Opinion
D071680
11-16-2017
MICHAEL LETOURNEAU, Plaintiff and Appellant, v. TURNER CONSTRUCTION COMPANY, Defendant and Respondent.
Suppa, Trucchi & Henein and Samy S. Henein for Plaintiff and Appellant. Wood, Smith, Henning & Berman, Paul J. Nolan and Ranjan A. Lahiri for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2012-00100785-CU-CD-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Reversed and remanded with instructions. Suppa, Trucchi & Henein and Samy S. Henein for Plaintiff and Appellant. Wood, Smith, Henning & Berman, Paul J. Nolan and Ranjan A. Lahiri for Defendant and Respondent.
This is a construction defect action brought by a condominium owner against the general contractor of the condominium development and others. Plaintiff Michael Letourneau appeals from a judgment of the superior court in favor of defendant Turner Construction Company (Turner) entered after the court determined that his claims were precluded as a matter of law under Code of Civil Procedure section 437c. More specifically, the court concluded: (1) a lack of evidence that the alleged construction defects caused actual resultant damage was fatal to Letourneau's negligence claim; and (2) the potentially applicable statutes of limitations barred the construction defect claims.
Letourneau does not argue that the court erred in granting summary adjudication to the causes of action for negligence or for construction defects based on interunit noise transmission (Civ. Code, § 896, subd. (g)(6) (§ 896(g)(6)) (subsequent undesignated statutory references are to this code), and on that basis we will affirm the court's order as to these two causes of action. However, as the moving party, Turner did not meet its initial burden of production to make a prima facie showing that Letourneau's construction defect cause of action based on plumbing issues (§ 896, subd. (e) (§ 896(e)) was untimely, and the trial court erred in ruling otherwise. Accordingly, we will reverse the judgment and remand with instructions to vacate the order following Turner's motion for summary adjudication and enter an order granting summary adjudication of the causes of action for negligence and for construction defects based on interunit noise transmission and denying summary adjudication of the cause of action for construction defects based on plumbing issues.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Because this is an appeal from a judgment after the trial court granted a motion for summary adjudication, " 'we take the facts from the record that was before the trial court when it ruled on that motion.' " (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.) We consider all the evidence in the moving and opposing papers, except evidence to which objections were made and sustained, liberally construing and reasonably deducing inferences from Letourneau's evidence, resolving any doubts in the evidence in Letourneau's favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)
Letourneau alleges in the operative complaint that he is the owner of a residential condominium unit "commonly known as 1494 Union Street, #1004, San Diego, CA 92101" (the Condominium) and located within "the Aperture project, a common interest condominium development" in downtown San Diego. Letourneau further alleges that Turner was the general contractor for the construction of the Aperture condominium project. (See fn. 1, ante.)
There is no evidence of this in the record. Both parties have proceeded based on these allegations, and we shall do the same.
Escrow on Letourneau's purchase of the Condominium closed on May 28, 2008. In or around July 2008, Letourneau became aware of constant low level exterior noise and vibrations that could be heard from inside the Condominium. By September 2008, the noise and vibrations in the Condominium were impacting Letourneau's ability to enjoy the Condominium. By November 2008, building maintenance personnel "clearly prov[ed]" to Letourneau that the "exterior noise issues" inside his Condominium were originating from an alleged mechanical issue with the " 'water pumps' " from a common area of the condominium complex. The parties agreed that the noise did not originate from an adjacent unit, but rather from a common area of the complex.
On July 17, 2012, Letourneau filed the underlying action, asserting causes of action against Turner for negligence and for construction defects based on violations of certain residential construction standards contained in the Civil Code. By the time of the proceedings that underlie this appeal, the operative charging pleading was a second amended complaint in which Letourneau asserted the same two causes of action against Turner: In the fourth cause of action, Letourneau alleged that Turner negligently failed to use reasonable care in the construction of the condominiums, common areas and components of the Aperture project; and in the fifth cause of action, Letourneau alleged that Turner constructed the Aperture project (i.e., both common areas and condominium units) in violation of certain residential construction standards enumerated in sections 896 and 897.
