Filed 4/10/20 Trias v. Granite Rock Company CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

LINDA TRIAS,

Plaintiff and Appellant,

v.

GRANITE ROCK COMPANY,

Defendant and Respondent.

H045226

(Santa Clara County

Super. Ct. No. 1-14-CV-268209)

Cu Nguyen brought this personal injury action against respondent Granite Rock Company (Granite Rock), among others, after he suffered a devastating spinal injury while playing tennis in a park in San Jose. Nguyen tripped when he stepped in a two foot-wide uncovered gutter at the base of the fence surrounding the court while running to return a shot. As he fell, his forehead hit a metal bar on the fence. The fall rendered Nguyen a quadriplegic. He sued Granite Rock, which constructed the tennis court and gutter, for negligence. The trial court granted summary judgment to Granite Rock on statute of limitations grounds. We affirm.

I. BACKGROUND

A. Undisputed Facts

Fowler Creek Park, a public park owned and maintained by the City of San Jose (City), has three tennis courts. The tennis courts were designed by Jose Balingit, an architect employed by the City’s Department of Public Works. The courts are located side-by-side. A chain link fence surrounds each court. Balingit’s design included an open drainage gutter (or swale) along the side of one of the tennis courts—Court Number 3—at the base of the fence.

Granite Rock constructed the tennis courts pursuant to a contract with the City. As constructed, the gutter is approximately two feet wide and slopes from an approximate depth of one inch at its center (adjacent to the midcourt line and the net) to an approximate depth of five-and-a-half inches at the drains in the corners of the court. As constructed by Granite Rock, the gutter is one quarter of an inch deeper than called for by Balingit’s design at the gutter’s center point and two inches deeper than designed at the drainage point in the corner of the court.

The City recorded a Notice of Completion and Acceptance of the Fowler Creek Park project, which covered construction of the tennis courts, on January 16, 2009.

Nguyen and three friends played doubles on Fowler Creek Park’s Court Number 3 on the morning of December 10, 2013. Nguyen had been playing tennis for 35 years and typically played four or five times each week. He had played on Fowler Creek Park’s tennis courts, including on Court Number 3, numerous times. He was aware of the gutter’s presence at the side of that court.

About 20 minutes into the match on December 10, 2013, one of Nguyen’s friends hit a drop shot in his direction. The shot landed inbounds and to Nguyen’s left. He ran to his left, towards the gutter and the fence, in an effort to return the ball. He returned the shot and his momentum continued to carry him leftward. He stepped into the gutter with his left foot, lost his balance, and fell into the fence. His forehead hit a horizontal bar on the fence, and he fell to the ground. Nguyen suffered spinal injuries that left him a quadriplegic.

B. Procedural History

Nguyen filed suit against the City and 50 Doe defendants on July 18, 2014. He later amended his complaint to identify one of the Doe defendants as Granite Rock.

The operative first amended complaint, filed on August 26, 2016, asserted a negligence claim against Granite Rock, alleging the company built the gutter deeper and with a greater slope than called for by the City’s plans, thereby creating a tripping hazard. In March 2017 Granite Rock moved for summary judgment on various grounds, including that Nguyen’s claim was barred by Code of Civil Procedure section 337.1’s four-year statute of limitations for claims arising from patently deficient construction work. In opposition, Nguyen argued, among other things, that a triable issue of fact exists as to whether the gutter defect is patent or latent. The trial court granted summary judgment in Granite Rock’s favor on statute of limitations grounds in June 2017.

The court entered judgment in favor of Granite Rock on August 9, 2017. Nguyen timely appealed. Nguyen died during the pendency of this appeal and his daughter, Linda Trias, has been substituted as appellant.

II. DISCUSSION

A. Summary Judgment Principles and Standard of Review

“A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action.” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) The expiration of the applicable statute of limitations is one such complete defense. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) A defendant moving for summary judgment based on the affirmative defense of the statute of limitations carries its burden by presenting evidence establishing that the plaintiff’s claim is time barred. (The Police Retirement System of St. Louis v. Page (2018) 22 Cal.App.5th 336, 340 (Police Retirement System).) “It then falls to plaintiff[] to counter with evidence creating a dispute about a fact relevant to that defense.” (Ibid.) That is, plaintiff must submit evidence that would allow a “reasonable trier of fact [to] find in plaintiff[’s] favor on the statute of limitations issue.” (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof”].) “If defendant[] presented evidence establishing the defense and plaintiff[] did not effectively dispute any of the relevant facts, summary judgment was properly granted. (Code Civ. Proc., § 437c, subd. (p)(2).)” (Police Retirement System, supra, at p. 340.)

In reviewing an order granting summary judgment, we review the entire record de novo in the light most favorable to the nonmoving party to determine whether the moving and opposing papers show a triable issue of material fact. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

B. Patent vs. Latent Defects and Section 337.1

Section 337.1, subdivision (a) provides that a cause of action based on a patent deficiency in the construction of an improvement to real property must be brought within four years of the substantial completion of the improvement. Subdivision (e) of section 337.1 defines “patent deficiency” as “a deficiency which is apparent by reasonable inspection.” Thus, “[a] patent defect can be discovered by the kind of inspection made in the exercise of ordinary care and prudence, whereas a latent defect is hidden and would not be discovered by a reasonably careful inspection.” (Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 255 (Delon Hampton).) “In the context of a patent defect, the word ‘patent’ ‘ “refers to the patency of danger and not merely to exterior visibility.” ’ [Citation.]” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1470.)

