Du v. Hawkins



















Filed 2/27/13 Du v. Hawkins
CA2/3











>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
THREE




>

BO DU et al., Plaintiffs and Appellants, v. H. GENE HAWKINS, Defendant and Respondent. _________________________________ AND RELATED CROSS-ACTION.

B235452 (Los Angeles County Super. Ct. No. KC056883)

APPEALS from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Dan T. Oki, Judge. Affirmed.

Bruce W. Wagner for Plaintiffs and
Appellants Bo Du and Yong Dong Feng.

Hanger, Steinberg, Shapiro & Ash,
Marc S. Shapiro and Benson Y. L. Chan for Defendants, Cross-defendants and
Appellants Zekrollah Mohammadi and Mojgan Mohammadi.

Cohen & Burge and Steven R.
Jensen for Defendant, Cross-defendant and Respondent H. Gene Hawkins.



_________________________

Plaintiffs and appellants Bo Du and
Yong Dong Feng (collectively Feng) and cross-complainants and appellants
Zekrollah Mohammadi and Mojgan Mohammadi (collectively Mohammadi) appeal a
judgment following a grant of summary
judgment in favor of defendant, cross-defendant and respondent H. Gene
Hawkins (Hawkins).

Hawkins provided professional
geologic services in connection with bedrock and geologic exposures during
rough grading preceding the construction of Mohammadi’s home. The house allegedly was damaged by earth
movement and structural defects.
The essential issue presented is whether the lawsuits
against Hawkins by Mohammadi and Feng, the subsequent purchaser, are
barred by the 10-year limitations period on an action alleging a latent defect
in construction. (Code Civ. Proc., §
337.15.)href="#_ftn1" name="_ftnref1" title="">[1]

The undisputed evidence established
that the last act or service performed by Hawkins in connection with the
subject real property was on May 21,
1999, more than 10 years before the inception of this
action. Therefore, the judgment in favor
of Hawkins is affirmed.

FACTUAL AND
PROCEDURAL BACKGROUND

1. Facts.

The undisputed evidence established the following:

On July 27, 1997,
Hawkins was retained by an oral agreement
with Mohammadi as a geologic consultant in connection with the construction of
the Mohammadi family’s personal residence, located on Flintrock
Road in Diamond Bar. Hawkins was retained by Mohammadi in
connection with pre-grading professional geologic consultation and in grading
geologic observations for the rough
grading improvement (cutting and/or filling of land to within a few inches
of the approved plan elevations to prepare the lot prior to construction of the
home). Hawkins solely provided
professional geologic services on the Mohammadi project, and no other services
or work. Hawkins performed his final
geologic observations and advice in connection with the subject property prior
to May 21, 1999. Hawkins issued an interim completion report
on May 21, 1999. That was his final act or service performed
in connection with the subject property.

Thereafter, the rough grading
improvement at the subject property was completed fully on or before June 7, 1999. On June
7, 1999, the supervising grading engineer executed a rough grading
certification, certifying the satisfactory completion of rough grading.

After the project was completed, Mohammadi decided to sell the
property. Feng purchased the
property in June 2000, but did not occupy the property until sometime in
2002. Feng subsequently claimed the
house and lot developed damage due to earth movement and structural
defects. Feng allegedly discovered the
cracking or damages sometime during 2007.

2. Proceedings.

a. >Pleadings.

On September 25, 2009,
Feng filed suit against Hawkins, Mohammadi and others. As pertinent to this appeal, Feng’s operative
complaint, the first amended complaint pled a cause of action for negligence
against Hawkins and sought damages stemming from the alleged design and/or
construction defect of the subject property.

On December 2, 2009,
Mohammadi filed a cross-complaint against Hawkins, alleging causes of action
for implied indemnity based on negligence, implied indemnity based upon a special
relationship, partial indemnity based on apportionment of fault, and
declaratory relief.

b. Motion
for summary judgment.

