Gerlach v. K. Hovnanian's Four Seasons at Beaumont, LLC (2022) · DecisionDepot
Gerlach v. K. Hovnanian's Four Seasons at Beaumont, LLC
California Court of Appeal Aug 17, 2022 No. E075228Published
Filed 8/17/22 CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LYNN GERLACH et al.,
Plaintiffs and Appellants, E075228
v. (Super.Ct.No. RIC1612811)
K. HOVNANIAN'S FOUR SEASONS OPINION AT BEAUMONT, LLC,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge.
Affirmed.
Milstein Jackson Fairchild & Wade, Keith G. Wileman, and Mayo L. Makarczyk,
for Plaintiffs and Appellants.
Collinsworth, Specht, Calkins & Giampaoli, Scott D. Calkins, and Anthony P.
Gaeta, for Defendant and Respondent.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part C of the Discussion.
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Plaintiffs Lynn Gerlach and Lola Seals appeal from the judgment entered in their
action against defendant K. Hovnanian’s Four Seasons at Beaumont, LLC under the
Right to Repair Act (the Act), Civil Code section 895 et seq., concerning alleged
construction defects.1 (Undesignated statutory references are to the Civil Code.) We
affirm. We publish this opinion in order to clarify that (1) a roof is a manufactured
product within the meaning of section 896, subdivision (g)(3)(A) (section 896(g)(3)(A)),
only if the roof is completely manufactured offsite, and (2) to prove a roof defect claim
under subdivision (a)(4) or (g)(11) of section 896, a plaintiff must prove that water
intrusion has actually occurred or roofing material has actually fallen from the roof.
BACKGROUND
A. The Dispute
Defendant developed Four Seasons at Beaumont (Four Seasons), a community for
adults 55 and over. Gerlach and Seals own homes in Four Seasons. Gerlach’s escrow
closed on March 16, 2006. In August 2015, Seals purchased her home from the original
owners, who closed escrow on the home in May 2007.
In October 2015 and January 2016, Gerlach and Seals served defendant with
notices of claims under the Act. As to the roofs, both notices cited section 896,
subdivisions (a)(4), (g)(3)(A), and (g)(11), and under the heading “Roof—Useful Life
Reduction” described the following issues: “Roof eaves along the front, back, left, and
1 The Legislature did not give an official name to the legislation (Senate Bill No. 800 (2001-2002 Reg. Sess.)), but the legislation is commonly referred to as the Right to Repair Act. (See McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 247 (McMillin).)
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right side of the home suffer from staining and/or deterioration due to a compromise to
the roof’s weatherproofing system. Roofing system exhibits evidence of excessive
ponding of water, improper tile fastening, improper valley sheet metal installation,
overexposed field tiles, loose field tiles over pan metal, broken field tiles, missing pipe
collars and no drip edge eave metal.”
According to the parties’ stipulated facts, defendant “timely acknowledged the
claims, inspected the homes, made offers to repair, and made various repairs to the
homes.”
B. The Lawsuit
In September 2016, plaintiffs filed suit against defendant to recover damages they
allegedly suffered because of defendant’s alleged failure to comply with the building
standards set forth in section 896. In addition to the claims under the Act, plaintiffs
brought claims for breach of contract and breach of warranty.
Among other alleged violations under the Act, plaintiffs alleged that the roofs
were defective in numerous ways, including that the “[r]oofs, roofing systems, chimney
caps, and ventilation components” “allow water to enter the structure or to pass beyond,
around, or through the designed or actual moisture barriers, including, without
limitations, internal barriers located within the systems themselves.” Plaintiffs further
alleged that “[r]oofing materials” had “fallen from the roof[s].” Plaintiffs also alleged
that “manufactured products (product that is completely manufactured offsite), including,
but not limited to, windows, doors, roofs, plumbing products and fixtures, fireplaces,
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electrical fixtures, HVAC units, countertops, cabinets, paint, and appliances” were
“installed so as to interfere with the products’ useful life.”
Defendant filed an answer to the complaint, generally denying the allegations and
raising numerous affirmative defenses, including that “the time period for filing actions
as to the alleged violations bars the claimed violations.” For the limitations defense,
defendant cited section 945.5, subdivision (e). Defendant included the same affirmative
defense in its answer to the first amended complaint. (The first amended complaint is not
included in the record on appeal, and neither is the register of actions from the superior
court, in violation of rule 8.122(b)(1)(F) of the California Rules of Court.)
C. Pretrial Ruling Concerning Roof Claims
Before trial, defendant objected to plaintiffs’ proposed jury instruction on the roof
defect claims. Defendant’s counsel argued that the jury should not be instructed on
plaintiffs’ claim that the roofs were defective under section 896(g)(3)(A), which requires
that “manufactured products” “be installed so as not to interfere with the products’ useful
life, if any.” The statute defines a manufactured product as “a product that is completely
were improperly using section 896(g)(3)(A) “as a catchall” when other statutory
standards were not directly on point. Counsel further explained that section 896(g)(3)(A)
did not apply because “[a] roof is not a manufactured product.”
