Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-05-441492
RIVERA, J.
In this personal injury action, Taylor Korobow appeals from the judgment of dismissal following the court’s orders granting summary judgment in favor of defendants Douglas Ross Construction, Inc., MBH Architects, and the Lansing Group, LP. Korobow contends the trial court erred in finding her action was barred by the limitations period of Code of Civil Procedure section 337.1 (section 337.1) based on its determination that the design and construction defect she alleged was patent. We affirm.
I. FACTUAL BACKGROUND
Korobow purchased a condominium at 81 Lansing Street, a condominium development in San Francisco, in 1996. The development received a certificate of final completion on February 12, 1996. Douglas Ross Construction was the general contractor for the development, while MBH Architects provided the design and construction observation services. The Lansing Group was the developer of the property.
Korobow used the condominium exclusively to operate her business except for three months during 2004. The condominium was equipped with an air conditioner. The air conditioner was located in a storage space over the door leading to the bathroom. The space is approximately nine feet off the ground and is accessed through a door with a pull knob on the left side to open it. The door was hinged on the right side and swung outward. Korobow’s partner, Joseph Kent, had accessed the door three to four times in the past and had no difficulties opening the door. In addition, at least two people had serviced the air-conditioning unit in about 1996 and 2003.
On August 30, 2004, Korobow was living at the condominium and decided to change the filter in the air-conditioning unit. She had never done this before and had not previously accessed the storage area. In order to access the storage area, she used a six-foot ladder. She climbed the ladder, and pulled the knob on the door but it did not open. She pulled harder, and the door opened, but she lost her balance and fell off the ladder. Korobow sustained serious head injuries in the fall and has no further recollection of the accident.
On May 23, 2005, Korobow brought this action alleging negligence in the design and construction of the storage space. Respondents moved for summary judgment contending that the action was barred by the statute of limitations of section 337.1 because it was not commenced within four years after substantial completion of the condominium. The trial court granted respondents’ motions, finding that the defect in the door was patent. The court entered judgments dismissing Korobow’s complaint with prejudice. This appeal follows.
II. DISCUSSION
Korobow contends that the trial court erred in finding that the defect in the door to the storage space was patent. She argues that the court ignored the plain language of the statute and erred in not focusing on the underlying design and construction deficiencies in the door.
Section 337.1 provides a four-year statute of limitations for recovery of damages for personal injuries resulting from a patent defect in the design or construction of an improvement to real property. In pertinent part, the statute provides: “(a) Except as otherwise provided in this section, no action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement for any of the following: [¶] (1) Any patent deficiency in the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to... real property; [¶]... [¶] (3) Injury to the person or for wrongful death arising out of any such patent deficiency.” (§ 337.1, italics added.) Section 337.1 defines patent deficiency as “a deficiency which is apparent by reasonable inspection.” (Id., subd. (e).)
The test for determining whether a construction defect is patent is well settled. “The critical distinction... between a defect which is latent and one which is patent is its susceptibility to detection; or in the language of the statutes, whether or not the defect is discoverable by a ‘reasonable’ inspection. In this regard, we opine that what is ‘reasonable’ is a matter to be determined from the totality of circumstances of the particular case.” (Renown, Inc. v. Hensel Phelps Construction Co. (1984) 154 Cal.App.3d 413, 420.) “The use of an objective test for a patent defect effectuates the broad protection afforded contractors by the statute by eliminating the possibility that a defect could be deemed patent as to some plaintiffs and latent as to others depending on the circumstances of each person injured as a result of the defect.... The question to be answered is whether the average consumer, during the course of a reasonable inspection, would discover the defect.” (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1370 (Geertz).)
The trial court concluded that the defect was the combination of the location of the storage space and the stuck door, and that these conditions were objectively observable to a reasonable person. The court cited Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326 (Tomko). In Tomko, the court held that section 337.1 applies to a patent defect whether the defect exists at the time of, or after, substantial completion of construction. (Tomko, at p. 1329.) There, the plaintiff sustained personal injuries more than five years after substantial completion due to a fall on raised concrete stones in the patio pavement which the court determined were a patent deficiency as a matter of law. (Id. at pp. 1331, 1338.) “Pavement, and the dangers attendant to it, are matters of such common experience that a visible defect substantial enough to cause a pedestrian to trip and fall constitutes a patent defect. Such a conclusion may be determined as a matter of law on summary judgment.” (Id. at p. 1339.)
