McBurney v. Ultimate Development

Filed 4/25/07 McBurney v. Ultimate Development CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Mike McBurney sued the builder of his home (Ultimate) and the company that did the soil engineering work (Youngdahl), alleging latent defects for which defendants were responsible. The trial court granted summary judgment. McBurney timely appealed from the judgment.

We agree with the trial court that the undisputed facts show McBurneys claims against each defendant are barred by the applicable statutes of limitation and therefore we shall affirm.

STANDARD OF REVIEW

The pleadings outline the perimeter of materiality in summary judgment cases. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) We determine if the movant showed the opponent could not prove its case; then and only then do we examine the oppositionin favor of the opponentto determine the existence of triable factual issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Although we review summary judgments de novo, the appellant bears the burden of showing reversible error, as in other appeals. (Guthrey v. State of California (1998) 63 Cal.App.4th 1109, 1115-1116.)

BACKGROUND

Each defendants entitlement to summary judgment turns on the evidence that defendant tendered. (See Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.) However, because the material facts are the same, we will provide a single factual summary.

A. Pleaded Issues

As relevant, on August 17, 2004, McBurney sued Youngdahl, alleging negligent soil engineering, and sued Ultimate, alleging negligence, contract breach and related theories, resulting in damages. Defendants denied the allegations and interposed statutes of limitation defenses.

B. Movants Showing

In 1994 McBurney contracted to have Ultimate build a home. Ultimate hired Youngdahl to do geotechnical work. Henry Javaheri is Ultimates president.

McBurney moved into his home in June 1995 and within three months saw cracks in the walls and the doors stuck. He complained to Javaheri and in January 1997, Youngdahl, at Javaheris request, inspected the property. Youngdahl wrote a report, dated February 14, 1997, concluding that the house in some areas was slightly off-level but the problem could be corrected by shims; also, because the clay soil around the house would shrink or swell if the moisture varied, he advised that landscaping and irrigation be maintained around the foundation and recommended a sub-drain to stabilize the minor uplifting caused by water ponding. McBurney read the report in 1997.

In October 1999 McBurney asked Javaheri to reinspect the property, and Javaheri again sent Youngdahl, but also hired engineer Wallace-Kuhl to give a second opinion. Both prepared reports in December 1999, which McBurney read in January 2000.

Youngdahls 1999 report states that the advice in the 1997 report had not been followed and poor irrigation had dried out the soil; It is our opinion that clay swelling apparently occurred near the water valves, and as a result, twisted the staircase; further The current damage is related to lack of maintenance and total disregard by the homeowner for protecting the structural improvements from expansive pressures[;] finally, the staircase construction did not follow the recommended foundation depths. (Italics added.)

Wallace-Kuhls report begins by stating it was hired to observe soil-related distress to the exterior staircase leading to the front door of the residence. It notes that Javaheri wrote a letter in March 2, 1997, stating Javaheris opinion that Youngdahls 1997 proposal to shim the floors would result in additional distress to the structure, and that the slope of the floors within the home were within acceptable tolerances. In other words, the Wallace-Kuhl report shows that Javaheri rejected part of Youngdahls proposed remedy. The report concludes the staircase to the front door lacks an adequate foundation, and confirms that the soil has a potential to expand or shrink with changes in moisture; It is apparent that the recommendations of the [1997 Youngdahl report] concerning maintaining soils near foundations in a uniform damp condition were not followed.

On appeal McBurney claims these inspections were limited to the stairway and cracking noted in the staircase and landing[,] but the reports explicitly discuss general soils issues. Thus, by February 1, 2000more than four years before filing suitMcBurney knew Javaheri thought his complaints warranted bringing in the soils engineer and obtaining a second opinion.

C. McBurneys Opposition

McBurneys opposition relied heavily on his own declaration, to which many objections were interposed and sustained. Ignoring these objections he declared as follows:

In 1995 the window and door problems were inspected and found to be caused by improper manufacture or installation of the products. McBurney did not know why Youngdahl made a floor level survey in 1997, but did receive the ensuing report. Although Youngdahl mentioned ponding of water I had never noticed any ponding in this area. In fact, this seemed like a strange comment to me since there was a drain in the area that kept water from ponding. Javaheri told McBurney that neither he nor Youngdahl thought there was any movement going on at the house. However, more cracks developed.

