GROSCHUPF vs LEI CONSTRUCTION, BUSINESS ENTITY FORM UNKNOWN, et al.

Proc., § 437c, subd. (f)(2).)

A moving defendant has the burden to show that one or more elements of each cause of action “cannot be established” or that there is “a complete defense.” (Code Civ. Proc., § 437c, subd. (p)(2).). Once a defendant has met that burden, the burden shifts to the plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

EVIDENTIARY RULINGS

Except as explicitly addressed, all evidentiary objections are deemed immaterial to disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q).)

DISCUSSION

GTC moves for summary judgment on the complaint as untimely, contending that the SB 800 cause of action is barred by the 3-year statute of limitations in Section 338 of the California Code of Civil Procedure, and the negligence cause of action barred by a 2-year statute.

Violation of Standards for Residential Construction

The Right to Repair Act, sometimes referred to as SB 800, establishes a set of building standards for new residential construction, mandates prelitigation procedures to allow repair of defects without litigation, and provides homeowners with a statutory cause of action against (1) “builders” involved in the sale of homes and (2) others not involved in sale of homes, e.g., contractors, suppliers, and design professionals. (See Civ. Code, §§ 895–945.5) The statute applies to “design professionals” to the extent they “caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract.” (Id., § 936.)

Except as specifically set forth in the statute, no SB 800 action may be brought to recover “more than 10 years after substantial completion of the improvement.” (Civ. Code, § 941, subd. (a).) Sections 337.15 and 337.1 of the Code of Civil Procedure—the traditional ten-year latent defect and four-year patent defect repose statutes—do not apply to SB 800 actions. (Id., § 941, subd. (d).) “Existing statutory and decisional law regarding tolling of the statute of limitations,” except under circumstances not relevant to this motion. (Id., § 941, subd. (e).) SB 800, or the Right to Repair Act, also prescribes pre-litigation procedures that a home buyer must initiate before filing suit and provides for tolling of the statute of limitations during that process. (See id., § 927.) SB 800 also sets shorter, component-specific limitations periods. (See id., § 896.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV120507: GROSCHUPF vs LEI CONSTRUCTION, BUSINESS ENTITY FORM UNKNOWN, et al. 06/12/2026 Hearing on Motion for Summary Judgment filed by Geotrinity Consultants, Inc., a California Corporation (Defendant) CRS# 222175133129 in Department 18 In the Complaint, Plaintiff alleges many violations, including water issues (§ 896, subd.(a)); structural issues (§ 896, subd.(b)); soil issues (§ 896, subd.(c)); and issues in “other areas,” including exterior features, exterior finishes and fixtures, manufactured products, and the installation of roofing material, tile, and tile backing. (§ 896, subds. (g)(1), (g)(2), (g)(3), (g(11), & (g)(13).).

Only one of these alleged violations appears to be the subject of a shorter, component-specific limitations period: the alleged violation of section 896, subdivision (g)(1), which states “[e]xterior pathways, driveways, hardscape, sidewalls, sidewalks, and patios installed by the original builder shall not contain cracks that display significant vertical displacement or that are excessive.” No action “shall be brought upon a violation of this paragraph more than four years from close of escrow.” (Ibid.)

Plaintiff’s section 896, subdivision (g)(1) allegations appear to be time-barred, but GTC has not requested, and the court cannot provide, adjudication of a partial cause of action.

GTC, however, moves for summary judgment not based on limitations period contained with the SB 800 statute, but under Code of Civil Procedure section 338, subdivision (b), which provides an “action for trespass upon or injury to real property” must be brought within three years. The section 338 limitations period starts to run “when the plaintiff suspects, or reasonably should suspect, that someone has done something wrong to the plaintiff, causing the injury,” i.e., when the damage is “sufficiently appreciable” to put a reasonable person on notice of the obligation pursue remedies. (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 258.)

The problem with GTC’s assertion of section 338 is that SB 800 “comprehensively” revised the law applicable to construction defect litigation for covered residential units. (McMillin Albany LLC v. Superior Ct. (2018) 4 Cal.5th 241, 250 [statute “evinces a clear intent to displace, in whole or in part, existing remedies”]; see also Civ. Code, § 943 [“Exclusiveness of title”].) GTC does not cite—and the court is not aware of—any SB 800 case in which section 338 was applied to bar the claims. Application of section 338 would undercut the statute as written, and there is “nothing absurd” about accepting the SB 800 limitations periods at face value. (McMillin, supra, p. 251.)

