NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 2012-1-CV-226469)
Respondent Jolene Kay Queen, dba North Bay Windows (North Bay), provided windows and sliding glass doors and related services for the construction of a common interest residential development (the Development) governed by Appellant Sutton Place of Santa Clara County Owners Association (Sutton Place). After discovering damage to the property allegedly caused by water intrusion, Sutton Place filed suit against numerous defendants involved in the construction of the Development, including North Bay. North Bay raised as an affirmative defense the statute of repose set forth in Code of Civil Procedure section 337.15, which bars construction defect claims filed against certain persons more than 10 years after the substantial completion of a project. Sutton Place sought recovery based on strict product liability grounds, alleging North Bay was part of the stream of commerce providing the windows and doors and did not participate in the construction of the Development. Sutton Place contended the 10-year limit did not apply to North Bay, as it was a mere supplier of materials to the project, rather than a person protected by section 337.15.
All future undesignated statutory references are to the Code of Civil Procedure.
In a bifurcated trial on the applicability of section 337.15 as an affirmative defense, the trial court determined North Bay's activities at the construction site brought it within the scope of the 10-year statute of repose, such that Sutton Place's claims against North Bay were time-barred under the statute. On appeal from the resulting judgment, Sutton Place argues the trial court erred when it determined North Bay was a person described in section 337.15, as North Bay's on-site activities were incidental to its role as a supplier of materials. Sutton Place further argues the section does not preclude its claim against North Bay because it sued for product defects, not construction defects; its claims are not premised on any of the activities performed by North Bay at the construction site; and even if section 337.15 applies, it does not preclude claims based on North Bay's role as a supplier of allegedly defective products. Reviewing the matter de novo, we find the statute of repose bars Sutton Place's claims against North Bay, and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sutton Place was formed in 1996 as the governing body of a common interest development located in Santa Clara County, consisting of residential units separately owned by Sutton Place's individual members, and common areas in which the members hold undivided interests, collectively referred to as the Development. The parties stipulated that the date of substantial completion of the Development was March 27, 1998. North Bay provided windows and sliding glass doors manufactured by Milgard Manufacturing, Inc. (Milgard) to the Development during its construction in 1996 through 1998, as well as services related to the windows and doors.
In June 2012, Sutton Place filed a complaint for damages arising from defective construction against multiple defendants, alleging causes of action for negligence and violation of statute, products liability, breach of implied warranty, and breach of contract, amongst others, and seeking general, special, and punitive damages, prejudgment interest, and litigations costs, including attorney fees. Relevant to this appeal, Sutton Place alleged that defects in the window-wall assembly installed in the Development resulted in water intrusion and mold infestation in the exterior wall assemblies; specifically, Sutton Place claimed the exterior cladding system, consisting of products known as "EIFS" and "DEFS," was defectively designed and installed. Although not specifically named as a defendant in the initial complaint, North Bay filed an answer to the complaint in October 2015, denying all allegations set forth in the complaint. As an affirmative defense, North Bay alleged that the complaint was barred by various statutes of limitations, including section 335 et seq., the portion of the Code of Civil Procedure specifying "[t]he periods prescribed for the commencement of actions other than for the recovery of real property . . . ." (§ 335.) While North Bay cited several specific statutory provisions, it did not explicitly reference section 337.15, which is found in the chapter of the Code of Civil Procedure beginning with section 335.
In addition to generally referencing section 335 et seq., North Bay specifically cited the limitations set forth in sections 337(1), 337.1, 338, 339, 340, and/or 343, Civil Code section 2079.4, and Uniform Commercial Code sections 2607(3)(a) and 2725. Nothing in the record indicates Sutton Place raised North Bay's failure to explicitly reference section 337.15 in its answer to the complaint as an issue before the trial court, nor is it raised as an issue on appeal.
In March 2017, Sutton Place filed a third amended complaint, naming North Bay as a defendant; in this amended complaint, Sutton Place claimed North Bay, along with other defendants, "graded, prepared the site for, assembled, manufactured, installed, supervised and provided other services and work related to the construction of the Development," and that it "designed, engineered, provided specifications for, tested, assembled, manufactured, supplied, wholesaled, retailed and/or provided materials and/or component parts used in the construction of the Development." North Bay was included in the category of defendants against whom Sutton Place alleged causes of action for negligence and violation of statute, products liability, breach of implied warranty, and breach of contract.
Prior to trial, Sutton Place settled with all defendants except North Bay, including Mathilda Construction Limited Partnership (Mathilda), the general contractor for the Development, and Milgard, the manufacturer of the subject windows and doors. North Bay maintained that Sutton Place's claims against it were barred by the 10-year statute of repose set forth in section 337.15, which, as discussed in more detail later in this opinion, precludes actions for latent construction defect claims brought against certain participants in the construction process more than 10 years after substantial completion of the project. The parties stipulated that the trial court would hold a bench trial on the bifurcated issue of this affirmative defense. Sutton Place did not dispute that more than ten years had passed from the date of completion of the Development to the date it filed the original complaint. Rather, it argued that section 337.15 did not apply, as North Bay was a product supplier rather than a provider of work or services that caused damage at the development, such that Sutton Place's claims against North Bay should be governed by the statutes of limitation that run from the date a plaintiff discovers its claims against the defendant, namely those of sections 337 [setting a four-year limitation for actions based on a contract] and 338 [setting a three-year limitation for actions based on stated tort claims].
For purposes of the bifurcated trial, the parties agreed Sutton Place did not need to prove liability and damages, as the only issue was the application of section 337.15; the trial court accepted the parties' agreement that the court adopt the pleadings as true for those purposes. For the benefit of the trial court, Sutton Place's counsel described the assumed defects as follows: "The defect in the windows. There's various defects, manufacturing defects such as they weren't sealed properly at the factory. There's corner joints that aren't connected properly. . . . [T]here's actually a variety of different things. But the result is, it causes water that hits the window to go through the window assembly and then down into the wall assemblies." Jolene Queen, the sole proprietor of North Bay, was the sole witness to testify at the trial.
