Mink v. Superior Court

Opinion

WALLIN, J.

Larry Mink, Charles Wentworth and Penelope Wentworth (collectively Mink and Wentworth) petition for a writ of mandamus ordering the superior court to grant their motions for reconsideration of, and relief from, its order granting summary adjudication and dismissing several causes of action on the grounds they were time barred. After the dismissal, Mink and Wentworth discovered that because of an intervening weekend and court holiday the complaint was timely filed. We grant the writ.

Mink and Wentworth are some of the plaintiffs in an action against Arnel Development Company, Inc., the developer of the tract including Mink’s and Wentworth’s homes in the City of Orange. The underlying complaint was filed on January 20, 1987. A notice of completion for the development was filed on February 1, 1977. Certificates of final inspection for the tract were filed by the city on January 31, 1977, and February 22, 1977. Code of Civil Procedure section 337.15

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provides that an action for damages to real property against the developer of the property must be filed within 10 years after the earlier of the date of final inspection, the date of recordation of a valid notice of completion, or the date of use or occupancy. (§ 337.15, subd. (g).)

Having discovered that the final inspections on the Mink and Wentworth homes were conducted by the city on January 17, 1977, Arnel moved for summary judgment on the ground the action was barred by the 10-year statute of limitations which ran on January 17, 1987, 3 days before the complaint was filed. Mink and Wentworth opposed the motion contending the statute began to run on the date the certificate of final inspection was filed, January 31, 1977, not the date the city conducted the inspection. The trial court disagreed and dismissed all but the nuisance causes of action.

One week later Mink and Wentworth filed a motion for reconsideration (§ 1008) and one month later filed a motion for relief from the judgment on

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the basis of mistake, inadvertence or excusable neglect (§ 473). After the motion for summary adjudication had been ruled upon, Mink and Went-worth’s attorney discovered that January 17, 1987, was a Saturday, and the following Monday, January 19, was a court holiday in celebration of Martin Luther King, Jr.’s Birthday. As a result, the last day to file suit was Tuesday, January 20, 1987, the date it was filed. (§§ 10, 12, 13, 13b.) The trial court denied the motions concluding the fact that a weekend and court holiday intervened to keep the statute of limitations from running was not newly discovered evidence nor was counsel’s failure to discover these facts before the hearing on the summary adjudication motion excusable.