HAGGIS v. CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 3, California.

Paul HAGGIS, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

No. B108947.

Decided: September 17, 1998

Hart, King & Coldren, William R. Hart and Richard P. Gerber, Santa Ana, for Plaintiff and Appellant. James K. Hahn, City Attorney, Patricia V. Tubert, Senior Assistant City Attorney, and William L. Waterhouse, Assistant City Attorney, for Defendant and Respondent.

This appeal by the plaintiff, Paul Haggis, is from a judgment of dismissal of plaintiff's first amended complaint following the trial court's order sustaining, without leave to amend, the demurrer of the defendant City of Los Angeles (“City”).   Plaintiff's home, which was located on the coastal bluff in the Pacific Palisades area of Los Angeles, sustained severe damage on January 17, 1994, as a result of the Northridge earthquake, and had to be demolished.   Plaintiff's claimed loss exceeded $3.5 million and he sought compensation from the City based upon certain alleged acts and omissions of the City during the period 1966 to 1979 with respect to the same property where his home was located.   The trial court sustained the City's demurrer on the grounds that his action was barred by applicable (1) statutes of limitation and (2) provisions of the Tort Claims Act which granted the City immunity.

Because we conclude that Code of Civil Procedure section 337.15 and Government Code section 818.6 do apply and bar plaintiff's action against the City, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND 1

Plaintiff purchased the property at 14904 Corona del Mar in Pacific Palisades (the “property”) in September 1991.   He lived there until January 1994, when, following the Northridge earthquake on January 17, the City condemned and demolished what was left of his home and other improvements on the property.   The damage to the property was caused by a massive landslide which had been triggered by the earthquake.   Geologic instability of the property, which the City had known about since at least 1959, made it vulnerable to landsliding following any seismic shock.

The massive landslide which followed the Northridge earthquake not only caused severe damage to the home and other improvements on the property, but it also destroyed the stability of the ground beneath those improvements, impaired the use of the property, and destroyed its value and marketability.   The landslide problem was progressive and expansive, and the instability could not be corrected without stabilizing the coastal bluff, the cost of which was estimated to exceed the undamaged value of the property.   Plaintiff alleged that his damages, including the costs of stabilizing the ground beneath the property and replacing his home and other improvements, exceeded $3.5 million.   He also sought compensation for emotional distress.

Landslides on the coastal bluff have been progressive and recurring since the early 1900's.   A 1959 City-sponsored study of landslides in Pacific Palisades determined that the coastal bluff, including the property, was within an active landslide area and was vulnerable to further landslides.   The study showed that at least eleven landslides occurred on the coastal bluff in the 1940's and the 1950's.

In 1966, before plaintiff owned the property, a large landslide occurred on the coastal bluff which destabilized the property and made it vulnerable to further landslides.   The 1966 landslide was so severe that the City determined that the property was geologically unstable and that the home which was then on the property was unsafe.   In November 1966, the City issued a Notice To Comply to the then-owner of the property, directing him to:  vacate the property immediately, disconnect all utilities, file engineering plans for corrective work to stabilize the property, and perform the stabilization work by December 9, 1966.   The Notice To Comply was issued by the City in accordance with section 91.0308(d) of the Los Angeles Municipal Code (“LAMC”) (1966 Version).2  The purpose of the Notice To Comply was to inform the owner that the property was substandard and to specify the conditions creating that classification.   Another section of the 1966 LAMC (§ 91.0103(n)), required the owner to correct the substandard condition.

Under section 91.0308(d), at the time of giving the notice, the Superintendent of Building was also required to file with the County Recorder a certificate that the property was substandard, that the owner had been notified and specifying the conditions which created the substandard condition.   Upon notice of correction of the unstable condition created by landslide, subsidence or inundation, a new certificate was to be recorded specifying that the property was no longer considered substandard.

However, the City did not then, or at any time thereafter, record any notice of substandard conditions with respect to the property.   In addition, the work which was required to be done pursuant to the Notice to Comply issued in November of 1966 was not done.   In February of 1970, the City determined, “There is a hazardous slide condition to the rear of the lot and earth slide has damaged the footing to [sic] the west end of the lot․  [I] suggest this one be sent straight through for demolition because of the slide and earth movement hazard.”   In March 1970, the City again expressed the view that there was a “hazardous slide condition” on the property, and notified the owner that certain corrective measures were required and issued a Notice To Abate.

