In 1990, Lori and Robert Mills (the Mills) hired Mike Wunder, doing business as Wunder Wood Construction (collectively Wunder), to build them a house in Jamestown in Tuolumne County. They hired him again the following year to build a garage, which would be connected to the house by a deck. The hardboard siding Wunder installed on both the house and the garage had been manufactured by the Stimson Lumber Company, doing business as Forestex Company (collectively Forestex).
Within a year or so after the buildings were completed, the siding started to warp and buckle. Despite Wunder's early efforts to correct the problem, it grew progressively worse. By 1993 the paint on the siding had begun to peel, and nails started backing out the year after that. The Mills finally contacted Forestex in 1996. Forestex inspected the house and told them the siding had been installed improperly.
The Mills initiated the present action in 2000 by filing a complaint for damages against Wunder and Forestex alleging violation
FACTS AND PROCEEDINGS
The Mills's Complaint
The Mills filed their initial, unverified complaint on September 15, 2000. Starting with the complaint, and continuing on through their appellate briefs, the Mills's pleadings generally have failed to designate the particular legal theories or statutory bases for their claims, and to specify the party or parties against whom the claims are made: Wunder or Forestex, or both. Moreover, the complaint alleged Wunder's work was deficient in other respects unrelated to the siding, e.g., the plumbing leaked and the decking was defective, but the Mills did not seek to recover damages for harm caused by these other problems.
The first cause of action alleged Forestex had willfully violated the Song-Beverly Consumer Warranty Act,
The complaint stated the Mills had discovered the siding was failing to perform properly—"warping, separating, and buckling"—in May of 1996, and they had formally revoked their acceptance of the siding in July of 1997.
Wunder filed an answer to the complaint in which he generally denied the Mills's allegations and asserted numerous affirmative defenses, including that all causes of
Forestex demurred to the complaint on similar grounds.
The Mills filed a first amended complaint on February 2, 2001. They alleged additional facts regarding their discussions with Forestex in support of their contention the discussions had equitably tolled the running of statute of limitations, or had estopped Forestex to assert the statute. Wunder and Forestex both filed answers to the amended complaint.
Wunder's Motion for Summary Judgment
On June 13, 2001, Wunder filed a motion for summary judgment or summary adjudication as to the second and third causes of action (for strict liability and breach of implied warranty, respectively). He maintained the undisputed facts established that the statute of limitations had run on both.
The Mills filed an opposition to the motion on July 15, 2001. They argued that Wunder had induced them to put off legal action by his promises to repair the siding, and had concealed from them their potential claim against Forestex, such that, as in the case of Forestex itself, the statute of limitations was tolled or Wunder was estopped to assert it. With a few minor exceptions, they did not dispute Wunder's statement of undisputed facts. In their own statement of undisputed facts, they asserted essentially that they did not know until December of 1997 that Wunder had installed the siding improperly; that he would not repair it; and that he would not support their efforts to get Forestex to replace it. Wunder, in turn, filed a response in which he disputed the factual support for these claims, and lodged assorted evidence and relevance objections.
Wunder argued, moreover, that the Mills should be limited to arguing theories pleaded in their first amended complaint, which had not sought to avoid application of the statute of limitations under the theories of estoppel, equitable tolling, or fraudulent concealment by Wunder (only by Forestex). As we discuss more fully below, the Mills subsequently appeared at the summary judgment hearing on July 30, 2001, and requested leave to amend their complaint to assert these theories. The court denied the request for lack of notice to the defendants. On August 9, the Mills filed a noticed motion making the same request. The matter was then set for hearing on September 24, 2001. In the meantime, however, the court granted Wunder's motion for summary judgment on August 24, 2001. Thereafter, at Wunder's request, the court removed the
The court's order granting Wunder's motion for summary judgment stated in part:
Forestex's Motion for Summary Judgment
Forestex filed a motion for summary judgment or summary adjudication on June 22, 2001. Curiously, although Forestex had been clearly identified as a defendant only as to the first cause of action (for breach of the Consumer Warranty Act), the caption on its pleadings indicated the summary judgment motion was directed at the second and third causes of action only. The motion itself, however, argued all three causes of action were barred by the applicable statutes of limitation.
