REGENTS OF the UNIVERSITY OF CALIFORNIA, a corporation, Plaintiff and Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and Respondent.
Plaintiff, the owner of a married student apartment housing project, seeks damages because of defects in the finished apartments from the architects who designed the project, the general contractor who constructed the project, and the surety on the latter's performance bond. It has appealed from a summary judgment in favor of the surety company.1 The judgment is predicated upon the provisions of section 337.15 of the Code of Civil Procedure2 which prescribes a ten-year period of limitation for an action to recover damages for a latent deficiency in the design or construction of an improvement to real property.
Plaintiff contends that the provisions of section 337.15 are not applicable to its cause of action against the surety because the statute by its terms does not expressly include causes of action which had accrued prior to its effective date, because application of the statute failed to allow plaintiff a reasonable time within which to sue, because the statute by its terms does not include the liability of the surety, and because the obligation of the surety on its bond is severable and independent and is not barred even though an action against the contractor, principal on the bond, may be. It insists that there are triable issues of fact concerning the scope of the surety's obligation under the performance bond, and with respect to the reasonableness of the time under the new statute within which to file an existing cause of action for the recovery of damages caused by latent construction deficiencies. On appeal plaintiff for the first time seeks to attack the provisions of section 337.15 as unconstitutional. These contentions are examined and found wanting. The judgment must be affirmed.
The facts bearing on these issues are contained in the declarations filed in support of and in opposition to the defendants' motions for summary judgment, plaintiff's response to a request for admissions, and plaintiff's response to interrogatories. The following facts are not controverted. In April and May 1960 the owner contracted with the architect. On December 8, 1960, it entered into a contract for the construction of the apartment complex with the general contractor, and on December 19, 1960, the defendant surety company executed the performance bond which is the subject of this proceeding. On September 2, 1962, the work of improvement on the real property described in the complaint was substantially completed. In 1971 (Stats.1971, ch. 1569, § 1, p. 3148) the Legislature added section 337.15 to the Code of Civil Procedure and it became effective March 4, 1972. In January 1972, plaintiff first discovered that portions of the apartment project's balconies and the structural members supporting them were beginning to deteriorate because of moisture infiltration and concentration which resulted in dry rot. For purposes of this appeal it must be assumed that any deficiency in the design or construction of the balconies was not apparent from reasonable inspection prior to that time. On July 5, 1974, the owner filed its action against the architect, the general contractor, and the surety company. So far as is material here, the complaint against the contractor was in three counts based respectively on negligence,3 implied warranty,4 and breach of contract. Each of these counts is referred to in a separate count seeking recovery from the surety under the provisions of the performance bond.
The owner contends, and the surety does not controvert, that in the absence of the application of provisions such as were enacted in section 337.15, the statute of limitations would not commence to run against the contractor until the discovery of the defect. In Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 12 Cal.Rptr. 257, 360 P.2d 897, the court observed, with respect to failure of tubing used for an embedded radiant heating system, ‘We are satisfied . . . that this is a case which could properly be found to come within the operation of the principle that, if a warranty relates to a future event before which the defect cannot be discovered by the exercise of reasonable diligence, the warranty, though accompanied by a representation as to present condition, is prospective in character and the statute of limitations begins to run as of the time of that event. . . . [T]he principle in question has been followed with respect to implied as well as express warranties, and it has long been recognized in this state that the time when the statute of limitations begins to run is the same whether a warranty is express or implied. [Citation]’ (55 Cal.2d at pp. 583–584, 12 Cal.Rptr. at p. 262, 360 P.2d at p. 902. See also Mack v. Hugh W. Comstock Associates (1964) 225 Cal.App.2d 583, 589, 37 Cal.Rptr. 466; Presiding bishop v. Cavanaugh (1963) 217 Cal.App.2d 492, 515, 32 Cal.Rptr. 144, and Southern Cal. Enterprises v. Walter & Co. (1947) 78 Cal.App.2d 750, 755, 178 P.2d 785.)