Queen considered herself to be a "dealer" for Milgard windows, and confirmed that one could have called her a supplier. She ordered Milgard products individually through purchase orders created after viewing plans and specifications for a particular project, and after she was awarded the project. Those products would then be manufactured based on her order and shipped directly to jobsites. In bidding projects, Queen would "guarantee that what was on the plans and specifications was being represented fully in [the] bid, so that everything that was required to finish the job was part of the bid. [¶] We would also show up to inspect and take deliveries, and we did a service called a lock-in-slide at the end of the project. We would go into the project and operate every window, make sure it operated correctly, and install the screens." In terms of inspecting the delivered product, Queen would meet the delivery truck and inspect to make sure the delivery was what she ordered and in the proper amounts. She did not physically inspect every detail of every window. "We would overview, look and make sure that the windows were in good shape, there was no broken glass, that they weren't damaged in any way, and that the number of windows that we were supposed to have were there."
Queen testified that all of the windows and doors were specially ordered for the Development. This is how Milgard conducted business at the time; it did not stock product. The windows for this project were "special in that they were mulled, they were two wide windows. It was not all that common." The patio doors had a transom, which was also not common. Queen testified that she would have shipped what was called for on the plans to frame the windows. Queen did not select or determine what windows to use; she ordered the windows specified in the plans by the architect. Though Queen custom ordered Milgard's windows, the architect determined the specifications. She did not make recommendations regarding what product was appropriate for a particular project, although when the plans did not specify a particular window manufacturer, Queen could bid any product she wanted based on the requirements of the project; she did not recall if the Development's plans specified Milgard windows. When she was able to use discretion to choose which manufacturer's windows to use, the requirements for the windows (structural ratings, environmental impact ratings, etc.) were built into the plans by the architect; she did not have to determine the requirements on her own.
While Queen did not install the windows or sliding doors at the Development, and did not have an installer's license at the time she worked on the Development, she did provide other on-site services to the project, requiring her to be physically present at the Development a minimum of 22 times. Queen received and inspected at least 10 deliveries at the Development, one for each building. She was required to attend other meetings at the job site, including a "job walk." Once the windows were installed, North Bay did a "lock-and-slide" test, in which Queen, and sometimes her husband and/or son, would go into every unit to make sure every window and sliding door opened and locked properly; she also installed the screens, spending 30-45 minutes at each unit. Based on a review of materials prior to trial, Queen believed there were 84 units in total, although she could not confirm the number.
In addition to meeting and inspecting the deliveries, participating in the job walk, performing her lock-and-slide tests, and installing the screens thereafter, Queen went to the Development job site to participate in the resolution of an issue that arose with the installation of the sliding glass patio doors. The walls the doors were being installed into were beveled (the opening was bigger on one side than on the other) rather than perpendicular to one another, presenting "an unusual application" that was not "typical stud construction." The beveling resulted in both a technical problem and an aesthetic one—they had to determine a solution that "looked nice, but it also had to be secure so that over the time of opening and closing a heavy patio door, the jamb wouldn't roll." Queen was called out to meet with the window installer, a representative from Milgard, and a representative from Mathilda, the general contractor, to determine how to install the doors. Milgard and the installer determined how to fix the problem; she was there to be "part of the loop" so she would know "exactly what was going on" and "would have contributed to the discussion if [she] had questions. . . ." Mathilda determined the best installation to accommodate the wall issue based on input from the installer. Queen believed she went to the jobsite a minimum of two times regarding this problem.
Following argument from counsel, the trial court took the matter under submission, and issued a written decision in October 2017, finding North Bay did come within the definition of persons intended by the Legislature to be protected by section 337.15—contractors and other professionals and tradespeople in the construction industry. The court determined North Bay's "additional duties," beyond serving as a supplier or dealer of Milgard's product, put it within the sphere of those who should benefit from the statute, in that Queen custom-ordered the windows and doors based on her review of the plans and specifications for the Development, and she was required to be present on-site at various times, including to consult with Mathilda, Milgard's representative, and the installer about the installation issue that arose with the sliding glass doors.
The trial court found that North Bay's participation in the Development differed from that of persons referred to in cases cited by Sutton Place in support of its position that North Bay was a mere supplier. "North Bay furnished the materials that were installed, through its relationship with Milgard. And it received and inspected the materials on site, and then ensured that the windows were properly functioning after installation, all as part of its service role in the construction of Sutton Place. North Bay is thus not similarly positioned to the defendants in State Farm [Mut. Auto. Ins. Co. v. W.R. Grace & Company-Conn. (7th Cir. 1994) 24 F.3d 955 (State Farm)] and Nichols [v. Swimquip (1985) 171 Cal.App.3d 216 (Nichols)] who upon the selling of their respective products to contractors had [no] role in the building process. North Bay did have such a role and is accordingly within the class of individuals intended by the Legislature to be protected by the statute."
It is clear from the context that the trial court intended to say the contractors had no role in the building process, rather than "any role" as written in the decision.
Finding on-site services to be "an integral part of what North Bay provided on the [Development] project, just like other contractors and tradespeople," the trial court determined it was "part of the project construction, not just a supplier of product in the chain of distribution." Based on this decision, the trial court entered judgment in favor of North Bay against Sutton Place in November 2017. Sutton Place timely noticed this appeal from that judgment. (§ 904.1, subd. (a)(1); Cal. Rules of Court, rule 8.104(a)(1).)
