in support of their contention the discussions had equitably tolled the running of statute of limitations, or had estopped Forestex to assert the statute. Wunder and Forestex both filed answers to the amended complaint.
On June 13, 2001, Wunder filed a motion for summary judgment or summary adjudication as to the second and third causes of action (for strict liability and breach of implied warranty, respectively). He maintained the undisputed facts established that the statute of limitations had run on both.
The Mills filed an opposition to the motion on July 15, 2001. They argued that Wunder had induced them to put off legal action by his promises to repair the siding, and had concealed from them their potential claim against Forestex, such that, as in the case of Forestex itself, the statute of limitations was tolled or Wunder was estopped to assert it. With a few minor exceptions, they did not dispute Wunder's statement of undisputed facts. In their own statement of undisputed facts, they asserted essentially that they did not know until December of 1997 that Wunder had installed the siding improperly; that he would not repair it; and that he would not support their efforts to get Forestex to replace it. Wunder, in turn, filed a response in which he disputed the factual support for these claims, and lodged assorted evidence and relevance objections.
Wunder argued, moreover, that the Mills should be limited to arguing theories pleaded in their first amended complaint, which had not sought to avoid application of the statute of limitations under the theories of estoppel, equitable tolling, or fraudulent concealment by Wunder (only by Forestex). As we discuss more fully below, the Mills subsequently appeared at the summary judgment hearing on July 30, 2001, and requested leave to amend their complaint to assert these theories. The court denied the request for lack of notice to the defendants. On August 9, the Mills filed a noticed motion making the same request. The matter was then set for hearing on September 24, 2001. In the meantime, however, the court granted Wunder's motion for summary judgment on August 24, 2001. Thereafter, at Wunder's request, the court removed the Mills's motion from the calendar as having become moot.
The court's order granting Wunder's motion for summary judgment stated in part:
Forestex filed a motion for summary judgment or summary adjudication on June 22, 2001. Curiously, although Forestex had been clearly identified as a defendant only as to the first cause of action (for breach of the Consumer Warranty Act), the caption on its pleadings indicated the summary judgment motion was directed at the second and third causes of action only. The motion itself, however, argued all three causes of action were barred by the applicable statutes of limitation.
The Mills did not file pleadings in opposition to Forestex's motion separate from those they filed in opposition to Wunder's motion. Indeed their opposition, as just noted, was addressed almost entirely to their contention Wunder should be estopped to assert the statute of limitations. They did not respond at all to Forestex's statement of undisputed facts, nor assert undisputed facts of their own to counter Forestex's statute of limitations claims. Nonetheless, Forestex filed a response to the Mills's opposition (to Wunder's motion) in which it maintained the Mills had failed to provide any factual support for their estoppel and equitable tolling arguments.
The court's order granting Forestex's motion for summary judgment stated in part:
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