It is generally recognized that where there is a breach of an implied warranty of work or materials furnished under a written contract the period of limitations is the four years found in subdivision 1 of section 337 of the Code of Civil Procedure. (Aced v. Hobbs-Sesack Plumbing Co., supra, 55 Cal.2d 573, 583, 12 Cal.Rptr. 257, 360 P.2d 897; Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 662–663, 328 P.2d 198; Benard v. Walkup (1969) 272 Cal.App.2d 595, 603–604, 77 Cal.Rptr. 544; Mack v. Hugh W. Comstock Associates, supra, 225 Cal.App.2d 583, 589, 37 Cal.Rptr. 466; Presiding Bishop v. Cavanaugh, supra, 217 Cal.App.2d 492, 515–516, 32 Cal.Rptr. 144.) An action for negligent injury to property would be governed by the three-year period of section 338 of the Code of Civil Procedure. (See subds. 2 and 3.) (Bradler v. Craig (1969) 274 Cal.App.2d 466, 471, 79 Cal.Rptr. 401; and Mack v. Hugh W. Comstock Associates, supra, 225 Cal.App.2d 583, 589, 37 Cal.Rptr. 466.) Here again, the cause of action would arise when the latent defect first became apparent. (See Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 254–255, 73 Cal.Rptr. 127; and note Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564, 566–569, 80 Cal.Rptr. 130.)
‘The general rule is that the liability of a surety (in the absence of a different contractual provision) accrues at the same time as that of the principal, or upon default of the principal. [Citations.]’ (Bloom v. Bender (1957) 48 Cal.2d 793, 799, 313 P.2d 568, 572. See also part I below.) Therefore, if the new statute does not apply the court erred in granting summary judgment for the surety. (Code Civ.Proc. § 437c; Vesely v. Sager (1971) 5 Cal.3d 153, 169, 95 Cal.Rptr. 623, 486 P.2d 151; Wilson v. Bittick (1965) 63 Cal.2d 30, 34–35 and 36, 45 Cal.Rptr. 31, 403 P.2d 159; Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127, 109 Cal.Rptr. 724; and Garlock v. Cole (1962) 199 Cal.App.2d 11, 14–16, 18 Cal.Rptr. 393. Cf. Oxford v. Signal Oil & Gas Co. (1970) 12 Cal.App.3d 403, 410, 90 Cal.Rptr. 700.) In that event the plaintiff should have been permitted to offer proof at a trial concerning the alleged negligence, breach of warranty and breach of contract by the general contractor, the damages resulting therefrom, and the fact, as alleged, that said damages were not reasonably ascertainable until within two and one-half years of the time the action was filed.
We first address the owner's contention that the surety's liability is independent and severable, and is not discharged by the running of the statute of limitations against its principal. The pertinent provisions of the bond are set forth in the margin.5
In the first place the owner insists that the bond is an indemnity contract. As such it would be subject to the provisions of section 2778 of the Civil Code, which state in pertinent part, ‘In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: . . . 2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof; . . ..’ When the obligation is limited to an indemnity for loss, the cause of action against the indemnitor does not arise until the indemnitee has actually suffered the loss. (See Sunset-Sternau Food Co. v. Bonzi (1964) 60 Cal.2d 834, 843–844, 36 Cal.Rptr. 741, 389 P.2d 133 [principal's duty to indemnify agent for liability incurred in performance of the agency agreement]; Oaks v. Scheifferly (1887) 74 Cal. 478, 480–481, 16 P. 252 [principal's and sureties' obligation to indemnify sheriff on attachment bond which covered both liability and loss]; United States Credit Bureau v. Claus (1947) 79 Cal.App.2d 85, 87, 179 P.2d 36 [indemnitor's obligation to a surety on a contractor's bond for payments made by surety to complete work on contractor's default]; and Globe indemnity Co. v. Larkin (1944) 62 Cal.App.2d 891, 894, 145 P.2d 633 [indemnitor's liability to a surety on a broker's bond for payments made to satisfy judgment against broker]. Note also, Thode v. McAmis (1950) 96 Cal.App.2d 833, 836, 216 P.2d 548 [contractor's bond to indemnify owner for loss from mechanics liens]; and Alberts v. American Casualty Co. (1948) 88 Cal.App.2d 891, 898–899, 200 P.2d 37 [insurance against theft, embezzlement, etc. of employee].)
In Globe Indemnity Co. v. Larkin, supra, the court noted that where the agreement has a dual aspect in that it purports to indemnify against liability as well as against actual damages suffered through payment of the liability, an action will lie for payments actually made to satisfy the liability within four years although the liability may have arisen more than four years previously (62 Cal.App.2d at p. 894, 145 P.2d 633). Here it is suggested that the bonding company is an indemnitor who undertook to ‘save and hold harmless [the owner] from any and all loss or damage arising out of the failure of [the general] contractor, and/or any and all subcontractors, to fulfill [the] Contract and all alterations, modifications and extensions thereof . . ..’ Examination of the bond as a whole indicates that the above obligation is one attributed to the general contractor as principal and to the indemnity company as surety. Therefore, principles of suretyship rather than indemnity are applicable.
