Schwetz v. Minnerly
| Decision Date | 14 May 1990 |
| Docket Number | No. D008300,D008300 |
| Citation | 269 Cal.Rptr. 417,220 Cal.App.3d 296 |
| Parties | John SCHWETZ et al., Plaintiffs and Appellants, v. Clarence E. MINNERLY et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Thorsnes, Bartolotta, McGuire & Padilla, and C. Brant Noziska, San Diego, and Suuzen Ty Anderson, Spring Valley, for plaintiffs and appellants.
Butz, Lucas, Dunn & Enright, and Stephen Lucas, Bacalski, Holdway & Prindle, and Elizabeth M. Leonard, A. Daniel Bacalski and Margaret M. Byrne, San Diego, for defendants and respondents.
The trial court sustained a general demurrer and granted a motion for judgment on the pleadings brought by two developers on the ground the 10-year statute of limitations commenced to run when a notice of completion had been recorded on the plaintiffs' residence. The court granted leave to amend. The plaintiffs did not amend the complaint, and the complaint was dismissed. This appeal followed.
Appellants argue CODE OF CIVIL PROCEDURE SECTION 337.15(A)1 should be interpreted by dividing this section into two groups: (1) a "developer" and (2) an "improver" section. Then appellants would place two different dates on which the 10-year statute of limitations for damages for latent defects to real property commences would run: (1) an undefined date for the substantial completion of the entire "development" by the "developer" and (2) section 337.15(g)'s four alternative dates for the substantial completion of an "improvement" by an "improver." We conclude the trial court correctly interpreted section 337.15 because a "developer" can be an "improver" and a "development" is a "work of improvement" for purposes of this section. Accordingly, we affirm. 2
The facts are taken from the complaint and are not in dispute. Plaintiffs and appellants, John and Betty Schwetz, (Schwetzes) own a single-family residence in a residential development known as Villa Majorca. Villa Majorca was divided into On July 20, 1987, the Schwetzes filed a complaint for damages against defendants and respondents Clarence E. Minnerly, individually and doing business as Cemland Development Company, King Associates and Cemco Development Company (collectively Minnerly), defendants and respondents Christiana Community Builders and the Christiana Companies, Inc. (collectively Christiana), and other defendants not parties to this appeal. In their complaint the Schwetzes alleged damages to their residence caused by soil subsidence and by defendants' failure to stabilize the soil under the public improvements, causing the City of San Diego to refuse to accept or maintain those improvements. The complaint sought recovery for damages under theories of negligence, nuisance, strict liability and breach of warranty.
three units within which were built at least 166 single family residences. A notice of completion was recorded on the Schwetzes' home as well as eight other homes on June 13, 1977.
Minnerly filed a motion to strike the complaint and, in the alternative, a general demurrer, on the ground the complaint for damages was barred by section 337.15 as it was filed ten years, one month after the notice of completion was recorded on the Schwetzes' home. The court was requested to take judicial notice of the recorded notice of completion dated June 13, 1977.
Christiana filed a motion for judgment on the pleadings on the same ground. The Schwetzes do not argue the notice of completion was invalid.
In their opposition to the motion and demurrer, the Schwetzes contended section 337.15(a) provides this 10-year period does not commence to run against developers until the substantial completion of the "entire development." The Schwetzes requested the court take judicial notice of notices of completion on other homes in the Villa Majorca development recorded after July 20, 1977, and as late as June 28, 1978. The Schwetzes argued these notices raised a material issue of fact as to when the development was substantially completed so that the running of the statute was not clear on the face of the complaint. Finally, the Schwetzes requested the court take judicial notice of documents filed by Christiana in a related action in which Christiana admitted it was the original owner and developer of the Villa Majorca development, that Christiana had sold the uncompleted development to Minnerly/Cemco on April 2, 1976, but Christiana retained the right of final approval of Minnerly's plans and specifications for all structures in the subdivision and Christiana agreed to complete all the design engineering and plans for the development's grading, streets, utilities and related public improvements. 3 Neither party presented any evidence regarding the completion of the public improvements.
