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Stofer v. Shapell Industries, Inc.

California Court of Appeals, First District, Fifth Division

January 15, 2015

DONNA STOFER, Plaintiff and Appellant,
SHAPELL INDUSTRIES, INC., Defendant and Respondent.

Superior Court of Contra Costa County, No. MSC10-00598, Judith S. Craddick, Judge.

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[Copyrighted Material Omitted]

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McGuire Coats and Wendy McGuire Coats for Plaintiff and Appellant.

Horvitz & Levy, H. Thomas Watson, Daniel J. Gonzalez; Lorber, Greenfield & Polito, Joyia Z. Greenfield, Lisa M. Cappelluti and Adam M. Stoddard for Defendant and Respondent.



Plaintiff Donna Stofer (plaintiff) purchased a home from Dr. Marcus F. Laux. Almost two years later, she sued the homebuilder, Shapell Industries, Inc. (Shapell), for strict liability, negligence, and fraudulent concealment. Plaintiff claimed Shapell built the home on unstable and uncompacted “fill” soil and with an inadequate foundation, causing “substantial differential movement” and numerous defects such as cracked floors, walls, and ceilings.

Shapell moved for summary judgment, contending it did not conceal any material information and plaintiff did not have standing to sue because her claims accrued while Dr. Laux owned the home.[1] The trial court granted the motion as to plaintiff’s fraudulent concealment claim. It denied the motion as to plaintiff’s other claims, concluding there was a triable issue of material fact

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regarding whether plaintiff “own[ed]... any claims regarding defects in the design and construction of the home[.]” The court held a bench trial on the accrual issue, and entered judgment for Shapell, concluding plaintiff had “no standing to sue” because her claims accrued when Dr. Laux owned the home and he did not assign the claims to plaintiff.

Plaintiff appeals. She contends the order granting summary adjudication on her fraudulent concealment claim must be reversed. We agree. Construing the facts in a light most favorable to plaintiff and resolving evidentiary doubts in her favor, we conclude there is a triable issue of material fact regarding whether Shapell fraudulently concealed information about the property’s soil conditions. Accordingly, we reverse the grant of summary adjudication on plaintiff’s fraudulent concealment claim.

Plaintiff also contends the judgment must be reversed because she was entitled to have a jury determine the disputed factual issues of “when and to whom the causes of action accrued.” We agree. A trial court may decide whether a cause of action for construction defect accrues to the plaintiff where the facts underlying that determination are undisputed. (See Krusi, supra, 81 Cal.App.4th at p. 1006.) But where — as here — the material facts regarding accrual turn on disputed facts or require credibility determinations, the jury must make these factual findings “before the trial court decides whether the facts, as determined by the jury” establish ownership of the causes of action as an issue of law. (People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 424 [126 Cal.Rptr.2d 793] (Plascencia).) Accordingly, we reverse the judgment for Shapell.


Shapell built a home on Velvet Leaf Circle in a residential subdivision in San Ramon for Timothy Alan Wright, then Shapell's assistant general superintendent and assistant vice president of construction. Wright oversaw the construction of the home and he and his wife purchased it from Shapell in December 2002. The transaction was informal: Shapell transferred title to the property without “formal disclosures that would be transmitted in a more conventional transaction.” (See Civ. Code, § 1102 et seq.)

Wright and his wife sold the home to Dr. Laux in 2004. In the real estate transfer disclosure statement prepared as part of the sale to Dr. Laux, Wright stated he was unaware of the presence of fill soil on the property. When he owned the home, Dr. Laux submitted multiple warranty repair requests to Shapell for problems ranging from cracked sidewalks and exterior stucco to issues with the home’s windows and doors. Dr. Laux sold the home to plaintiff in 2008. He gave plaintiff a $2, 000 credit against the purchase price

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for minor repair items, not due to a perceived deficiency in the condition of the soil or foundation. Dr. Laux wrote a letter to plaintiff at the time of sale expressing his love for the home and stating “it has served us more than well. This house has made living here a rewarding joy.”

In 2010, plaintiff sued Shapell for strict liability, negligence, and fraudulent concealment, alleging “defective soil conditions” heaved the home’s foundation and damaged “all of the structures on the lot[.]” The operative complaint alleged the soil conditions were defective in part because the property contained “25 to 30 feet of highly differential fill; the soil at the Property has unusually high plasticity; the fill at the Property fails to meet minimum engineering compaction standards[.]” The operative complaint also alleged the home suffered from numerous defects, including cracked floors, walls and ceilings, unlevel floors, and problems with the pool and pool deck. Plaintiff alleged she noticed these “dramatic changes” after she purchased the home.

The fraudulent concealment cause of action alleged Shapell hired ENGEO Incorporated (Engeo) as a soil engineer and that Engeo advised Shapell of the “highly differential, high plasticity fill soil conditions” on the property in 1995 and 1999 reports. Plaintiff alleged Shapell concealed this information from its structural engineer, Shaer-K Engineering (Shaer-K) and, as a result, Shaer-K “did not take into account these soil conditions when designing the foundations” for the structures built on the property. Because Shapell intentionally concealed the soil conditions from Shaer-K, all of the buildings on the property were “built on fill without using a proper design methodology to provide the buildings the proper support[.]” Plaintiff also alleged Shapell had a duty to disclose “highly differential fill soil conditions and the inadequate foundation” to Wright but concealed this information from him to induce him to buy the property.

Shapell’s Motion for Summary Judgment/Adjudication and Plaintiff’s Opposition

As relevant here, Shapell moved for summary judgment/adjudication on the following grounds:

A. Fraudulent Concealment

In its motion for summary adjudication on plaintiff’s fraudulent concealment claim, Shapell argued: (1) there was no evidence it concealed or suppressed the Engeo reports from Shaer-K or Wright; and (2) the soil conditions were disclosed to plaintiff before she bought the home. Shapell supported its motion with following evidence:

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—Shaer-K’s sole owner and employee, Karen Serke, contracted with Wright in April 2002 to provide architectural engineering and design services for the construction of the home.[2] The contract required Wright to “provide surveying and/or geotechnical engineering services upon request... to support the structural design.” Serke received unspecified Engeo “soils reports for the project and used them in preparation of [her] structural calculations for... Wright’s residence[.]”

—Wright knew the property contained fill, had been graded, and was not “in a natural state” when construction began. He provided Serke with whatever information she requested, including the ...

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