“ ‘The test to determine whether a construction defect is patent is an objective test that asks “whether the average consumer, during the course of a reasonable inspection, would discover the defect. . . .” [Citations.] This test generally presents a question of fact, unless the defect is obvious in the context of common experience; then a determination of patent defect may be made as a matter of law (including on summary judgment). [Citations.]’ [Citations.]” (Delon Hampton, supra, 227 Cal.App.4th at p. 255.) Defects that have been held to be “patent include the absence of a fence around a swimming pool[,]. . . [r]aised paving stones on a patio,” stairs without contrast marking stripes, excessive spacing between catwalk guardrails, a too-low stairwell banister, and a too-narrow stairwell. (Id. at p. 256.)

C. Analysis

Appellant’s argument on appeal is two-fold. First, she contends that a triable issue of material fact exists as to whether the existence of the defect—that is, the depth and slope of the gutter—would have been discovered by an average person in the course of a reasonably careful inspection (i.e., is patent). Second, she argues that Granite Rock failed to carry its initial burden to present evidence that the danger posed by the defect is patent. We address each contention in turn.

There is no dispute that the gutter itself was plainly visible and would have been discovered by an average person in the course of a reasonably careful inspection. As to the gutter’s depth and slope, the undisputed evidence shows that the gutter was one inch deep at its center and five-and-a-half inches deep at its ends. The difference between one inch and five-and-a-half inches is significant and easily observable with the naked eye. Accordingly, the evidence established that an average person in the course of a reasonably careful inspection would have discovered the approximate depth of the gutter at various points and the fact that the gutter increased in depth from its center to its ends. In other words, Granite Rock’s evidence showed that the defect was patent as a matter of law.

Appellant contends the deposition testimony of the City’s construction inspector for the Fowler Creek Park project, James Bickford, created a dispute as to the patency of the defect. Bickford testified that he did not recall having any concerns that the gutter was not constructed “in conformance with the plans.” Notably, Bickford also testified that he had no recollection of inspecting the gutter and that the gutter may have been inspected by his colleague. And Bickford was not asked how significant of a deviation from the plans he would tolerate and still consider the gutter to be “in conformance with the plans.” In that regard, architect Balingit declared the deviation from his plans to be “immaterial.” And a general contractor and consultant to Granite Rock, Timothy Stokes, declared—based on his review of Balingit’s plans and his inspection of the gutter—that the gutter was constructed consistent with the plans. Given the foregoing context, the testimony on which appellant relies does not, as she contends, support an inference that Bickford was unable to approximate the depth of the gutter or did not notice that the gutter was sloped. As a result, it likewise does not create a triable issue of fact as to the patency of the defect.

We turn, then, to the patency of the danger posed by the gutter. The danger associated with an uneven surface directly adjacent to a tennis court is something that can be appreciated by the average person relying upon the common experiences of everyday life. (See Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1339 [visibly raised paving stone held to be a patent defect because “[p]avement, and the dangers attendant to it, are matters of such common experience”]; cf. Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732 [“It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous”]; Miller v. Schell (1957) 149 Cal.App.2d 346, 349 [“The condition of a raised place in the sidewalk, a step down from one floor level to another, or a stairway without a railing, if dangerous, can normally be . . . readily observed . . .”].) That is, it “should be evident” that an uneven surface—such as the one created by the sloping gutter in this case—has “the potential to be dangerous and the risk of falling is heightened on” such a surface. (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 971 [stairs pose an evident danger associated with heightened risk of falling].) Indeed, Nguyen himself appreciated the danger posed by the gutter, testifying that even before the accident he perceived the gutter to be a tripping hazard. We recognize that the test to determine whether a construction defect is patent is an objective one. (Delon Hampton, supra, 227 Cal.App.4th at p. 255.) But the fact that Nguyen recognized the danger associated with the defect tends to show that so too would the average person have appreciated the risk.

In sum, the trial court did not err in concluding that Granite Rock carried its burden of showing that the defect was patent. Nor did it err in concluding that Nguyen did not submit evidence that would allow a reasonable trier of fact to conclude that the defect was latent. (Police Retirement System, supra, 22 Cal.App.5th at p. 340.)

It is undisputed that the tennis courts were substantially completed—and the statute of limitations began to run—no later than January 16, 2009, when the City recorded a Notice of Completion and Acceptance of the Fowler Creek Park project. Nguyen filed suit more than four years later, on July 18, 2014. Accordingly, the trial court correctly granted summary judgment in Granite Rock’s favor on grounds that its claim was time-barred.

III. DISPOSITION

The judgment is affirmed. Granite Rock shall recover its costs on appeal.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

DANNER, J.

Trias v. Granite Rock Company

H045226