We review the trial court’s decision on summary judgment de novo. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388-389.) “In performing our de novo review, we must view the evidence in a light favorable to [the] plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing [the] defendants’ own showing, and resolving any evidentiary doubts or ambiguities in [the] plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
A defendant seeking summary judgment “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) California law requires that “a defendant moving for summary judgment... present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854, fn. omitted.)
Korobow acknowledges that an objective test applies to determining whether a defect is patent but asserts that the trial court misapplied the test by not focusing on whether her injuries arose from a patent deficiency and instead finding that the deficiency was in the location of the storage space and the “stuck” door. She contends that the stuck door was merely a manifestation of latent construction defects and design deficiencies.
She relies on Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746 (Baker) and Geertz, supra, 4 Cal.App.4th 1363 in which the courts found latent construction defects where a reasonable inspection would not have located them. In Baker, the alleged defect in a building was in the heating and air-conditioning systems where, over the course of 14 years, no one could pinpoint the cause of severe temperature fluctuations. (Baker, supra, 133 Cal.App.3d at p. 758.) The court held that the deficiency was latent because no one, including the architect, builder, or plumber, could discover the cause of the defect—it was not discoverable upon a reasonable inspection. (Id. at p. 762.) Similarly, in Geertz, the alleged construction defect was the lack of an overflow drainage system for an outdoor deck. The court determined that flooding from a deck above plaintiffs’ store, which occurred when leaves accumulated in the deck’s drain, did not manifest an obvious defect. The court found the flooding was “at most a manifestation” of a latent construction defect, i.e., the absence of a secondary drainage system. (Geertz, supra, 4 Cal.App.4th at pp. 1367, 1369, 1371.) “[R]easonable minds could differ concerning whether the flooding as experienced by [the owners] renders the cause, i.e., the alleged defect in the deck, reasonably apparent to the average consumer.” (Id. at p. 1371.)
Mills v. Forestex Co. (2003) 108 Cal.App.4th 625 (Mills), also cited by Korobow, likewise involved a situation in which the alleged construction defect was not apparent upon a reasonable inspection. There, the siding on the plaintiffs’ newly constructed home began to warp and peel within a year of the home’s completion. (Id. at p. 633.) The court held that the defect in the siding was latent because the cause was the failure to install a vapor barrier and that the warping and buckling of the siding were “manifestations of the deficiency.” (Id. at p. 645.) “The absence of an adequate vapor barrier was a latent defect, hidden from view beneath the siding.” (Id. at pp. 645-646.) The buckling and warping of the siding simply alerted the plaintiffs to a latent defect placing them on notice that they had a duty to pursue their remedies. (Id. at p. 646.)
The facts here are more analogous to those in Tomko. Similar to the raised pavement in Tomko, the stuck door located at a nine-foot height was an obvious defect, and a “matter[] of such common experience” that its defective nature would have been readily apparent upon inspection. (Tomko, supra, 46 Cal.App.4th at p. 1339; see also Winston Square Homeowner’s Assn. v. Centex West, Inc. (1989) 213 Cal.App.3d 282, 290-292 [lack of drainage a patent deficiency which, unlike the defect in Baker, supra, 133 Cal.App.3d at p. 763, could be discovered by a reasonable inspection because of repeated ponding which was observed after rainfall].)
The Mills court disagreed with Tomko, supra, 46 Cal.App.4th 1326, but only to the extent that the court there extended liability for construction defects to those that arise sometime after substantial completion of a construction project. (Mills, supra, 108 Cal.App.4th at p. 645, fn. 11.) The question of whether the defect occurred prior to completion of the project is not here in dispute.
Korobow points to a long list of contributing factors that caused the storage space and the door to be defective. Although the expert did indeed list 16 separate “elements that were negligently designed or constructed,” “[m]any [of which] combined to make the door to the storage space stick,” there is a great deal of redundancy among the items. For example, the expert lists as separate deficiencies the facts that the configuration of the bathroom did not allow for safe access to the storage unit, that the configuration of the bathroom required the homeowner to use a ladder to access the storage unit, that the handle to the storage unit was more than nine feet off the ground, that there was no grab bar near the door, that there was inadequate access to maintain the air-conditioning unit, and that the homeowner had to “climb into” the storage unit to maintain the air conditioner. All of these facts combine to tell us only that the placement of the access door to the air-conditioning unit—located nine feet off the ground in a small bathroom with no nearby grab bar—was a design defect. Similarly, the expert lists as separate defects that the weight of the door caused it to sag, that the door sagged, that when the door sagged it did not strike the latch properly, that the door was painted, that the door’s weight and paint made it more difficult to open the door, that the door stuck, and that the door opened outward into the face of the person opening the door. Again, these items inform us only that the door, which opened outward into the face of the user, was too heavy for its hardware, causing it to sag; and because the sagging door was painted and did not latch properly, it got stuck.