The original complaint also named additional defendants in these two causes of action and alleged an additional eight causes of action against five other defendants. There are no issues on appeal regarding these additional causes of action or other defendants.
During discovery, Letourneau verified that the only construction defects at issue were "[t]he water pumps and associated mechanics at Aperture . . . that are transmitted through the walls, ceiling and floors[] of the 10th and 11th floor[s] in [the Condominium]." He further verified that the only violations of the residential construction standards at issue were those found at section 896(e) and section 896(g)(6).
Section 896 applies in "any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction, . . . supervision, testing, or observation of . . . original construction intended to be sold as an individual dwelling unit." (Ibid.) This statute limits claims or causes of action against a general contractor like Turner to violations of the following standards:
"(e) With respect to plumbing . . . issues: [¶] Plumbing . . . systems shall be installed to operate properly and shall not materially impair the use of the structure by its inhabitants. However, no action may be brought for a violation of this subdivision more than four years after close of escrow." (§ 896(e), italics added.)
"(g) With respect to issues regarding other areas of construction: [¶] . . . [¶] (6) Attached structures shall be constructed to comply with interunit noise transmission standards set by the applicable government building codes, ordinances, or regulations in effect at the time of the original construction. If there is no applicable code, ordinance, or regulation, this paragraph does not apply. However, no action shall be brought pursuant to this paragraph more than one year from the original occupancy of the adjacent unit." (§ 896(g)(6), italics added.)
In April 2016, Turner filed a document entitled in part "Motion for Summary Adjudication of Time[-]Barred Claims." In the text of the document — which does not mention summary adjudication, summary judgment or judgment — Turner gave notice that, on a specified date and time, Turner "will, pursuant to Code of Civil Procedure [section] 337.1, move the Court for an order excluding evidence relating to, in reference to, or argument concerning construction defects that are barred by the applicable statute of limitations. [¶] This motion is made on the grounds that certain defect claims made by [Letourneau] do not cause resultant damage [citation] and are therefore only recoverable if (1) they violate a standard for residential construction codified in [section] 895 et seq., and (2) [they are] not barred by the stated limitation periods under same." In support of its motion, Turner also filed a memorandum of points and authorities, a declaration from Turner's counsel, exhibits, and a separate statement of undisputed material facts. Turner's memorandum of points and authorities indicates that Turner sought to summarily adjudicate Letourneau's causes of action on the basis that the individual construction defect claims did not cause resultant damage and were time-barred under section 896(g)(6) — which applies to "interunit noise transmission."
Code of Civil Procedure section 337.1 establishes a four-year statute of repose for construction defects for patent defects and has been superseded by Civil Code section 895 et seq. for residences newly constructed after 2002. (2 Hanna & Van Atta, Cal. Common Interest Developments: Law and Practice (2017) § 21:87, p. 568.) Indeed, Code of Civil Procedure section 337.1 does not apply to actions — like Letourneau's — brought under Civil Code section 895 et seq. (Civ. Code, § 941, subd. (d).) Turner does not mention Code of Civil Procedure section 337.1 in any of the documents in support of the motion or in its brief on appeal.
Letourneau filed written opposition, which included a memorandum of points and authorities, a declaration from Letourneau's counsel with attached exhibits, and a responsive separate statement. Letourneau's points and authorities did not mention summary adjudication (or summary judgment or the standards to be applied in proceedings under Code Civ. Proc., § 437c). The titles of all three documents indicate that they are in opposition to Turner's "Motion for Summary Judgment." In his memorandum of points and authorities, Letourneau did not mention resultant damages or his negligence cause of action, but stated unequivocally that he was asserting his noise claim under section 896(e) (plumbing issues), not under section 896(g)(6) (interunit noise transmission).
Turner filed a reply points and authorities, a reply declaration from counsel, a reply to the responsive separate statement, and evidentiary objections to all of Letourneau's evidence.
