Opinion
C072369 C074737
04-16-2018
DONALD HOLSAPPLE et al., Plaintiffs and Appellants, v. WALLACE-KUHL & ASSOCIATES, INC., Defendant and Respondent. CHARLES KING et al., Plaintiffs and Appellants, v. WALLACE-KUHL & ASSOCIATES, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2010-00072318-CU-CD-GDS)
The original or subsequent owners of 45 single family homes in Rancho Murieta South, Blue Oak Estates and The Crest developments in Rancho Murieta (Developments) sued individuals and entities associated with the development and construction of their houses for strict liability, strict product liability, negligence and nuisance. Plaintiffs alleged defendants Wallace Kuhl & Associates, Inc. (WKA), and Doug Kuhl caused damage to plaintiffs' properties by, among other things, failing to perform adequate soil compaction tests and failing to prepare for expansive soil conditions.
The trial court granted summary judgment and/or summary adjudication in favor of WKA and against certain plaintiffs and entered judgment in 2012. Plaintiffs now contend (1) WKA's separate statement of undisputed material facts does not comply with California Rules of Court, rule 3.1350; (2) the trial court erred in concluding that subsequent purchaser plaintiffs did not own the causes of action alleged in the second amended complaint; (3) the trial court erred in finding their negligence cause of action time-barred; and (4) WKA did not meet its initial burden.
We will reverse the summary judgment order against Frank Loretz and James and Debra Young. We will also reverse the summary adjudication order against Loretz, Nina Heise, and the Youngs, on their negligence cause of action. We will otherwise affirm the judgment.
BACKGROUND
Plaintiffs' second amended complaint alleged defendants negligently built, inspected, tested, designed, graded or otherwise constructed plaintiffs' houses. The defects of which plaintiffs complained include continuous shifting or movement of surface and subgrade soils, drywall cracks, stucco cracks, inadequate site drainage, cracks in concrete slabs, driveways, walkways and patios, and warped doorframes and floor surfaces.
The trial court granted WKA summary judgment and summary adjudication in 2012 (the 2012 judgment). The trial court ordered summary judgment against subsequent purchaser plaintiffs Loretz, Robert Demarco, Seth Beals, John Firenza, Paul Asterlin, Timothy Wolhart & Janet Shippy as co-trustees of the Wolhart Family 2009 Revocable Trust, Max and Andrea Cabrera, William and Antonietta Vaughn, David and Julie Jordan, Larry and Theresa Harrison, Douglas and Carolyn McLaren, Robert and Joan (Haynes) Jobe, Joseph and Alma Vandendries, Dante and Marissa Maranise, the Youngs, Joseph and Esther Lopez, John and Judith Viera, as trustees of the John R. and Judith M. Viera Trust and Michael and Marilyn Mallary based on Krusi v. S. J. Amoroso Construction Co. (2000) 81 Cal.App.4th 995 (Krusi) because it found no triable issue of fact that plaintiffs' causes of action accrued to prior owners, there was no assignment of rights from the prior owner to the plaintiff, and the damages plaintiffs suffered were not fundamentally different than those suffered by prior owners. In addition, the trial court ruled WKA implicitly conceded that plaintiffs Berneice Bowman and Charles and Gertie King received assignments from prior owners and could therefore maintain their claims for damages. Moreover, the trial court ordered summary adjudication on the negligence cause of action by original purchaser plaintiffs Valerie Silva, Demarco, Bowman, Loretz, Firenza, Beals, Heise, Donald Holsapple and Ceres Caballes, Mitchell Hastings and Carol Meylor, Robert and Leta Stelter, Daniel and Andrea Santos, Gerald and Marilyn Moore, James and Tammy Simmonds, Timothy and Cathleen Corr, David and Cheryl Borsch, Victor and Linda Carlson, Steven and Patricia Mahan, Erik and Terri Foster, Y'Dell and Anita Myles, Wolhart and Shippy, the Harrisons, the Vaughns, the Mallarys, Larry and Vickie Sanchez, the Jobes, the Cabreras, the Lopezes, the Vieras, the Youngs, and the Maranises on statute of limitations grounds. The trial court determined that more than three years before the filing of the complaint, those plaintiffs were aware of damages sufficiently appreciable to give a reasonable person notice that he or she had a duty to pursue remedies. And plaintiffs failed to present any affirmative evidence sufficient to raise a triable issue of fact regarding their asserted lack of notice of appreciable harm. The trial court said the limitations period was not tolled as to WKA by repair efforts or representations made by another party. We do not discuss the other grounds for the trial court's summary adjudication ruling as plaintiffs do not appeal from those portions of the trial court order.