Hawkins moved for
summary judgment, or in the alternative, summary adjudication of issues, on the
complaint by Feng and the cross-complaint by Mohammadi. Hawkins directed his motion to the first
cause of action of Feng’s complaint for negligence (the only cause of action
directed at Hawkins); and causes of action one (implied indemnity based on
negligence), two (implied indemnity based on special relationship) three
(partial indemnity based on apportionment of fault) and four (declaratory
relief) of the cross-complaint by Mohammadi.
The motion was made on the grounds that no right to relief existed and
that Hawkins was entitled to judgment as a matter of law because the 10-year
statute of repose embodied in section 337.15 ran as to Hawkins more than 10
years prior to the filing of Feng’s complaint and Mohammadi’s
cross-complaint. According to Hawkins,
he performed his final act in connection
with the project by May 21, 1999,
upon issuance of his interim completion report.
Thereafter, rough grading was completed on or before June 7, 1999; on June 7, 1999, the project civil engineer, HP
Engineering, issued its rough grade certification.href="#_ftn2" name="_ftnref2" title="">>[2]

c. Opposition
papers.

Feng, in opposition, contended that Hawkins did not substantially
complete his work at the subject property on May 21, 1999, the date of the
interim completion report, because Hawkins “failed to subsequently provide his
final report including an as-graded geotechnical map as required by #17 of
General Notes of the Grading Plan signed by [Hawkins] on October 30, 1998 and
Building Code § 3318.1 and as set forth in his Interim Completion Report dated
May 21, 1999.” Thus, Feng contended that
the failure to prepare a final report including an as-built geologic map meant
that Hawkins did not substantially complete his geologic work at the subject
property on May 21, 1999.

Mohammadi, in turn, contended the applicable date for calculating the
statute of repose was the date of the final grading certification of May 30, 2000, because the grading of
the property cannot be said to be completed until such time as the >final grading certification is executed
and issued. The supervising grading
engineer’s final grading
certification for the subject property was executed on May 30, 2000.

d. >Trial court’s ruling.

The trial court ruled Hawkins met his initial burden to show the claims
against him by Feng and Mohammadi was barred by the 10-year statute, in that
the undisputed evidence showed “Hawkins performed his final geologic
observations and advice in connection with the subject property and issued an
interim completion report on May 21, 1999 . . . [and] the
rough grading improvement at the subject property was completed fully on or
before June 7, 1999,” more than 10 years before the onset of litigation.

The trial court noted Feng’s argument that Hawkins did not substantially
complete his work because Hawkins failed to subsequently provide a final report
including an as-graded geotechnical map as required by No. 17 of General Notes
of the Grading Plan signed by Hawkins on October 30, 1998 and Building Code
section 3318.1. The trial court also
considered Mohammadi’s argument the applicable date for calculating the 10-year
statute was May 30, 2000, the date of the final grading certification, because
the grading of the property cannot be said to be completed until such time as
the final grading certification is executed and issued.

The trial court rejected these arguments, stating: “The opposing parties, however, fail to
submit any evidence raising a triable issue as to the date of the last act or
service performed by Hawkins in connection with the subject property. The date of substantial completion
relates specifically to the performance by each profession or trade rendering
services to the improvement. (CCP §
337.15(g).) The ten-year statute of
limitations on suits for latent defects in improvements to real property
commences when defendant’s work on the improvement is substantially completed,
rather than when improvement itself is substantially completed. (Industrial
Risk Insurers v. Rust Engineering Co. (1991) 232 Cal.App.3d 1038,
1044-1046.) While the evidence that
Hawkins may have failed to complete all of his obligations with regard to a
final report may be relevant to demonstrate that he breached the agreement with
Mohammadi, it does not raise a triable issue of fact as to when Hawkins
substantially completed his services with regard to the subject property. While the opposing parties focus heavily on
the fact that Hawkins failed to provide his ‘final report’ after he returned
from his vacation, there is no evidence that the final report was necessary. It appears that the project was able to go
forward without the final report. Thus,
it appears that Hawkins’ work was substantially completed when he submitted his
interim completion report.

“The undisputed
evidence demonstrates that the last act or service performed by Hawkins in
connection with the subject property was on May 21, 1999, and that plaintiffs commenced this action
more than 10 years after the work was completed. Accordingly, the motion for summary judgment
is granted.”

Feng and Mohammadi filed timely notices of appeal from the judgment.