By October 1970, the geologic instability of the property had still not been corrected.   At that time, the owner applied to the City to demolish portions of the home and relocate other portions away from the landslide-damaged bluff as part of a plan to rebuild the residence.   In 1970, LAMC section 91.0203(2) limited the circumstances under which the City could issue building permits in areas it had determined were subject to landslides.3  The proposed 1970 plans called for construction of a basement and a blanket fill in the rear yard, both of which required excavation on the landslide-damaged property.   No geologic reports were submitted to the City to support the 1970 construction project.   Nevertheless, by letter dated October 22, 1970, the City approved the 1970 construction project without requiring the owner to first record an affidavit under LAMC section 91.0203(2) stating his awareness that the property was in an active landslide, or to provide a landslide stabilization plan under LAMC section 91.3011(d)(1).4  In fact, in the City's October 22, 1970 letter, it admitted that the geologic instability of the property created by the 1966 landslide would not be corrected by the project.   On November 19, 1970, the City issued building and grading permits for the relocation, demolition, and construction project.   Ownership of the property was transferred to one Phil Long through foreclosure before the project began.   In early January 1971, Mr. Long undertook to reconstruct the home pursuant to the November 1970 Building and Grading Permits.

By March 22, 1971, the home had been relocated and construction began.   Mr. Long then sought to modify the November 1970 Building Permit to construct an additional room.   Again, no reports were submitted to show:  (1) the cause of the 1966 landslide;  (2) that the home on the property, including the proposed room addition, would be safe;  (3) an adequate factor of safety during excavation for the basement and the blanket fill;  (4) that the entire 1966 landslide mass would be stabilized;  or (5) an adequate factor of safety against future landslides.   Nevertheless, the City issued a second building permit on April 28, 1971, again without requiring the applicant to first record an affidavit under LAMC section 91.0203(2) stating his awareness that the property was in an active landslide or to provide a landslide stabilization plan under LAMC section 91.3011(d)(1).

Eight months after the November 1970 Building and Grading Permits and three months after the April 1971 Building Permit were issued, the first geologic report on the property after the 1966 landslide was prepared in support of Mr. Long's application to use the property as security for a loan.   Mr. Long hired one William Waisgerber to prepare a geologic report of the property.   That report, dated July 13, 1971, was prepared “solely to evaluate the new location of a residence for buyers and/or lending institutions,” not to present to the City as a basis for issuing the 1970 and 1971 Building and Grading Permits.   Indeed, it was not until early 1973, when the then-owner of the subject property sought to construct a swimming pool and carport, that the Waisgerber report was even submitted to the City.

On December 11, 1971, the City issued a Certificate of Occupancy for the new home on the property even though the City knew that:  (1) the entire 1966 landslide mass had never been stabilized;  (2) its 1966 Notice to Comply to stabilize the landslide condition had never been satisfied;  (3) its 1970 Notice to Abate the hazardous slide condition had never been satisfied;  and (4) a Substandard Certificate describing the geologic instability of the property or an affidavit stating that the property was in an active landslide area had never been recorded.

In January 1973, the then-owner of the property, Urban Didier, sought to attach a carport to his home and to construct a swimming pool in the rear yard of the property near the landslide-destabilized bluff.   Mr. Didier hired an engineering geologist, one John Merrill, to determine the feasibility of constructing a swimming pool in that location.   Merrill's January 29, 1973 report concluded, without adequately investigating the sub-surface conditions of the subject property or the cause of the 1966 landslide, that construction of the swimming pool was feasible.   That report, along with Waisgerber's July 13, 1971 report, was submitted to the City to support Didier's request to construct a swimming pool in a known landslide area.