Following oral argument in July 2016, the trial court filed a minute order, ruling in part as follows: seven out of eight of Turner's evidentiary objections were sustained; summary adjudication was an acceptable procedure, even though Turner's motion was directed to specific construction defect claims, not to specifically alleged causes of action; summary adjudication was granted as to Letourneau's negligence claim on the basis that Letourneau presented no evidence of any resultant damage — i.e., no personal injury or property damages that resulted from the allegedly negligent construction; summary adjudication was granted as to Letourneau's alleged noise-related and plumbing-related construction defects on the basis that the applicable statutes of limitations barred the claims; and neither the doctrine of estoppel nor a tolling provision precluded the court from applying Turner's statute of limitations defense.
As directed in the minute order granting the summary adjudication motion, Turner submitted a proposed written order, which the trial court signed without changes. The order is entitled "Order on Defendant [Turner's] Motion for Summary Adjudication of Plaintiff's Causes of Action for Negligence and for Construction Defects Under Civil Code Sections 896 and 897," yet the court substantively ruled that Turner's "Motion for Summary Judgment against [Letourneau's] causes of action for 1) Negligence and 2) breach of standards of residential construction pursuant to . . . sections 896 and 897 is granted in its entirety." (Italics added.)
Letourneau timely objected to the proposed order, in part on the basis that the court's minute order granted a motion for summary adjudication, yet Turner's submission proposed that the court grant a motion for summary judgment.
The court later filed a judgment. In part, it reflects that Turner brought a motion for summary judgment, that the court granted the summary judgment motion, that judgment be entered in favor of Turner and against Letourneau, and that Letourneau take nothing by way of his operative complaint. Letourneau timely appealed from the judgment.
II.
DISCUSSION
The parties' pleadings and the court's orders inconsistently (and at times incorrectly) refer to summary adjudication and summary judgment, essentially conflating the two procedures. Since neither Letourneau nor the trial court was misled by the procedure or remedy Turner intended, we too will proceed with the understanding that Turner moved for summary adjudication — in the language of the motion — of "certain [unidentified construction] defect claims." Consistently, we will deem the court's order granting Turner's "Motion for Summary Judgment against [Letourneau's] causes of action for 1) Negligence and 2) breach of standards of residential construction pursuant to . . . sections 896 and 897" to be an order granting Turner's motion for summary adjudication of Letourneau's causes of action for (1) negligence and (2) breach of the standards of residential construction pursuant to sections 896 and 897. Although the judgment erroneously refers to the granting of a motion for summary judgment, the effect of the judgment is nonetheless correct; having granted summary adjudication as to each of the causes of action Letourneau alleged against Turner, the court did not abuse its discretion in entering a judgment in favor of Turner and against Letourneau. (Heritage Marketing and Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 764.)
As an initial issue, Letourneau contends that Turner was not entitled to summary adjudication of the fifth cause of action for construction defects based on violations of sections 896 and 897. Letourneau relies on Code of Civil Procedure section 437c, subdivision (f)(1), which provides that a summary adjudication motion may be granted "only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty," arguing that Turner's motion was directed only to Letourneau's claim for damages based on interunit noise transmission (§ 896(g)(6)) and not to any other alleged defect (e.g., plumbing issues under § 896(e)). However, one recognized exception to the statutory language quoted above is that where two or more separate and distinct wrongful acts are combined in the same cause of action in a complaint, a defendant may present a summary adjudication motion that challenges some, but not all, of the separate and distinct wrongful acts. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 (Lilienthal).) That is because each separate and distinct wrongful act is an invasion of a separate and distinct primary right, and each violation of a primary right is a separate and distinct "cause of action" — regardless how the claim is presented in the complaint. (Id. at p. 1853.) Thus, here, to the extent Letourneau's fifth cause of action alleges separate and distinct statutory violations (e.g., interunit noise transmission under § 896(g)(6) and plumbing issues under § 896(e)), Turner was entitled to present a motion for summary adjudication as to each alleged violation or defect. (Lilienthal, at pp. 1854-1855.)
In the trial court, Turner relied on Lilienthal, supra, 12 Cal.App.4th 1848, in support of its motion, and the trial court cited Lilienthal as part of its minute order granting Turner's motion. Letourneau does not cite or attempt to distinguish Lilienthal in its appellate briefs, despite quoting twice from that portion of the court's minute order citing Lilienthal.
