Opinion
G061830
06-18-2024
STEVE ADAMS, Plaintiff and Appellant, v. STN BUILDERS, INC., et al., Defendants and Respondents.
Krutcik Law Group and James A. Krutcik for Plaintiff and Appellant. Jerome D. Stark and Jerome D. Stark for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-201801022651 Theodore R. Howard, Judge. Reversed and remanded with instructions.
Krutcik Law Group and James A. Krutcik for Plaintiff and Appellant.
Jerome D. Stark and Jerome D. Stark for Defendants and Respondents.
OPINION
O'LEARY, P. J.
Steve Adams appeals from a judgment after the trial court granted summary judgment for STN Builders, Inc. (STN) and its principal Scott Todd Nicholson on Adams's claims for negligence and premises liability arising from his fall down a flight of outdoor stairs. Adams alleged the stairs were defective in the following respects: (1) there was an ineffective handrail, (2) there was no friction tape on the nosing, and (3) the top landing nosing was unsupported. The court concluded the alleged defects were patent and the claims were time barred by Code of Civil Procedure section 337.1 (section 337.1).
Adams argues the trial court erred by granting summary judgment because the defects in the stairs was latent, not patent, and his claims were not time barred. Although we agree with the court the handrail and friction tape defects were patent and thus claims pertaining to them were time barred, we conclude the top landing nosing defect was latent and thus this claim was not time barred. We reverse the judgment and remand the matter limited to the claim Nicholson negligently constructed the top landing nosing.
FACTS
Patricia Buttress hired Nicholson, a general contractor, to install a patio deck and stairs at her home. Nicholson completed the work in October 2006. In 2011, as part of a class action settlement, Buttress obtained replacement deck materials. In January 2012,Nicholson replaced the decking, including on the stairs, which consisted of five steps.
There was other evidence indicating Nicholson completed the project in July 2013.
On the evening of December 12, 2016, Buttress had a party at her home. Adams attended the party. As Adams began to descend the stairs, his foot slipped off the edge of the top step, and he fell to the concrete ground. Adams fractured his elbow and required reconstructive surgery.
On October 2, 2018, Adams filed a complaint against Buttress and Does for negligence and premises liability. Adams amended the complaint in 2019 and 2022 to name STN and Nicholson as defendants, respectively. STN and Nicholson filed answers, asserting among other things the affirmative defense of statute of limitations.
Sometime in 2019, Adams settled with Buttress.
We refer to STN and Nicholson collectively as STN unless the context requires otherwise.
STN filed a motion for summary judgment, a separate statement, and declarations, including one from their expert Peter J. Zande. As relevant here, STN asserted both causes of action were time barred by section 337.1.
In his declaration, Zande stated he visually inspected the stairs, took photographs of the stairs, and walked up and down the stairs several times. Zande stated he measured the level of the top landing and concluded it did not cause the incident. He added that the slope of the top landing did not pose an unreasonable risk of harm. Zande said the stairs did not sag or bounce and did not rock forward or backward. He opined the stairs were safe.
Adams filed a motion for summary judgment, declarations, and a separate statement. A few weeks later, Adams filed his opposition to STN's motion for summary judgment and declarations, including one from his expert, John Brault.
In his declaration, Brault stated he inspected and measured the stairs and took photographs. Brault opined the stairs were defective because (1) the top landing nosing was defective because it did not have support and had an unsafe slope, (2) there was no friction tape on the nosing, and (3) there was an ineffective handrail.
Adams also included excerpts from Zande's deposition testimony to support his opposition. Zande testified he visually inspected the stairs, measured the stairs, and took photographs. He did not take the stairs apart. Other than walking up and down the stairs, he did not look to see if the top landing was properly supported or constructed correctly. He stated the slope on the top landing was in excess of the standard but it did not sag and was not weak.
Adams's counsel asked Zande about the definitions of patent and latent. The following colloquy occurred:
"[Counsel]: Did you know what the definition of 'patent defect' was before you looked it up for that case?
"[Zande]: I had an idea, but I was specifically asked by the attorney to render an opinion with regards to it being a patent defect or a latent defect.
"[Counsel]: The question was: Did you know what the definition was before you looked it up for that case?
"[Zande]: No.
"[Counsel]: When did you look up that definition?
"[Zande]: Probably about three weeks ago.
"[Counsel]: And that goes -- that same response for both patent and latent defect?
"[Zande]: Yes.
"[Counsel]: Did you make a determination of whether or not any of the claims in this lawsuit are patent or latent defects?
"[Zande]: No.
"[Counsel]: . . . [¶] Can you tell me, based on your opinion and experience in the industry, is this a patent or latent defect?
"[Zande]: I would say it's a latent defect with regards to the slope of the top landing.
"[Counsel]: And what do you base that on?
"[Zande]: Because it's somewhat trivial.
"[Counsel]: Is that part of the definition, that it has to be trivial?
"[Zande]: No.
"[Counsel]: Well -- so what authoritative resource did you rely on to determine that this slope issue in this case was a latent defect?
"[Zande]: That would just be my opinion on that: It would only be an expert that would be able to identify it as an issue.
"[Counsel]: And based on your experience in the industry and your experience testifying in California, you would consider that slope to be a latent defect? That's L, latent, defect?
"[Zande]: Yes." Later, Adams filed an untimely separate statement in support of his opposition. STN filed a reply.
Days before the hearing on STN's motion for summary judgment, Adams filed an ex parte request for the trial court to specially set his motion for summary judgment because of STN's alleged fraud on the court. The court denied his request.