About nine months after the 2012 judgment, WKA and Kuhl filed another motion for summary judgment or, in the alternative, summary adjudication. The second motion raised the same arguments asserted in WKA's first summary judgment/adjudication motion, only this time on behalf of Kuhl. In addition, WKA and Kuhl argued Civil Code section 895 et seq. (also known as Sen. Bill No. 800) did not apply to the remaining plaintiffs -- Marie Maschmeyer, Julie Texeira, Bruce and Janet Cann, Flavis and Joanne Frazier, Craig and Lara Van Hulzen, Michael and Terry Yager, Robert and Rachel Book, and the Kings -- and the claims by those plaintiffs were barred under Code of Civil Procedure section 338.
Undesignated statutory references are to the Code of Civil Procedure.
Before the hearing on the second motion, Maschmeyer, Texeira, the Kings, the Canns and the Books, on the one hand, and WKA and Kuhl, on the other hand, stipulated to take the second motion off calendar. Maschmeyer, Texeira, the Kings, the Canns and the Books stipulated that Senate Bill No. 800 did not apply to their claims and section 338 barred their claims against WKA and Kuhl. The trial court entered a stipulated judgment in favor of WKA and Kuhl and against Maschmeyer, Texeira, the Kings, the Canns and the Books.
Plaintiffs appeal from the 2012 judgment. While they also filed a notice of appeal in relation to the stipulated judgment, the appellants' opening brief identifies portions of the trial court order upon which the 2012 judgment was based as the sole basis for plaintiffs' appellate claims. Accordingly, our review is limited to the 2012 judgment.
On September 11, 2017, we granted the request by Asterlin, Bowman, Demarco, Firenza, Hastings, Meylor, Maschmeyer, the Sanchezes, the Borsches, the Cabreras, the Harrisons, the Jordans, the McLarens, and the Moores to dismiss their appeal. In addition, on April 13, 2018, we granted the request by the Mallarys, the Maranises, the Corrs, the Mahans, the Simmonds, Silva, the Vandendries, the Lopezes, the Stelters, the Vieras and the Kings to dismiss their appeal.
STANDARD OF REVIEW
A defendant moving for summary judgment or adjudication may demonstrate that the plaintiff's cause of action has no merit and the defendant is entitled to judgment as a matter of law by showing that the plaintiff cannot establish one or more elements of the cause of action or that there is a complete defense to the cause of action. (§437c, subds. (a)(1), (f), (p)(2); Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 1151; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) This showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken. (§ 437c, subd. (b)(1); Aguilar, supra, 25 Cal.4th 826, 843.)
After the defendant meets its threshold burden, the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more material facts exists as to that cause of action or defense. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff may not simply rely on the allegations of his or her complaint but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. (§ 437c, subd. (p)(2).) A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850.)
In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the trial court concludes the evidence or inferences raise a triable issue of material fact, it must deny the motion. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler, supra, 25 Cal.4th at p. 768.) The trial court must grant the motion if the papers show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
We review an order granting summary judgment or adjudication de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We independently examine the record that was before the trial court to determine whether a triable issue of material fact exists, liberally construing the evidence and resolving all doubts concerning the evidence in favor of the party opposing summary judgment or adjudication. (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499-500; Saelzler, supra, 25 Cal.4th at p. 767.) We consider all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717; Gin v. Pennsylvania Life Ins. Co. (2005) 134 Cal.App.4th 939, 946.) The trial court's stated reasons for granting summary judgment or adjudication are not binding on us because we review its ruling, not its rationale. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.)
DISCUSSION
I
Plaintiffs urge us to reverse the 2012 judgment because WKA's separate statement of undisputed material facts does not comply with California Rules of Court, rule 3.1350, in that it does not break out each cause of action or issue WKA sought to be summarily adjudicated.
Plaintiffs forfeited their claim by not objecting on this ground in the trial court. (Civ. Code, §§ 3515, 3516; FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 71, fn. 2 (FSR Brokerage).) The failure to raise the objection in the trial court denied the defendants and the trial court the opportunity to address and possibly remedy any allege error. In any event, even if we were to consider plaintiffs' appellate claim on the merits, we would conclude the trial court did not abuse its discretion in considering WKA's separate statement.
The trial court's power to deny summary judgment or adjudication based on failure to comply with California Rules of Court, rule 3.1350(h) is discretionary, not mandatory. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) A trial court does not abuse its discretion by declining to deny a motion based on lack of headings in the separate statement where the facts critical to its ruling were adequately identified and the appellant does not explain how any alleged deficiency in the separate statement impaired the appellant's ability to oppose the motion. (Ibid.)