McBurney declared that he did install landscaping in response to Youngdahls report, but that it washed away due to rain and the slope of the property. He did not explain what steps, if any, he took to prevent this, nor did he declare that he reinstalled landscaping.

McBurney acknowledged that Youngdahls 1999 report noted that the ground around the house was dry and desiccated. This observation did not make any sense to me, since it was wintertime and the soil was wet from rainfall. He did not explain what steps, if any, he took to clarify this point. McBurney noted that part of the Wallace-Kuhl report conflicted with the Youngdahl report, but he did not explain what efforts, if any, he made to have the opinions reconciled. On appeal McBurney concedes that Wallace-Kuhl had a different diagnosis altogether.

The rest of McBurneys opposition either pertains to later events or reflects his subjective understandings of events and conditions.

D. Trial Court Ruling

After reciting background facts the trial court found, as to each defendant, that with the 1999 reports McBurney understood that the builder believed the complaints about the doors and cracks required the soils engineer to examine the property and required the services of a second engineer to examine the soil. This put McBurney on inquiry notice. Because this suit was filed more than four years later, it was filed too late.

Defendants timely appealed from the ensuing judgment.

DISCUSSION

While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly).)

Suit on a patent construction defect must be filed within four years. (Code Civ. Proc., 337.1; further section references are to this code.) Suit on a latent defect must be filed within ten years. ( 337.15.) However, when a person knows or should have known of a defect, suit must be filed within three years for negligence claims or within four years for breach of contract claims. ( 337, 338; see Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 644-646 (Mills).)

Sections 337 and 338 begin to run when the damage is sufficiently appreciable to give a reasonable man notice that he has a duty to pursue his remedies. (Mills, supra, 108 Cal.App.4th at p. 646; see North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 27; Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762, 769.)

McBurney discusses at length the distinction between patent and latent defects. This is irrelevant because defendants never asserted the defects were patent.

McBurney asserts that the statute of limitation begins to run from the time he could have discovered the injury and its negligent cause through the exercise of reasonable diligence. In support he cites this passage:

Although it has been said that a cause of action under the discovery rule accrues when the plaintiff discovers or should have discovered all facts essential to his cause of action [citations], this has been interpreted under the discovery rule to be when plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence [italics added]. [Quoting in part Sanchez v. SouthHooverHospital (1976) 18 Cal.3d 93, 96-97 (Sanchez).] (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 407 (Leaf).)

We note the internally quoted passage was discussing a medical malpractice rule which arose in part from the fiduciary and confidential relationship created between physician and patient. (Sanchez, supra, 18 Cal.3d at pp. 96-97.)

McBurney argues he did not understand the cause of the problems until 2002 or 2003. His understanding is irrelevant. (Mills, supra,108 Cal.App.4th at p. 649 [duty to inquire not tied to plaintiffs subjective knowledge].) Instead, we determine at what point the damage is sufficiently appreciable to give a reasonable man notice that he has a duty to pursue his remedies. (Id. at p. 646; see Leaf, supra, 104 Cal.App.3d at p. 407 [when noticeable damage occurs].)

Contrary to McBurneys view, the homeowner need not have inquiry notice of the specific physical cause of the damages, only that a cause is the negligence of the defendant(s). For example, if the claim were defective plumbing and the homeowner had seen water on the floor, she would not be able to avoid the statute of limitation by claiming she did not know whether there was a hole in a pipe or a poor couplingthe water would put her on notice of poor plumbing work.

So, too, here. Whether the problems with McBurneys house was due to poor soil compaction before the foundation was poured or an inadequate foundation, he was on notice that there was a problem about which his builder and two engineers could not agree. The notice was provided by the continued cracking and the 1999 reports of the two engineers, both pointing out problems with the soil and in part contradicting each other.

As stated by the California Supreme Court, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. . . . A plaintiff need not be aware of the specific facts necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore 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, supra, 44 Cal.3d at pp. 1110-1111.) In this passage the court explicitly rejected the rule as stated in a case holding that Knowledge of the occurrence and origin of harm cannot necessarily be equated with knowledge of the factual basis for a legal remedy. (Ibid; see Leaf, supra, 104 Cal.App.3d at p. 408 [claim accrues when plaintiffs became aware of defendants negligence as a cause, or could have become so aware through the exercise of reasonable diligence].)