According to Korobow’s expert, the elements that “contributed in varying degrees” to the accident were “(a) The screws used to attach the hinges to the door jam [sic] were too short to support the door’s weight; (b) the jamb into which the hinge screws were fastened were [sic] made of fiberboard/particle board rather than solid wood; (c) the door sagged into the frame; (d) the door was stuck in the frame; (e) improper strike-and-roller-catch hardware were [sic] used on the door and frame; (f) the weight of the door was too much for the hardware used on the door and caused it to have significant momentum once it overcame the inertia of the roller latch or the friction from being stuck; (g) when the door sagged, it engaged the strike-and-roller-catch hardware in a way it was not designed for, which in turn increased the static friction and the force required to open the door; (h) the door was thick and increased the friction surface if the door sagged in its frame; (i) the door and frame were painted which increased the static friction between the door and jam [sic] surfaces if the door sagged; (10) [sic] the air conditioning unit was housed in the storage space/cabinet, but there was no proper access for maintenance of the air conditioning unit; (j) the configuration of the bathroom did not allow space to safely access the storage space/cabinet; (k) the configuration of the bathroom made it such that someone trying to access the storage space could only access it from a ladder directly in front of the storage space; (l) maintenance of the air conditioning unit required a person to climb into the storage space/cabinet; (m) the door opened outward, into the face of someone trying to access the cabinet, rather than sliding to the side; (n) the doorknob to the storage space/cabinet was over nine feet from the ground and forced someone opening the door to be right in the swing path of the door; and (p) [sic] there was no grab handle.” The expert concluded that “[m]any” of these factors combined to cause the door to stick.
There were latent defects as well, e.g., that the screws holding the door were too short, that the jamb was not made of solid wood, and that the door was too heavy for its hardware; the type of latch selected might also be characterized as a “hidden” defect. The expert did not state, however, that these were the only or even the primary deficiencies of the design, location, and construction of the storage space. They were listed as merely four among 16 defects, many—but not all—of which combined to cause the door to stick.
Korobow contends that the superior court wrongly ignored “the myriad design/construction deficiencies that caused the accident” and distilled all of this information down to a simple statement that “[t]he defect is a combination of the location of the closet and the stuck door.” But as we have just noted, the vast majority of the “myriad” deficiencies comprise only a handful of objectively observable facts or conditions: The access point for maintaining the air-conditioning unit was located nine feet off the ground in a small bathroom, behind a door. Because the door was painted and sagging it stuck. When it became stuck, extra effort would be needed to open the door, and it would open directly into the face of a person standing on a ladder, who had no other handle to grab.
Korobow argues, however, that the defects could not be identified without first opening the door and “encountering the very danger presented by the deficiencies.” This argument assumes that until the door became stuck there could be no reasonable investigation of its elements, design, and location. In fact, however, it was undisputed that the door to the storage space was opened a number of times prior to the accident. This would have revealed its weight, its thickness, and the fact that it opened into the face of the person opening the door while standing on a ladder. The difficulty of access to the air-conditioning system, the size and configuration of the bathroom, and the absence of a grab bar were also readily apparent. That the door sagged and eventually stuck was also readily observable. All of these conditions were not, as in Baker, “baffling and hidden deficienc[ies], unapparent ‘by reasonable inspection.’ ” (Baker, supra, 133 Cal.App.3d at p. 763.) The totality of the circumstances indicates that the door’s manifest deficiencies were well within the common experience of a homeowner. The fact that there may have been “additional, hidden factors that... contributed to the accident” does not change this result. There is no case that holds that all of the causes of the defect must be patent in order to meet the criteria set forth in section 337.1. Here, the trial court correctly concluded, as a matter of law, there were sufficient and significant problems with the access door and its location that could be discovered and understood by a reasonable inspection.
III. DISPOSITION
The judgments are affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.