The trial court issued a tentative ruling granting STN's motion for summary judgment. Following a hearing, the trial court adopted its tentative ruling as its final ruling. The court opined the alleged defects in the stairs were patent and ruled the negligence cause of action was time-barred under section 337.1. The court explained the premises liability cause of action failed as a matter of law because STN did not own, lease, occupy, or control the property when the accident occurred. The court concluded that where both causes of action failed as a matter of law, the alter ego claims against Nicholson were moot. The court entered judgment for STN. After the court took Adams's motion for summary judgment off calendar, he appealed.
DISCUSSION
Adams contends the stair defects were latent and thus not time barred. We agree as to one of the alleged defects.
We note he does not assert (1) the court erred by concluding his premises liability cause of action failed as a matter of law or (2) the court erred by denying his ex parte motion to specially set his motion for summary judgment. We limit our discussion accordingly.
"A 'motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.' [Citation.] A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. [Citation.] The defendant can meet that burden by either showing the plaintiff cannot establish one or more elements of his or her cause of action or there is a complete defense to the claim. [Citation.] To meet this burden, the defendant must present evidence sufficient to show he or she is entitled to judgment as a matter of law. [Citation.] '"If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them."' [Citation.]" (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889; Code Civ. Proc., § 437c, subd. (p)(2).) "The statute of limitations operates in an action as an affirmative defense." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.)
We review a grant of summary judgment de novo. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848.) "'"[I]n practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court's determination of a motion for summary [judgment]."' [Citations.]" (California Bank &Trust v. Lawlor (2013) 222 Cal.App.4th 625, 631.)
Whether a cause of action based on a construction defect is time barred depends on whether the defect is patent or latent. A patent defect is one that is "apparent by reasonable inspection" (§ 337.1, subd. (e)), while a latent defect is one that "is not apparent by reasonable inspection" (Code Civ. Proc., § 337.15, subd. (b) (section 337.15)). "'The test to determine whether a construction defect is patent is an objective test that asks "whether the average consumer, during the course of a reasonable inspection, would discover the defect...." [Citations.] This test generally presents a question of fact, unless the defect is obvious in the context of common experience; then a determination of patent defect may be made as a matter of law (including on summary judgment). [Citations.]' [Citations.]" (Delon Hampton &Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 255 (Delon); accord Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1338-1339 [nature of defect can be question of law].)
Here, Adams alleged there were three defects: (1) an ineffective handrail, (2) no friction tape on the nosing, and (3) the top landing nosing was unsupported. The ineffective handrail and lack of friction tape were not hidden. They were open and apparent by a reasonable inspection and thus they were patent. (Delon, supra, 227 Cal.App.4th at p. 256 [defective stairwell banister obvious and apparent patent defect]; Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 971 [absence of contrast marking stripes obvious and apparent patent defect].)
Section 337.1, subdivision (a), provides that an action for personal injury caused by a "patent deficiency" in the "construction of an improvement to real property" must be commenced within four years of "the substantial completion" of the improvement. (§ 337.1, subd. (a)(3).) Section 337.1, subdivision (b), provides an additional one year to file a claim if the injury occurred during the fourth year for a maximum five-year period.
Our conclusion that the ineffective handrail and lack of friction tape were obvious and apparent conditions, and thus patent, precludes Adams from pursuing these theories of liability because section 337.1's four-year limitation period applied. Even assuming the project was completed in July 2013, Adams's negligence claims on these two theories were time barred because he filed his complaint in October 2018, more than five years later.
As to the unsupported top landing nosing, the papers show there was a triable issue of material fact. Brault, Adams's expert, opined the top landing nosing was defective because it did not have support. He explained the lack of support caused the nosing to sag downward at an unsafe slope. But it was Zande, STN's expert, that established the triable issue of material fact. At his deposition, he testified the alleged defect in the top landing nosing was a latent defect that only an expert could identify. We acknowledge that when Zande's testimony is read in its entirety, one could conclude he simply misspoke and he meant the defect was patent. This conclusion is based on the fact that he testified he only visibly inspected the stairs and did not take the stairs apart. But when Adams's counsel pressed Zande and said, "That's L, latent, defect?" Zande replied, "Yes." Zande's testimony created a triable issue of fact on the issue of whether Nicholson negligently constructed the top landing nosing.
Section 337.15 provides that an action for injury to personal or real property caused by a "latent deficiency" in the "construction of an improvement to real property" must be commenced within 10 years of "the substantial completion" of the improvement. In Martinez v. Traubner (1982) 32 Cal.3d 755, 759 (Martinez), our Supreme Court held section 337.15 does not apply to personal injury and wrongful death actions. The court stated, "Section 337.15 does not limit the time within which direct actions for personal injury damages or wrongful death may be brought against the persons specified in the statute." (Ibid.) Personal injury actions caused by latent defects are not time barred by section 337.15 and, in appropriate cases, may be brought after the 10 years following substantial completion. (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2023) ¶ 5:188.4, p. 5-190 to 5191, citing Martinez, supra, 32 Cal.3d 755, 759.)
As we explain above, the evidence supported a finding that the unsupported top landing nosing was not an obvious and apparent condition and thus was a latent defect. Pursuant to Martinez, Adams's personal injury action was timely. Thus, STN has not carried its burden to establish that Adams's negligence cause of action on this theory was time barred. Consistent with this opinion, we remand the matter for further proceedings limited to the claim Nicholson negligently constructed the top landing nosing.
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Appellant is awarded his costs on appeal.
WE CONCUR: BEDSWORTH, J., GOETHALS, J.