Franchetto v. Wells Fargo Home Mortgage CA3

Filed 5/13/14 Franchetto v. Wells Fargo Home Mortgage CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (El Dorado) ----

RICK FRANCHETTO et al., C073870

Plaintiffs and Appellants, (Super. Ct. No. PC20080575)

v.

WELLS FARGO HOME MORTGAGE et al.,

Defendants and Respondents.

In this construction defect case, the trial court sustained the demurrer of defendant Hillsborough Lending, LLC (Hillsborough) without leave to amend on the ground the action was time-barred. On appeal from the resulting judgment of dismissal, plaintiffs Rick and Beatrice Franchetto contend the trial court erred because: (1) the Doe amendment that added Hillsborough should have related back to the filing of the original complaint; and (2) even if the Doe amendment did not relate back, the statute of limitations had not necessarily run as of the filing of that amendment.

1

In response, Hillsborough argues (among other things) that the trial court correctly concluded the action was time-barred because even the original complaint was untimely due to plaintiffs’ failure to adequately allege delayed discovery of the defects in their property. We agree. Furthermore, because plaintiffs have not shown that they can allege delayed discovery in a manner that would make their complaint timely, we find no abuse of discretion in the denial of leave to amend. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND We take the following facts from the allegations of plaintiffs’ first amended complaint. In January 2004, plaintiffs purchased a home in a subdivision known as Montellago at Serrano in El Dorado Hills. Plaintiffs purchased the home directly from Woodside Montellago, Inc., a subsidiary of Woodside Group, LLC; however, a number of other subsidiaries of Woodside Group, LLC were also involved in the development, construction, marketing, financing, and sale of the homes in the subdivision. As relevant here, one of those other subsidiaries was Hillsborough. According to plaintiffs, Hillsborough was involved (along with other Woodside subsidiaries) in: (1) providing information to the public (including plaintiffs) on its web page regarding the quality and desirability of the subdivision; (2) providing information regarding financing of the purchase of homes within the subdivision; (3) setting up a sales office and model homes and marketing the sale of the homes in the subdivision at the site; (4) providing discounts off the sales price of homes when using financing through them; and (5) being parties and beneficiary to plaintiffs’ purchase agreement. In November 2004, when the home they purchased was substantially completed, plaintiffs took possession. Sometime on or after September 10, 2005, plaintiffs discovered numerous latent defects in the design and construction of the home relating to the framing systems; the roofing systems; the plumbing systems; the HVAC systems; the house pad, slab, and foundation system; the waterproofing and stucco system; the exterior