A. Standard of Review
The sole issue on appeal is whether the 10-year statute of repose in section 337.15 applies to bar Sutton Place's claims against North Bay. We independently determine the proper interpretation of a statute and are not bound by the trial court's interpretation. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527 (Reid); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) Pursuant to canons of statutory construction, we determine the Legislature's intent to effectuate the law's purpose, looking to the statute's words, to which we ascribe their usual and ordinary meaning. (Reid, at p. 527.) Unless the statute's words are ambiguous, its plain meaning controls; we may consider other aids, such as the legislative history, if the language permits more than one reasonable interpretation. (Ibid.) Although questions of whether an action is barred by a statute of limitations are normally questions of fact, because the relevant facts are not in dispute here, we decide the application of section 337.15 as a question of law, and thus review the matter de novo. (See International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611; Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 713-714; Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 756 (Baker).)
B. General Legal Principles
Enacted in 1971, section 337.15 provides, in relevant part, "No action may be brought to recover damages from any person, . . . who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following: [¶] (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property. [¶] (2) Injury to property, real or personal, arising out of any such latent deficiency." (§ 337.15, subd. (a).) Generally, suits to recover for construction defects are subject to limitations periods of three to four years, depending on the theory of recovery, running from the date the defect is discoverable by reasonable inspection. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 369 (Lantzy).) However, section 337.15 sets a 10-year limit in which such a claim can be brought, regardless of when the defect is discovered; " '. . . actions for a latent defect must be filed within three years . . . or four years . . . of discovery, but . . . in any event must be filed within ten years . . . of substantial completion.' [Citation.]" (Id. at p. 370.)
The trial court, the parties, and the case law discussing section 337.15 refer to that section both as a statute of repose and a statute of limitations. " '[W]hile a statute of limitations normally sets the time within which proceedings must be commenced once a cause of action accrues, [a] statute of repose limits the time within which an action may be brought and is not related to accrual. Indeed, "the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, [the] period contained in a statute of repose begins when a special event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted." [Citation.] A statute of repose thus is harsher than a statute of limitations in that it cuts off a right of action after a specified period of time, irrespective of accrual or even notice that a legal right has been invaded. [Citation.]' " (McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 78, fn. 2, citing Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300, 305.) Section 337.15 is a statute of repose, as it "imposes an 'absolute requirement' that a lawsuit to recover damages for latent defects be brought within 10 years of substantial completion of the construction, whether or not the defect was or even could have been discovered within that period. [Citation.]" (Inco Development Corp. v. Superior Court (2005) 131 Cal.App.4th 1014, 1020.)
The courts of our state, including the Supreme Court, have had numerous opportunities to interpret section 337.15 in various contexts, including consideration of the legislative intent behind the statute. The purpose of section 337.15 is to protect "contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work," reflecting the "general legislative concern about the economic effects of indefinite 'long tail' defect liability on the construction industry." (Lantzy, supra, 31 Cal.4th at p. 374.) In particular, "the trend toward expanded and time-extended defect liability was producing a risk for which insurance was available only at prohibitive cost, if at all, thus threatening the industry's economic health. [Citation.]" (Id. at p. 376, fn. omitted.) Thus, in order to balance the need to provide "fair time to discover construction defects" with "protecting a vital industry from the damaging consequences of indefinite liability," the Legislature adopted the 10-year period of section 337.15, with the intent for that period "to be firm and final." (Id. at p. 377.)
As a result of the "firm and final" time limitation established by the statute, section 337.15 protects only certain defined participants in the construction process; the statute clearly specifies who may assert it as a defense: "any person ... who ... performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property...." (§ 337.15, subd. (a), italics added.) "This language does not refer to manufacturers or suppliers. Rather, it focuses on individuals directly involved in the construction industry . . . . By freeing these groups from the specter of lawsuits in the distant future, section [337.15] promotes construction and the full enjoyment of real property. [Citation.]" (Nichols, supra, 171 Cal.App.3d at pp. 220-221 [discussing the nearly identical companion statute to section 337.15, section 337.1 ].)
"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, or survey of, real property; [¶] (2) Injury to property, real or personal, arising out of any such patent deficiency; or [¶] (3) Injury to the person or for wrongful death arising out of any such patent deficiency." (§ 337.1, subd. (a).)
In addition to Nichols, Sutton Place cites numerous cases in which appellate courts interpreted sections 337.15 and/or 337.1, which applies to patent construction defects, to find the limitations periods set forth in the statutes do not apply to manufacturers or suppliers, arguing that North Bay, as a supplier, is not entitled to the protection of the statute of repose. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 643 (Mills); Robinson v. Chin & Hensolt (2002) 98 Cal.App.4th 702, 712-713 (Robinson); Baker, supra, 133 Cal.App.3d at pp. 756-758; Barnhouse v. City of Pinole (1982) 133 Cal.App.3d 171, 183-184 (Barnhouse); Sevilla v. Stearns-Roger, Inc. (1980) 101 Cal.App.3d 608, 611 (Sevilla).) Additionally, Sutton Place claims it seeks recovery against North Bay "as a product supplier under traditional products liability principles for defects in the windows [it] supplied," contending it has never alleged that North Bay engaged in activities or conduct that caused damage at the Development. Thus, Sutton Place argues section 337.15 does not apply here. We now consider whether the language of section 337.15 and the cases cited by Sutton Place preclude application of the statute of repose to bar Sutton Place's claims against North Bay.
Sutton Place's third amended complaint did include such allegations against Queen. In Appellant's Opening Brief, Sutton Place indicates, prior to Queen's deposition, they were operating on the mistaken belief Queen both supplied and installed the windows.