By a letter dated February 26, 1973, the City approved construction of the swimming pool and issued building and grading permits for such construction.   At no time before the building permit was issued did the City require Mr. Didier to record an affidavit under LAMC section 91.0203(2) stating that he was aware that the property was in an active landslide area.   On February 23, 1973, the City also issued a building permit for the carport addition, stating that the property is in a “slide area.”   One week after the City approved construction of the swimming pool based on the Waisgerber and Merrill reports, Waisgerber told the City, by letter dated March 2, 1973, that his July 13, 1971 report was not “favorable” and did not provide the information the City needed to issue a permit to construct the swimming pool.   Although the author of the Waisgerber report explicitly informed the City that his report was not favorable and that the geologic stability of the property could not be determined without a sub-surface investigation, which had not been done, the City took no steps to stop the construction of the swimming pool.

In January 1977, the then-owner of the property applied for a building permit to construct a bathroom and laundry room in the home on the property.   Although the 1966 landslide mass had never been stabilized, the City issued the requested building permit, without requiring any demonstration that the 1966 slide mass would be stabilized and without requiring that the affidavit under LAMC section 91.0203(2) first be recorded.

In October 1979, CalTrans sought to install a buttress fill along the base of the coastal bluff in an attempt to restore geologic stability.   It applied to the City for a grading permit to remove slide debris from the base of the coastal bluff as part of the project.   The City knew that the destabilized hillside was already vulnerable to landsliding and, from Waisgerber's July 13, 1971 report, that removal of slide debris from the base of the coastal bluff would further destabilize the property.   Nonetheless, the City issued CalTrans a grading permit for “the disposal of Malibu slide material” without requiring that CalTrans to first show that its buttress fill would either (1) stabilize the entire 1966 landslide mass or (2) provide an adequate factor of safety against future landslides.

In September 1991, plaintiff purchased the property, the geologic instability of which was not then visually apparent.   Nor was it apparent from plaintiff's preliminary title report, nor from any other purchase documents.   Plaintiff alleges that because the City had never recorded a Substandard Certificate against the property (LAMC § 91.0308(d), 1966 version) nor required the recordation of affidavits stating that the property was in an active landslide area before issuing building permits in 1970, 1971, 1973, or 1977, neither he nor his lender, title company, nor insurer knew that the property was in an active landslide area or that the geographic instability caused by the landslide had never been corrected.5

Following the Northridge earthquake, the plaintiff filed a timely claim with the City under the Tort Claims Act (Gov.Code § 900 et seq.) which was denied by the City. On January 17, 1995, plaintiff filed this action alleging four separate causes of action based on the City's violation of what he characterized as the mandatory obligations imposed on the City by the several LAMC sections described above:  91.0308 (first cause of action), 91.0203(2) (second cause of action), 91.3011(d)(1) (third cause of action) and 91.0305 (fourth cause of action).6

The theory of plaintiff's first amended complaint 7 was that had the City complied with the aforesaid “mandatory” provisions of the LAMC during the period 1966-1979, plaintiff would have discovered the problems with the property prior to his purchase in 1991 and he would not have completed the transaction and thus ultimately would not have suffered the substantial loss occasioned by the 1994 Northridge earthquake.

The trial court sustained the City's demurrer to plaintiff's first amended complaint on August 22, 1996, without leave to amend.   Essentially, the court concluded that the applicable statutes of limitations and the immunity provisions of the Tort Claims Act barred plaintiff's claim.8

CONTENTIONS OF THE PARTIES

Plaintiff argues that the City is liable for its failure to comply with the mandatory requirements of its own Municipal Code with respect to (1) recordation of notices of substandard condition, (2) issuance of permits without requiring correction of such conditions and recordation of affidavits reflecting owner awareness of existing landslide susceptibility and unstable soil and (3) failure to halt or prevent work on the property until proof of correction of substandard conditions had been supplied.   These acts and omissions by the City resulted in the continued development of the property and caused subsequent purchasers of the property, such as plaintiff, to be kept in the dark as to the true unstable condition of the property.

The City responds that its acts and omissions, as alleged in the complaint, took place between 1966 and 1979 and that this complaint was not filed until January 1995;  indeed plaintiff did not even acquire the property until 1991.   The applicable statutes of limitation (Code of Civ. Proc., §§ 337.15 and 338) have long since run.   In addition, the City contends that plaintiff's action is barred by three immunity statutes.  (Govt.Code, §§ 818.4, 818.6 and 818.8.) 9  The City also argues that the LAMC sections which plaintiff claims were violated were repealed or modified prior to the time that plaintiff purchased the property and that the City's actions did not constitute violations of those code sections in effect at the time of plaintiff's purchase.   Finally, the City contends that, in any event, its acts or omissions as alleged in the complaint, were not the proximate or legal cause of plaintiff's claimed loss.