GTC argues that a construction defect claim must still be filed within three years of discovery, despite SB 800’s 10-year statute of repose. According to GTC, the legislature’s decision to explicitly supersede sections 337.15 (latent defects) and 337.1 (patent defects) illustrates that the legislature intended other statutory provisions to continue to apply. The legislature, however, also explicitly stated where the Act would not supersede existing law. (See, e.g., Civ. Code, § 896 [“As to condominium conversions, this title does not apply to or does not supersede any other statutory or common law.”]; § 936 [preserving “common law and contractual defenses as applicable”]; § 937 [“Nothing in this title shall be interpreted to eliminate or abrogate the requirement to comply with Section 411.35 of the Code of Civil Procedure . . .].)

The legislature’s failure to list section 338 as preempted is not persuasive or dispositive evidence that it should apply.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV120507: GROSCHUPF vs LEI CONSTRUCTION, BUSINESS ENTITY FORM UNKNOWN, et al. 06/12/2026 Hearing on Motion for Summary Judgment filed by Geotrinity Consultants, Inc., a California Corporation (Defendant) CRS# 222175133129 in Department 18

Given its conclusion that section 338 does not apply, the court need not reach the parties’ arguments with respect to the discovery rule in connection with the SB 800 cause of action.

Negligence

Plaintiff alleges that GTC breached a “duty to provide design services in conformance with industry standards, building codes, and statutory requirements.” (Compl., ¶ 46.) GTC contends that any such claim is barred by a statute of limitations for professional negligence.

The court has doubts about the viability of Plaintiffs’ negligence cause of action against GTC. The Right to Repair Act bars “common law claims for damages caused by construction defects within the scope of the Act, subject to the Act’s specific exclusions (e.g., fraud, personal injury, etc.) not at issue here.” (Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 893.) SB 800 applies to “design professionals” to the extent they “caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract.” (Civ.

Code, § 936; (Civ. Code, § 896 [a design professional’s liability for damages “arising out of, or related to deficiencies in, the residential construction, design, specifications, surveying, planning, supervision, testing, or observation of construction” is limited to violations of the standards specifically set forth in SB 800].) For example, the Court of Appeal precluded an insurer from asserting a negligence claim against the manufacturer of a clamp that failed causing water damage, noting that SB 800 provided the exclusive means of recovery for the property damage. (State Farm Gen.

Ins. Co. v. Oetiker, Inc. (2020) 58 Cal.App.5th 940, 952 [insurer precluded from asserting negligence claim against manufacturer of clamp that failed causing water leak damage].) Plaintiff appears to recognize this issue, repeatedly addressing the negligence claim “assuming” one could exist or be brought. (Opp’n, pp. 9, 14, 15.)

GTC, however, moves for summary adjudication based only on the statute of limitations, specifically Code of Civil Procedure, section 339, which applies to an “action upon a contract, obligation or liability not founded upon an instrument of writing.” There seems to be some dispute between the parties about whether section 339 or section 337.15, which applies to actions for latent defects in design specification, should apply. Section 337.15 seems appropriate, but discovery of a latent defect within the 10-year limitations period under section 337.15 triggers “a second, shorter period,” which for a negligence action, is 3 years under section 338. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 646.) In any case, whether the limitations period is two or three years, court finds that the discovery rule was triggered by at least July 9, 2021 and that the negligence claim is untimely.

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Mills, supra, 108 Cal.App.4th at p. 640.) Plaintiff’s position is that he did not “discover” his injury until August 2022. By the time Plaintiff’s now

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV120507: GROSCHUPF vs LEI CONSTRUCTION, BUSINESS ENTITY FORM UNKNOWN, et al. 06/12/2026 Hearing on Motion for Summary Judgment filed by Geotrinity Consultants, Inc., a California Corporation (Defendant) CRS# 222175133129 in Department 18 ex-wife engaged a structural engineer to investigate, however, “appreciable harm” had manifested such that Plaintiff was on notice of his obligation to pursue a remedy. A “limitations period begins to run when the circumstances are sufficient to raise a suspicion of wrongdoing,” and “ignorance of the legal significance of known facts or the identity of the wrongdoer will not delay the running of the statute.” (Mills, supra, 108 Cal.App.4th at pp. 648–49.) In Mills, the Court of Appeal rejected the plaintiffs’ claim of delayed discovery based on their continuing belief that their contractor would fix the problem. (Ibid.)

ORDER

Geotrinity Consultants, Inc.’s motion for summary adjudication of the third cause of action for negligence is GRANTED. The motion is otherwise denied.

CONTESTING THE TENTATIVE RULING: If the parties do not contest, the tentative ruling will be adopted. Any party wishing to contest must notify the court by email at Dept18@alameda.courts.ca.gov and notify all opposing counsel or unrepresented parties before the hearing.