As McBurney seems to concede, there is no requirement that the plaintiff know the precise something wrong or the particular defendant that did her wrong before her time in which to file suit begins to run:

[T]he limitations period begins to run when the circumstances are sufficient to raise a suspicion of wrongdoing, i.e., when a plaintiff has notice or information of circumstances sufficient to put a reasonable person on inquiry. [Citation.] Thus, the plaintiff need not be aware of the specific facts necessary to establish the claim. [Citation.] Moreover, ignorance of the legal significance of known facts or the identity of the wrongdoer will not delay the running of the statute. (Mills, supra, 108 Cal.App.4th at pp. 648-649.)

McBurney states:

McBurney experienced doors and windows that were sticking and cracks in the walls and staircase. [Record citations.] A trier of fact could reasonably find that those problems would not alert the average consumer to the fact that the house had a defective foundation, particularly when the builder and soil engineer advised him repeatedly that the cause was actually soil expansion and natural drying of the lumber.

Later he states:

When he complained to defendants about the cracks, sticking doors, leaking windows and other problems, they assured him that they were within acceptable tolerances, normal effects of settling, or the result of soil expansion from excess moisture.

These passages omit discussion of critical evidence.

In particular, as we have set forth above, in 1997 McBurney read Youngdahls report which explained that the clay soil could cause foundation problems unless the moisture content was kept constant. This was reiterated by the 1999 reports of Youngdahl and Wallace-Kuhl. McBurneys own declaration showed that although he initially heeded the 1997 report and installed landscaping, he allowed it to wash away.

Further, McBurneys declaration states that he was puzzled by or disagreed with passages in the 1999 reports, and that he knew the reports contradicted each other in part. He claims that because of the disagreement among experts he had no reason to suspect wrongdoing. The opposite is true: When faced with a recurring problem with a new home which the builder and two engineers cannot solve, an objectively reasonable homeowner would be more suspicious of wrongdoing, not less.

In Mills the latent defect was the improper installation of siding: The subsequent buckling, warping, and peeling were obvious, of course. However, they did not turn a latent defect into a patent one; they simply put the Mills on notice at some point that something was wrong with the siding, and that further inquiry was necessary. The question then is just when exactly did this point arrive; when can it be said the Mills discovered, or should have discovered, the defect? (Mills, supra, 108 Cal.App.4th at p. 646.) The siding indisputably was warping and buckling, and the paint was peeling off, by the summer of 1993. Around this time, [the builder] tried without success to correct the problem by cutting the individual siding panels in half. That these measure were necessary was evidence enough something was wrong with the siding. (Id. at p. 649.)

Here, in response to McBurneys complaints the builder sent out a soils engineer in 1997, yet the problems continued. Two engineers were sent out in 1999, yet they could not agree on the cause of the problem. This was evidence enough something was wrong to trigger a duty of inquiry.

McBurney asserts that because the engineers were looking at soils issues there was no reason for him to suspect any problem with the foundation: A reasonable layperson would not have been on notice from representations that the soil was too dry or wet that the real problem was the foundation.

We disagree. By inference he again asserts the statute does not begin to run until the precise problem is known or that a reasonable person should examine whether that precise problem exists. That is not the law, as explained above. (Jolly, supra, 44 Cal.3d at pp. 1110-1111.) The problems McBurney perceived and reported, sticking windows and doors and cracking walls, pertained to the levelness of the structure. Whether the problem was inadequate site preparation (e.g., compaction of clay soils and adequate grading to control moisture) which allowed the foundation to move, or an improperly designed or built foundation which was not supporting the structure does not matter. The fact the perceived problems were recurring and two engineers and the builder could not agree on a cause raised a warning adequate to trigger the statute of limitations: As stated above, at that point an objectively reasonable homeowner would have demanded an answer.

We need not address McBurneys claims that the trial court erred in making certain evidentiary rulings, since those rulings pertain to evidence after the critical date.

DISPOSITION

The judgment is affirmed. McBurney shall pay Ultimates and Youngdahls costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

MORRISON , J.

We concur:

BLEASE , Acting P.J.

SIMS , J.

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