Filed 1/31/18 Elissagaray v. Venice Tile and Marble CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Annette and Roger Elissagaray[1] filed a lawsuit asserting construction defects in their home. The trial court determined the negligence and declaratory relief claims were time-barred and granted summary judgment for the moving defendants.

Annette now contends (1) the trial court should have considered statements contained in declarations filed by the Elissagarays in opposition to summary judgment; (2) there were triable issues of fact about when the limitations period was triggered; (3) even if the limitations period was triggered, it was equitably tolled; and (4) the builder’s principal is individually liable for negligence.

We will affirm the judgments.

BACKGROUND

The Elissagarays contracted in 2004 with Doble & Son Custom Homes, Inc., (Doble) to build a home for them. The builder engaged Venice Tile and Marble, Inc., (Venice) to furnish and install the marble tile for the home, and Aqua Heating Systems, Inc., to install a radiant heating system under the marble flooring. The construction was completed and approved in 2005. Immediately after the Elissagarays moved in, they noticed water pooling in a marble tile shower. Venice attempted a repair but the repair failed.

In early 2006, the Elissagarays repeatedly reported chipping, spalling and other problems with the 5,300 square feet of marble flooring in the house.[2] Venice replaced some tiles and filled in others with epoxy, but the Elissagarays said the floor continued to deteriorate.

A 2010 demand letter to Doble recounted a series of failed attempts by Venice to patch the floor tiles in 2006 and 2007 and once more in 2008, followed by unheeded homeowner reports of increasing tile failures in 2009. In 2011 a tile expert removed some tiles and inspected the underlying construction, concluding that many parts of the installation were substandard and the Elissagarays would need to completely remove and replace the floor and the radiant heating system beneath it. Venice refused to replace the floor unless the Elissagarays paid for labor and materials. The Elissagarays filed a verified complaint in October 2011 against Doble, Venice, their principals, and others. The Elissagarays named the same defendants in a 2012 first amended complaint, which alleged causes of action against Doble, Venice and their principals for negligence and declaratory relief based on negligence. The Elissagarays substituted Aqua Heating Systems, Inc., in place of a Doe defendant.

Doble, Venice and their principals moved for summary judgment, contending the Elissagarays’ negligence and declaratory relief causes of action were time-barred by the three-year statute of limitations applicable to negligence claims. The trial court agreed and entered judgment against the Elissagarays.

Additional facts are included in the discussion.

STANDARD OF REVIEW

A motion for summary judgment should be granted where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) To prevail, a defendant moving for summary judgment must prove that one or more elements of the claim at issue cannot be established or that there is a complete defense to it. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the defendant does that, the burden shifts to the opposing party to demonstrate a triable issue of material fact. (Ibid.)

Appellate review of summary judgment is de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We view the evidence before the trial court in the light most favorable to plaintiffs as the losing parties. (Ibid.) Although we assess the grant of summary judgment de novo, we do so subject to certain constraints. (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 644-645.) We consider only the evidence submitted in connection with the motion (excepting evidence to which objections have been appropriately sustained); we begin with the presumption that a judgment is correct; and we consider only those contentions that are adequately raised in the briefs. (Ibid.)

I

Annette contends the trial court should have considered statements contained in declarations filed by the Elissagarays in opposition to summary judgment. We review the trial court’s rulings on objections to evidence for abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) Discretion is abused when a ruling is “ ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)

The evidence submitted in support of summary judgment included the verified discovery responses from the Elissagarays stating the following: (1) they noticed chipping and spalling of some marble floor tiles and a hollow sound in others within four to six months of their 2005 move-in and, although Venice attempted repairs, a cycle of new floor problems and more repairs repeated itself every six to eight months thereafter; (2) by late 2006 or early 2007, the floor deficiencies were multiplying to the point that the Elissagarays believed they had a real problem; and (3) Venice came out to repair the tiles five or six times between 2006 and 2007 but only about half of the repairs were successful and, in 2007, Venice began ignoring requests for repairs.