Although WKA's separate statement did not contain separate headings for each issue that was the subject of WKA's motion, the accompanying memorandum of points and authorities clearly stated the grounds for WKA's motion, and it appears from the record that plaintiffs and the trial court understood the grounds for WKA's motion. Moreover, plaintiffs do not identify material facts or issues of which they allegedly received inadequate notice and they have not shown prejudice warranting reversal (Cal. Const., art. VI, § 13).
II
Plaintiffs also argue the trial court erred in concluding that subsequent purchaser plaintiffs did not own the causes of action alleged in the second amended complaint.
In general, every action must be prosecuted in the name of the real party in interest. (§ 367.) The real party in interest is the party who owns the cause of action, i.e., the one whose interest in the property is injured and, thus, has the right to maintain the cause of action. (Vaughn v. Dame Construction Co. (1990) 223 Cal.App.3d 144, 147-148.) In addition to ownership of the cause of action, the right to maintain a cause of action is also based on when the cause of action accrued. (Krusi, supra, 81 Cal.App.4th at p. 999.)
A cause of action for damage to real property accrues when the defendant's act causes actual and appreciable harm to the property. (Krusi, supra, 81 Cal.App.4th at p. 1005; see generally CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1534 ["[a]ctual and appreciable harm is a necessary element of a tort cause of action"].) A cause of action for damage to property is personal property. (Vaughn v. Dame Construction, supra, 223 Cal.App.3d at pp. 148-149.) It is not automatically assigned or transferred upon the sale of the real property. (Ibid.) "The fact that the property [is] sold after the damage occurred does not mean the new owners are now the parties entitled to recover for the damage suffered by [the prior owner]." (Id. at p. 149.) But a prior owner to whom the cause of action for defective design, engineering or construction belongs may transfer his or her cause of action to a subsequent owner. (Krusi, supra, 81 Cal.App.4th at p. 1005.) However, a prior owner does not possess a cause of action which would preclude a subsequent owner from maintaining a cause of action for property damage unless the prior owner suffered a compensable injury because of the construction defect. (Siegel v. Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 996.) Where the construction defect is latent, as is the situation here, a cause of action accrues when the owner actually discovers the property damage and its negligent cause, or could have discovered the property damage and cause through the exercise of reasonable diligence; it "is only then that some entity capable of maintaining a legal claim will have suffered a compensable injury, e.g., the cost of repair and/or the loss in the property's value . . . ." (Id. at p. 1009, see id. at pp 1012-1014.)
In addition, a subsequent owner can accrue a cause of action for damage to property against the same defendant or defendants responsible for damage suffered by the prior owner if the damage suffered by the subsequent owner is fundamentally different from that sustained by the prior owner. (Krusi, supra, 81 Cal.App.4th at p. 1006.) "Thus, if owner number one has an obviously leaky roof and suffers damage to its building on account thereof, a cause of action accrues to it against the defendant or defendants whose deficient design or construction work caused the defect. But, if that condition goes essentially unremedied over a period of years, owners two and three of the same building have no such right of action against those defendants, unless such was explicitly (and properly) transferred to them by owner number one. But owners two and three could well have a cause of action against those same defendants for, e.g., damage caused by an earthquake if it could be shown that inadequate seismic safeguards were designed and constructed into the building. Such is, patently, a new and different cause of action." (Ibid.)
The determination of when a cause of action accrued is a question of fact. (Krusi, supra, 81 Cal.App.4th at p. 1006.) "[W]here . . . the material facts regarding accrual turn on disputed facts or require credibility determinations, the jury must make these factual findings 'before the trial court decides whether the facts, as determined by the jury' establish ownership of the causes of action as an issue of law." (Stofer v. Shapell Industries, Inc. (2015) 233 Cal.App.4th 176, 179.) However, summary judgment is proper where the undisputed material facts show the cause of action alleged by the plaintiff accrued to a prior owner. (Truong v. Glasser, supra, 181 Cal.App.4th at p. 114.)
Here, the trial court concluded WKA proved there were no triable issues of fact that (1) prior owners suffered actual economic injuries as a result of the construction defects; (2) prior owners discovered or ought to have discovered the damage to their properties; (3) the causes of action alleged by subsequent purchaser plaintiffs had accrued to prior owners; (4) there was no assignment of the causes of action from the prior owner to the plaintiff; and (5) the damages alleged by subsequent purchaser plaintiffs were not fundamentally different from the type of damages suffered by their prior owners. The subsequent purchaser plaintiffs affected by the trial court's ruling are Loretz, Beals, Wolhart and Shippy, the Vaughns, the Youngs and the Jobes.
Demarco, Firenza, Asterlin, the Cabreras, the Jordans, the Harrisons,the McLarens, the Vandendries, the Lopezes, the Maranises, the Vieras, and the Mallarys are also subsequent purchaser plaintiffs affected by the trial court's ruling. But they have dismissed their appeal.