1. North Bay's Activities Fall Within the Scope of Section 337 .15
North Bay bears the burden of proof to establish the affirmative defense under the 10-year statute of repose of section 337.15; thereafter the burden shifts to Sutton Place to demonstrate its claims survive. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197; Samuels v. Mix (1999) 22 Cal.4th 1, 7-10.) Our review of the undisputed evidence at trial causes us to conclude North Bay met its burden to show it performed planning and testing of the construction of the windows and sliding glass doors at the Development, rather than just serving as a mere supplier of materials used in the construction; because of its on-site services and activities, North Bay was "directly involved in the construction industry." (Nichols, supra, 171 Cal.App.3d at p. 220.)
Sutton Place cites Nichols in support of its contention that North Bay was no more than a supplier of the allegedly defective windows. In Nichols, the appellate court found that the respondent manufacturer and supplier of a diving platform installed in a swimming pool was not "an improver of real property" for purposes of the statute of limitations set forth in section 337.1, which, similar to section 337.15, governs actions for damages against "any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property . . . ." (Nichols, supra, 171 Cal.App.3d at pp. 218, 219, fn. 4.) "Respondent mass-produced the diving platforms, which were listed in its customer catalog under the heading 'deck equipment.' Each unit was made according to the same specifications and was not modified for a particular location. The finished product was sold wholesale to distributors and pool contractors. Each platform was shipped piecemeal from respondent's factory to the buyer, with title transferring at that time. Respondent did not install or service the platforms. In sum, respondent had no connection with the real property on which its products eventually were installed. Respondent therefore cannot claim the protection of [section 337.1]." (Id. at p. 222.)
Unlike the diving boards at issue in Nichols, the undisputed facts here reveal the windows and sliding glass doors used in the Development were not mass-produced and listed in a customer catalog; North Bay had to special order them based on Queen's review of the architect's plans and specifications. Both the windows and doors included uncommon characteristics. The windows were not simply shipped to the construction site after North Bay ordered them; Queen was present at the job site on numerous occasions to accept and inspect delivery of the windows, to do a "job walk," and, most importantly for our evaluation, to participate in discussions regarding the problems attendant to installing the sliding glass doors in the beveled concrete walls, and to test the doors and windows upon completion of installation.
Sutton Place contends North Bay's on-site activities and presence were merely attendant to its role as a supplier of the windows, suggesting the activities described above were the industry standard for window suppliers at the time, and arguing North Bay made no showing that its activities at the Development differed from those of product suppliers on other job sites. But Sutton Place does not cite any legal authority indicating North Bay was required to prove its conduct was different than that of other suppliers in order to meet its burden to show it fell within the scope of section 337.15. Nor did Sutton Place present any evidence at trial regarding the industry standard for on-site services provided by window suppliers, or contradicting North Bay's claim that its work on the Development placed it within the class of persons protected by section 337.15. Queen testified that the services she provided at the Development were the typical services she provided to any of her customers; that testimony does not demonstrate that North Bay's conduct was consistent with the industry standard for window suppliers at the time. Absent such evidence, we are left to consider only the undisputed facts testified to by Queen, and to examine the facts set forth in relevant case law addressing who should be afforded the protection of section 337.15.
The California case law Sutton Place cites in addition to Nichols reveals clear differences between the conduct of the manufacturers and suppliers which the appellate courts determined fell outside the protection of sections 337.15 and/or 337.1, and that of North Bay in the instant matter. In Mills, the appellate court found the manufacturer of allegedly defective siding did not fall within the scope of section 337.15, whereas the builder who installed the siding did. (Mills, supra, 108 Cal.App.4th at p. 643.) There is nothing in that opinion that suggests the siding manufacturer conducted any activity on the jobsite. Similarly, neither the manufacturer/supplier of the heating and air conditioning units subsequently installed in residential properties in Baker, nor the manufacturer of a " 'pan' used ... to boil syrup in the sugar refinement process" installed at a refinery in Sevilla, worked on-site or provided job site services such as those completed by North Bay. (Baker, supra, 133 Cal.App.3d at pp. 756-758; Sevilla, supra, 101 Cal.App.3d at pp. 609, 611.)
In each case cited by Sutton Place, the appellate court determined the manufacturer/supplier of materials used in a construction project did not fall within the scope of sections 337.15 and/or 337.1. While it is true that one "common thread of these decisions is the total absence of any legislative intent to protect mere manufacturers of devices solely because [the devices] happened to be installed in real property," (Robinson, supra, 98 Cal.App.4th at p. 713) another common thread is the complete absence of any evidence the manufacturers and suppliers in these cases provided any construction activities akin to those undertaken by North Bay at the Development job site. These additional duties and services distinguish the facts before us from the California appellate cases precluding application of the statute of repose to mere manufacturers or suppliers of materials ultimately used in construction.
" 'Suppliers, who typically produce items by the thousands, can easily maintain high quality-control standards in the controlled environment of the factory. A builder, on the other hand, can pre-test his designs and construction only in limited ways—actual use in the years following construction is their only real test. Further, every building is unique and far more complex than any of its component parts. Even in the most uniform-looking suburban subdivision, each house stands on a separate plot of land; each lot may have slightly different soil conditions; one may be near an underground stream; and so forth. The Legislature can rationally conclude that the conditions under which builders work are sufficiently difficult that limitations should be placed on their liabilities, but not on the liabilities of suppliers.' [Citations.]" (Barnhouse, supra, 133 Cal.App.3d at pp. 183-184 [finding a rational basis exists to exclude certain classes of people, including suppliers and materialmen, from the protection of section 337.15].) While not a builder, the evidence shows North Bay was also not merely a supplier producing "items by the thousands," working in the "controlled environment of [a] factory." (Id. at p. 183.) Rather, North Bay was onsite addressing the unique circumstances of the buildings in the Development, ordering custom windows specifically for the project based on its review of the plans and specifications provided by the architects, performing inspection and testing of the windows and doors, and consulting regarding the installation issue created by the unique beveled concrete walls into which the sliding glass doors were being installed.