The Mills did not file pleadings in opposition to Forestex's motion separate from those they filed in opposition to Wunder's motion. Indeed their opposition, as just noted, was addressed almost entirely to their contention Wunder should be estopped to assert the statute of limitations. They did not respond at all to Forestex's statement of undisputed facts, nor assert undisputed facts of their own to counter Forestex's statute of limitations claims. Nonetheless, Forestex filed a response to the Mills's opposition (to Wunder's motion) in which it maintained the Mills had failed to provide any factual support for their estoppel and equitable tolling arguments.
The court's order granting Forestex's motion for summary judgment stated in part:
The Mills's Appeals
The court entered judgments for Wunder and Forestex on September 5 and September 11, 2001, respectively. The Mills filed a timely notice of appeal from both judgments.
The Mills raise five issues on appeal. They argue (1) the trial court should have permitted them to amend their complaint as to Wunder to plead facts in support of their theories of equitable tolling and estoppel; (2) the statute of limitations had not run on their claims because the harm caused by the siding was continuing and progressive; (3) the statute had not run because they did not discover the harm until December of 1997; (4) the limitations period was equitably tolled; and (5) Wunder and Forestex should be estopped to assert the statute.
I. The Standard of Review
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.)
The trial court properly grants a motion for summary judgment "if all the papers submitted show 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." (Code Civ. Proc., § 437c, subd. (c).)
We generally review the court's decision de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal.Rptr.2d 366, 939 P.2d 766.) But we review the decision for an abuse of discretion when the court granted or denied a motion for summary judgment in the exercise of its equitable powers. (Centennial Ins. Co. v. United States Fire Ins. Co. (2001) 88 Cal.App.4th 105, 111, 105 Cal.Rptr.2d 559.) "[W]e construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it." (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19, 17 Cal.Rptr.2d 356.)
Because we review the trial court's ruling, not its rationale, we are not bound by the explanation the lower court gave in support of its decision. (Szadolci v. Hollywood Park Operating Co., supra, 14 Cal.App.4th 16, 19, 17 Cal.Rptr.2d 356.)
Finally, we note the Mills have gone to considerable effort in their appellate briefs to point out facts in support of their contention they did not discover the siding problem until 1997. These typically are not facts they chose to set out in a separate statement of material facts in response to the defendants' motions for summary judgment. (§ 437c, subd. (b); see also Id., subd. (p)(2) [opposing party may not rely on mere allegations or denials in its pleadings].) It may be helpful, therefore, to restate the general rule that we will consider only those facts that were before the trial court when it ruled on the motions. (Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 966, 123 Cal.Rptr. 309.) This, in turn, means the facts contained in the parties' separate statements.
II. The Motion to Amend the Complaint
When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory. (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, 86 Cal.Rptr.2d 645; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 883-886, pp. 342-346.)
The Mills contend the court should have allowed them to amend their complaint to plead facts in support of their theories of equitable tolling and estoppel as to their claims against Wunder. Plainly, however, the court did not grant Wunder's motion for summary judgment on the ground their complaint was insufficient in this regard. To the contrary, the court expressly considered these theories and the facts the Mills offered in support of them in their opposition to Wunder's motion, but it found as a matter of law that the facts failed to support the theories. The Mills would have gained nothing from the opportunity to amend their complaint.
III. The Statutes of Limitation
Like the claims asserted in their complaint, the Mills's arguments regarding the statutes of limitation are confusingly generic; they fail to specify the defendant(s) and/or cause(s) of action to which they are meant to refer. Different statutes apply in the various contexts.
A. Breach of Warranty— Sale of Goods
As we have said, the Song-Beverly Consumer Warranty Act, which appears in the Civil Code, supplements rather than supercedes the provisions of the California Uniform Commercial Code. (Civ.Code, § 1790.3; Krieger, supra, 234 Cal.App.3d at p. 213, 285 Cal.Rptr. 717.) The act itself contains no express limitations period for a civil action alleging a violation of its terms. However, section 2725 of the Commercial Code provides a four-year limitations period for breach of warranty.
Thus, subject to tolling or estoppel, the Mills were required to bring their breach of warranty claims against Forestex—those asserted in the first and third causes of action—within four years from the date they discovered, or should have discovered, the siding was not performing properly.
"Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.... [T]he limitations period begins once the plaintiff `"`has notice or information of circumstances to put a reasonable person on inquiry ....'"' [Citations.] 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." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1110-1111, 245 Cal.Rptr. 658, 751 P.2d 923, fn. omitted.)
