North Coast Business Park (North Coast) appeals from the judgment entered after the trial court granted the motion for summary judgment filed by Erreca, Inc. (Erreca). Erreca's motion was based on the statute of limitations. The trial court concluded (1) there was no triable issue of fact as to when North Coast first had notice of the defective condition; and (2) the statute of limitations applicable to North Coast's claim had expired.
On appeal, North Coast claims there was a triable issue of fact because the defect of which it had notice was different from the defect which caused the damage. We conclude this argument was not properly raised below and thus affirm.
The relevant facts are undisputed. In 1981, North Coast's predecessor contracted with Nielsen Construction Company (Nielsen) for the construction of a business park using "tilt up" construction. The project was substantially completed by late 1982.
Part of the construction was a retaining wall (the crib wall) adjacent to building 9 in the business park. Erreca was the grading contractor on the job.
In January 1984, North Coast hired a registered civil engineer to inspect a crack in the floor slab in building 9. The engineer inspected the crack as well as the crib wall. He stated it was apparent that roof drainage from building 9 had discharged onto the existing fill soil at the top of the crib wall, that provision for adequate soil drainage had not been completed, and that runoff from the roof contributed to the erosion damage of the crib wall cells. He further opined the slab crack resulted from shrinkage and minor lateral movements which were not ongoing, but he addressed the drainage problems between building 9 and the crib wall, recommending North Coast contact the
In December 1988, North Coast filed its complaint against Nielsen for breach of contract, breach of warranty, and negligence, alleging problems with the flooring in some of the buildings. North Coast's second amended complaint, alleging the same causes of action against Nielsen and numerous other defendants, claimed a defect existed in the design and construction of the crib wall. Erreca was joined as a cross-defendant by Nielsen.
2. The Summary Judgment Motion
Erreca moved for summary judgment, arguing that the defect in the design and construction of the crib wall was known to North Coast in early 1984, and therefore the three-year statute of limitations barred the action insofar as it was based on the crib wall defect. Erreca filed its statement of undisputed material facts, listing as undisputed facts: (1) the 1984 inspection occurred; (2) its purpose was to investigate the crack in the floor slab in building 9; (3) the inspection of the crib wall showed it had sustained major erosion damage; (4) the crib wall inspection showed improper drainage contributed to the erosion; and (5) North Coast was aware that the crack was caused by this defect.
North Coast's opposition to the motion had two aspects. The first and main argument was that, as a legal matter, the defects causing damage in building 9 were latent defects, and hence the applicable statute of limitations was the 10-year statute under Code of Civil Procedure
The trial court granted the motion for summary judgment, concluding the engineer's report gave notice of soils-related defects, triggering both the
3. The Trial Court Correctly Ruled That the Discovery — Based Statute of Limitations Applied to Bar the Drainage Defect
In Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624 [147 Cal.Rptr. 486, 581 P.2d 197] and Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762 [167 Cal.Rptr. 440], the courts explained the interplay between section 337.15 and sections 337 and 338. When a defect is latent (i.e., not apparent from a reasonable inspection (see Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1368 [6 Cal.Rptr.2d 318]), sections 337 and 338 begin to run only after the damage is sufficiently appreciable to give a reasonable man notice that he has a duty to pursue his remedies. (Liptak, supra, 109 Cal.App.3d 762 at p. 769.) However, section 337.15 imposes an absolute 10-year bar, based on the date of "substantial completion," regardless of discovery. (Regents of University of California, supra, 21 Cal.3d at pp. 640-641.) The interplay between these statutes sets up a two-step process: (1) actions for a latent defect must be filed within three years (§ 338) or four years (§ 337) of discovery, but (2) in any event must be filed within ten years (§ 337.15) of substantial completion. (Ibid.)
The trial court correctly ruled that the three- and four-year statutes applied based on the 1984 discovery of the drainage problem. There was no triable issue of fact because North Coast's expert advised it of the damage and the source thereof (i.e., improper drainage causing major erosion of the fill in the crib wall), and further advised North Coast to contact the crib wall's designer to evaluate the crib wall's stability and to replace the eroded backfill. Summary judgment based on the statute of limitations is appropriate. (See Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1143 [271 Cal.Rptr. 246]
4. North Coast Cannot Identify a New Defect As the Basis for the Claim for the First Time on Appeal
The difficulty with North Coast's claim is that this issue was never raised below. No mention of "defective footings" was made in North Coast's points and authorities filed in opposition to the summary judgment motion; North Coast's separate statement contained no hint that the date of discovery of this "defect" was a disputed fact material to the statute of limitations issue; North Coast's oral argument was silent on this issue; and, it appears, there was no motion for reconsideration or request for relief under section 473 to bring this issue to the trial court's attention. We conclude the failure to raise or argue this "defect" below bars North Coast from obtaining reversal thereon, both under general principles of "waiver" and "theory of the trial," and under the more particularized statutory provisions applicable to summary judgment motions.
A. Waiver and Theory of the Trial
Under general principles of "waiver" and "theory of the trial," the "footing" argument was waived.
North Coast's supplemental brief raises several reasons why waiver and theory of the trial ought not to be applied here, none of which is persuasive. For example, North Coast argues waiver is inapplicable because North Coast failed only to argue an "inference," and that it was the trial court's sua sponte obligation to "draw" that inference on behalf of North Coast.
North Coast also argues theory of the trial is inapplicable because that doctrine only prohibits "diametrically opposed" theories. It further argues its
B. Failure to Raise Factual Basis in Separate Statement
We construe the statutory mandate for a separate statement as requiring a party to specify within that document any facts he deems to be disputed facts material to the issue presented. The court in United Community Church v. Garcin (1991) 231 Cal.App.3d 327 [282 Cal.Rptr. 368], extensively analyzing the role played by the separate statement, observed that the statement serves two functions: to give the opponent notice of the facts; and to permit the trial court to focus on the facts germane to the issues. (Id. at p. 335.) Importantly, United Community Church observed that "it is no answer to say the facts set out in the supporting evidence or memoranda of points and authorities are sufficient. `Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.'" (Id. at p. 335, quoting Blackman v. Burrows (1987) 193 Cal.App.3d 889, 894 [238 Cal.Rptr. 642].) The United Community Church court quoted Judge Zebrowski's observation that "all material facts must be
The required separate statement is "not to satisfy some sadistic urge to torment lawyers" (United Community Church v. Garcin, supra, 231 Cal. App.3d at p. 335), but serves an additional function: to aid the trial court in discharging its statutory duties. Our already overburdened trial courts are obliged to explain the reasons for rulings with specific reference to the evidence which indicates the existence or nonexistence of a triable issue of fact. (§ 437c, subd. (g).) As recognized in Young v. Superior Court (1986) 179 Cal.App.3d 28 [224 Cal.Rptr. 405], "[t]he burdens imposed upon the trial court ... will be eased considerably if the court insists, as it should, on strict compliance with [the required separate statement]," because the court's ability to focus on and articulate the evidentiary basis for its ruling will be found in the separate statement. (Id. at pp. 31-32.)
In the proceedings below, North Coast raised neither the fact of a different defect nor the theory that such defect was the basis for its claim. That the fact could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties.
North Coast's supplemental brief urges that its failure to comply with the required separate statement is irrelevant because it was respondent's burden
We cannot interpret section 437c as permitting a party to ignore its obligation to highlight material facts in the required separate statement, or as allowing for reversal when the trial court does not uncover the facts.
Under waiver, theory of the trial, and summary judgment principles, the "footing" issue must be deemed waived.
The judgment is affirmed.
Benke, Acting P.J., and Nares, J., concurred.