We conclude the trial court erred in granting summary judgment in favor of WKA and against Loretz and the Youngs because there is no evidence establishing what damage a prior owner suffered in order to conclude that a cause of action accrued to the prior owner which would preclude the plaintiffs from maintaining their causes of action against WKA.
Loretz and the Youngs bought their houses from Reynen & Bardis Development, LLC (Reynen & Bardis) as subsequent purchasers. There is no evidence in the record before us that a prior owner of the houses later bought by these plaintiffs actually discovered or could have with reasonable diligence discovered property damage and its negligent cause during the prior ownership. There is, therefore, no evidence from which it can be concluded that a cause of action for property damage accrued to a prior owner (Siegel v. Anderson Homes, Inc., supra, 118 Cal.App.4th at p. 996), and hence no basis to say damage suffered by a prior owner was the same as or different from plaintiffs. There is a triable issue of material fact as to whether the above-listed plaintiffs can maintain a cause of action for property damage against WKA under Krusi, supra, 81 Cal.App.4th 995.
But the evidence pertaining to Beals, Wolhart and Shippy, the Vaughns and the Jobes, is different.
Wolhart and Shippy bought their house from Reynen & Bardis. A warranty repair request dated about four years before the Wolhart and Shippy purchase indicates that a crack in the drywall in the family room had been repaired twice but a large crack had again developed in that area. In addition, there were cracks in the kitchen, master bedroom and master bedroom patio support wall. The drywall in a corner of the family room had moved by a quarter of an inch. It was well known by that time (2004) that houses built in Rancho Murieta by Reynen & Bardis had foundation problems. A cause of action for property damage had accrued to the prior owner of the Wolhart/Shippy house. There is no evidence of an assignment of rights to Wolhart and Shippy and the damage of which Wolhart and Shippy complain is the same as the damage identified in the warranty repair request by a prior owner. Wolhart and Shippy cannot maintain a cause of action against WKA. (Krusi, supra, 81 Cal.App.4th at p. 1006.)
The Vaughns bought their house from David Davis and Kathleen Zaleski-Davis. At the time the Vaughns were negotiating the purchase of the house from the Davises in November 2004, there was a sizable structural crack in the stucco at the front porch. There were other cracks in the stucco that were greater than the thickness of a quarter. A top plate had separated from the truss in the kitchen. There were small cracks in interior and exterior walls. And it was well known that houses built in Rancho Murieta by Reynen & Bardis had foundation problems. In fact, a home inspection report prepared for the Vaughns informed them, "It is common knowledge that the builder has had some structural defects related to the soil conditions and drainage." Further, the Vaughns's agent noted in the "Agent's Inspection Statement" that an expert soils engineer inspected the house and "is having any work done that is necessary." It is undisputed that "[p]rior to the purchase of the home, the home had suffered structural damage in the form of drywall cracks and stucco cracks. Drains had been installed in the home. Also, prior to the VAUGHN[S'S] purchase, they noticed a crack on the interior of the home and were made aware that drain repairs had been made by the builder to control water runoff around the home. Floor level surveys had been done to the home prior to the VAUGHN[S'S] purchase due to foundation movement." By November 2004, a cause of action had accrued to the prior owners. There is no evidence of an assignment of rights to the Vaughns. The property damage the Vaughns allegedly suffered -- cracks in the corners of windows and in unspecified areas of the house -- are not fundamentally different from those manifested during the prior ownership. The Vaughns cannot maintain a cause of action against WKA. (Krusi, supra, 81 Cal.App.4th at p. 1006.)
Beals's house was previously owned by David Smith. A March 12, 2006 letter indicates Smith was the second owner of the house. He bought the house from the Jenninsons after a subdrain had been installed. In June 2005, Smith asked Reynen & Bardis to repair cracking and splitting drywall and a front door misalignment. Two floor-level surveys were performed during Smith's ownership of the house. The second survey noted movement in the house and recommended that the house be lifted to level. In March 2006, Smith expressed concerns to Reynen & Bardis about soil movement and "interior cosmetic evidence of this movement" in his house. He considered options including door and drywall repair, flooring replacement, "pier placement," and a buyback by Reynen & Bardis. A cause of action for property damage had accrued at least by the time Smith owned the property. There is no evidence of an assignment of rights from the Jenninsons or Smith to Beals, and the damage claimed by Beals is not fundamentally different from the damage suffered by Smith during his ownership of the house.