B. Latent and Patent Construction Defects
Sections 337.1 and 337.15 apply to actions for damages against persons involved in the construction of improvements to real property, such as Wunder, and establish four-year and 10-year statutes of limitation for patent and latent defects, respectively.
The limitation periods in sections 337.1 and 337.15 start to run upon "substantial completion" of the improvement,
Which of the two statutes applies turns on whether the defect is latent or patent.
The trial court found the defect in the siding was patent, such that the four-year statute of limitations in section 337 applied to the Mills's claims against both Wunder and Forestex.
The Mills alleged Wunder installed the siding incorrectly by failing to first sheath the house or put down a vapor barrier, or to install clips or expansion joints. This was the construction deficiency. As a consequence, allegedly, the siding absorbed moisture in wet weather and expanded, causing it to buckle, warp, and separate, the nails to pop out, and the paint to peel off. These were all manifestations of the deficiency. The absence of an adequate vapor barrier was a latent defect, hidden from view beneath the siding. (See, e.g., Renown, Inc. v. Hensel Phelps Construction Co. (1984) 154 Cal.App.3d 413, 420, 201 Cal.Rptr. 242 ["The word [`latent'] connotes that which is submerged and not clearly apparent or certainly present to any but a most searching examination, but whose significance and effect may later emerge or develop"].) The subsequent buckling, warping, and peeling were obvious, of course. However, they did not turn a latent defect into a patent one; they simply put the Mills on notice at some point that something was wrong with the siding, and that a further inquiry was necessary. The question then is just when exactly did this point arrive; when can it be said the Mills discovered, or should have discovered, the defect?
Discovery of a latent defect within the 10-year limitations period under section 337.15 triggers a second, shorter period under either section 337 or 338.
Discovery occurs, and so either section 337 or 338 begins to run, "only after the damage is sufficiently appreciable to give a reasonable man notice that he has a duty to pursue his remedies." (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at p. 27, 21 Cal.Rptr.2d 104; Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762, 769, 167 Cal.Rptr. 440.) Here we are concerned with the Mills's claims against Wunder in the third cause of action for breach of implied warranties of fitness and merchantability. Since they arose from the construction contract, the claims were subject to the four-year limitations period in section 337, subdivision 1. The period began to run upon discovery of the defective siding.
C. Strict Liability
Assuming the Mills adequately stated a claim for strict products liability in the second cause of action, a proposition that appears doubtful, the action against Wunder was subject to section 337.15. (Stoneson Development Corp. v. Superior Court (1987) 197 Cal.App.3d 178, 242 Cal.Rptr. 721.) Upon discovery of the latent defect, the action was governed by the three-year statute of limitations in section 338, subdivision (b), in that the defect caused an injury to real property. (Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 119-120, 51 Cal.Rptr.2d 594.) The Mills's strict liability claim against Forestex likewise was governed by section 338, subdivision (b) (without the prior intervention of section 337.15).
We turn finally to the central question in this appeal: When was the damage to the siding on the Mills's house sufficiently appreciable to give a reasonable person notice he or she had a duty to pursue legal remedies? (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at p. 27, 21 Cal.Rptr.2d 104.)
In opposition to the defendants' motions, the Mills asserted, as undisputed facts, that although Wunder made his only attempt to repair the siding in 1993, they continued to believe he would correct the problem until December of 1997, when they learned for the first time that he had installed the siding incorrectly (because Forestex told them so), and that he would not support their efforts to get Forestex to make good on its warranty. They were in negotiations with Forestex, the Mills said, until August of 1998. They also asserted they had no previous training or experience in construction. In response, Wunder objected to all these assertions except the last on foundational or factual grounds. The trial court did not expressly rule on Wunder's objections. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1, 25 Cal.Rptr.2d 137, 863 P.2d 207 [failure to obtain ruling on objections amounts to a waiver].)
On appeal the Mills argue that, although they noticed the siding starting to warp shortly after Wunder completed work on their house in 1991, they "had no knowledge, and hence, had not discovered the identity of the manufacturer of the siding; the defective nature of the siding; the warranties applicable to the siding; the improper installation of the siding; and the failed attempted repairs to the siding by [Wunder]" until sometime in mid-1997.
