1.DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION

A Defendant moving for summary judgment may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of Plaintiff’s essential elements; (2) by showing that Plaintiff does not have, and cannot get, evidence to establish an essential element after fully exploring Plaintiff’s case through discovery; or (3) by presenting evidence as to each element of an affirmative defense upon which Defendant bears the burden of proof at trial. CCP §437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, 854; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1436; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Once the Defendant’s initial burden is met, the burden shifts to the Plaintiff to show by substantial evidence that a triable issue of material fact exists as to the claim or defense. Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163; Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.

As to the mold claim, Plaintiffs elected to commingle Sheri’s personal injury claim with their general property loss claims, but this Court can sever those for purposes of summary adjudication. See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855; in accord, Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1115.

Defendants contend that Plaintiff’s “mold” claims are time-barred. Both sides rely on the same documents, which are neither admissible nor objected to – and so this Court will also look to the same documents.

Pursuant to CCP §340.8(a), “[i]n any civil action for injury or illness based upon exposure to a hazardous material or toxic substance, the time for commencement of the action shall be no later than either two years from the date of injury, or two years after the Plaintiff becomes aware of, or reasonably should have become aware of, (1) an injury, (2) the physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another, whichever occurs later.” Taking the latter prong, the following facts are undisputed:

10/29/08: Plaintiff had property tested for mold, and learned that there was “major mold growth” (see Katz Report and emails 11/03/08, 11/04/08);

10/30/08: Plaintiff sought treatment at Memorial Prompt Care for “complaints of illness due to mold” (see Supp FRog 10.1-10.3);

11/05/08: Plaintiff had property tested a second time for mold, confirming prior positive results (see Katz Report and emails dtd 11/03/08, 11/04/08);

11/12/08: Plaintiff admitted: “I am experiencing symptoms of mold sickness that have been documented with a medical doctor. Sarah has complained of headaches since we have moved in, which may also be mold related. We are concerned about the safety of our family. We need to begin these repairs immediately. We now know that all of the mold affected arrears had recent repairs/renovations done by the prior owner.” See 11/12/08 email.

12/18/08: Plaintiff sought treatment at Center for New Medicine for “complaints of illness due to mold” (see Supp FRog 10.1-10.3);

12/31/08: Plaintiff’s original attorney demands mediation to resolve disputes over defects and water intrusion issues.

01/05/09: Plaintiff sought treatment at Memorial Prompt Care for “complaints of illness due to mold” (see Supp FRog 10.1-10.3);

01/07/09: Plaintiff sought treatment at Family Care Center for “follow-up on labs-exposed to mold” (see Supp FRog 10.1-10.3);

04/11/11: Plaintiff files suit.

The events outlined above clearly show that the two-year statute of limitations on Plaintiff’s cause of action for personal injuries relating to mold exposure began to run by 11/12/08, but certainly no later than January of 2009.

Plaintiff contends that she did not effectively connect the dots between her ailments and the type of mold found in the home until she visited Dr. Katz in March of 2010 (due to a long history of unrelated allergies and health issues). While amorphous ailments may not trigger a sufficient suspicion to start the time running (see Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th 1202, 1211), Plaintiff admits subconscious suspicion of exposure and wrongdoing in her 11/12/08 email. Even Dr. Katz noted that Plaintiff “relates all of the symptoms to shortly after moving into the home” in September of 2008. See Katz Report. These facts are even more telling than those in Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, where the Plaintiff admitted that, several years before filing her claim, she was notified that mold might be present in her apartment and that her respiratory ailments might be connected. Id. at 1532. The Court of Appeal in that case found that Plaintiff’s claim was time-barred, and this Court sees no basis for concluding otherwise.

In addition, accrual is postponed under the delayed discovery rule only until a reasonable person in Plaintiff’s position develops suspicion of wrongdoing, causation and harm – not actual proof thereof. See Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 Cal.4th 797, 807; S.M. v. Los Angeles Unified School District (2010) 184 Cal.App.4th 712, 717. In other words, “if a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation.” McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108. While Dr. Katz may have been responsible for giving Plaintiff the “proof” she wanted, her unilateral decision to delay seeing a specialist like Dr. Katz for several years is neither reasonable nor chargeable to defendants. Nothing stopped Plaintiff from connecting the dots with “proof” earlier.

Summary adjudication of Plaintiff’s mold-related personal injuries is GRANTED.