The judgment of the trial court is presumed correct, and Letourneau (as the appellant) has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535 (Swigart) [appeal from defense summary judgment].) As we explain, Letourneau met this burden here with regard to his section 896(e) cause of action for construction defects based on plumbing issues. A. Standard of Review
We review de novo an order granting summary adjudication. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) "As a practical matter, ' "we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a summary adjudication motion." ' " (Swigart, supra, 13 Cal.App.5th at p. 536.) A summary adjudication motion "proceed[s] in all procedural respects as a motion for summary judgment." (Code Civ. Proc., § 437c, subd. (f)(2).)
A defendant is entitled to a summary judgment on the basis that the "action has no merit" (Code Civ. Proc., § 437c, subd. (a)(1)) only where the court is able to determine from the evidence presented 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" (id., § 437c, subd. (c)). A cause of action "has no merit" if, as a matter of law, one or more of the elements of the cause of action cannot be established or if, as a matter of law, an affirmative defense to the cause of action can be established. (Id., § 437c, subd. (o).)
A defendant like Turner has the ultimate burden of persuasion that one or more elements of the cause of action at issue "cannot be established" or that "there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849, 850, 853-854.) In attempting to meet this burden, Turner has the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, at p. 850.) If Turner meets this burden, then the burden of production shifts to Letourneau to establish the existence of a triable issue of material fact. (Id. at pp. 850-851.) B. Turner's Summary Adjudication Motion
Because a summary adjudication motion must show that the "material facts" are undisputed (Code Civ. Proc., § 437c, subds. (b)(1), (f)(2)), " '[t]he complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action' " (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201, fn. 5). Here, in the operative complaint, Letourneau first alleges that he brought this action pursuant to sections 896 and 897. He alleges next that he has standing "to bring any and all cognizable claims concerning defective design and construction" for purposes of "seek[ing] to recover damages for deficiencies affecting [the Condominium]." Finally, he alleges that Turner "allowed a mechanical issue in the complex to continue unabated, causing constant low level noise and vibrations in [the Condominium]."
Relevant portions of section 896 are set forth at footnote 3, ante. Section 897 provides in full: "The standards set forth in this chapter are intended to address every function or component of a structure. To the extent that a function or component of a structure is not addressed by these standards, it shall be actionable if it causes damage."
In interrogatory responses, Letourneau identified the following violations of the statutory standards pleaded in the operative complaint:
"Plumbing . . . systems shall be installed to operate properly and shall not materially impair the use of the structure by its inhabitants. []Section 896(e) .Elsewhere in his interrogatory responses, Letourneau confirmed (1) that the construction defects included "[t]he water pumps and associated mechanics at Aperture . . . that are transmitted through the walls, ceiling and floors[] of the 10th and 11th floor[s] in [the Condominium,]" and (2) that he "ha[d] been damaged by the noise and vibrations from the water pumps at [the] Aperture [project]." (Italics added.)
"Attached structures shall be constructed to comply with interunit noise transmission standards set by the applicable government building codes, ordinances, or regulations in effect at the time of the original construction. If there is no applicable code, ordinance, or regulation, this paragraph does not apply. []Section 896(g)(6) ." (Italics added.)
1. Fourth Cause of Action: Negligence
Turner sought summary adjudication of Letourneau's negligence cause of action on the basis that the alleged construction defects did not "cause resultant damage."
In Aas v. Superior Court (2000) 24 Cal.4th 627, 632 (Aas), the California Supreme Court held that construction defects in residential properties are not actionable in tort in the absence of actual personal injury or property damage caused by the defective construction; stated differently, economic loss alone will not support a tort claim. Here, the trial court granted summary adjudication as to Letourneau's cause of action for negligence on the basis that Letourneau did not present any evidence of such resultant damages.
Consistent with his opposition in the trial court, on appeal Letourneau does not present any argument that mentions Aas, supra, 24 Cal.4th 627, the economic loss rule, resultant damage, or actual personal injury or property damages. Thus, because Letourneau has not met (or even attempted to meet) his burden of establishing reversible error as to the summary adjudication of the negligence cause of action, we will affirm that portion of the court's order granting Turner's motion for summary adjudication as to the fourth cause of action. (Denham, supra, 2 Cal.3d at p. 564; Swigart, supra, 13 Cal.App.5th at p. 535.)
