Creekride Townhome Owners Association, Inc. vs. C. Scott Whitten, Inc. & REO Roofing Company et. al.
Filed 9/1/09
Third Appellate District
Cite as C058300

Court of Appeals Reverse Summary Judgment on Roof Defect Case of Association

In early 1997, C. Scott Whitten, Inc. (Whitten), REO Roofing Company (REO), and Monier Inc. (Monier) reroofed 11 buildings, comprising 61 units of Creekridge Townhome Owners Association, Inc.

Whitten was the roofing manager and inspector, REO was the roofer, and Monier was the roofing supplier. They replaced the buildings’ old shake roofs with Cedarlite concrete tile roofs.

A resident in the community however reported in late June 1997, that she had a water moisture problem inside her second-story bedroom window as a result of the new tile roof and that there were several broken roof tiles.

However, in 2003, the community suffered from numerous roof leaks. The association hired a roofing consultant, Randy Davis, who found multiple causes for the leaks and multiple types of roof defects.

Thus, Creekridge Townhome Owners Association filed charges against Whitten, REO and Monier for breach of warranty (express and implied), breach of contract, and negligence for the roof defects.

Whitten moved for a summary judgment based on statute of limitations which was granted by the Trial Court based on Landale-Cameron Court, Inc. v. Ahonen (2007). REO and Monier were able to secure the same judgment.

The Court of Appeals however, reversed the order granting summary judgment in favor of Whitten as well as the subsequent stipulated judgment in favor of REO and Monier. The CA held that:

• The reroofing defects alleged were not patent defects as a matter of law as these are these “would not be readily apparent to a lay person” and were discovered only by the roofing consultant whom the association had hired after incurring many roof leaks in 2003.


• A patent defect has been found as a matter of law: for example, a backyard pond with only a one-foot-high wall around it, into which a toddler fell (Preston, supra, 42 Cal.3d at pp. 110-111, 121-123); and a visible defect in pedestrian pavement substantial enough to cause a pedestrian to trip and fall. Thus, the statute of limitations of four years for a “patent” construction defect, which starts running when the construction is substantially completed is not applicable for the case of the community.


• A “latent” construction defect is one that is “not apparent by reasonable inspection.” (§ 337.15, subd. (b))


• There are three statute of limitations in play with the causes of actions as to a latent defect alleged for negligence, breach of warranty, and breach of contract—-
  
  (1) actions for a latent defect must be filed within three years (§ 338 [injury to real property]) or four years (§ 337 [breach of written contract]) of discovery, but (2) in any event must be filed within ten years (§ 337.15) of substantial completion.


• Thus, the statute of limitations has not yet lapsed for the roof defects.