The Elissagarays opposed summary judgment with declarations to the effect that they had been satisfied with the repairs Venice made and they believed statements from the builder and tile contractor that the flooring issues were normal and repairs would continue. The trial court found that those statements in the declarations directly contradicted the Elissagarays’ prior verified discovery responses. It disregarded the declarations, citing Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-1088 [trial court may disregard a declaration contradicting prior discovery responses and, in the absence of other evidence, may conclude there is no disputed material fact] (Whitmire).

A self-serving declaration that contradicts the declarant’s sworn testimony is not sufficient to raise a triable issue to defeat summary judgment. (Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 325, citing Whitmire, supra, 184 Cal.App.4th at p. 1087 and D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.) Based on our review of the record, we conclude the trial court did not abuse its discretion in disregarding the declaration statements.

II

Annette next contends there were triable issues of fact about when the limitations period was triggered.

“[A]ctions founded upon a latent defect in the development of real property must be filed within three or four years of discovery, depending on whether the action rests on breach of contract or negligence, but in any case within ten years of the date of substantial completion of the improvement.” (Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 641.) The limitations period for negligence is three years. (Code Civ. Proc. § 338.)

A latent defect is discovered when a plaintiff either actually discovers the injury and its cause or could have discovered the injury and its cause through the exercise of reasonable diligence. (Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1065.) An analysis of when an injury is discovered focuses on a party’s suspicion of wrongdoing, so that, once she has a suspicion and an incentive to sue, “she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)

Venice’s motion asserted that the Elissagarays were on inquiry notice by early 2007 and certainly no later than early 2008, because they asserted Venice made unsatisfactory repairs to the floors starting in 2006 and Venice became less and less responsive until sometime in 2007, when they said Venice began to ignore them. In opposition, the Elissagarays offered their declarations suggesting the condition of the flooring had not deteriorated to the point of unusual and unexplainable until 2009. Their declarations also said it was not until March 2010 that the builder told them for the first time that what was happening to the floors did not appear to be right, and it was not until June 2011 that an expert told them the floors had not been installed correctly. The trial court determined the statute of limitations was triggered when the Elissagarays became concerned enough about chipping and loose tiles to call the builder to come out and take a look, a date they fixed in verified interrogatory responses as no later than January 1, 2007.

Quoting from the very declarations we have determined the trial court properly disregarded, Annette claims on appeal that the Elissagarays’ discovery responses meant only that they were disheartened in 2006 to have something marring the look of the high-end marble flooring, but they believed the assurances that the issues were typical of the flooring material. Quoting Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 642-643 (Mills), which in turn quoted Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pages 1110-1111, the trial court acknowledged that the Elissagarays did not fully understand what was causing the floor problems in 2006, but their suspicions nevertheless triggered the statute. The Elissagarays argue the reassurances from the contractors combined with the Elissagarays’ lack of expertise created a triable issue of fact, but they said in discovery responses that they started calling for repairs a few months after moving in and, even though they knew the repairs were failing, they continued doing so every few months as the problems multiplied. Their conduct demonstrated suspicion. In any event, “ ‘[s]ubjective suspicion is not required. If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation.’ [Citations.]” (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108.)