The trial court agreed with defendant and concluded that plaintiffs could not
proceed to trial on the theory that there were any roofing violations under section
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896(g)(3)(A). The court explained in part that “a roof in and of itself is not a
manufactured product” because it “is made up of components, where you have tiles or
you have fabric,” which are “put together at the home.” The court indicated that in its
view section 896(g)(3)(A) would apply only to “some sort of prefab manufactured roof,
where it’s coming in big chunks and you set it on a home.”
Plaintiffs filed a motion asking the court to reconsider the ruling. According to
plaintiffs, the trial court did not rule on the motion.
D. Plaintiffs’ Roofing Expert
At trial, Gerald Vandewater testified as a roofing expert for plaintiffs. Vandewater
had reviewed the roof plans and roofing contracts for plaintiffs’ houses. Vandewater
testified that in general tile roofs are unique because they are essentially a “double roof”:
“There is what we see, which is the tile, which is the primary material. And then there is
a host of things underneath it . . . .”2 There are many components—“a ton of integral
parts”—in a tile roof other than just the tile, such as “underlayment, fasteners, [and]
wood banisters.” Tile roofs are subjected to more testing than any other roofing material.
Plaintiffs’ counsel began asking Vandewater questions about how tile roofs are
installed. Several questions into that line of questioning, defendant’s counsel objected on
the basis of relevance and cited Evidence Code section 352. The court gave plaintiffs’
counsel “a little leeway” and allowed the line of questioning to continue. Plaintiffs’
2 It appears undisputed that plaintiffs’ roofs were made of tile. But Vandewater did not testify to that fact, and the parties do not point to any other evidence presented at trial or otherwise establishing it.
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counsel inquired about whether plaintiffs’ roofing contracts contained specific
requirements related to installing the roofs, and defense counsel objected on the basis of
relevance again. The court held an unreported sidebar, excused the jury, and then
entertained argument outside the jury’s presence.
After the jury left, the court indicated that during the sidebar discussion the court
stated that it would allow any testimony regarding the standards found in section 896,
subdivisions (a)(4) and (g)(11), relating to water intrusion and material falling from the
roof, and violations of those standards. The court asked plaintiffs’ counsel if the question
to Vandewater concerning plaintiffs’ roofing contracts related to a violation of either of
these provisions. Counsel stated that Vandewater would explain that the specific
installation process was completed in a manner that would allow water to pass beyond the
moisture barrier or into the structure. Counsel proffered that Vandewater also would
testify that there was “a substantial risk of materials falling from the roof when they
either slipped or cracked.”
Plaintiffs’ counsel argued that a claim under section 896 did not require proof that
damage had already occurred, such as materials having fallen from the roof or water
having entered the structure. Plaintiffs’ counsel noted that there had not been any leaks
other than “a couple minor leaks on the asphalt felt that [Vandewater] felt were
inconsequential at this point.” Defendant’s counsel countered that for there to be a
violation of the provisions water must have already leaked through the roof or materials
must have already fallen from the roof. Because there was no evidence that either of
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those things had happened, there was no evidence of a violation of section 896,
subdivisions (a)(4) and (g)(11).
The court expressed concern that without evidence of actual leakage or material
falling from the roofs, Vandewater’s testimony would venture into the prohibited topic of
the roofs’ useful lives under section 896(g)(3)(A). The court concluded that it would not
allow plaintiffs to present “testimony on the roofs other than specific violations of the
standards; that being, water has entered the structure or passed beyond through the design
or actual moisture barriers, or that roofing materials has fallen off the roof.” The court
ruled that any other testimony from the expert would not be relevant.
The court asked plaintiffs’ counsel if Vandewater had any other testimony to offer,
and counsel reiterated his belief that Vandewater should be able to give his opinion about
whether the statute had been violated but that Vandewater otherwise did not have
anything else to offer. Defendant’s counsel moved to exclude Vandewater from
testifying further. The court agreed and terminated Vandewater’s testimony.
After a short recess, the court called the jury back and instructed the jury that “any
claims regarding the roof in this case as it relates to [plaintiffs], those are no longer at
issue. So that’s why Mr. Vandewater is not going to continue with his testimony. I will
advise you [that] you are not to speculate or guess or think about why those claims are no
longer at issue.”
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E. The Verdict
The jury awarded Seals a total of $1,931.08 for defects related to the installation of
windows in her home. With respect to Gerlach, the jury found that her claims under the
Act were barred because she did not file her complaint within 100 days of completion of
the repairs to her home. The jury further concluded that defendant did not breach the
purchase and sales contract and that the breach of warranty claim was not timely filed.