Our review of this matter causes us to conclude that the City's contentions with respect to section 337.15 and section 818.6 are both correct and sufficient.   We thus have no need to reach the balance of the arguments raised.

DISCUSSION

1. Standard of Review

 As already noted, we are reviewing an order of the trial court sustaining a demurrer without leave to amend.  “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules.   ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  [Citation.]   We also consider matters which may be judicially noticed.’  [Citation.]   Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.  [Citation.]   When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.  [Citation.]”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)   Irrespective of the labels attached by the pleader to any alleged cause of action, we examine the factual allegations of the complaint, to determine whether they state a cause of action on any available legal theory.  (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947, 36 Cal.Rptr.2d 360;  Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186.)   If they do, then the trial court's order of dismissal must be reversed.  (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444, 266 Cal.Rptr. 601.)   If they do not, we affirm.

2. Public Entity Liability Depends On Statutory Waiver of Sovereign Immunity

 In California, all government tort liability must be based on statute.  “Government Code section 815, enacted in 1963, abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution.   Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.”   (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409, 205 Cal.Rptr. 1, original italics, fns. omitted.)  Section 815, subdivision (a), specifically provides that, except as otherwise permitted by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”   Additionally, section 815, subdivision (b), states:  “[t]he liability of a public entity established by this part ․ is subject to any immunity of the public entity provided by statute, ․” As the legislative comment to section 815 notes, “[u]nder subdivision (b) of [section 815] the immunity provisions will as a general rule prevail over all sections imposing liability.”  (Legislative Com. com.-Senate, West's Ann. Gov.Code, § 815 (1995 main vol.) p. 168.)  “In short, sovereign immunity is the rule in California;  governmental liability is limited to exceptions specifically set forth by statute.”  (Cochran v. Herzog Engraving Co., supra, 155 Cal.App.3d at p. 409, 205 Cal.Rptr. 1.)

3. The Immunity Provided By Section 818.6 Bars Plaintiff's Claims

 As plaintiff's opening brief candidly concedes, the theory of his entire case rests upon the proposition that the City failed to comply with the mandatory duties imposed by the LAMC with respect to the property and that failure resulted in plaintiff's innocent purchase of substandard property many years later;  had the City complied with its code imposed obligations, plaintiff would have been informed of the slide prone condition of the property and would not have acquired it.

In asserting this position, plaintiff relies upon the provisions of 815.6, which provide:  “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”   Whatever the merits of plaintiff's contention that the City's acts and omissions, as alleged in the complaint, are embraced by the provisions of section 815.6, it appears to us that the City clearly has immunity under section 818.6 for those claims.10

Section 818.6 expressly provides that “[a] public entity is not liable for injury caused by its failure to make an inspection, ․ of any property, ․ for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.”  (Italics added.)   In construing this language, the Supreme Court noted, over twenty years ago, that it went well beyond the immunity granted to discretionary activities by sections 818.2 and 818.4:  “As the legislative comment to section 818.6 explains:  ‘Because of the extensive nature of the inspection activities of public entities, a public entity would be exposed to the risk of liability for virtually all property defects within its jurisdiction if this immunity were not granted.’   In light of such purpose, we believe that section 818.6 must reasonably be construed to insulate a public entity from any liability which might arise as a result of an entity's failure to detect noncompliance with one of the myriad safety regulations contained in local or statewide building codes.”  (Morris v. County of Marin (1977) 18 Cal.3d 901, 916, 136 Cal.Rptr. 251, 559 P.2d 606;  italics added.)   Thus, it must follow that the immunity granted by section 818.6 applies to mandatory duties as well as discretionary ones.  (Powell v. State of California (1991) 234 Cal.App.3d 910, 914-917, 286 Cal.Rptr. 8;  Clayton v. City of Sunnyvale (1976) 62 Cal.App.3d 666, 670, 133 Cal.Rptr. 306.)

