Judge: Michael E. Whitaker, Case: 20STCV04029, Date: 2023-04-17 Tentative Ruling

Case Number: 20STCV04029    Hearing Date: April 17, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Toni Marsden (“Plaintiff”) sued Defendant Del Amo Fashion Center Operating Company, LLC for general negligence and premises liability. Del Amo Fashion Center Operating Company, LLC (“Cross-Complainant”) cross-complained against Cross-Defendant Whiting-Turner Contracting Company (“Cross-Defendant”) for express indemnity and breach of contract.

Cross-Defendant demurs to both causes of action.  Cross-Complainant opposes. Cross-Defendant replies.  

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

Here, Cross-Defendant argues that Cross-Complainant’s causes of action for express indemnity and breach of contract are barred by the statute of limitations. 

A demurrer lies where the dates alleged in the complaint show the cause of action is barred by the statute of limitations.  (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)  The running of the statute must appear “clearly and affirmatively” from the face of the complaint. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42.)  The complaint must allege every fact which the defendant would need to prove if it were to plead the bar of the applicable statute of limitations as an affirmative defense. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

“Section 337.1 of the Code of Civil Procedure requires that an action based upon a patent deficiency resulting from the activities associated with construction of an improvement to real property … be brought within four years after substantial completion of such improvement.  A patent defect is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence.  [Citations.]  This is contrasted with a latent defect, one which is hidden, and which would not be discovered by a reasonably careful inspection.  [Citations.]”  (Wagner v. State of Cal. (1978) 86 Cal.App.3d 922, 928.)

An objective test is employed to determine whether the deficiency is patent. “The use of an objective test for a patent defect effectuates the broad protection afforded contractors by the statute by eliminating the possibility that a defect could be deemed patent as to some plaintiffs and latent as to others depending on the circumstances of each person injured as a result of the defect. … [T]he test focuses on the nature of the defect, the circumstances surrounding it, and the nature and gravity of the harm it presents. The question to be answered is whether the average consumer, during the course of a reasonable inspection, would discover the defect. The test assumes that an inspection takes place.” (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1370.)

Cross-Defendant contends the cross-complaint is statutorily barred because Cross-Defendant substantially completed its work on or about October 9, 2015, and Plaintiff did not file her complaint until January 31, 2020 - more than four years after Plaintiff’s cause of action accrued. Cross-Complainant argues that the ten-year statute of limitations of Code of Civil Procedure section 337.15 regarding latent defects also applies because of how broadly Cross-Complainant has pled the cross-complaint. In reply, Cross-Defendant argues that the pleadings contain all necessary facts because Plaintiff alleged that she could not see the step.  

The cross-complaint does not state every fact which the cross-defendant would need to prove if it were to plead the bar of the applicable statute of limitation as an affirmative defense. The cross-defendant would assert either the four-year or ten-year limitations period, and that depends on whether the defect is patent or latent. The Court agrees that the cross-complaint, as pled, does not adequately allege whether the defect is patent or latent. The allegation of “hardly visible steps” does not answer whether the average consumer, during a reasonable inspection, would discover the defect.   

CONCLUSION AND ORDER

Accordingly, the Court finds Cross-Complainant’s claim for express indemnity and breach of contract, on its face, is not barred by the statute of limitations.  Therefore, the Court overrules Cross-Defendant’s demurrer to the first and second cause of action in the cross-complaint.   

Cross-Defendant shall provide notice of the Court’s ruling and file a proof of service of such.