We find two general problems with this argument. First, the discovery rule uses an objective test that looks not to what the particular plaintiff actually knew but to what a reasonable inquiry would have revealed. (See Geertz, supra, 4 Cal. App.4th at pp. 1369-1370, 6 Cal.Rptr.2d 318 [reasonable inspection test assumes inspection was made].) Second, the limitations period begins to run when the circumstances are sufficient to raise a suspicion of wrongdoing, i.e., when a plaintiff has notice or information of circumstances sufficient to put a reasonable person on inquiry. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1110-1111, 245 Cal.Rptr. 658, 751 P.2d 923.) Thus, the "plaintiff need not be aware of the specific `facts' necessary to establish the claim." (Id. at p. 1111, 245 Cal.Rptr. 658, 751 P.2d 923.) Moreover, "ignorance of the legal significance of known facts or the identity of the wrongdoer will not delay the running of the statute." (Id. at p. 1112, fn. 8, 245 Cal.Rptr. 658, 751 P.2d 923.)
Consequently, the fact the Mills waited until 1996 to make the inquiry that led them to Forestex, and to Forestex's assertion in turn that Wunder had installed the siding improperly, does not resolve the issue before us. The siding indisputably was warping and buckling, and the paint was peeling off, by the summer of 1993. Around this same time, Wunder tried without success to correct the problem by cutting the individual siding panels in half. That these measures were necessary was evidence enough something was wrong with the siding. "Repair suggests discovery of a latent defect and commencement of a shorter period of limitation." (A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at p. 355, 30 Cal.Rptr.2d 418; Geertz, supra, 4 Cal. App.4th at pp. 1367-1368, 6 Cal.Rptr.2d 318.)
The Mills argue they had no duty of inquiry, or at least less of a duty, because they had no experience in construction and because they had a fiduciary or agency relationship with Wunder that entitled them to rely on his expertise. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 606, pp. 779-780 [no duty of inquiry in confidential relationships].) We disagree. A duty of inquiry arises independently of a particular plaintiffs subjective knowledge. (See Geertz, supra, 4 Cal.App.4th at p. 1368, fn. 3, 6 Cal.Rptr.2d 318 [questioning suggestion in Renown, Inc. v. Hensel Phelps Construction Co., supra, 154 Cal.App.3d at pp. 420-421, 201 Cal.Rptr. 242 that a plaintiff with special knowledge has a heightened duty of inquiry].) Indeed, a plaintiff may be held to have discovered a defect even if he or she lacked access or an opportunity to conduct an inspection. (Geertz, supra, 4 Cal. App.4th at pp. 1369-1370, 6 Cal.Rptr.2d 318.) As for their second point, the Mills have provided no factual or legal support for their claim they had a confidential relationship with Wunder. (See McCauley v. Dennis (1963) 220 Cal.App.2d 627, 636, 34 Cal.Rptr. 90 [no fiduciary relationship exists between a building contractor and the person who engages his services].) Nor did the Mills raise this claim at any point in the trial court.
Finally, the Mills contend the problem with their siding was especially difficult to discover because the resulting harm was "continuing and progressive," citing Bradler v. Craig (1969) 274 Cal.App.2d 466, 471, 79 Cal.Rptr. 401. This
We conclude as a matter of law that the siding problem on the Mills's house was sufficiently appreciable no later than the summer of 1993 to put them on notice to pursue their remedies, and consequently to start the three- and four-year statutes of limitation to run. Absent equitable tolling of the statutory periods, or an estoppel to assert them, the Mills filed their complaint too late.
E. Equitable Tolling
The doctrine of equitable tolling is a rule of procedure adopted by the courts and operates independently of the Code of Civil Procedure. (Addison v. State of California (1978) 21 Cal.3d 313, 318-319, 146 Cal.Rptr. 224, 578 P.2d 941 (Addison).)
The Mills maintain the doctrine applies to their action against Forestex because they made a warranty claim to the company sometime in the middle of 1997 and engaged in negotiations continuously thereafter until August of 1998.
Documents attached to Forestex's motion include the letter and other subsequent correspondence. The June 25th letter made mention of the warranty, but did not include a copy of it, and offered the Mills a $3,050 cash settlement to replace the 81 pieces of siding Forestex found had not performed according to specifications. The Mills rejected the offer in a letter dated July 24, 1997, claiming the offer was too low. In August, Forestex invited the Mills to submit cost estimates in support of a higher figure. The Mills then obtained a bid for $34,415 to remove all the existing siding, sheath and wrap the house, and install and paint new siding. Forestex responded in a letter dated August 26, 1998 reiterating its offer to pay only for the 81 pieces of defective siding.