The court entered judgment based on the jury’s verdict.
DISCUSSION
A. The Act
The Legislature enacted the Act in 2002 as a comprehensive reform of
construction defect litigation for individual residential units. (McMillin, supra, 4 Cal.5th
at pp. 246, 250.) “The Act sets forth detailed statewide standards that the components of
a dwelling must satisfy. It also establishes a prelitigation dispute resolution process that
affords builders notice of alleged construction defects and the opportunity to cure such
defects, while granting homeowners the right to sue for deficiencies even in the absence
of property damage or personal injury.” (Id. at p. 247.) The Act is the exclusive remedy
for claims arising from residential construction defects except for those claims involving
personal injury, breach of contract, or fraud. (Id. at pp. 247, 259.)
The Act added a new title to the Civil Code, containing five chapters. (McMillin,
supra, 4 Cal.5th at p. 250.) “Chapter 1 establishes definitions applicable to the entire
title. (§ 895.) Chapter 2 defines standards for building construction. (§§ 896–897.)
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Chapter 3 governs various builder obligations, including the warranties a builder must
(e). Defendant did not cite section 927 or section 941 in its answers.
In March 2019, defendant submitted a list of affirmative defenses it planned to
raise at trial. Defendant stated that as to Gerlach it intended “to present evidence various
alleged construction standards violations are not actionable based on applicable statutes
14
of limitations.” In September 2019, defendant filed another list of affirmative defenses it
planned to raise at trial and it again stated that it planned to present evidence that
Gerlach’s claims under the Act were not actionable because of the applicable statute of
limitations.
In September 2019, defendant filed proposed jury instructions. The proposed jury
instructions included instructions mirroring language from sections 927 and 941,
subdivision (a).
In April 2019, defendant moved in limine to prohibit Gerlach from presenting
evidence related to claims barred by the statute of limitations. Defendant argued that
under section 927 the statute of limitations on Gerlach’s claims had run because the 10-
year statute of limitations had run during the prelitigation process and Gerlach filed her
complaint over 100 days after defendant completed repairs.
The reporter’s transcript of a pretrial hearing in January 2020 indicates that
plaintiffs had previously filed an objection to the statute of limitations defense under
section 927. (The record on appeal apparently does not contain the written objection.
Neither party cites it, and we were unable to locate it ourselves.) At the hearing,
defendant’s counsel noted that he had not filed a response because plaintiffs’ objection
was not a properly noticed motion. Defense counsel argued that defendant had properly
pled the statute of limitations under section 927, which it had included in its proposed
jury instructions months earlier.
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Defendant’s counsel offered to amend its answer to specifically plead section 927
as the limitations defense it was raising under section 945.5, subdivision (e). Counsel
also pointed to a motion in limine he had filed in April 2020 concerning section 927 as
evidence that plaintiffs could not possibly be surprised by the limitations defense.
The trial court indicated that it did not believe that the limitations defense under
section 927 was “a surprise.” Plaintiffs’ counsel argued that defendant had not properly
pled the limitations defense under Code of Civil Procedure section 458, because
defendant did not identify the specific statute in its answer. Counsel argued that Gerlach
had been “irreparably prejudiced” by defendant’s failure to properly plead the defense.
Defense counsel countered that defendant had properly pleaded the defense by citing
section 945.5, subdivision (e), and stating that it was pleading limitations as a defense.
The court took the matter under submission and later announced its ruling as to
plaintiffs’ “formal objection” to defendant’s “being able to assert an affirmative defense
under [section] 927.” The court stated that it was “going to overrule that objection and
allow the defendant to present the affirmative defense.” The court explained that it
believed that section 945.5, subdivision (e), “encompasses [section] 927.”
Plaintiffs moved to exclude the testimony of percipient witness Adrian Lopez, the
vice president of HMI and HMI’s person most knowledgeable about the repairs
performed by HMI. Plaintiffs argued that Lopez’s identity and the content of his
proposed testimony had not been “disclosed in response to at least 3 sets of
interrogatories expressly calling for that information.” In opposing the motion, defendant
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argued that plaintiffs failed to pursue discovery about HMI, even though (1) defendant
advised plaintiffs in April 2016 that HMI was the company that would be performing the
repair work, and (2) defendant’s responses to interrogatories identified HMI as the
contractor that performed the repairs. Defendant also argued that the motion was
untimely.
Defendant had submitted a declaration from Lopez in support of a motion in
limine. In it, Lopez attested to the date that repair work at Gerlach’s residence was
completed.
The trial court denied plaintiffs’ motion as untimely and also because defendant’s
discovery responses identified HMI. At trial, Lopez testified that repair work on
Gerlach’s home was completed on April 29, 2016, and May 23, 2016.