Plaintiff argues, however, that he is not complaining of negligent or even fraudulent inspection practices by the City, but, rather, that the City failed to take legislatively mandated action with respect to the information once it had it.   In our view, this argument was essentially considered and rejected by the court in Cochran v. Herzog Engraving Co., supra, 155 Cal.App.3d 405, 205 Cal.Rptr. 1, where the court was faced with a claim that the City of San Mateo had violated the mandatory provisions of its own Municipal Code in failing to discover, make known, and correct, hazardous fire conditions on the subject property where substantial amounts of magnesium was utilized and where the plaintiff's decedent lost her life in a fire.   Plaintiffs filed suit relying on section 815.6 and the City moved for summary judgment, which was granted on the authority of section 818.6.

In rejecting an argument nearly identical to the one presented to us, the Cochran court said, “Appellants would have us interpret the inspection immunity narrowly to include only the actual search for hazardous conditions itself.   They urge that the statute does not protect a public entity once it obtains any knowledge of hazardous conditions;  and that liability may attach for negligent breach of other purported duties, such as a duty to advise and recommend ways to deal with known fire hazards, or to require specific fire suppression devices.   But the inspection immunity cannot be so arbitrarily restricted to the mere failure to detect hazards.   Public safety inspection necessarily encompasses making an informed determination that given conditions are in fact hazardous or not in compliance with regulations, officially reporting these hazardous conditions, and fully disclosing them to all interested parties.   Appellants' narrow interpretation of the immunity statute would clearly place a premium on careless fire inspection, and encourage municipalities not to make any efforts to learn about possible fire hazards.  [¶] The purpose of Government Code section 818.6 is to protect public entities from liability not only for failures to detect technical safety code violations, but for any negligence directly connected to the inspection process itself.”  (Cochran v. Herzog Engraving Co., supra, 155 Cal.App.3d at pp. 411-412, 205 Cal.Rptr. 1.)

In addition to Cochran, there are a number of appellate decisions which have affirmed that the inspection immunity of section 818.6 is absolute, overriding any liability for a breach of mandatory duty flowing from section 815.6.  (See e.g., Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 283, 29 Cal.Rptr.2d 398 [absolute immunity for a death which resulted from failure to inspect and warn of susceptibility of building, known to be built on unstable soil, to earthquake damage;  “[t]he inspection immunity is absolute, and applies even where the duty to inspect is deemed to be mandatory”];  Powell v. State of California, supra, 234 Cal.App.3d at pp. 915-917, 286 Cal.Rptr. 8 [absolute immunity for both negligent inspection and for failure to carry out any inspection of day-care home];  and Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1344-1345, 243 Cal.Rptr. 463 [absolute immunity even for fraudulent inspection and misrepresentation by building inspector of code violations in construction of a home].)

We see no essential difference between the issues presented by those cases and the one presented here.   If the City is immune under section 818.6 for its negligent or even fraudulent failure to discover and warn of existing hazards, we see no reason why such a rule would not apply here where the City was aware of the hazard but simply failed to take the required steps to disclose (through recordation) their existence.   The acts and omissions with which the City is charged here clearly fall within the scope of the immunity provided by section 818.6.

4. Section 337.15 Precludes Plaintiff's Action

 Irrespective of the application of section 818.6 immunity, we believe that the ten year limitation period provided by Code of Civil Procedure section 337.15 11 also bars plaintiff's action.   This statute provides for an outer limit on liability for land development activities.   This limitation is intended to protect those who participate in the development of property from the specter of unlimited liability extending indefinitely into the future for defects in design or construction.  (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 404-405, 163 Cal.Rptr. 711.)   This statutory defense applies in favor of any person engaging in development activities as described in the statute.   Thus, it also applies to claims asserted against governmental or public entities which are so engaged.   (Magnuson-Hoyt v. County of Contra Costa (1991) 228 Cal.App.3d 139, 143-144, 278 Cal.Rptr. 770;  see also Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 983-984, 44 Cal.Rptr.2d 93.)   Moreover, section 815 specifically provides that any liability created by the Tort Claims Act is “subject to any defenses that would be available to the public entity if it were a private person.”