The Mills contend their warranty claim was "officially made" in the July 24, 1997 letter to Forestex. Assuming for the sake of discussion that the four-year limitations period on the Mills's claims against Forestex was tolled from July 24, 1997 until August 28, 1998, the time within which they were required to file the claims would have been extended by 13 months from the summer of 1997 to the late summer of 1998. The three-year period, of course, would have expired one year earlier in the summer of 1997. Again, the Mills did not file their complaint until September 15, 2000.
The Mills contend the limitations period on their claims against Wunder was tolled pending resolution of the consumer complaint they filed against him with the Contractors State License Board on December 31, 1997. They propose this theory for the first time on appeal, notwithstanding the general rule that "`possible theories not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal.' [Citation.]" (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal. App.4th at p. 31, 21 Cal.Rptr.2d 104, italics omitted.) In any event, the four-year limitations period had expired the summer before. "Tolling can only suspend the running of a statute that still has time to run; it cannot revive a statute which has already run out." (Forman v. Chicago Title Ins. Co. (1995) 32 Cal.App.4th 998, 1006, 38 Cal.Rptr.2d 790.)
Finally, the Mills contend Wunder, "and possibly Forestex," should be estopped to assert the statutes of limitations because they fraudulently concealed or failed to disclose important information. The Mills's subsequent argument, however, is limited to Wunder. We therefore decline to consider the issue of estoppel as to Forestex. (See MST Farms v. C.G. 1464 (1988) 204 Cal.App.3d 304, 306, 251 Cal.Rptr. 72 ["This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record"].)
A defendant will be estopped to assert the statute of limitations if the defendant's conduct, relied on by the plaintiff, has induced the plaintiff to postpone filing the action until after the statute has run. (3 Witkin, Cal. Procedure, supra, Actions, § 685, pp. 872-873.) "`One cannot justly or equitably lull his adversary into a false sense of security, and thereby
"It is not necessary that the defendant acted in bad faith or intended to mislead the plaintiff. [Citations.] It is sufficient that the defendant's conduct in fact induced the plaintiff to refrain from instituting legal proceedings. [Citation.]" (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 43, 21 Cal.Rptr.2d 110.) "`To create an equitable estoppel, "it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss." [Citation.]' [Citation.] [¶] In the usual case, estoppel is a question of fact to be resolved by the trier of facts. However, when `the facts are undisputed, the existence of an estoppel is a question of law.' [Citation.]" (Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 440, 225 Cal.Rptr. 582.)
The Mills maintain in particular that Wunder promised to repair the siding on their house, and that they relied on his promises, until the end of 1997. They assert further that Wunder failed to disclose until then that he had installed the siding incorrectly; he failed to disclose the existence of the Forestex warranty; and he failed to act on their behalf with Forestex.
The Mills's separate statement of undisputed material facts, filed in opposition to Wunder's summary judgment motion, contains only three asserted facts that arguably support these claims: the Mills believed until 1997 that Wunder was going to repair the siding; they did not know until then that Wunder had installed the siding incorrectly; and they did not know until then that Wunder would not support them in their claims against Forestex.
The one-page portion of Robert Mills's deposition testimony cited as the basis for these asserted facts is even more ambiguous. Robert testified he had a conversation with Wunder in late 1997 in which he (Robert) mentioned the possibility of filing a claim against Forestex; that Wunder acted "guarded" and "apprehensive"; that Robert was left with "the impression he [Wunder] wasn't going to be there to support us"; and that "sometime shortly after that, it finally dawned on me that he didn't follow the instructions [on how to install the siding]." That is, Robert assumed Wunder would not assist in a claim against Forestex for fear it would reveal he had installed the siding improperly.
We have reviewed the rest of Robert's deposition testimony, and all of Lori's as well, for evidence of Wunder's "representations and promises" to them "through the end of 1997" that he would repair the defective siding. More importantly, we have looked for evidence that the Mills put off filing suit against Wunder in reliance on these promises. We have not found much.
According to Robert, the workers on Wunder's construction crew "were always complaining about how he would try to shortcut this or he'd always use the cheapest materials possible." In fact, there would turn out to be several problems with Wunder's work in addition to the warped siding. Robert testified that by the winter of 1993-1994, after Wunder had resawn the siding and completed the other projects he had agreed to do for the Mills, they noticed that he "had a real problem with coming back and following up and standing behind his work."