Civil Code section 2772 provides, ‘Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.’
Since 1939 (Stats.1939, ch. 453, § 10, p. 1796) section 2787 has read in pertinent part as follows: ‘. . . A surety or guarantor is one who promises to answer for the debt, default, or miscarriage of another, . . .’ Prior thereto the section read, ‘A guaranty is a promise to answer for the debt, default, or miscarriage of another person.’
In Somers v. United States F. & G. Co. (1923) 191 Cal. 542, 217 P. 746, the court, after citing the language found in former section 2787 and in section 2772, adopted and approved the following analysis: “Contracts of indemnity are distinguishable from those of guaranty and suretyship, in that in indemnity contracts the engagement is to make good and save another from loss upon some obligation which he has incurred or is about to incur to a third person, and is not, as in guaranty and suretyship, a promise to one to whom another is answerable.' 22 Cyc. 80. Viewing the bond herein as security against loss resulting from default in the payment of rent, it is clear that it must be regarded, not as a contract of indemnity, but as a contract of guaranty or suretyship. ‘The essential distinction between an indemnity contract and a contract of guaranty or suretyship is that the promisor in any indemnity contract undertakes to protect his promisee against loss or damage through a liability on the part of the latter to a third person, while the undertaking of a guarantor or surety is to protect the promisee against loss or damage through the failure of a third person to carry out his obligations to the promisee.’ 16 Am. & Eng. Ency. of Law, 168. Another distinction between the two is that the promise in an indemnity contract is an original and not a collateral undertaking (22 Cyc. 80), while a contract of guaranty is a secondary and not a primary obligation, and can exist only where there is some principal or substantive liability to which it is collateral. ‘If there is no primary liability on the part of the third person, either express or implied, that is, if there is no debt, default or miscarriage, present or prospective, there is nothing to guarantee, and hence there can be no contract of guaranty.’ 28 C.J. 887.' (191 Cal. at p. 547, 217 P. at p. 749. See also U. S. Leasing Corp. v. duPont (1968) 69 Cal.2d 275, 290, 70 Cal.Rptr. 393, 444 P.2d 65; Atowich v. Zimmer (1933) 218 Cal. 763, 769, 25 P.2d 6; Garfield v. Ford (1923) 191 Cal. 69, 71, 214 P. 963; Glassell v. Coleman (1892) 94 Cal. 260, 268, 29 P. 508; Ingalls v. Bell (1944) 43 Cal.App.2d 356, 365–368, 110 P.2d 1068; Goatman v. Pacific Ready-Cut Homes, Inc. (1931) 112 Cal.App. 397, 402, 297 P. 68, and Mahana v. Alexander (1927) 88 Cal.App. 111, 115–118, 263 P. 260.)
The tripartite relationship between the owner, the general contractor and the surety is controlled by the provisions on suretyship found in the Civil Code rather than those regulating contracts of indemnity.6 The question is whether under the circumstances of this case the surety can assert the provisions of the statute of limitations as enacted in section 337.15, if they are applicable to its principal, the general contractor, or whether the surety may be held liable for the nonfeasance or misfeasance of the contractor if the action is filed during the period of limitation formerly in effect, despite the fact that an action against the contractor might be barred.
The owner relies on the provisions of section 2825 of the Civil Code,7 and certain precedents which appear to establish unequivocally that the obligation of the surety remains notwithstanding the fact that the statute of limitations has run on the obligation of the principal. (Bloom v. Bender, supra, 48 Cal.2d 793, 798, 313 P.2d 568; Gaffigan v. Lawton (1934) 1 Cal.2d 722, 723–724, 37 P.2d 79; Whiting v. Clark (1861) 17 Cal. 407, 411; and Gill v. Johnson (1935) 8 Cal.App.2d 369, 372, 48 P.2d 139. See also Carver v. Steele (1897) 116 Cal. 116, 119, 47 P. 1107; and Gump v. McPherson (1934) 136 Cal.App. 778, 781–782, 29 P.2d 893 [failure of creditor to foreclose mortgage on property of principal debtor]; Bull v. Coe (1888) 77 Cal. 54, 60, 18 P. 808 [failure to file claim in principal debtor's estate]; and County of Los Angeles v. Security Ins. Co. of Hartford (1975) 52 Cal.App.3d 808, 817, 125 Cal.Rptr. 701 [rule noted].)