A question about just when a latent construction defect was discovered arose in Mills, supra, 108 Cal.App.4th 625. A contractor installed siding on a house but negligently omitted a vapor barrier. As a result, the siding absorbed moisture in wet weather, causing it to buckle and warp, the paint to peel, and the nails to pop out. (Id. at pp. 645-646.) Although a repair was unsuccessful, the homeowners said they continued to believe the builder would correct the problem until the siding manufacturer told them, many years later, about the negligent installation. (Id. at p. 647-648.) The homeowners argued they did not realize they had a claim until the siding manufacturer told them the builder was at fault because the builder had made assurances and representations and, along with the manufacturer, treated their problems as “ ‘essentially minor.’ ” (Id. at p. 648.) Rejecting the notion that statutes of limitation are triggered only when a plaintiff grasps the actual nature and extent of his harm, the Court of Appeal said the discovery rule applies an objective test and is triggered “when a plaintiff has notice or information of circumstances sufficient to put a reasonable person on inquiry.” (Ibid.) Ignorance of the legal significance of the facts or the identity of the wrongdoer does not delay the running of the statute of limitation. (Id. at p. 649.) The court held that the obvious problems with the siding put the homeowners on notice that something was wrong and triggered a duty to inquire further. (Id. at p. 646.) As a matter of law, the defect was bad enough to trigger the statute at the time of the unsuccessful repair. (Id. at p. 650.)

Here, the frequently-repeated repairs that held up only half the time would have caused a reasonable person to inquire about his or her remedies. Statements demonstrating a subjective failure to grasp the seriousness of the flooring problem did not create a disputed question of material fact.

Adequate diligence was demonstrated in Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, a case cited by the Elissagarays to suggest they made reasonable but unsuccessful efforts to identify the cause of the floor problems. But in contrast to the plaintiffs in Leaf, there was no evidence here that the Elissagarays promptly called in other professionals to determine why the flooring problems they noticed in 2006 continued unabated and why so many repairs attempted by the tile contractor had been unsatisfactory; instead, like the plaintiffs in Mills, supra, the Elissagarays let many years pass waiting for the problems to be fixed. The Elissagarays’ own sworn statements supported the trial court’s factual conclusion that they were aware of significant flooring problems no later than early 2007. In his deposition, for instance, Roger agreed “the tiles immediately started to fail and crack within the first year after they were installed.” In separate interrogatory responses, both Elissagarays said, “We noticed chipping along the edges of some of the marble floor tiles within approximately four to six months after our December 2005 move-in.” Their responses went on to describe a lengthy series of repairs. But the repairs only held up half the time and new chips kept appearing. The trial court’s conclusion that these undisputed facts put the Elissagarays on inquiry notice of a construction defect is entirely consistent with applicable law.

Annette also asserts a shower defect, but that was a patent defect because the Elissagarays noticed it the first time they used the shower in 2005. (Mills, supra, 108 Cal.App.4th at pp. 644-645.) A claim for money damages for a patent construction defect must be filed within four years of the project’s substantial completion. (Code Civ. Proc., § 337.1, subd. (a).) The Elissagarays filed their complaint in 2011, past the limitations deadline.

III

Annette further claims that even if the limitations period was triggered, it was equitably tolled. She argues the statute of limitations was tolled from 2006 to 2008 during the period of attempted repairs and the tolling continued as late as 2011 while further repairs were promised. She notes the first time Venice explicitly refused to make repairs was in 2011, so the statute of limitations must have been tolled until then. But Elissagaray testimony established that the 2006 shower repairs failed entirely and the tile repairs used the wrong color of epoxy and were only effective half the time and, by 2007, the Elissagarays felt ignored.

Annette notes that a builder or contractor cannot justly or equitably lull a homeowner into a false sense of security until a claim is time-barred. But tolling theories do not apply in the absence of some conduct by defendants that actually and reasonably prevent plaintiffs from filing a timely complaint. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 385.)

Here, even if the Elissagarays were actually lulled into inaction, the record establishes such delay was not reasonable. The tolling arguments are without merit.

IV

In addition, Annette contends Doble’s principal is individually liable for negligence. The complaint named Doble and the corporation’s principal, Paul A. Doble, Jr., as defendants. The Elissagarays alleged that the principal personally supervised the subcontractors when they installed the floors. Annette now claims he failed to offer evidence demonstrating that he did not personally engage in negligence. But, as we have explained, the negligence claims against all defendants were barred by the statute of limitation.

DISPOSITION

The judgments are affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a).)

MAURO , J.

We concur:

RAYE , P. J.

BLEASE , J.