By the following winter, 1994-1995, the warping was "really extreme" and there was "so much buckling and movement going on that the nails he [Wunder] used to secure to the side of the house [were] backing out," and the window trim was starting to split. Robert called Wunder again. Asked to explain why he continued to look to Wunder despite his failure to correct the siding problem, Robert replied: "Mike—as far I was concerned, he was still our agent. He built the house. At that point he is still making some repairs on the house and things that he didn't do right the first time. He was still working on them. [¶] We're talking about—this is probably a year after the last project that I had him working on our house for. We had faith in Mike. It was around that same period of time that we started to see the pattern that Mike wasn't taking care of business." Another year passed in which Wunder did nothing to repair or replace the siding.
By the winter of 1995-1996, the Mills were "pretty much convinced" Wunder was not going to do anything about the siding problem. It was in 1996 that Lori contacted Andy's and discovered the siding had been manufactured by Forestex. As mentioned, she contacted Forestex soon afterward and arranged for a representative to come and inspect the house. She also obtained a copy of the Forestex warranty and, according to Robert, a copy of the installation instructions. Robert realized then that Wunder had not installed the siding according to the instructions.
On December 15, 1997, the Mills wrote to Wunder saying they intended to file a complaint against him with the Contractors State License Board if he did not repair or replace the siding within 10 days. Wunder phoned Robert about a week later in response to the letter. Although Robert had known for a year that Wunder installed the siding incorrectly, he said of their conversation:
So this was the conversation cited by the Mills in their opposition to Wunder's summary judgment motion, and discussed above, that they assert finally convinced them Wunder was not going to repair or replace the siding. The Mills filed a Contractors State License Board complaint
Lori Mills testified she talked to Wunder perhaps 15 or 20 times about the siding problem between 1992 and 1996, and his response generally was that "he would take care of it." Lori contacted Andy's in 1996 and learned Forestex had manufactured the siding. Then, she said, "I went and I called Mike, and I talked to Mike about it. And he didn't say anything about it. I mean, like he was going to help me or anything." So from that point on, Lori explained, "we started dealing with Forestex."
The Mills's deposition testimony raises two questions: whether and for how long they were justified in relying on Wunder's promises to repair the siding, and whether the promises induced them to put off filing suit against him until after the limitations period had run.
Reliance by the party asserting the estoppel on the conduct of the party to be estopped must have been reasonable under the circumstances. "`To warrant reliance, a representation must be such as would induce a reasonable man to act upon it.'" (Three Sixty Five Club v. Shostak (1951) 104 Cal.App.2d 735, 739, 232 P.2d 546.)
Here, the trial court concluded it would not have been reasonable for the Mills to rely on Wunder to repair the siding after 1994, "when he quit working and failed to return to the job." While we tend to agree, the Mills's testimony establishes in any event that they had ceased to rely on Wunder's promises by 1996, not in December of 1997 as they claim. In addition, they knew or at least had reason to believe in 1996 that Forestex had manufactured the siding, that the siding was defective, and that Wunder had installed it incorrectly. A year or more remained at that point within which the Mills could have filed a timely action against Wunder. "If there is still ample time to institute the action within the statutory period after the circumstances inducing delay have ceased to operate, the plaintiff who failed to do so cannot claim an estoppel." (Lobrovich v. Georgison (1956) 144 Cal.App.2d 567, 573-574, 301 P.2d 460; Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 716, 269 Cal.Rptr. 605; DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1026, 242 Cal.Rptr. 368.)
Perhaps more importantly, the Mills's testimony also belies their contention that Wunder induced them to put off filing suit against him until after the statute had run (in the summer of 1997). Robert testified it still was not his intention as late as December of 1997 to sue Wunder, but rather to get Wunder to support the Mills's claims against Forestex. The Mills plainly could not have been induced to refrain from doing something they had not contemplated doing.
