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Holmberg v. J.F. Shea Co., Inc.

Court of Appeals of the State of California, Second District, Division Six.
Nov 3, 2003
2d Civil No. B159280 (Cal. Ct. App. Nov. 3, 2003)

Opinion

2d Civil No. B159280.

11-3-2003

ANDRES L. HOLMBERG et al., Plaintiffs and Appellants, v. J.F. SHEA CO., INC., Defendant and Respondent.

Law Offices of Vatche Chorbajian for Plaintiffs and Appellants Andres L. Holmberg and Eugenia P. Holmberg. Wood, Smith, Henning & Berman, Daniel A. Berman, Stacey Friedman Blank for Defendant and Respondent J.F. Shea Co., Inc.


Plaintiffs Andres and Eugenia Holmberg (the Holmbergs) sued defendant J.F. Shea Co., Inc. (Shea) for damages for latent construction defects in their residence in the City of Simi Valley. They appeal from a summary judgment in favor of Shea based on the running of the statute of limitations. We conclude the Holmbergs complaint was timely filed and reverse.

Facts

The Holmbergs bought a house from Shea, a developer of tract housing. The final inspection report for the Holmberg residence was signed by a Simi Valley building official on August 15, 1990.

After the Holmbergs moved into the house, numerous latent construction defects became apparent, including a crack in the slab, misaligned doors and windows and leaks. Some of the Holmbergs neighbors experienced similar problems.

On March 10, 2000, one of the Holmbergs neighbors filed a complaint against Shea alleging latent construction defects. After the complaint was filed, the Holmbergs decided to join the action. Shea signed a stipulation agreeing that the Holmbergs could be added as plaintiffs by filing of a first amended complaint.

On July 25, 2000, the stipulation was presented to the court. The trial judge signed an order prepared by the Holmbergs that stated, "GOOD CAUSE APPEARING, IT IS HEREBY ORDERED, based upon Stipulation Between Counsel For Filing of First Amended Complaint For Damages, that Plaintiffs be allowed to file the attached First Amended Complaint For Damages forthwith." The courts minutes state: "First Amended Complaint for Damages is ordered to be filed. Defendant acknowledges service of the first amended complaint."

On August 7, 2000, Shea attempted to file its answer to the first amended complaint. The Clerk of the Ventura County Superior Court refused to accept the answer for filing because the Holmbergs first amended complaint was not shown as filed in the clerks records. Shea did not notify the Holmbergs of the rejection.

The Holmbergs first amended complaint was eventually filed in the Ventura County clerks office on August 17, 2000.

Shea filed an answer to the first amended complaint and then moved for summary judgment on the ground that the first amended complaint was barred by Code of Civil Procedure section 337.15. The trial court granted the motion on the ground that the statute of limitations ran on August 15, 2000, and the first amended complaint was filed two days late.

All further statutory references are to the Code of Civil Procedure unless otherwise specified.

The judge stated: "I think, as a matter of fact, the pleading wasnt filed . . . on July 25. . . . I ordered it to be filed. [¶] Usually what the Court does in those situations is a request that a pleading be allowed to be filed or amended and I grant the request. And the order allows the requesting party to take its amended pleading down to the clerks office and file it. That didnt get done. [¶] . . . [¶] [T]here was submitted to the Court, probably by messenger, came into my in-basket—thats how it gets into the file—there was a stipulation by the parties which referenced, as I recall, an attached proposed amended pleading. [¶] . . . [¶] . . . That wasnt acted on at the time that I got it. It stayed fallow in the file. [¶] [T]he case came on calendar on July 25, probably in connection with some other matter . . . . [¶] The minute order, as I recall, laid out the Courts decisions with regard to what was noticed for the morning and then took up the subject of the proposed amended pleading. [¶] I probably made a notation on the record that there was a stipulation to the filing of it, and I ordered it filed. And what that means, . . . as far as Im concerned, is that when there is a stipulation, an agreement between the parties that a pleading be filed and I grant the request, which is really a request for me, for a court order and the order to basically allow it to be filed, typically, what I would do at this point is hand the pleading back to the lawyer. I take it out of the file and say, Go file it down the hall to processing because we dont file it here. [¶] Occasionally, when a party puts before me a motion to amend a pleading, they have the proposed pleading lodged or attached as an exhibit to the moving papers, or sometimes both, an exhibit to the moving papers and lodge that, and their request is that something be deemed filed. And occasionally I do that, not often, for various clerical reasons. [¶] But when thats a situation, when I deem something filed, then we put a file stamp on it that day. But I use the words deemed filed, because then Im basically making an order right on the document. [¶] But that wasnt this case. I didnt deem anything filed. I ordered it filed, and it wasnt. And it wasnt filed because the party who wanted the amended pleading didnt file it. And Im not going to consider it filed as of July 25th at this point in time."