Neither party cites to any California cases involving similar circumstances, where a person who might otherwise be considered a supplier performed significant on-site activities akin to those North Bay undertook at the Development. Had North Bay performed no on-site work at the Development, or had there been evidence that its various job site services were the industry standard for "mere" window suppliers at the time, this would be a clearer case, where section 337.15 likely would not apply. In the other extreme, had North Bay both supplied and installed the windows, we likely would easily apply the statute of repose, as installation of materials incorporated into the structure of the residential properties constitutes construction. The facts here lie somewhere in the region between the two extremes, where the business ordering and supplying the windows also engaged in activities and provided services at the Development site that were more akin to construction trades services, not supplier services, such as visiting the site multiple times to ensure the delivery and integrity of the window components prior to installation, testing the windows after installation, installing screens on the windows, and troubleshooting the installation of unusual sliding door components. Thus, based on the record before us, we conclude North Bay's activities extended beyond the mere supply of the windows in the chain of commerce, into planning and testing of the window construction, such that North Bay reasonably is included in the category of construction tradesperson described in section 337.15, subdivision (a).
In arguing against application of section 337.15 to North Bay's activities at the Development, Sutton Place heavily relies on State Farm, a case out of the United States Court of Appeals, for the Seventh Circuit, in which the federal appellate court interpreted an Illinois statute it believed was "materially identical" to section 337.1. (State Farm, supra, 24 F.3d at p. 957, citing Baker, supra, 133 Cal.App.3d 746.) The defendant in State Farm was the manufacturer of a fireproofing material sold to construction companies; the plaintiffs brought a tort action against the manufacturer, alleging it failed to warn the plaintiffs that the fireproofing material contained asbestos, and that they had not tested the product before sale. (State Farm, at p. 956.) The issue on appeal was whether the suit was precluded by an Illinois statute barring, "any tort suit 'brought against any person for any act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property[,] after 10 years have elapsed from the time of such act or omission.' [Citation.]" (Ibid.) The Court of Appeals determined the manufacturer's activities, which consisted of selling bags of the fireproofing material for application by the contractor at the building site and providing instructions for the application, did not fall under the protection of the Illinois statute. (Id. at p. 957.)
While lower federal court decisions are entitled to great weight, we are not bound by them. (People v. Johnson (2015) 61 Cal.4th 734, 782; Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 835; People v. Bradley (1969) 1 Cal.3d 80, 86.)
Unlike the California cases discussed above, the facts recited by the Court of Appeals in State Farm indicate the manufacturer was on-site at some point. However, the site contact of the fireproofing manufacturer is readily distinguishable from North Bay's conduct in the instant matter. "The few visits that employees of [the manufacturer] made to the building sites occurred, with one possible exception, after . . . the product in suit, had been sprayed on. [The manufacturer] did not supervise the spraying. [¶] . . . [T]he activities in which [the manufacturer] engaged in relation to the [subject project] used in the construction of State Farm's three buildings are not reasonably interpreted as design, supervision, observation, planning, etc. [The manufacturer] did not spray the structural steel in the buildings with a mixture of [the product] and water. It merely sold bags of [the product] for application by a contractor or subcontractor at the building site." (State Farm, supra, 24 F.3d at p. 957.) In contrast to State Farm's fireproofing manufacturer, North Bay did not first perform onsite services after the windows and doors were already installed; its work occurred before, during, and after installation, and included custom ordering of the windows based on its review of the plans and specifications, inspection of the windows and doors, participation in the planning of a solution to the installation problem regarding the doors, testing of the windows and doors after installation, and installation of the window screens. Unlike the manufacturer in State Farm, North Bay did not "merely" sell the windows and doors for installation in the chain of product distribution; it was involved in the construction process described in section 337.15.
In drawing this conclusion, we have considered, but are not persuaded by, Sutton Place's argument that the statute of repose under section 337.15 affords protection only to licensed contractors. The plain language of the statute does not support such an interpretation; it makes no mention of licensing requirements, nor does it specifically refer to "contractors." (§ 337.15, subd. (a).) The legislative history of section 337.15 similarly does not suggest the Legislature intended to limit the protection of section 337.15 to only licensed contractors. Rather, the Legislature wanted to protect "contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work." (Lantzy, supra, 31 Cal.4th at p. 374, italics added.) Sutton Place asks us to find that "professionals" in the construction industry must be licensed; the legal authority it cites in support does not compel such a finding. The statutes and regulations Sutton Place proffers do not require a license for the kind of activities North Bay undertook at the Development site. (Bus. & Prof Code, §§ 7055, 7058, 7065; Cal. Code Regs., tit. 16, §§ 830, 832.) Nor do the cases it cites exclude North Bay from the category of "professional" because Queen was not licensed. (Kapelus, supra, 44 Cal.3d 179; Howard v. State (1948) 85 Cal.App.2d 361, 363 [building painter is a contractor for purposes of state licensing laws].) Had the Legislature intended to include only licensed contractors in the protection of section 337.15, it could have said so either explicitly, or done so implicitly by limiting the category of activities protected by the statute to include only those described in Business and Professions Code section 7026, which defines "contractor" for purposes of the Contractors' State License Law (Bus. & Prof. Code, § 7000 et seq.).
