Judge: Jon R. Takasugi, Case: 22STCV06421, Date: 2023-01-30 Tentative Ruling

Case Number: 22STCV06421    Hearing Date: January 30, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrers are SUSTAINED, WITHOUT LEAVE TO AMEND. Accordingly, Defendant Baer’s motion to strike is MOOT.

            Plaintiff’s action is to be dismissed, with prejudice, as to Defendants BDR and Christina Baer.

            On 2/22/2022, Plaintiff Skyler Wells (Plaintiff) filed suit against Strategic Acquisitions, Inc., BDR, Inc., Open House Realty & Investments, LLC, and Peter Baer. On 10/18/2022, Plaintiff filed a second amended complaint (SA)C alleging: (1) negligence; and (2) negligent infliction of emotional distress.

            Now, Defendants BDR and Christina Baer demur to Plaintiffs’ Complaint. Christina Baer also moves to strike portions of Plaintiffs’ Complaint.

Factual Background

In December 2012, Plaintiff purchased and became the owner of the Subject Property. (SAC ¶ 52). Between 2012 and 2014, Plaintiff alleges he discovered various latent and patent construction defects which he attributes to the construction of the Subject Property. (SAC ¶¶ 56-57, 59-61). As a result of the defects, in 2014 Plaintiff filed various legal, insurance, and other claims related to and/or arising from the alleged construction defects and deficiencies at the Subject Property. (SAC ¶¶ 58, 67 - 78). Plaintiff then initiated this action in February 2022.

Discussion

            As a preliminary matter, Plaintiff argues in opposition that he inadvertently omitted a cause of action for violations of California Civil Code § 895, et seq, and seeks leave to amend to file this cause of action. Such a request is not properly raised in an opposition to a demurrer. As such, the Court does not address this improperly lodged request.

I.                   BDR’s Demurrer

BDR argues that Plaintiffs’ demurrer is time-barred on its face.

The Court agrees. CCP section 337.15 provides:

(a) 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.

(2) Injury to property, real or personal, arising out of any such latent deficiency.

Importantly, CCP section 337.15 “is not subject to a general rule of equitable tolling while potential defendant’s promises or attempts to repair defects are pending.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 367.) In fact, to the contrary, “repair[s] suggests discovery of a latent defect and commencement of a shorter period of limitation. It does not suggest that the statute of limitations can be extended.” (A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 355.)

Where the latent defect is discovered during the ten-year period proscribed by section 337.15, a shorter statute of limitations—four years for breach of written contract (CCP section 337) or three years for negligence (CCP section 338)—depending on whether the action is grounded in contract or tort law. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.)

Here, Plaintiff’s own allegations indicate that he discovered the defects by 2014:

-         Beginning 2012 irrigation, rain, and sewer water introduced under the homes foundation and flooring systems. (SAC ¶ 59).

-         In 2014, rainwater intruded into the home’s bedroom. (SAC ¶ 57).

-         As a result of the water intrusions, the home was rendered “unlivable and unusable.” (SAC ¶ 60).

-         In 2014, Plaintiff compiled a list of both latent and patent construction defects which he provided to “Defendants” in the form of a “Notice and Opportunity to Cure Claimed Defects,” which resulted in an inspection of the property by the Defendants. (SAC ¶¶ 62-67).

-         In 2014, Plaintiff began filing legal and other claims as a result of the alleged defects and deficiencies with the home’s construction. For example, in January 2014, Plaintiff alleges he initiated an insurance claim for “patent and latent construction defects at the Subject Property.” (SAC ¶ 58).

-         In October 2014, Plaintiff alleges he filed an action in Los Angeles Superior Court action for “patent and latent construction defects.” (SAC ¶ 72). This was allegedly followed by the filing of a “contractual judicial references for negligence, including…patent and latent construction defects” with JAMS in the form of alternative dispute resolution in November 2014. (SAC ¶ 74).

-         Plaintiff alleges that beginning in 2014, he desired to sell the Subject Property but could not as a result of the construction defects. (SAC ¶¶ 100-101).

As such, based on Plaintiff’s own allegations, the latest Plaintiff could have filed the instant action was in 2017. Given that Plaintiff did not file this action until 2022, his claims against BDR appear on their face to be untimely by about 7 years.

In opposition, Plaintiff argues that the claim is protected by the “delayed discovery rule” because Plaintiff did not discover the “majority” of the damages until allegedly 2022, as evidenced by the fact that Plaintiff discovered an increase his damage claims from $250,000 to $1.7 million dollars. However, “…the legal authorities do not require Plaintiff to be aware of every single construction defect or of the magnitude of the defects that may exist before filing suit, but rather requires Plaintiff to act once Plaintiff is suspects the defects exist.” (Reply, 4: 14-17; Jolly v. Eli Lilly & Co. (1998) 44 Cal.3d 1103, 1110-1111.) (“the limitations period begins once the plaintiff  ‘has notice or information of circumstances to put a reasonable person on inquiry ....’ [citations omitted, original emphasis.] A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.”)

Given that Plaintiff’s own SAC alleges that he discovered the defects in 2014, there is no reason to believe Plaintiff could amend the complaint to allege facts which could show the claim is not time-barred, without running afoul of the sham pleadings doctrine.

Based on the foregoing, Defendant’s demurrer is sustained, without leave to amend.

II.               Christina Baer’s Demurrer/Motion to Strike

Defendant Baer argues that this action is time-barred under three different statute of limitations: CCP § 366.2, § 337.15 and § 338.

As for section 337.15 and 338, the Court has concluded that the action is time-barred under CCP section 33715.

As for CCP section 366.2, the Court also agrees that the claim appear time-barred on this basis.

Here, Plaintiff admits that Open House was owned and operated by Peter Baer and that Peter Baer was the “Grant Deed signer, Purchase Agreement signer, and CC&Rs signer for the real estate transaction for the Subject Property.” SAC, ¶ 7. Plaintiff further acknowledges that Peter Baer passed away on April 4, 2021. SAC, ¶ 11.)

As such, per CCPs section 366.2, any claims against Peter Baer and his Estate were required to be filed in probate by April 4, 2022. Plaintiff did not do so, and thus the claim appears time-barred on its face.

Based on the foregoing, Defendant’s demurrer is sustained, without leave to amend. As a result, Defendant’s motion to strike is moot.

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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