The Jobes bought their house from Greg Gularte in August 2008. Plaintiffs did not object to admission of a letter from Blackburn Consulting Inc., to Mr. and Mrs. Fagan (apparent prior owners) regarding the house. The letter shows that as of November 2002, there was damage to the property and, although repairs were performed, minor cracks reappeared in the drywall and the floor was still not level. By November 2002, the Fagans were informed there was movement in the house caused by "volume changes in the underlying clay soil." The Fagans were also informed that the contractor could not "jack up" the house and the "push piles" the seller installed under the footing near the entry "may lead to more noticeable differential movements across the house as the foundation/slab moves in other areas." We conclude based on the above evidence that a cause of action for damage to property accrued to a prior owner of the Jobes's house because by November 2002 a prior owner actually discovered damage to the property and a negligent cause. There is no evidence of an assignment of rights to the Jobes and the damage alleged by the Jobes in this case is not fundamentally different from the damage experienced during the prior ownership.
In sum, we affirm the summary judgment against Beals, Wolhart and Shippy, the Vaughns and the Jobes on the ground that the uncontradicted facts establish these plaintiffs cannot maintain a cause of action for property damage against WKA. (Krusi, supra, 81 Cal.App.4th at p. 1006.) But we conclude the trial court erred in granting summary judgment against Loretz and the Youngs. Summary judgment as to the latter plaintiffs based on Krusi, supra, 81 Cal.App.4th 995 is reversed.
III
Plaintiffs also claim the trial court erred in finding their negligence cause of action time-barred. They argue the evidence before the trial court does not establish as a matter of law that, more than three years before plaintiffs filed their complaint, they knew or a reasonable person would know plaintiffs suffered actual economic injuries which resulted from the act of a particular defendant. Plaintiffs say there is no evidence they knew prior to filing the complaint that WKA was negligent and WKA's negligence caused them damage.
WKA counters that plaintiffs' claims were time-barred because plaintiffs had sufficiently appreciable damages to put them on notice of a duty to pursue damages, even if they did not know the identity of the wrongdoer. But plaintiffs argue in their appellate reply brief that in order to succeed on the statute of limitations defense, WKA had to show equitable tolling did not apply.
"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.) The parties agree the applicable statute of limitations is three years under section 338.
Plaintiffs allege the construction deficiencies causing them damage were latent. A cause of action for injury to property arising from a latent deficiency as alleged in this case must be brought within three years of discovery, but in no event more than 10 years after the substantial completion of the development or improvement. (§§ 337.15, subd. (a), 338, subd. (b); Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 646 (Mills).)
Discovery of a latent defect within the 10-year period triggers the shorter three-year limitations period under section 338. (Mills, supra, 108 Cal.App.4th at p. 646.) But the discovery rule postpones the accrual of a cause of action under section 338. (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 406-407.) The cause of action for injury to property accrues when the plaintiff actually discovers the injury and its negligent cause or could have discovered the injury and cause through the exercise of reasonable diligence. (Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1065.) In other words, the limitations period begins to run when noticeable damage occurs and the plaintiff suspects that wrongdoing occurred or has notice or information sufficient to put a reasonable person on inquiry. (Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1404-1405, 1408; Mills, supra, 108 Cal.App.4th at pp. 648, 650.) We apply an objective test to determine inquiry notice. (Mills, supra, 108 Cal.App.4th at p. 648.) We look at what a person would know upon making a reasonable inquiry and not what the plaintiff actually knew. (Ibid.) The limitations period begins to run even if the plaintiff does not know the specific facts or legal theory necessary to establish the cause of action or the identity of the wrongdoer. (Lyles v. State of California (2007) 153 Cal.App.4th 281, 287.) Whether damage is sufficiently appreciable so that the owner has a duty to pursue damages can be determined on summary judgment when the material facts are uncontradicted. (Id. at pp. 284, 286; Mills, supra, 108 Cal.App.4th at pp. 647-650.)
Regarding the negligence cause of action, the trial court granted WKA summary adjudication on statute of limitations grounds as to the following plaintiffs: Loretz, Beals, Heise, Holsapple and Caballes, Wolhart and Shippy, the Santoses, the Vaughns, the Jobes, the Carlsons, the Fosters, the Youngs, and the Myleses. We conclude summary adjudication as to, Holsapple and Caballes, the Santoses, the Carlsons, the Fosters, and the Myleses was proper.
The trial court's order also applied to Demarco, Firenza, Bowman, Hastings and Meylor, the Harrisons, the Moores, the Sanchezes, the Borsches,the Cabreras, Silva, the Stelters, the Mallarys, the Simmonds, the Corrs, the Lopezes, the Vieras, the Mahans and the Maranises, but those plaintiffs have dismissed their appeal.