On the other hand reference may be made to the provisions of sections 2809, 2810 and 2819 of the Civil Code,8 and the general principle expressed in U. S. Leasing Corp. v. duPont, supra, as follows: “The obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal . . ..' (Civ.Code, § 2809.) Therefore, since the liability of a surety is commensurate with that of the principal, where the principal is not liable on the obligation, niether is the guarantor. [Citations.]' (69 Cal.2d at p. 290, 70 Cal.Rptr. at p. 403, 444 P.2d at p. 75. See also Somers v. United States F. & G. Co., supra, 191 Cal. 542, 547, 217 P. 746, and cases cited above following the quotation from that case.) Moreover, in Flickinger v. Swedlow Enqineering Co. (1955) 45 Cal.2d 388, 289 P.2d 214, the court, in holding that the surety was discharged by the failure of the creditor to successfully assert a counterclaim in an action by the principal against the creditor, quoted with approval, “Sureties on a bond have a legal right to avail themselves of all defenses that would be allowed the principal and are generally in no worse position than he would be if sued separately.' 8 Cal.Jur.2d, § 82, p. 691; County of Sonoma v. Hall, 132 Cal. 589, 593–594, 62 P. 257, 312, 65 P. 12, 459.' (45 Cal.2d at p. 394, 289 P.2d at p. 218.) In the case relied upon in the Flickinger decision, the court in an approved Department opinion stated, ‘It follows that, independent of the official bond, the cause of action was barred at the time it was commenced as to defendant Hall. If there had been no bond executed by Hall, and this action had been brought against him alone, there would be no doubt but that it was barred at the time it was commenced. Does the statute apply to the sureties on the written undertaking, or, in other words, can the sureties on the official bond plead the statute which has run against the cause of action? [¶]Sureties are never held beyond the strict terms of their contract, and in general they have the defenses that would be allowed by their principal. The object of requiring a bond from a public officer is that the county or state may be secured from any injury caused by the neglect of duty or dishonest act of the official. Here the bond was security to the county, and given, among other things, for the purpose of indemnifying the county against the loss that it might suffer by the failure of Hall to pay the amount in controversy. The county had the right to look to the bond as security for the amount of all damages caused by the breach thereof, but it also owed a duty to the sureties. It should have brought the action for breach before such action had become barred by the statute.’ (County of Sonoma v. Hall (1901) 132 Cal. 589, 593–594, 62 P. 257. See also Paige v. Carroll (1882) 61 Cal. 211, 213–214; Breckenridge v. Mason (1967) 256 Cal.App.2d 121, 130, 64 Cal.Rptr. 201; Anderson v. Shaffer (1929) 98 Cal.App. 457, 460–469, 277 P. 185 and Towle v. Sweeney (1905) 2 Cal.App. 29, 34, 83 P. 74 [disapproved Gaffigan v. Lawton, supra, 1 Cal.2d 722, 724, 37 P.2d 79]. Note also Santa Ana Sugar Co. v. Smith (1931) 116 Cal.App. 422, 431, 2 P.2d 866; and Ebner v. West Hollywood T. Co. (1919) 45 Cal.App. 186, 189, 187 P. 114.)
The confusion engendered by the conflicting implications of the code sections and the existing precedents with respect to the effect on the liability of the surety of the running of the statute of limitations on the principal debt has been the subject of comment. (Rintala, Suretyship Law (1969) 17 U.C.L.A.L.Rev. 245 at pp. 298–314.) The author severely criticizes the rationale of those cases dealing with the question since the adoption of the Civil Code sections.. In view of the conflict, and the necessity of determining whether the legislation intended that the provisions of Code of Civil Procedure section 337.15, if applicable to the contractor, may be asserted by the surety, it is necessary to further examine the cases dealing with the subject.
In Whiting v. Clark, supra, the opinion recites, ‘The only thing set up in defense which it is necessary to notice is, the plea that no suit has been brought to charge the original debtor, and that the Statute of Limitations bars the claim as to him.’ (17 Cal. at p. 411.) The court held that the two-year statute on the written bond prevailed, although suit was brought subsequent to the one-year period in which the principal was subject to suit on an open book account. In answer to the surety's complaint that he could not recover from the principal for a payment of his barred debt, the court stated, ‘the surety had in his own hands the means of protecting himself from loss by delay, by paying the debt and then suing the principal, or be filing a bill to compel the creditor to sue.’ (Id. Cf. Civ.Code, §§ 2845 and 2847.9 ) The foregoing rationale presupposes that claim is made upon the surety at a time when such action may be taken against the principal. If not, application of the remedy in the present case would defeat the protection intended for the contractor10 by rendering the contractor liable on the barred claims because of its duty to indemnify the surety.