CONTENTIONS

With respect to the appeals by both
Feng and Mohammadi, the issue presented is whether their claims against Hawkins
are barred by the 10-year statute. (§
337.15.) Based on our analysis set forth
below, we conclude the claims are barred.

DISCUSSION

1. Standard
of appellate review.

Summary judgment
“motions are to expedite litigation and eliminate needless trials. [Citation.]
They are granted ‘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.’
[Citations.]” (>PMC, Inc. v. Saban Entertainment, Inc.
(1996) 45 Cal.App.4th 579, 590.)

A defendant
meets its burden upon such a motion by showing one or more essential
elements of the cause of action cannot be established, or by establishing a
complete defense to the cause of action.
(§ 437c, subd. (p)(2); Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Once the moving defendant has met its initial
burden, the burden shifts to the plaintiff to show a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. (Aguilar, at p. 849; § 437c, subd. (p)(2).)

We review the
trial court’s ruling on a motion for summary judgment under the independent
review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)

2. General principles.

Section 337.15 was enacted in 1971
in response to lobbying by the construction industry for statutes limiting the
duration of liability for real property improvements. The purpose of the statute is to shield
members of the construction industry from liability of indefinite duration for
property damage caused by their work. >(Industrial Risk Insurers v. Rust
Engineering Co. (1991) 232 Cal.App.3d 1038, 1043 (Industrial).)

The statute provides no action may
be brought to recover damages “from any person, . . . who
develops real property or performs or furnishes the design, specifications,
surveying, planning, supervision, testing, or observation of construction or
construction of an improvement to real property more than 10 years after the
substantial completion of the development or
improvement . . . .”
(§ 337.15, subd. (a).)

The critical provision for our
purposes is subdivision (g), which states:
“The 10-year period specified in subdivision (a) >shall commence upon substantial completion
of the improvement, but not later than the date of one of the following,
whichever first occurs: [¶] (1) The date of final inspection by the applicable
public agency. [¶] (2) The date of recordation of a valid notice of completion.
[¶] (3) The date of use or occupation of the improvement. [¶] (4) One year
after termination or cessation of work on the improvement. [¶] The
date of substantial completion shall relate specifically to the performance or
furnishing design, specifications, surveying, planning, supervision, testing,
observation of construction or construction services by each profession or
trade rendering services to the improvement.” (§ 337.15, subd. (g), italics added.)

Industrial
explained that the italicized language in the last sentence of section 337.15,
subdivision (g) “ ‘relates’ the concept of substantial completion to services
rendered to an improvement, and it relates this concept ‘specifically’ to the
services rendered by ‘each’ profession.
It is somewhat imprecise to say that things are related without saying
how they are related. But the reasonably
plain meaning of this sentence is that the limitations period commences as to
each profession on the date its services to the improvement are substantially
complete.” (Industrial, supra, 232 Cal.App.3d at p. 1042.)

Industrial
thus concluded the 10-year time limit section 337.15 places on suits for latent
defects in improvements to real property commences “when the defendant’s work
on the improvement is substantially completed, rather than when the
improvement itself is substantially completed.”
(Industrial, supra,
232 Cal.App.3d at p. 1040.) It
reasoned that a “defendant’s services with respect to an improvement may be
completed well before the improvement itself is finished. If the limitations period does not
commence until substantial completion of the improvement, construction industry
members may be subject to liability for an indefinite time over 10 years after
the substantial completion of their work.
We do not believe that this was what the Legislature intended when it
added subdivision (g) to the statute in 1981.”
(Id. at pp. 1043-1044.)

Industrial
also examined the statute’s legislative history, which showed the bill’s
proponents stated “ ‘the definition of “substantial completion” in the bill is
needed so that the various professions
and trades rendering services to an improvement may be able to predict with
certainty when their liability for “latent deficiencies” will terminate.’ The digest also explains that the last
sentence of subdivision (g) ‘further delineates the liability of each
participant in an improvement by providing that the date of substantial
completion shall relate specifically to the performance or furnishing of
services, as defined, by each profession or trade rendering services to the
improvement.’ This legislative
determination to draw lines with respect to the liability of each participant
in an improvement is consistent with our reading of the last sentence of
subdivision (g).” (Industrial, supra, 232 Cal.App.3d at pp. 1045-1046, italics
added.)