Holsapple and Caballes moved into their house in October 2001. In 2002, Holsapple first noticed cracks in the exterior stucco and that the front porch slab was moving and sinking. At that time, he felt the problem with the front porch had to do with the soil. He believed something was wrong. He saw superficial cracks in the drywall inside the house in 2003. He notified Reynen & Bardis of the problems with his house in 2002 to 2003, and Reynen & Bardis performed various repairs. " 'Repair suggests discovery of a latent defect and commencement of a shorter period of limitation.' [Citation.]" (Mills, supra, 108 Cal.App.4th at p. 649.)
Reynen & Bardis repaired drywall cracks in about 2002, painted and patched stucco cracks in about 2002 to 2003, and repaired the front porch slab by filling in the crack and making "it look nice" in about 2003 and 2004. Drywall cracks reappeared in about 2003 to 2004. Stucco cracks reappeared in about 2003. Holsapple patched the stucco cracks himself in about 2004, and the cracks reappeared again in about 2005 to 2006. The crack at the front porch slab also opened again in 2005 or 2006. Holsapple learned in or around 2005 that other homeowners had problems with their homes because of soil issues.
Although Holsapple is not a soils engineer, and has no education or training in soils engineering, the duty to inquire is not based on his experience or subjective knowledge. (Mills, supra, 108 Cal.App.4th at p. 649.) Instead, we determine whether the damage was sufficiently appreciable to give a reasonable person notice of the need to pursue remedies. (Id. at p. 646.) Based on the above uncontradicted evidence we conclude that, as a matter of law, Holsapple knew there was something wrong with his house, triggering a duty of inquiry, by 2006 at the latest. (Anderson v. Brouwer (1979) 99 Cal.App.3d 176, 179, 181 [discovery of rut in the floor within four months after completion of construction and of a second rut in the floor 10 months later required the plaintiff to make reasonable efforts to investigate].) A reasonable inquiry would have revealed that inadequate or improper site preparation or problems with the slab, building pad or foundation could be a cause of the damage to the Holsapple/Caballes house. That Holsapple and Caballes did not know the identity of the person or entity responsible for their damages does not delay the running of the statute. (Mills, supra, 108 Cal.App.4th at p. 649.) Because Holsapple and Caballes did not file their complaint within three years after 2006, their negligence action against WKA and Kuhl is time-barred.
The second amended complaint alleged defendants attempted to repair some of the defective conditions, thereby tolling the statute of limitations. In addition, plaintiffs argued in the trial court that repairs and other conduct by Reynen & Bardis tolled the limitations period as to WKA. But plaintiffs did not argue that conduct by WKA justified tolling. "Tolling during a period of repairs rests upon the same basis as does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon the words or actions of the defendant that repairs will be made. [Citation.] Repair by third parties does not involve reliance upon the defendant in any way and furnishes no basis for tolling." (A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 355.) It is undisputed that WKA did not perform any repair work on the Holsapple/Caballes house. Repair efforts by Reynen & Bardis did not toll the statute of limitations as to WKA, and the trial court did not err in granting summary adjudication against Holsapple and Caballes on statute of limitations grounds.
We reach the same conclusions as to the Santoses, the Carlsons, the Fosters, and the Myleses.
The Santoses moved into their house in or about August 2002. They saw small cracks in the interior drywall throughout the house within six months after moving in. Reynen & Bardis made multiple but unsuccessful attempts to repair the cracks in the drywall for about a year. By February 2003, Reynen & Bardis discussed other ways to fix the "cracking issues" in the community. Reynen & Bardis installed French drains around the perimeter of the Santos house in about February 2003. It had Youngdahl Consulting Group, Inc. (Youngdahl Consulting), perform an evaluation of the house when the drains did not work. Youngdahl Consulting determined there was three inches of movement in the house. Daniel Santos considered three inches of movement significant. Reynen & Bardis installed piers in mid-to-late 2005 to secure the foundation. Reynen & Bardis also performed drywall repairs and painting. More cracks appeared at the end of 2005. In 2006, there was still movement in the house, along with the development of substantial cracks and problems with doors and windows. We conclude that by 2006 at the latest there was noticeable damage to the Santos house and there was sufficient information known to put a reasonable person on inquiry. The Santoses did not file a complaint for negligence within three years after 2006.