3. Analysis
Gerlach argues that the trial court prejudicially erred by allowing defendant to
assert a statute of limitations defense, and she challenges other rulings related to the
limitations defense. The arguments lack merit.
Gerlach first argues that defendant failed to mention sections 927 and 941 in its
answer and that Gerlach “objected to a jury instruction that was based upon section 927,
and raised [Code of Civil Procedure] section 458 before the trial court, demanding,
diligently, that it be enforced. The court abused its discretion in failing to do so.” Under
Code of Civil Procedure section 458, a pleading that raises a statute of limitations defense
must cite the applicable code provision; case law holds that the requirement is strictly
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enforced, but a plaintiff must be diligent in timely raising the issue. (Coy v. County of
Los Angeles (1991) 235 Cal.App.3d 1077, 1086, fn. 5.) Gerlach’s argument fails for
several reasons.
First, Gerlach fails to identify which specific ruling by the trial court amounted to
an abuse of discretion. Gerlach does not cite the record at all in this section of her
opening brief. We consequently consider the argument forfeited. (Alki Partners, LP v.
DB Fund Services, LLC, supra, 4 Cal.App.5th at p. 589.)
Second, to the extent that Gerlach is challenging the trial court’s decision to
overrule her written objection concerning defendant’s limitations defense, the argument
fails because Gerlach did not include the written objection in the clerk’s transcript. The
appellant bears the burden of providing an adequate record on appeal. (Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295.) We cannot assess the trial court’s ruling without
reviewing the written objection or motion on which the trial court ruled. (See Hernandez
v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [“Without
respondent’s motion to strike, plaintiff’s opposition, and the court’s order, we cannot
review the basis of the court’s decision”].)
Third, Gerlach fails to show prejudice. (Brokopp v. Ford Motor Co. (1977) 71
Cal.App.3d 841, 853-854.) “Prejudice means ‘“a reasonable probability that in the
absence of the error, a result more favorable to [the appellant] would have been
reached.”’” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc. (2016) 6
Cal.App.5th 1258, 1287.) When Gerlach raised the issue of compliance with Code of
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Civil Procedure section 458 in the trial court, defendant offered to amend its answer to
cite section 927. The court ultimately ruled that defendant could pursue its statute of
limitations defense without amending its answer. Assuming for the sake of argument that
the ruling was error, it is not reasonably probable that Gerlach would have obtained a
more favorable result in the absence of the error, because the court could and almost
certainly would have allowed defendant to amend its answer to cure the defect. (Code
Civ. Proc., § 576; Vedder v. Superior Court of Lassen County (1967) 254 Cal.App.2d
627, 629.) Indeed, on this record it would probably be an abuse of discretion not to allow
such an amendment. Defendant makes this point in its respondent’s brief, and Gerlach
does not respond to it in her reply brief.
Gerlach’s remaining arguments concerning the statute of limitations defense also
fail. Gerlach argues that (1) defendant “failed abjectly to respond to discovery requests
that called for it to disclose its statute of limitations defense” in part by failing to disclose
“the individual persons who had knowledge of facts in support of the defense,” (2) the
trial court erred by denying as untimely Gerlach’s motion to exclude Lopez’s testimony,
and (3) “the court’s determination that [p]laintiffs’ counsel could not present
interrogatory responses to the jury, because they contained boilerplate objections, is
simply indefensible.” Gerlach does not support any of those arguments with legal
analysis, citation to legal authority, or citation to the record. We consequently consider
the points forfeited. (Hernandez v. First Student, Inc., supra, 37 Cal.App.5th at p. 277;
Alki Partners, LP v. DB Fund Services, LLC, supra, 4 Cal.App.5th at p. 589.)
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For all of these reasons, we affirm the challenged rulings concerning defendant’s
statute of limitations defense.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs of appeal.
CERTIFIED FOR PARTIAL PUBLICATION MENETREZ J.
We concur:
McKINSTER Acting P. J. RAPHAEL J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that a roof is a 'manufactured product' under the Right to Repair Act only if it is completely manufactured offsite, and that claims for roof defects under the Act require proof of actual water intrusion or falling roofing materials.
Issues
Whether a roof constitutes a 'manufactured product' under Civil Code section 896(g)(3)(A) if it is not completely manufactured offsite.
Whether a plaintiff must prove actual water intrusion or falling materials to establish a roof defect claim under Civil Code section 896, subdivisions (a)(4) and (g)(11).
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“a roof is a manufactured product within the meaning of section 896, subdivision (g)(3)(A) (section 896(g)(3)(A)), only if the roof is completely manufactured offsite”
“to prove a roof defect claim under subdivision (a)(4) or (g)(11) of section 896, a plaintiff must prove that water intrusion has actually occurred or roofing material has actually fallen from the roof.”