By way of example, in Nelson v.
Gorian & Associates, Inc. (1998) 61 Cal.App.4th 93 (>Nelson), the “evidence was undisputed
that the grading and engineering work for the tract lots was substantially
completed in December 1985.” (>Id. at p. 99.) There, the lots were graded between September
18, 1985 and December 23, 1985; the soils engineer observed the grading and
performed soils tests; and after 1985 no further work was done on the subject
lot. (Id. at p. 95.)
On February 27, 1986, the soils engineer filed a final report and
soils engineer certificate, and on April 30, 1986, the civil engineer signed
the certificate. (Ibid.)

Nelson held “the statute of
limitations started to run in December 1985, after ‘substantial
completion’ of the engineering and grading work.” (Nelson,
supra, 61 Cal.App.4th at p. 96.)
Because the action was filed more than 10 years after substantial
completion of the defendants’ work of improvement, i.e., the engineering and
grading work, the action was barred by section 337.15. (Id.
at pp. 94-96.)

3.
Undisputed evidence established
Hawkins performed his last act or service in connection with the project on May
21, 1999, more than 10 years before inception of this action; trial court
properly found Feng and Mohammadi failed to raise a triable issue with respect
to the 10-year statute.

The evidence is undisputed that the
“last act or service” which Hawkins performed in connection with the Mohammadi
project occurred on May 21, 1999, at which time Hawkins issued his interim
completion report. The issue before this
court is a pure question of law – did this “last act or service” by Hawkins
commence the running of the 10-year period?
Guided by Industrial and Nelson, we
concur in the trial court’s resolution of the issues.

With respect to Feng’s argument that
Hawkins did not substantially complete his work because Hawkins failed to
follow up his interim report with a final report, we reiterate the trial
court’s ruling: “While the evidence that
Hawkins may have failed to complete all of his obligations with regard to a
final report may be relevant to demonstrate that he breached the agreement with
Mohammadi, it does not raise a triable issue of fact as to when Hawkins
substantially completed his services with regard to the subject property.” Irrespective of the absence of a final
report, which did not preclude the project from going forward, Hawkins’s role
concluded when he performed his final act or service in connection with the
project on May 21, 1999. Moreover, it is
undisputed the rough grading improvement was fully completed by June 7, 1999,
more than 10 years before suit was filed.

The purpose of
section 337.15 is that “ ‘various professions and trades rendering services to
an improvement may be able to predict with certainty when their liability for
“latent deficiencies” will terminate.’ ”
(Industrial, supra, 232
Cal.App.3d at p. 1045.) Under Feng’s
approach, there would be no such certainty.
If Hawkins’s failure to submit a final report means he never
completed the work required of him, the 10-year period would not begin to run.

As for Mohammadi, the argument was that the applicable date for
calculating the 10-year period is May, 2000, one year after Hawkins’s final act
or service, because it was not until May 2000 that the final grading certification was executed by the supervising grader
engineer for H.P. Engineering, Inc.

Section 337.15, as construed by Industrial
and Nelson, readily disposes of this
theory. Section 337.15, subdivision (g),
delineates the liability of each participant in an improvement by providing
that the date of substantial completion shall relate specifically to the
performance or furnishing of services, as defined, by each profession or trade rendering services to the improvement. (Industrial,
supra, 232 Cal.App.3d at pp. 1045-1046.) Accordingly, the time frame for determining
Hawkins’s liability is based on the date Hawkins substantially completed his
work on the project, without regard to the date H.P. Engineering executed its
certification. (Nelson, supra, 61 Cal.App.4th at p. 95.) As indicated, it is undisputed Hawkins
performed no additional work after May 21, 1999. Moreover, the rough grading improvement was
fully completed by June 7, 1999, more than 10 years before suit was filed. Therefore, the action is barred by section
337.15. href="#_ftn3" name="_ftnref3" title="">>[3]

DISPOSITION

The judgment in favor of Hawkins is
affirmed. Hawkins shall recover his
costs on appeal.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







KITCHING,
J.









ALDRICH,
J.