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Creekridge Townhome Owners Association, Inc. v. C. Scott Whitten

September 1, 2009

CREEKRIDGE TOWNHOME OWNERS ASSOCIATION, INC., PLAINTIFF AND APPELLANT,
v.
C. SCOTT WHITTEN, INC., DEFENDANT AND RESPONDENT.
CREEKRIDGE TOWNHOME OWNERS ASSOCIATION, INC., PLAINTIFF AND APPELLANT,
v.
REO ROOFING COMPANY ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from judgments of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Reversed. (Super. Ct. No. 04AS02481).

The opinion of the court was delivered by: Butz, J.

CERTIFIED FOR PUBLICATION

This is a construction defect case involving a reroofing of 11 buildings that house 61 units in a townhome community. The trial court granted summary judgment to the roofing defendants. The trial court found that the plaintiff townhome association did not meet the statute of limitations because the association had notice of a water moisture problem inside the window of one unit as a result of the new roof, and this unit reported several broken roof tiles.

We shall reverse. We conclude there are triable issues of material fact on the two statute of limitations issues: (1) whether the alleged defect was patent (i.e., apparent to an average consumer from a reasonable inspection); and (2) whether the defect can be deemed discovered in the latent defect context because the damage was sufficiently appreciable so that plaintiff suspected or reasonably should have suspected that defendants had done something wrong to plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 2004, plaintiff Creekridge Townhome Owners Association, Inc. (plaintiff), filed a construction defect lawsuit, concerning a reroofing project, against defendants C. Scott Whitten, Inc. (Whitten), REO Roofing Company (REO), and Monier Inc. (Monier). Whitten was the roofing manager and inspector, REO was the roofer, and Monier was the roofing supplier.

The lawsuit involves the reroofing of 11 buildings, comprising 61 units, in plaintiff's townhome community. The reroofing was completed in early 1997, and replaced the buildings' old shake roofs with Cedarlite concrete tile roofs.*fn1

In late June 1997, one owner in plaintiff's community described in a letter to plaintiff's board that she had a water moisture problem inside her second-story bedroom window as a result of the new tile roof; she also reported several broken roof tiles. The summary judgment record contains no other evidence of any other roof problems until 2003.

In the winter of 2003, plaintiff suffered numerous roof leaks. The following spring, plaintiff hired a roofing consultant, Randy Davis, who found multiple causes for the leaks and multiple types of roof defects.

As noted, on June 18, 2004, plaintiff sued Whitten, REO and Monier for these alleged roof defects. Plaintiff set forth causes of action for breach of warranty (express and implied), breach of contract, and negligence.

Whitten moved for summary judgment on statute of limitations grounds. After tentatively denying this motion, the trial court reversed course and granted it, citing an opinion decided during the summary judgment proceedings, Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401 (Landale).

REO and Monier in turn obtained a stipulated judgment in their favor on the same grounds as the Whitten summary judgment.*fn2 This stipulated judgment resulted in a second appeal by plaintiff, C059458, which we have consolidated with the Whitten appeal, C058300.

DISCUSSION

We uphold a summary judgment if all the evidentiary papers associated with it--which we review independently--show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We do not resolve factual issues but ascertain whether there are any to resolve. (Code Civ. Proc., § 437c, subd. (c);*fn3 Colores v. Board of Trustees (2003) 105 ...


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