Finally, the Mills maintain Wunder should be estopped to assert the statute of limitations because he failed until December of 1997 to disclose that they might have a warranty claim against Forestex, and failed to intervene on their behalf with Forestex. They assert: "The relationship between [them] and [Wunder] may well have risen to the level of a fiduciary one and did impose a duty on
Seelenfreund was an action brought by a property owner against a pest control firm for negligent breach of an oral contract. The complaint, filed in 1977, alleged a termite inspection conducted by the firm in 1974 failed to disclose a number of problems existing at the time. The firm demurred to the complaint on the ground the action was barred by the two-year statute of limitations in section 339, subdivision 1. The plaintiff invoked the discovery rule. However, the trial court sustained the demurrer without leave to amend. The issue on appeal then was whether the discovery rule should be applied to this type of action. The appellate court held it should.
In analyzing the issue, the court noted that the discovery rule has been applied by statute to some types of actions, and by the courts to other types. Most notable among this second group are situations involving a fiduciary relationship such as professional malpractice cases. "[Professionals are under a [fiduciary] duty to disclose to the client all facts which materially affect the rights and interests of the client. Failure of a professional to inform a client of the professional's negligent activity is therefore a breach of duty and is frequently treated as a fraudulent concealment of the cause of action. [Citation.]" (Seelenfreund supra, 84 Cal.App.3d at p. 137, 148 Cal.Rptr. 307.)
The property owner argued the firm had acted as his agent such that a fiduciary relationship arose between them and justified application of the discovery rule. The court held there had been no agency because the firm had not represented the property owner in any dealings with third parties. (Seelenfreund, supra, 84 Cal. App.3d at p. 137, 148 Cal.Rptr. 307 [citing the definition of an agent in Civil Code section 2295].) However, it also held the discovery rule need not necessarily be limited to cases where the contending parties had a fiduciary relationship. The court pointed out that the termite control business was regulated by the Business and Professions Code, which required among other things a detailed inspection report be completed and filed with the person requesting an inspection. The complaint in Seelenfreund alleged negligent acts that seemingly violated this statutory duty to report. Thus, the court concluded, the case involved similar considerations as had been applied recently by the Supreme Court in extending the discovery rule to attorney malpractice cases.
The Mills seem to be arguing here either that Wunder was their agent and so had a fiduciary duty to assist them to prosecute a warranty claim against Forestex, or he had a statutory duty to do so.
We conclude the Mills have failed to demonstrate that a triable issue of fact exists as to whether Wunder should be estopped to assert the statute of limitations.
The judgments are affirmed. Defendants are awarded their costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J., and CORNELL, J.
"Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code, § 1794, subd. (a).) "If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages." (Id., subd. (c).)
Moreover, a homeowner may not recover in tort, i.e., negligence or strict liability, for construction defects except insofar as they have caused property damage (to property other than the defective product itself) or personal injury. Purely economic losses, e.g., the cost to repair or replace the defective product, are recoverable only under contract or warranty law. (Aas v. Superior Court (2000) 24 Cal.4th 627, 101 Cal.Rptr.2d 718, 12 P.3d 1125; see also Jimenez, supra, 29 Cal.4th at pp. 481-484, 127 Cal.Rptr.2d 614, 58 P.3d 450 [discussing the "economic loss" rule]; Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 292-295, 112 Cal.Rptr.2d 869.) The Mills alleged they had suffered some damage to their house, e.g., leaking windows and splitting window frames, but only inferentially attributed the damage to the improper manufacture or installation of the siding. They did not allege any personal injury.
Moreover, as we have explained, neither section 337 nor section 337.1 applies to breach of warranty claims arising from the sale of goods; such claims (i.e., those alleged against Forestex in the first and third causes of action) are covered instead by the four-year limitations period in section 2725 of the Commercial Code. The present discussion, therefore, is limited to the Mills's claims against Wunder alleged in the third cause of action.
In Winston Square, the court held the plaintiffs' action was barred under either section 337.1 or section 337.15, whichever one applied. The problem there was standing water within a townhouse development, caused evidently by a defective drainage system. The trial court found the defect was patent because the standing water was obvious even before the development was completed, such that the drainage problem was, or should have been, readily discoverable. The appellate court agreed. "The testimony shows the actual defect was easily observable. There appears to have been no dispute at trial over the cause of the drainage problems." (Winston Square, supra, 213 Cal.App.3d at p. 291, 261 Cal.Rptr. 605.) Nonetheless, the court then went on to explain the result would be the same even if the drainage problem were characterized as a latent defect. (Id. at p. 292, 261 Cal.Rptr. 605.) Thus, it seems both the trial court and the appellate court treated the standing water sometimes as the defect itself and other times as the condition that put the plaintiffs on notice of the defect.