Disclosure Claims

As to the disclosure claim, plaintiffs assert five separate causes of action, all of which are derive from the same grievance: Defendants’ failure to disclose a myriad of issues with the home, exposing Plaintiffs to economic loss. See FRogs 7.1, 7.3, 9.2. Although neither side has focused at all on the economic losses (focusing instead on Sheri’s personal injuries), the operative pleading and discovery responses put economic loss squarely in issue. As such, although this Court concludes that CCP §340.8 bars the mold claims, the disclosure causes of action of not necessarily subsumed therein.

The gravamen of the disclosure claims is

Plaintiffs: “Defendants knew, or should have known based on Dennis’ construction expertise and living in the home 27 years, that the home was riddled with water intrusion issues.”

Defendants: “We didn’t know – there was never any water intrusion issues while we owned the property.”

Plaintiffs contend that the pervasive evidence of historic water intrusion, coupled with evidence of “repairs” around the house, is strong circumstantial evidence that Defendants actually knew about the defects. Defendants contend that the roof was relatively new and had no leaks prior to the sale. Plaintiffs counter this with evidence that the roof was in fact not replaced in 2002 as represented, and that painting/patching was performed to cover evidence of leaks. Plaintiffs also contend that Defendants replaced the windows to hide evidence of prior leaks, while Defendants contend that the new windows were installed to make the home more desirable.

To establish fraud and/or intentional misrepresentation, Plaintiffs must prove: (1) the Defendant represented to the Plaintiff that an important fact was true; (2) that representation was false; (3) the Defendant knew that the representation was false when the Defendant made it; (4) the Defendant intended that the Plaintiff rely on the representation; (5) the Plaintiff reasonably relied on the representation; (6) the Plaintiff was harmed; and, (7) the Plaintiff’s reliance on the Defendant’s representation was a substantial factor in causing that harm to the Plaintiff. Bowers v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1557; Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; Perias v. GMAC Mortgage, Inc. (2010) 187 Cal.App.4th 429, 434.

The allegations of what Defendants knew or should have known are factual disputes. On summary judgment, the moving party’s evidence is strictly construed, and facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575. Defendant was a licensed contractor, and presumably in a good position to notice leaking, cracking, and the like. In addition, “summary judgment may be denied in the discretion of the Court where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” CCP §437c(e).

Summary adjudication of the fraud and intentional misrepresentation claims is DENIED.

As for the nuisance cause of action, Civil Code §3479 provides as follows: “anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” Not every loss of comfort and enjoyment give rise to a nuisance claim. See Vanderpool v. Starr (2011) 194 Cal.App.4th 385; Martin v. Bridgeport Community Association (2009) 173 Cal.App.4th 1024. To the degree Plaintiffs can establish substantial economic loss, there is no evidence Defendants did anything affirmatively to create the water intrusion issues. It must be shown that Defendants were a legal cause of the alleged invasion. See Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302-303; Koll-Irvine Center Property Owners Association v. County of Orange (1994) 24 Cal.App.4th 1036, 1043; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1137; in accord, Restatement (Second) of Torts § 822. Plaintiffs have presented no evidence connecting water intrusion to Defendants’ affirmative wrongdoing.

Summary adjudication of the nuisance claim is GRANTED.

Finally, there is the question of negligent failure to disclose (Plaintiffs’ 1st and 2nd causes of action). There is an open question regarding the timeliness of Plaintiffs’ negligence and negligent misrepresentation claims, which neither side addressed. Ordinarily such claims enjoy a two-year statute of limitations. See CCP §§ 335.1, 339(1); in accord, Hydro–Mill Co., Inc. v. Hayward, Tilton and Rolapp Ins. (2004) 115 Cal.App.4th 1145; Ventura County Nat’l Bank v. Macker (1996) 49 Cal.App.4th 1528; Loken v. Century 21-Award Properties (1995) 36 Cal.App.4th 263. Neither the common law, nor the statutory, duty to disclose contains a specific statute of limitations, but the crux of the claim clearly sounds in negligence. Here, Plaintiffs concede in their operative pleading that they knew about (1) wall cracks in August of 2008, (2) ceiling patches in September of 2008, (3) mold in November of 2008, (4) chimney defects in December of 2008, (5) new wall studs in January of 2009, and (6) defective roof/window installations in February of 2009. Plaintiffs waited more than two years before filing suit for these alleged defects, so any claim sounding in negligence is time-barred.

Summary adjudication of the negligence and negligent misrepresentation claims is GRANTED.

Summary adjudication of personal injury claims based on exposure to mold is granted per CCP §340.8.

Summary adjudication of negligence and negligent misrepresentation claims is granted per CCP §§ 335.1, 339(1).

Summary adjudication of nuisance claim is granted for want of causation.

Summary adjudication of fraud and intentional misrepresentation, but only for economic losses, is denied based on triable issues of fact.