2. Fifth Cause of Action: Interunit Noise Transmission Issues (§ 896(g)(6))
Turner sought summary adjudication of Letourneau's interunit noise transmission construction defect cause of action on the basis that "the stated limitation periods" set forth in "[section] 895 et seq." barred the claim.
In the memorandum of points and authorities in support of its motion, Turner mentioned only one limitations period under section 895 et seq. — namely, the one year that applies to construction defects of "interunit noise transmission" contained in section 896(g)(6). (See fn. 3, ante.) In its brief on appeal, Turner confirms that its motion in the trial court was solely "for summary adjudication as to . . . the violations of the noise transmission standards set forth in . . . section 896(g)(6)."
Notably, Turner did not mention section 896(e) or its deadline for filing a claim, both of which apply to plumbing issues (see fn. 3, ante) — a construction defect that Letourneau expressly identified in his discovery responses. (See pt. II.B.3., post.)
In the trial court, Letourneau did not oppose this motion. Despite his discovery responses in which he verified construction defects based on both interunit noise transmission (§ 896(g)(6)) and plumbing issues (§ 896(e)), in his memorandum of points of authorities, Letourneau unequivocally stated that he brought his construction defect cause of action only "for violation of . . . section 896(e) [plumbing issues,] not [section ]896(g)(6) [interunit noise transmission]." (Bolding and some capitalization omitted.) Later in his points and authorities, Letourneau confirmed his position that "the cause of the noise was a problem with the hot water line in the mechanical hallway, which is obviously a plumbing issue [§ 896(e)]."
Consistently, on appeal Letourneau argues that "[t]he defect causing the noise was a problem with the hot water supply line [citing section 896(e)], not a problem with the failure to comply with the standards for int[er]unit noise transfer" under section 896(g)(6).
Given this record, we conclude that Letourneau does not oppose summary adjudication of a noise-related construction defect cause of action for interunit noise transmission under section 896(g)(6). Stated differently, because Letourneau has not met (or even attempted to meet) his burden of establishing reversible error as to the summary adjudication of the noise-related construction defect cause of action for interunit noise transmission under section 896(g)(6), we will affirm that portion of the court's order granting Turner's motion as to this cause of action. (Denham, supra, 2 Cal.3d at p. 564; Swigart, supra, 13 Cal.App.5th at p. 535.)
3. Fifth Cause of Action: Plumbing Issues (§ 896(e))
Turner sought summary adjudication of Letourneau's plumbing issue construction defect cause of action on the basis that "the stated limitation periods" set forth in "[section] 895 et seq." barred the claim.
In part, section 896(e) covers plumbing issues (see fn. 3, ante), and in his interrogatory responses Letourneau expressly identified the "water pumps and associated mechanics at Aperture" as section 896(e) construction defects for which he was seeking damages.
However, Turner did not mention section 896(e) or Letourneau's claim based on plumbing issues in its motion or supporting memorandum of points and authorities or separate statement of undisputed material facts. Consistently, Turner confirms in its appellate brief that its summary adjudication motion was directed only to "the violations of the noise transmission standards set forth in . . . section 896(g)(6)."
As a result, Turner did not meet its initial burden of establishing, as a matter of law, that Letourneau's cause of action for plumbing defects has no merit; i.e., Turner did not make a prima facie showing of the nonexistence of any triable issue of material fact either that one or more of the elements of the cause of action cannot be established or that an affirmative defense to the cause of action can be established. (See Code Civ. Proc., § 437c, subds. (a)(1), (o); Aguilar, supra, 25 Cal.4th at p. 850.) For this reason, the burden never shifted to Letourneau to raise a triable issue of material fact as to the section 896(e) claim. (Aguilar, at pp. 850-851; Swigart, supra, 13 Cal.App.5th at p. 536.)