The trial court took judicial notice of all requested documents and ruled the statute of limitations in section 337.15 commenced to run upon recordation of the notice of completion of the Schwetzes' residence. The court granted the Schwetzes leave to amend. The Schwetzes tell us on appeal that they could not make any factual changes to the pleading. The complaint was not amended, and the action was dismissed at an unreported hearing on April 15, 1988. The written order of dismissal and entry of judgment was entered on June 7, and the Schwetzes timely appealed.
The Schwetzes contend section 337.15 recognizes two groups of persons. The first includes any person who develops real property, i.e., a "developer"; the second, any person who performs or furnishes any of the enumerated construction services on an "improvement," i.e., an "improver." They further contend this section "also presents two different dates on which the statute of limitations commences to run: the substantial completion of the 'development' Relying on Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762, 770-771, 167 Cal.Rptr. 440, the Schwetzes define "development" as " 'a developed tract of land' " and "improvement" as " 'each of the individual changes or additions to real property ... irrespective of whether the change or addition is grading and filling, putting in curbs and streets, laying storm drains or of other nature.' " The Schwetzes conclude "developers" are not "improvers" for purposes of section 337.15(a), because the Liptak court stated:
We agree with the Schwetzes that Liptak states a "developer" is one who constructs many homes on a " 'tract of raw land' " and that resulting "development" is not completed for purposes of triggering the 10-year statute of limitations until the entire "development" is substantially completed. However, the above statement in Liptak is clearly dicta. Liptak's holding does not address the meaning of "development" or "developer" for purposes of applying section 337.15. The case at bench squarely involves this issue.
From this basic premise that "developers" are not "improvers" the Schwetzes contend section 337.15(g), enacted one year after Liptak, only applies to "improvers" and "improvements" and not to "developers" and "development." Following this reasoning, the Schwetzes argue a notice of completion recorded by a "developer" does not commence the 10-year statutory period. Instead, they argue "the time to sue defendant/respondent developers Minnerly and Christiana did not commence until the substantial completion of the Villa Majorca development." It is unclear how this 10-year period is to be defined if section 337.15(g) does not apply to "developers." In their argument here the Schwetzes state, "[O]ver half of the homes in the Villa Majorca development were not completed until after July 20, 1977" and contend this date would commence the statutory period. However, in their reply brief the Schwetzes argue, "Here the evidence suggests that the final homes in the Villa Majorca development were being completed around June of 1978." Interestingly, the record does not indicate whether Christiana or Minnerly are still improving any area in the vicinity which could be included in the Schwetzes' definition of "entire development." Instead, the Schwetzes posit two alternative dates for the commencement of the 10-year period as to both developers. Either date, of course, would make the Schwetzes' complaint timely.
The sole issue before this court is the interpretation of section 337.15. Statutory interpretation is a question of law, and Enacted in 1971, section 337.15(a) states:
this court is not bound by the trial court's interpretation. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.) 5
To continue reading
Request your trial
-
Flynt v. California Gambling Control Com.
...Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856; Schwetz v. Minnerly (1990) 220 Cal.App.3d 296, 302, 269 Cal.Rptr. 417.) Our task is to "`ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] In......
-
Hensel Phelps Constr. Co. v. Superior Court of San Diego Cnty.
...indicated its intent to " ‘define the term "substantial completion" ’ " with the new subdivision. ( Schwetz v. Minnerly (1990) 220 Cal.App.3d 296, 307, 269 Cal.Rptr. 417.) As one court noted, "The record in our case includes the Assembly Committee on Judiciary's digest of the bill that beca......
-
California Service Station etc. Assn. v. Union Oil Co.
...Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856; Schwetz v. Minnerly (1990) 220 Cal.App.3d 296, 302, 269 Cal.Rptr. 417.) Petroleum franchises are governed by the Business and Professions Code. Section 21140 defines "franchise" as a contr......
-
Chevron U.S.A, Inc. v. Superior Court
...the event which triggers the 10-year period is the date of substantial completion of the improvement." (Schwetz v. Minnerly (1990) 220 Cal.App.3d 296, 303, 269 Cal.Rptr. 417; accord North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 27, 21 Cal.Rptr.2d Similarly,......