Sutton Place offers the reference to "the scores of professionals and tradespersons licensed by this state" in a separate opinion written by Justice Kline in the Supreme Court case Kapelus v. State Bar (1987) 44 Cal.3d 179, 205 (Kapelus), as evidence that the Lantzy court's use of the phrase "other professionals and tradespeople in the construction industry" necessarily meant licensed professionals and tradespeople. Kapelus did not involve the Supreme Court's consideration of issues related to licensing in the construction industry. The issue presented was a review of "the unanimous recommendation of the Review Department of the State Bar Court that [an attorney] be disbarred." (Kapelus, at p. 183.) Writing separately from the majority, Justice Kline concurred in the judgment ordering disbarment, but dissented with respect to the standard of review the majority applied. (Id. at p. 199.) He referenced "the scores of professionals and tradespersons licensed by this state," to note the disparate treatment attorneys received "when called upon to defend conduct found by the licensing body to have been unethical," as compared to the other licensed professionals and tradespeople. (Ibid ["only attorneys enjoy the benefit of a judicially developed 'intendment' in favor of innocence when called upon to defend [such] conduct . . . . There is no satisfactory rationale for this distinction."].) Justice Kline did not suggest that all people working in California deemed "professionals" must be licensed.
For these reasons, we conclude North Bay's activities at the Development job site are described in section 337.15 and that North Bay falls within its scope as a type of tradesperson, distinguishing it from a mere supplier of windows for use in residential construction.
2. The Windows and Sliding Doors are an Improvement to Real Property
Section 337.15 applies to "any person" who "performs . . . planning, . . . testing, or observation of construction or construction of an improvement to real property." (§ 337.15, subd. (a).) Sutton Place contends section 337.15 does not apply here because the windows and sliding glass doors were not an "improvement to real property" for purposes of section 337.15, but rather a "standard product incorporated into the . . . underlying building," citing to State Farm, where the federal Court of Appeals determined the fireproofing material applied to a building was not an "improvement to real property." (State Farm, supra, 24 F.3d at p. 958.) "[C]alling a spray an 'improvement' would do violence to the ordinary meaning of the word when it is used in the context of construction, as well as impart a breathtaking scope to the statute. An extension to a kitchen is an improvement; the paint on the extension is not." (Ibid.) Citing to two California appellate cases, Baker and Sevilla, the Court of Appeals found that "a standard product incorporated into the improvement, or into the underlying building being improved," is not an improvement for purposes of the statute. (State Farm, at p. 958.) By analogy, Sutton Place argues the windows and sliding glass doors provided by North Bay and installed at the Development were simply conventional products incorporated into the building.
First and foremost, a plain reading of section 337.15 does not limit its application only to participants in construction of improvements to real property. The relevant provision applies to a participant who "performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property." (§ 337.15, subd. (a), italics added.) Here, North Bay participated in the planning and testing of the initial construction of the Development, rather than the construction of an improvement, such as "[a]n extension to a kitchen . . . ." (State Farm, supra, 24 F.3d at p. 958.) Thus, even if we consider whether North Bay's activities involved "an improvement to real property," neither the federal court's ruling in State Farm, nor the California cases relied on by the federal court, cause us to interpret section 337.15 to exclude the windows and doors installed at the Development from the category of an "improvement to real property." In Sevilla, the appellate court determined the installation of the pan used to boil sugar at a refinery did not transform it from a "product" to an "improvement to real property" for purposes of sections 337.1 and 337.15, in part because doing so would "bestow [the] statutory protection on manufacturers of alleged defective products" without any "indication the state Legislature sought to protect this group from liability." (Sevilla, supra, 101 Cal.App.3d at p. 611.) In so ruling, the appellate court provided limited discussion of the basis for its analysis and did not compare the boiling pan to any other products installed in construction projects. Rather, the court focused on the obvious: many manufactured products are ultimately installed in real property. The mere installation of a manufacturer's conventional product does not insulate the manufacturer from liability for product defects.
Similarly, the appellate court's analysis in Baker does not preclude us from finding North Bay should be included within the protection of section 337.15. The plaintiff in Baker filed suit against the building's architect and general contractor, as well as against the installer, and manufacturers/suppliers of allegedly defective heating and air-conditioning units. (Baker, supra, 133 Cal.App.3d at p. 750.) The Court of Appeal agreed with the trial court that section 337.1 did not apply to the manufacturers of the units because they were not "improvers of real property within the meaning of the statute." (Id. at p. 752.) "A manufacturer of goods ultimately installed in an improvement to real property cannot avail himself of the protections of [section 337.1]. In enacting the statute, the Legislature clearly intended to protect contractors, who are in the business of constructing improvements and must devote their capital to that purpose, from never-ending liability. [Citation.] The statute by its language limits the action to persons 'performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property.' This language does not include the manufacturing or supplying of products which are installed in the improvement." (Id. at pp. 756-757, italics omitted.) Citing, Sevilla, supra, 101 Cal.App.3d at p. 611, the court stated, "The policy of protecting the public from dangerous and defective products and the effect on that policy of the protection provided by the Legislature to some groups as discussed in Sevilla must be examined in each situation: [fn. omitted] The manufacturing of a 'unit' to heat or cool is the function of providing a product; there is no indication such a function was intended to be within the protective blanket of the statute." (Baker, at pp. 757-758.) The Baker court's opinion did not specify whether the manufacturers/suppliers of the heating and air conditioning units ever provided services at the job site as North Bay did, but focused on the manufacturer's role, which appeared to be confined to providing the units "ultimately installed in an improvement to real property." (Id. at pp. 756-757.)
None of the cases Sutton Place cites find that custom windows and sliding glass doors are a product installed in a building rather than an improvement to real property. We note further that in Lanzty, the Supreme Court stated that the homes in the subject residential development under consideration "suffer[ed] from design or manufacturing defects, including leaks in the windows and window systems, that  caused damage to each of the individual residences"; the defendants included those who "designed, manufactured, sold, and/or installed the windows." (Lantzy, supra, 31 Cal.4th at p. 367.) Nothing in the opinion suggests any party alleged the windows and window systems were products versus improvements to real property, thus Lantzy does not confirm that windows are one or the other. Yet, it is worth noting that nowhere in the Supreme Court's lengthy discussion of the purpose and legislative intent of section 337.15 does it suggest that windows are not an improvement to real property under the statute. (Id. at pp. 374-378.)