In the trial court, the first mention of plumbing issues under section 896(e) was in Letourneau's opposition to Turner's motion directed to the section 896(g)(6) interunit noise transmission claim. In this opposition, Letourneau affirmatively stated that he was not relying on section 896(g)(6); rather, he was bringing his claim for damages from noise and vibrations pursuant to section 896(e) as a construction defect plumbing issue. Only then, in its reply, did Turner first mention section 896(e). There, Turner argued: (1) Letourneau's noise-related construction defect cause of action raised only an interunit noise transmission issue (§ 896(g)(6)), not a plumbing issue (§ 896(e)); and, in any event, (2) a claim based on plumbing issues under section 896(e) was time-barred.
In its reply, Turner described Letourneau's reliance on section 896(e) (plumbing issues), rather than on section 896(g)(6) (interunit noise transmission), as an "inappropriate" "last ditch effort" to oppose Turner's summary adjudication motion directed to the statutory construction defect claims in the fifth cause of action. Turner's criticism is unfounded. Before Turner filed its motion, Turner knew from Letourneau's interrogatory responses — which Turner cited and presented to the trial court in support of the summary adjudication motion — that Letourneau contended both that the construction defects for which Letourneau sought damages were caused by plumbing issues and that Letourneau was seeking relief under section 896(e). Turner alone is responsible for its untimely arguments related to Letourneau's statutory claim based on plumbing issues under section 896(e).
Turner repeats this second argument on appeal, suggesting that the summary adjudication of Letourneau's section 896(e) claim should be affirmed because: Letourneau "had a full opportunity to be heard as to which statute of limitations applied"; Letourneau "did not present substantial admissible evidence to raise any triable issue of material fact that his claims for violation of . . . sections 896(g)(6) and 896(e) were not time[-]barred"; and "the trial court ultimately addressed both statutes." Turner is mistaken. Letourneau did have the opportunity to be heard as to which statute of limitations applied and, in fact, expressly opposed application of the limitations period contained in section 896(g)(6) on the basis that his statutory construction defect claim was limited to plumbing issues under section 896(e). At that point, contrary to Turner's argument on appeal, Letourneau had no obligation to attempt to justify the timeliness of his claim under section 896(e). More importantly, given the timing (in a reply brief) of Turner's suggestion that Letourneau's section 896(e) claim was time-barred, Letourneau did not have the opportunity — in Turner's language — to "present substantial admissible evidence to raise any triable issue of material fact" whether his section 896(e) claim was time-barred.
We agree with Turner's argument and authority that an appellate court may affirm a summary adjudication " 'on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court.' (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 . . . .)" However, because Turner did not mention section 896(e) until its reply brief in the trial court, Letourneau was prejudiced by not having an adequate opportunity to address any section 896(e) theory that Turner presented.
In addition to the statutory burdens associated specifically with summary adjudication motions set forth in the text, ante, just as applicable is the general rule that a moving party (like Turner) forfeits court consideration of a substantive argument raised for the first time in its reply brief in the trial court. (Schram Construction, Inc. v. Regents of University of California (2010) 187 Cal.App.4th 1040, 1052, fn. 7.) That is because, under such circumstances, a responding party (like Letourneau) would be " 'deprive[d] . . . of an opportunity to counter the argument.' " (Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1064, fn. 2; see Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 ["reasons of fairness militate against consideration of an issue raised initially in the reply brief"].)
In sum, the burden never shifted to Letourneau to raise a triable issue of material fact as to any section 896(e) plumbing issue (Aguilar, supra, 25 Cal.4th at pp. 850-851; Swigart, supra, 13 Cal.App.5th at p. 536); and Letourneau was prejudiced by the trial court's consideration of the section 896(e) plumbing issue first raised by Turner in its reply to Letourneau's opposition to Turner's motion directed to different causes of action. For these reasons, the trial court erred in granting summary adjudication to the section 896(e) construction defect claim.
DISPOSITION
Our analyses and conclusions do not require that we reach many of the issues and arguments raised by the parties. To be clear, we have not expressed a view on any issue or argument that is not specifically discussed in this opinion. --------
The judgment is reversed. The matter is remanded with instructions that the trial court vacate its order granting summary judgment in favor of Turner and against Letourneau and enter a new order granting Turner's motion for summary adjudication as to Letourneau's claims for negligence and interunit noise transmission under section 896(g)(6) and denying Turner's motion for summary adjudication as to Letourneau's claim for plumbing issues under section 896(e). Letourneau is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
IRION, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.