Case Name: ?? Cilker Apartments, LLC v. Western National Construction, et al.
Case No.: ?????? 2013-1-CV-258281
This case arises out of alleged construction defects at One Pearl Place Apartments, a 182-unit residential apartment building in San Jose, California.? Defendants McLarand Vasquez Emsiek & Partners, Inc., McLarand Vasquez & Partners, Inc., MVE & Partners, Inc., and MVE + Partners, Inc. (collectively, ?MVE?) move for summary judgment as to plaintiff Cilker Apartment?s (?Cilker?) Second Amended Complaint.
- Objections to Evidence
Various objections to evidence have been filed in the motions before the Court.? Code of Civil Procedure section 437c, subdivision (q) states.
In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.
Accordingly, the Court will not rule on objections that are not deemed material to the disposition of the motions.? Any objections relevant to the Court?s decision will be discussed in the analysis.
- Cilker?s Request for Judicial Notice
Cilker requests that the Court take judicial notice of various pleadings in this action.? The Court can take judicial notice of those documents as court records.? (Evid. Code ??452, subd. (d).)? Cilker also requests that the Court take judicial notice of the notice of completion for the One Pearl Place Apartment Complex in San Jose, recorded with the Santa Clara County Recorder?s Office on May 12, 2004.? The Court can also take judicial notice of this document.? ((See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1367, fn. 8; Evid. Code, ??452, subds. (c), (h).)? Accordingly, Cilker?s request for judicial notice is GRANTED.
- Analysis
MVE argues that Cilker?s claims are time-barred by Code of Civil Procedure section 337.1.? MVE contends Cilker had actual knowledge of patent deficiencies in the design at the subject property in 2004 and likely earlier.? Cilker argues in opposition that the defects now at issue were not made known to Cilker until 2013 and that the defects are latent in nature, so not reasonably apparent upon reasonable inspection.
As explained by one case:
Sections 337.1 and 337.15 apply to actions for damages against persons involved in the construction of improvements to real property?.?.?.?and establish four-year and 10-year statutes of limitation for patent and latent defects, respectively.
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The limitation periods in sections 337.1 and 337.15 start to run upon ?substantial completion? of the improvement, and establish the outside limit within which an action must be filed, regardless of when the defect is discovered. That is, while the limitations period may in certain circumstances be less than the limit specified in the statute, it cannot be more. .?.?. Which of the two statutes applies turns on whether the defect is latent or patent. ?Whether a construction defect is latent or patent depends on whether it is ?apparent by reasonable inspection.? (?? 337.1, subd. (e); 337.15, subd. (b).) 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.]?? [Citations.] [?] ?Whether a defect is apparent by reasonable inspection is a question of fact.? [Citations.] What constitutes a reasonable inspection ?is a matter to be determined from the totality of circumstances of the particular case[]? and ?must vary with the nature of the thing to be inspected and the nature and gravity of the harm which is sought to be averted.? [Citation.] Whether a reasonable inspection would render a defect apparent is determined in light of ?the reasonable expectations of the average consumer.? [Citations.]?
(Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 643-644, citations omitted, emphases in original.)
In support of its motion, MVE provides the following evidence.? In January 2004 a resident complained of water damage and mold in Unit 207 at the subject property and there is an indication that Unit 309 was the source of leaks prior to that time.? (Separate Statement of Undisputed Facts in Support of Defendants McLarand Vasquez Emsiek & Partners, Inc., McLarand Vasquez & Partners, Inc., MVE & Partners, Inc., and MVE + Partners, Inc.?s Motion for Summary Judgment to Plaintiff Cilker Apartments, LLC?s Second Amended Complaint (?UMF?), No. 7.)? Cilker retained waterproofing consultant Gentry Associates and received recommendations from Gentry in February 2004 regarding water intrusion, potential causes, and further investigation.? (UMF, Nos. 8-9.)? Cilker became aware in 2004 of issues with scuppers, weather protection issues, gutters, and patios.? (UMF, Nos. 10, 13-15.)? In 2006, a settlement agreement and release was entered into between Cilker and Western National Construction to settle claims related to defects at the subject property, and acknowledges claims have been made for losses attributable to poor design.? (UMF, No. 17.)
Cilker alleges in the SAC that it discovered construction defects in many areas of the project within one year prior to filing its Complaint.? (SAC, ??47.)? While MVE?s evidence shows that Cilker had previous knowledge of certain potential defects, the fact that Cilker became aware of certain defective work in 2004 does not establish that Cilker knew of the specific defects at issue in this lawsuit.? Moreover, Cilker provides evidence that it did not learn of the defects at issue in this litigation until 2013 when destructive testing was performed.? (Plaintiff Cilker Apartments, LLC?s Separate Statement of Disputed and Undisputed Material Facts in Support of Opposition to Defendant McLarand, Vasquez & Partners, Inc.?s Motion for Summary Judgment (?Opp. UMF?), Nos. 5-17.)? Prior to the testing in 2013, Cilker had no knowledge of any water intrusion issues at exterior walkways, window assemblies, sliding glass doors, and French doors at private balconies, or issues with drainage at elevated walkways or at the podium level of the subject property.? (Opp. UMF, Nos. 5-17.)? Cilker also provides evidence that the issues raised in 2004 relate to conditions that were identified and resolved prior to the completion of the construction of the subject property.? (Opp. UMF, Nos. 9-17.)
Cilker?s evidence is sufficient to raise a triable issue of material fact as to whether the alleged defects at issue in this lawsuit were apparent prior to 2013.? If they were not apparent, they would be considered latent defects, subject to a ten year limitations period.? (Code Civ. Proc., ??337.15, subd. (a).)? Consequently, there is a triable issue of material fact as to whether Cilker?s claims are time-barred.? Accordingly, MVE?s motion for summary judgment is DENIED.