The Carlsons moved into their house in August 2000. Within the first year of moving in, they noticed cracking of walls and concrete, problems with a sliding glass door, and den doors out of square that would not close. In January 2002, they complained to Reynen & Bardis that Reynen & Bardis had repaired the den doors twice in 2001 and they were having the same problem again. The Carlsons told Reynen & Bardis the problem with the den doors was due to movement of the wall and foundation movement. They demanded a permanent fix. Also by January 2002, Reynen & Bardis had repaired drywall cracks at the Carlson house but cracks had reappeared. The Carlsons reported that one crack reopened and was worse than before. On July 23, 2003, Victor Carlson prepared a list of problems with the house which he characterized as due to slab movement. In September 2003, Reynen & Bardis identified repairs needed at the Carlson house, including repairs for separation of a walkway, separation of the porch from a house wall, and cracks in the family room, bedroom and kitchen. Reynen & Bardis gave the Carlsons an extended five-year warranty on their house for repairs resulting from subsidence. In addition, Youngdahl Consulting conducted six or seven surveys at the Carlson house. Mr. Carlson was informed the surveys were to determine how much his slab was moving due to expansive soils. Mr. Carlson received a copy of the survey reports. An October 21, 2003 report stated there was a 5.6-inch total floor differential and water appeared to have caused up to 4.2 inches of uplift along the electric, water and sewer line trenches and behind retaining stem walls. Mr. Carlson was informed there was movement in his slab and that might be why he had cracks at his house. We conclude from the uncontradicted evidence that the statute of limitations began to run on the Carlsons's negligence cause of action in 2003. The Carlsons did not timely file their complaint for negligence.
The Fosters moved into their house in November 2002. They saw cracks in the drywall and stucco within 30 days after moving in. Terri Foster noticed cracked tiles within the first 90 days. In May 2003, Erik Foster complained to Reynen & Bardis about cracked tiles in the bathrooms and kitchen, "stress cracks," bowing at the back of a wall, cracks in the stucco, and cracks in the footer of the garage wall. Regarding the stress cracks, Mr. Foster told Reynen & Bardis those cracks were larger than "a normal settling crack" because he could fit a quarter in some of them. He told Reynen & Bardis the cracks were not normal. He said what he saw indicated "something is putting a bowing tension on the walls, which sounds like the foundation might be sinking or cracking in various places." With regard to cracking in the garage wall, he asked whether the concrete was moving. He also asked Reynen & Bardis, "Why is the stucco cracking like crazy everywhere on the house in long lines?" Floor level surveys by Youngdahl Consulting determined there was about three inches of movement in the Foster house. Reynen & Bardis installed a French drain around the Fosters's house in about September 2004. The Fosters moved out of their house in June 2006 so that piers could be installed. During the remediation, Mrs. Foster learned there was Ione clay under her dining room and the Ione clay was the problem with the soil. Reynen & Bardis gave the Fosters an extended warranty in June 2006 at the latest. The warranty informed the Fosters that Reynen & Bardis contracted with soils experts to remediate problems with soil movement, subsidence and cracking, and that further expansion and/or subsidence would abate over time. Reynen & Bardis warranted the Fosters's house against structural defects resulting from subsidence. We conclude from the uncontradicted evidence that the statute of limitations for the Fosters's negligence cause of action began to run by June 2006, at the latest. The Fosters were not added as plaintiffs in this action until November 19, 2010, beyond the limitations period.
The Myleses moved into their house in September or October 2002. They first noticed drywall and stucco cracking within the first three months of moving in. Anita Myles observed drywall cracking and a drainage problem in the front yard in the first year of living in the house. Reynen & Bardis performed touch up repairs within the first two years. The cracks reappeared within six months after Reynen & Bardis's repair work. Mrs. Myles reviewed a soils disclosure which advised that expansive soils in the community might cause uneven rising and falling of the foundation and damage to the foundation, drywall, framing, stucco, door frames and other components of the house. By September or October 2004, Mrs. Myles made a connection between the cracks she saw at her house and the information from the soils disclosure. At the time the drywall cracks reappeared after Reynen & Bardis's repair work, Mrs. Myles was aware other homeowners had cracks in their drywall, stucco and foundations even though she did not know the cause of those problems. The problem with the foundations of Reynen & Bardis houses in Rancho Murieta was well known in 2004. Under the circumstances shown by the uncontradicted facts, we conclude the statute of limitations for the Myles's negligence cause of action began to run by mid-2005. At that point, cracks in the drywall reappeared after Reynen & Bardis's repair work, problems with Reynen & Bardis houses were well publicized, and Mrs. Myles made a connection between the cracks in her house and damage that can be caused by expansive soils. The Myleses did not file a complaint for negligence within the limitations period.
Because it is undisputed that WKA did not perform any repair work on the plaintiffs' houses and plaintiffs did not argue that conduct by WKA justified tolling the statute of limitations, there is no triable issue of material fact regarding equitable tolling as to the Santoses, the Carlsons, the Fosters, and the Myleses. Their negligence cause of action against WKA is time-barred.
We previously concluded the trial court erred in granting summary judgment against Loretz and the Youngs based on Krusi, supra, 81 Cal.App.4th 995. We conclude the trial court also erred in granting summary adjudication against them on their negligence cause of action.