The issues before the Supreme Court were whether section 337.15 was subject to equitable tolling during periods in which promises or efforts to repair were pending, and/or whether the doctrine of equitable estoppel applied to the limitation period set forth in the statute. (Lantzy, supra, 31 Cal.4th at p. 367.) The court found equitable tolling was not available, but equitable estoppel could apply in appropriate circumstances, although those circumstances were not plead in the case before it. (Id. at pp. 367, 388.)
"As it is used in section 337.15, the term 'improvement' has been given a very broad interpretation . . . '. . . depending on the context in which it was used. . . . Websters' New Twentieth Century Dictionary (unabridged 2d ed.), defines improvement as "a change or addition to land, property, etc., to make it more valuable, such as a house, fence, garage. etc." As used in section 337.15 "an improvement" is in the singular and refers separately to each of the individual changes or additions to real property that qualifies as an "improvement" irrespective of whether the change or addition is grading and filling, putting in curbs and streets, laying storm drains or of other nature.' [Citation.]" (Gaggero v. County of San Diego (2004) 124 Cal.App.4th 609, 615-616.) Under this standard of broad interpretation, it is reasonable to conclude that the windows with custom characteristics that were incorporated into the structure of the residences at the Development constituted a real-property improvement. Under the plain language of section 337.15, North Bay was a person performing one of the specified activities of construction or construction of an improvement to real property, that qualifies it for protection under section 337.15.
3. Section 337.15 Bars Sutton Place's Strict Products Liability Claim Against North Bay
Sutton Place argues even if North Bay is a member of the class of persons protected by section 337.15, the claim for strict products liability is not an action governed by that statute, as the cause of action did not arise due to North Bay's activity on the job site. It cites Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243 Cal.App.4th 249 (Hernandezcueva), for the general proposition that a contractor who also supplies materials can be held strictly liable as a supplier despite receiving protection from other claims under section 337.15. We are not persuaded, as the opinion does not address the application of section 337.15 as an affirmative defense to the strict products liability cause of action, or, for that matter, address sections 337.15 and 337.1 at all.
In Hernandezcueva, the subject defendant was a contractor that installed drywall and plastering in a building at which one of the plaintiffs was a janitor. (Hernandezcueva, supra, 243 Cal.App.4th at p. 253.) Plaintiffs, husband and wife, filed a lawsuit alleging causes of action for negligence, strict liability, misrepresentation, intentional failure to warn, premises owner and contractor liability, and loss of consortium, claiming the husband contracted mesothelioma as a result of his exposure to asbestos from the defendant's products. (Ibid.) The defendant supplied the drywall and joint compound it used in the project. (Id. at p. 254.) After the presentation of plaintiffs' case-in-chief, the trial court granted defendant's motion for nonsuit with respect to the claims for strict liability, misrepresentation, and failure to warn. (Id. at p. 255.) The defendant "argued that it was entitled to a nonsuit because the [plaintiffs'] evidence showed only that it was a subcontractor that had installed asbestos-containing products bought from other parties." (Id. at p. 256.) However, the appellate court reversed, finding that the defendant could be held strictly liable based on its involvement in the stream of commerce relating to the defective products, as its provision of the products was not "merely incidental to its services" in the installation of those products. (Id. at pp. 262-263.) But the defendant in the Hernandezcueva opinion did not raise the statute of repose of section 337.15 as an affirmative defense to the strict products liability cause of action; the appellate court did not discuss section 337.15 or 337.1 in its opinion.
Other cases hold the statute of repose serves to curtail even strict products liability claims against a person that falls within the protection of section 337.15 where that person supplies products and provides services related to construction. In Stoneson Development Corp. v. Superior Court (1987) 197 Cal.App.3d 178 (Stoneson), a property owner alleged a developer improperly repaired damages to her property caused by a mudslide in 1962, resulting in further mudslide damages 20 years later. (Id. at p. 179.) One of the causes of action the owner alleged against the developer was strict products liability; the developer moved to strike that cause of action on the grounds it was barred by the 10-year limitation period of section 337.15, but the trial court denied the motion. (Ibid.) In considering the developer's petition for writ of mandate, the appellate court evaluated "whether the provision in section 337.15 that 'no action' may be filed beyond the 10-year period includes an action based on product liability." (Id. at p. 180, italics added.) Considering the plain language of the statute, as well as the legislative intent behind the statute, and the public policy concerns raised by plaintiff, the appellate court found no basis to exempt products liability actions from the scope of section 337.15, stating, "to construe the statute as not covering a cause of action for product liability would render illusory the protection the Legislature intended to give the developer." (Id. at pp. 180-181.) Because the plaintiff in Stoneson brought her strict products liability claim more than 10 years after the developer completed its work, the appellate court concluded section 337.15 barred the cause of action.
In rendering its opinion, the appellate court in Stoneson referenced Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506 (Mattingly), in which the court of review found that section 337.1 precludes actions based on strict products liability brought after the four-year limitation period for patent defects. (Stoneson, supra, 197 Cal.App.3d at p. 181.) Mattingly involved the construction of an in-ground swimming pool in an apartment complex; plaintiff, a minor, sued for negligence, strict liability, and attractive nuisance after he fell into the pool, which was not surrounded by fencing. (Mattingly, at p. 509.) The appellate court determined the absence of fencing was a patent defect, such that the four-year time limitation of section 337.1 applied. (Id. at pp. 510-511.) The court declined to determine whether the pool constituted a product for purposes of the strict products liability claim, as such a claim would be time-barred under section 337.1, along with the plaintiff's other causes of action. (Id. at p. 512.) The court determined that the legislative intent behind both sections 337.1 and 337.15 was to protect contractors against "liability extending for a potentially limitless period of time," such that the limitations period of each of those statutes is primary, cutting off all liability of the contractor. (Id. at pp. 512-513.) "Whether or not this swimming pool is a product, it is unarguably an improvement to real property and any action for a patently deficient or defective design must have been brought within four years of the date of completion of the pool." (Id. at p. 513.)
