Judge Theodore R. Howard, Case 18-1022651 2022-07-20 Tentative Ruling

Judge: Theodore R. Howard, Case: 18-1022651, Date: 2022-07-20 Tentative Ruling

Before the Court at present is the Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues, filed on 4/29/22, by moving parties Defendants STN Builders, Inc. (“STN”) and Scott Todd Nicholson (“Nicholson”) (collectively here, “MPs”), as to all of the claims presented by Plaintiff Steve Adams (“Plaintiff”) concerning MPs. MPs’ Motion for Summary Judgment is GRANTED.

As a preliminary matter, the Opposition was filed on 6/30/22 without a Separate Statement, in violation of C.C.P. § 437c(b)(3), which defect alone “may constitute a sufficient ground, in the court's discretion, for granting the motion.” However, as a responsive Separate Statement was very belatedly filed by Plaintiff on 7/7/22, the Court has elected to consider it here, despite the pages of improper argument presented as a preliminary statement at pp. 1-4 therein.

The Complaint asserts two causes of action (each a “COA”) for: (1) General Negligence; and (2) Premises Liability. Both fail as a matter of law, based on the evidence presented here.

For COA 1, the Motion establishes that the claim as to MPs is time-barred under C.C.P. § 337.1. That is the applicable statute here, as the alleged defects in the stairs at issue were “patent.” 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, and assumes that an inspection takes place. (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256.) This is so regardless of whether the plaintiff had an opportunity to inspect the condition. (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1370.) The statute applies not only to actions involving patent deficiencies existing at substantial completion, but also to actions involving patent deficiencies arising thereafter. (Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1336.) Defects in stairs and railings that are apparent upon a reasonable inspection are “patent.” (See Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 256–257; Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 971-972; The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 36.) The evidence presented here plainly reflects that the alleged defects at issue – the slope of the stair, location of handrails, and material used for the surface - were apparent upon inspection. (See e.g. UF 13, 18, 20-21.)

Under C.C.P. § 337.1(b), the applicable limitations period is four years after substantial completion, except that if an injury occurs during the fourth year after substantial completion, an action in tort to recover damages for such an injury “may be brought within one year after the date on which such injury occurred” but “in no event may such an action be brought more than five years after the substantial completion of construction of such improvement.” MPs have presented evidence to establish that substantial completion occurred in January 2012. (UF 23.) The statute thus ran in January 2016 – before the injury at issue here even occurred. (UF 1, 5, 23.)

The Opposition asserts that substantial completion did not actually occur until July 2013. (UFs 5, 11, 23.) But even if that were so, COA 1 would still be time-barred, as Plaintiff was injured in December 2016, and would thus have had until December 2017 to bring his claim under C.C.P. § 337.1(b). This action was not filed until October 2018. The claim is thus time-barred in any event.

For COA 2, an essential element of a premises liability claim is that the defendant owned, leased, occupied, or controlled the subject property. (CACI 1000.) The undisputed evidence reflects that MPs did not own, lease, occupy or control the property when the accident occurred. (See UFs 1-5.) This COA as to MPs thus fails as a matter of law.

As both COAs thus fail as a matter of law as to STN, the alter-ego claims as to Nicholson are moot.

The Request for Judicial Notice filed with the Motion is GRANTED as to the existence of the records (under Ev. Code §452(c) for Exs. D and E, and under Ev. Code §452(d) for Exs. A, B and C), but not as to the truth of any disputed facts asserted therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

MPs are to give notice of this ruling, and are to submit an appropriate proposed order, in accordance with C.R.C. 3.1312, which comports with this ruling.