The Youngs moved into their house in July 2008. Mr. Young first noticed hairline drywall cracks sometime in 2009 and cracking in the stucco toward the end of 2011. Even if a cause of action accrued to the Youngs in 2009, they filed their complaint within three years from then.
Loretz bought his house in June 2008 and his girlfriend Kathleen Cook moved into the house around that time. She noticed problems such as cracking within the first year of moving in. Loretz filed his complaint within three years after that.
The undisputed material facts upon which the trial court relied do not show that as to Loretz and the Youngs, the statute of limitations began to run more than three years before March 2010. The trial court erred in concluding that the negligence cause of action by these plaintiffs is time-barred.
The summary adjudication order as to Heise is also erroneous. Heise moved into her house in 2001. She saw cracks in the stucco within the first year of moving in and cracking in the interior drywall within the first two years. Reynen & Bardis patched the stucco. Heise could not remember when that occurred. Cracks reappeared in the stucco within six months after the Reynen & Bardis repair. Heise patched the cracks inside her house herself but the cracks reappeared within six months to a year. Heise did not say when she patched the drywall cracks. Reynen & Bardis conducted a "leveling survey" when Heise reported that cracks reappeared in the stucco. Floor level surveys were performed in 2006 and 2007. Reynen & Bardis told Heise there was no problem with the floor level after the first survey and no repair work was done based on that survey. At some point Heise knew there was some movement in her house, but the evidence is insufficient to conclude as a matter of law when Heise's negligence cause of action accrued.
In sum, summary adjudication in favor of WKA and against Holsapple and Caballes, the Santoses, the Carlsons, the Fosters, and the Myleses on the negligence cause of action is affirmed. Summary adjudication in favor of WKA and against Loretz, Heise, and the Youngs on the negligence cause of action is reversed. We need not discuss the statute of limitations as to Beals, Wolhart and Shippy, the Vaughns and the Jobes because we affirm the summary judgment against those plaintiffs.
IV
Plaintiffs also argue WKA did not meet its initial burden of production because three categories of undisputed material facts lack supporting evidence.
First, plaintiffs contend no evidence supports the asserted undisputed material fact that WKA did not perform any repairs on plaintiffs' houses or did not make any repairs to the houses before plaintiffs purchased the houses. Of relevance to this appeal are the following undisputed material facts asserted by WKA: undisputed material fact 21 (regarding the Santoses) 36 (the Fosters), 61 (the Carlsons), 71 (Holsapple/Caballes), 76 (Heise), 101 (the Myleses), 211 (the Youngs) and 238 (Loretz).
Plaintiffs agreed in the trial court that WKA's undisputed material facts 36, 61, 71, 76, 101, 211 and 238 are undisputed. By doing so, they conceded the asserted fact for purposes of summary judgment or summary adjudication. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 747.) They cannot now take a contrary position. (Hurley Construction Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 541; see generally Civ. Code, §§ 3515, 3516; § 437c, subds. (b)(5), (d); FSR Brokerage, supra, 35 Cal.App.4th at p. 71, fn. 2.)
Plaintiffs disputed the statement in WKA's undisputed material fact 21 (that WKA did not do any repairs to the Santos residence) on grounds not asserted on appeal. Their appellate claim is thereby forfeited. (Civ. Code, §§ 3515, 3516; FSR Brokerage, Inc., supra, 35 Cal.App.4th at p. 71, fn. 2) In any event, we do not rely on WKA's undisputed material fact 21.
Plaintiffs next contend certain undisputed material facts are not supported by the cited evidence: specifically, the undisputed material facts stating that WKA did not breach a standard of care related to the services provided for homeowners' lots. We need not consider plaintiffs' contention because plaintiffs do not explain how the alleged deficiency would require reversal of those portions of the judgment from which they appeal. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [the appellant must support claims of error with meaningful argument]; Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985 [an appellate court is not required to examine undeveloped claims].) The trial court denied WKA's motion based on the undisputed material fact plaintiffs now challenge, and plaintiffs did not appeal from that portion of the trial court's order.
Plaintiffs also argue that WKA's undisputed material fact 6 is not supported by any evidence. But they did not dispute undisputed material fact 6 in the trial court and they may not do so now. Plaintiffs also do not explain how a dispute as to undisputed material fact 6 requires reversal of those parts of the judgment from which they appealed.
DISPOSITION
Summary judgment in favor of WKA and against Loretz and the Youngs is reversed. Summary adjudication in favor of WKA and against Loretz, Heise and the Youngs, on their negligence cause of action is reversed. The judgment is affirmed in all other respects. The matter is remanded with directions that the trial court enter a new order and judgment and for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
RENNER, J.