These cases make it clear the limitations periods of sections 337.1 and 337.15 bar even strict products liability claims brought against a person protected by the statutes of limitation and repose. Sutton Place cites Jimenez v. Superior Court (2002) 29 Cal.4th 473, 479 (Jimenez), wherein the California Supreme Court found that a claim for strict products liability can proceed against the manufacturers of windows installed in a mass-produced home. But in doing so, the Supreme Court specifically declined to address the application of section 337.15 to the issue, because the manufacturers acknowledged the statute did not apply to them, and because the manufacturers did not raise the statute as an issue at trial. (Id. at pp. 480-481.) Similarly, in Mills, the Court of Appeal allowed a strict liability claim to proceed against a siding manufacturer, who was not protected by section 337.15, but determined the same claim was barred as to the builder, who was a person engaged in construction, and thus protected by the statute. (Mills, supra, 108 Cal.App.4th at pp. 646-647.)
There was no contention in Jimenez that the manufacturers conducted any activities at the construction site; to the contrary, they argued strict products liability should not apply to them "because they had no physical control over the windows at the time of the alleged harm," as the windows were "shipped in parts, assembled by others, and installed by others." (Jimenez, supra, 29 Cal.4th at p. 480.)
Additionally, our interpretation of section 337.15 barring a products liability cause of action against North Bay is consistent with the Supreme Court's discussion in Lantzy of the purposes of the statute. The Lantzy court determined the doctrine of equitable tolling did not apply to section 337.15, specifically in a situation where the persons who otherwise might be protected by the statute—those who "designed, developed, built, and/or sold the Eagles Ridge homes, or designed, manufactured, sold, and/or installed the windows"—promised or attempted to repair the alleged defects prior to the plaintiffs filing suit. (Lantzy, supra, 31 Cal.4th at p. 367.) The Supreme Court recognized the competing goals of providing plaintiffs "a fair time to discover construction defects, and to sue upon such defects if necessary, while still protecting a vital industry from the damaging consequences of indefinite liability exposure." (Id. at p. 377.) Although the Legislature knew a " 'tolling for repairs' rule" had developed in case law, it elected not to include such a provision in sections 337.1 or 337.15. (Ibid.) "On the contrary, the Legislature specified in section 337.15 that whatever limitations periods might otherwise apply, 'no action' for injury to property arising from latent construction defects 'may be brought' more than 10 years after substantial completion of the project. [Citations.] The inference arises that regardless of whatever tolling rules might otherwise apply within the 10-year period, the Legislature intended no such extension of the 'absolute' [citation] 10- year limit itself. The legislative failure to ratify tolling for repairs under these circumstances is another indication that a judicial doctrine extending the 10-year limitations period for this reason would contravene the intent of section 337.15." (Id. at pp. 377-378, italics omitted.) Similarly, a judicial doctrine allowing a products liability claim to proceed against a person included within the protection of section 337.15 would contravene the intent of section 337.15 that "no action" may be brought more than 10 years after the substantial completion of the project. (§ 337.15, subd. (a), italics added.)
We disagree with Sutton Place's assertion that the ruling in State Farm compels a different result. The federal Court of Appeals determined the Illinois statute of repose would not apply even if the manufacturer's provision of instructions regarding application of fireproofing spray did transform the manufacturer of the fireproofing material into a builder, drawing a distinction between the manufacturing design and installation. "[The manufacturer's] negligence had nothing to do with the installation or application of the [product]. So far as appears, the directions for the installation of the product were perfectly adequate and it could not have been installed better. The problem was in the design of the [product] (to include asbestos), the failure to test the product, and the failure to warn about it. These negligent acts or omissions, being remote from building construction, were not the sort of activities that the statute was intended to shield from late-filed products liability suits, as the California courts have held in interpreting a materially identical statute. [Baker, supra, 133 Cal.App.3d 746]." (State Farm, supra, 24 F.3d at pp. 957-958.)
As we have discussed above, North Bay's activities were not "remote from building construction"; they were the "sort of activities" the Legislature intended section 337.15 to protect. Moreover, the facts of this case are distinguishable from those in Baker, the case the federal court relied on in discussing the "California courts[']" interpretation of section 337.15. There is nothing in the Baker opinion indicating that the heating and air-conditioning unit manufacturers there performed any duties at the construction site. The manufacturers contended they "participate[d] in the design, specifications, etc., of an improvement to real property." (Baker, supra, 133 Cal.App.3d at p. 758.) However, the court did not specify the basis for the manufacturers' assertion that they participated in the design of an improvement to real property, or provide any additional explanation for its holding that such participation would allow a claim for products liability despite section 337.15.
We are persuaded that the analysis of Stoneson and Mattingly is consistent with the legislative intent of section 337.15 as interpreted by the California Supreme Court in Lantzy. Nothing in the court's opinion in Baker compels a contrary result. Nor are we required to follow the holding in State Farm. (See fn. 6, ante.) We therefore conclude that section 337.15 bars all actions, including products liability claims, against any person protected by that statute. Having concluded that North Bay does fall within the protection of section 337.15, we uphold the trial court's ruling.
The November 17, 2017 judgment is affirmed.
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________