Code of Civil Procedure section 337.15, subdivision (a), explicitly provides that this section applies to:  “․ any person, or the surety of a 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․”  (Italics added.)   Given the various allegations of the complaint - including allegations that the City should have (1) required stabilization of landslides on the property, (2) enforced recording conditions on issuance of building permits and (3) halted construction projects on the property - appellant can hardly deny that his basis for holding the City liable is that it was involved in “ planning, supervision ... or observation of construction ” within the full meaning and protection of the statute.

Code of Civil Procedure § 337.15 was applied to bar liability (absent fraudulent concealment, which is not alleged here) for a developer's failure, more than ten years before, to warn home purchasers of a known incomplete repair of a prior landslide in Barnhouse v. City of Pinole (1982) 133 Cal.App.3d 171, 186-187, 183 Cal.Rptr. 881.   The liability claim dismissed in Barnhouse is legally indistinguishable from the City's purported duty to warn of landslide problems through recordation alleged here.   It is irrelevant that the defendant in Barnhouse was a developer while the defendant here is a public agency.

As we have already noted, the protection of the ten year limitation of § 337.15 applies equally to governmental agencies.   In Magnuson-Hoyt v. County of Contra Costa, supra, a road was constructed pursuant to county standards by a private developer, accepted by the county as a public road, and then conveyed by the county to a newly incorporated city.   The court held that the county's involvement in permitting and overseeing construction of the road brought it within the ambit of section 337.15:  “Section 337.15 clearly and unambiguously expresses a legislative intent to put a 10-year limit on latent deficiency liability exposure for ‘any person’ performing certain activities in making improvements to real property.   Among the activities covered by the statute are performing or furnishing the design or specifications of the improvement.   There is nothing in the words of the statute that suggests a public or governmental entity which has engaged in one of the specified activities is precluded from asserting the statute as a defense.   Consequently, resort to the legislative history of section 337.15 is unnecessary.   We therefore hold that the provisions of section 337.15 can apply to claims against governmental and public entities.”  (228 Cal.App.3d at pp. 143-144, 278 Cal.Rptr. 770, fn. omitted;  see also Nelson v. Gorian & Associates, Inc. (1998) 61 Cal.App.4th 93, 95, 71 Cal.Rptr.2d 345 [applying § 337.15 to all defendants, including a soils engineer who only “observed the grading and performed soils tests”].)  The City's involvement in the development on appellant's property here is not distinguishable from the county's involvement in Magnuson-Hoyt or from the soils engineer's involvement in Nelson.   Certainly, substantially more than ten years elapsed following substantial completion of all development activities in which plaintiff claims the City was involved.

 Claims of damages for injuries alleged to have been suffered at times remote from the acts which caused those injuries must be balanced against the fundamental purpose of limitations statutes “to protect potential defendants by affording them an opportunity to gather evidence while facts are still fresh.”  (Davies v. Krasna (1975) 14 Cal.3d 502, 512, 121 Cal.Rptr. 705, 535 P.2d 1161.)   In the case of injuries allegedly caused by latent defects in property development and construction, that balancing has been performed by the Legislature in its enactment of Code of Civil Procedure section 337.15.   There is no rational reason to construe section 337.15 as intending to single out public agencies as liable for latent construction defects discovered beyond the ten-year period, while all others involved in the development process, with perhaps even greater responsibility for a particular loss, are insulated from liability.   We therefore conclude that plaintiff's claims are time barred by Code of Civil Procedure section 337.15.

DISPOSITION

The judgment is affirmed.   The City shall recover its costs on appeal.

FOOTNOTES

1.   As this case comes to us on demurrer, we accept as true the well-pled allegations of plaintiff's complaint.   The facts which we recite are taken from either the first amended complaint or plaintiff's summary and characterizations thereof in his briefs on appeal.