In this appeal, the Holmbergs assert that the first amended complaint was timely filed on July 25, 2000, when the trial judge signed the order granting leave to file the amended complaint. They also argue that the statute of limitations was tolled during the time repairs were being made to the property and that Shea is estopped from raising the statute of limitations.

Discussion

Section 337.15 states that no action may be brought to recover damages from a developer of residential housing for a latent construction defect more than 10 years after "substantial completion" of the development. The statute defines "substantial completion" in several different ways. Although initially in dispute, the Holmbergs admitted in their reply brief that the date of substantial completion was August 15, 1990, the date that a City of Simi Valley building official signed the final inspection report. Therefore, if the first amended complaint was not filed, as the trial court held, until August 17, 2000, the filing would have been untimely.

Government Code section 69846.5 provides that "[t]he clerk of the superior court shall endorse on each paper filed with the court the day, month, and year it is filed." For purposes of the statute of limitations, "filing" means delivery to the clerk during business hours. (United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918.)

A complaint initiating an ordinary civil action is filed in the office of the clerk of the superior court. (§ 411.10.) Most subsequent pleadings are submitted directly to the department to which the case is assigned and are filed by the courtroom clerk. (§ 1004; Cal. Rules of Court, rule 319(a); Super. Ct. Ventura County, Local Rules, rule 3.19.)

The Holmbergs complied with applicable statutes and court rules when they submitted the stipulation and first amended complaint to the clerk in Judge Hutchins courtroom on July 25, 2000. The trial judges comments indicate that he drew a distinction between an amended complaint submitted with a stipulation and one submitted by motion for purposes of filing. The practice of law requires that trial counsel maintain constant vigilance to comply with the procedural hurdles that can so easily abort litigation. Counsel must be knowledgeable, tenacious, and competent. He need not be clairvoyant. It is not reasonable to expect him to know that when Judge Hutchins orders a document filed, the judge expects counsel, not the clerk, to do the filing. A partys day in court should not be sacrificed because of an unannounced policy. As we said in Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777, "Where, as here, the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity." "[I]t is the filers actions that are scrutinized in determining whether a petition was timely filed." (Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1273.) Here the filers actions constitute a filing.

The order granting summary judgment based on the running of the statute of limitations is reversed. We therefore need not discuss the Holmbergs other issues. The parties shall bear their own costs.

We concur: YEGAN, J., PERREN, J.

Section 337.15, subdivision (a) provides: "No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following: [¶] (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property. . . ."


Summaries of

Holmberg v. J.F. Shea Co., Inc.

Court of Appeals of the State of California, Second District, Division Six.
Nov 3, 2003
2d Civil No. B159280 (Cal. Ct. App. Nov. 3, 2003)
Case details for

Holmberg v. J.F. Shea Co., Inc.

Case Details

Full title:ANDRES L. HOLMBERG et al., Plaintiffs and Appellants, v. J.F. SHEA CO.…

Court:Court of Appeals of the State of California, Second District, Division Six.

Date published: Nov 3, 2003

Citations

2d Civil No. B159280 (Cal. Ct. App. Nov. 3, 2003)