2.   LAMC section 91.0308(d) (1966 Version) provided:“Whenever the Superintendent of Building determines by inspection that a property, either improved or unimproved, is unstable because of landslide, subsidence or inundation he shall give written notice to the owner that the property is substandard․  [¶]․  [¶] At the time of giving the above mentioned notice, the Superintendent of Building shall also file with the office of the County Recorder a certificate that the property is substandard and that the owner therefor has been so notified.   The certificate shall specify conditions creating substandard classification.  [¶] Upon notice of correction of the unstable conditions due to landslide, subsidence or inundation the Superintendent of Building shall file with the office of the County Recorder a certificate specifying that the property is no longer considered substandard due to landslide, subsidence or inundation.”

3.   LAMC section 91.0203(2) then provided:  “The Department shall have the authority to withhold a building permit where the proposed building site is in an area subject to slides or unstable soil.   If the Department finds that the above hazards are not likely to be of such extent as to be an immediate hazard to occupancy or the proposed building, the Department shall issue a building permit upon receipt of a sworn affidavit which has been recorded by the County Recorder, stating that the applicant is fully aware that the site is in an area subject to slides or unstable soil.  [¶] Areas requiring the affidavit shall be established by the Department after public hearings on the location of such areas are held by the Board of Building and Safety Commissioners.”

4.   LAMC section 91.3011(d)(1) then provided:  “No building or grading permits shall be issued for construction in active or historic landslide areas until, and unless, stabilization on the entire slide or soil mass on which the property lies can be satisfactorily demonstrated to the Department.”

5.   However, as plaintiff acknowledges, all of the historical landslide information regarding the property was available in the public records of the City. Following the 1994 earthquake, plaintiff's attorneys obtained all of the information alleged in the complaint from an inspection of the City's records relating to the property.   Plaintiff alleges no explanation of why this option of discovery was not utilized by him prior to his purchase of the property in September of 1991.   That the coastal bluff was unstable and subject to repeated landslide activity was a fact commonly known to anyone who regularly traveled on the Pacific Coast Highway.

6.   LAMC section 91.0305, on which plaintiff's fourth cause of action was based, provided, prior to 1979:“Whenever any construction work is being done contrary to the provisions of any law or ordinance enforced by the Department, the Superintendent of Building shall issue a written notice to the responsible party to stop work on that portion of the work on which the violation has occurred.   The notice shall state the nature of the violation and no work shall be done on that portion until the violation has been rectified and approval obtained from the Department.”

7.   The court granted the City's motion for judgment on the pleadings with respect to plaintiff's original complaint;  however, it granted plaintiff leave to amend.

8.   In its judgment of dismissal the court stated:“NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that all causes of action brought by plaintiff Paul Haggis are dismissed on the following grounds:“As to the First Cause of Action, pursuant to Code Civ. Proc. §§ 337.15 and 338, and pursuant to Gov't Code § 818.6.“As to the Second, Third, and Fourth Causes of Action, pursuant to Code Civ. Proc. §§ 337.15 and 338, and pursuant to Gov't Code §§ 818.4, 818.6, and 818.8.”

9.   All further statutory references shall be to the Government Code except as otherwise noted.

10.   As already noted, the City disputes that the relevant LAMC sections relied upon by plaintiff impose mandatory or ministerial duties.   The City contends that, when viewed in context, its authority to grant or deny development permits is what is really embraced by these LAMC sections and thus they actually involve discretionary acts for which there is immunity under section 818.4.   We express no opinion on this issue as we do not need to reach it;  our arguendo acceptance of plaintiff's characterization of the LAMC burdens as “mandatory” ones should not be construed as an endorsement thereof.

11.   Section 337.15 provides, in relevant part:“(a) No action may be brought to recover damages from any person, or the surety of a 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.“(b) As used in this section, ‘latent deficiency’ means a deficiency which is not apparent by reasonable inspection.“․“(g) The 10-year period specified in subdivision (a) shall commence upon substantial completion of the improvement, but not later than the date of one of the following, whichever first occurs:“(1) The date of final inspection by the applicable public agency.“(2) The date of recordation of a valid notice of completion.“(3) The date of use or occupation of the improvement.“(4) One year after termination or cessation of work on the improvement.“The date of substantial completion shall relate specifically to the performance or furnishing design, specifications, surveying, planning, supervision, testing, observation of construction or construction services by each profession or trade rendering services to the improvement.”

CROSKEY, Acting Presiding Justice.

KITCHING and ALDRICH, JJ., concur.

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