In Anderson v. Shaffer, supra, the court considered that the views expressed in Whiting v. Clark, supra, had been abandoned by the Supreme Court's stand in Paige v. Carroll, supra, and County of Sonoma v. Hill, supra (see 98 Cal.App. at pp. 460–461, 277 P. 185). In holding that the guarantor could not be held when the principal debt was barred, it adopted the reasoning expressed in dictum in Ebner v. West Hollywood T. Co., supra, reading as follows: ‘That principle is that the guarantor has certain rights of subrogation against the principal and, therefore, if the creditor allows the obligation of the principal debtor to expire by limitation, he seriously injures the guarantor, who is thus deprived of his remedy against the principal,, and for this reason the creditor may not, under such circumstances, enforce the guaranty.’ (98 Cal.App. at p. 462, 277 P. at p. 188, quoting 45 Cal.App. at p. 189, 187 P. 114.) In our opinion this principle is applicable in the present case. When the Legislature determined to limit the right of action against the contractor-principal it must have understood that unless the right against the surety was similarly curtailed, there would be a violation of the surety's rights of subrogation which would release the surety. (See People v. Fidelity, etc., Co. of Maryland (1938) 28 Cal.App.2d 325, 333, 82 P.2d 495.) No opinion is expressed as to the liability of a surety who undertakes his obligation with knowledge of the new statute and who fails to limit its obligation accordingly.
The cases relied upon for the general proposition that the obligation of the surety remains notwithstanding that the statute of limitations has run on the principal obligation must be read in their setting. In Gaffigan v. Lawton, supra, the contractor-principal , and the surety, as in this case, had each executed the bond, and the court in overruling Towle v. Sweeney, could properly find that each was liable for the period in which an action could be brought on a written instrument (1 Cal.2d at pp. 723–724, 37 P.2d 79). The question of whether the failure of the creditor to press his rights constituted an ‘intervention or omission of the creditor’ (see Civ.Code, § 2825) was disposed of without comment. Although the court accepts what it conceives to be a more reasonable and logical rule, it fails to come to grips with the provisions of section 2810 that a surety ‘is not liable if for any other reason [than ‘any mere personal disability'11 ] . . . the liability of the principal . . . ceases' after ‘the time of the execution of the contract.’ Although the court resurrected Whiting v. Clark, it failed to overrule, much less mention, the three cases referred to above which expound a contrary doctrine. (Id.)
In Gill v. Johnson, supra, the action was brought on a statutorily created right against the state within the period provided in the statute. It is questionable whether the state was surety for the fraudulent party. In any event it appears that the statute may have run against the alleged principal after the action was filed against the so-called surety on its independent obligation. He was only brought in later, and then waived any limitations by defaulting. (See 8 Cal.App.2d pp. 371–372, 48 P.2d 139.) The case adds nothing to the rule upon which the owner relies in this case.
In Bloom v. Bender, supra, the four-year period of limitation was applied to both the principal and the surety, and the court found that the running of the statute was tolled as to the guarantor by his absence from the state (48 Cal.2d at p. 797, 313 P.2d 568). The court recognized Anderson v. Shaffer, supra, as holding that the bar of the statute of limitations against an action on the obligation of a principal foreclosed recovery from the guaranty (id., at pp. 797–798, 313 P.2d 568). It apparently assumed that the abolition of the distinction between surety and guarantor enacted in 1939 brought a guarantor within the province of the later cases (id., p. 798, 313 P.2d 568. Cf. Rintala, op. cit., 17 U.C.L.A.L.Rev., at pp. 308–309). Here again the court failed to treat with the reasoning of the earlier cases, or the express provisions of sections 2809 and 2810 as amended in 1939. Insofar as Bloom holds that where the principal and the surety or guarantor, since 1939, are both liable, the statute of limitations may be tolled against the surety by his absence from the state, it is distinguishable from the instant case. Moreover, the delay in suing the guarantor may be attributed to the latter's absence from the state, and not the ‘omission of the creditor.’ (Cf. Civ.Code, § 2825.)
Section 337.15 does not expressly refer to the liability of one who stands as surety for the class of persons to whom the statute applies as designated in subdivision (a), or for the class of persons excluded from the statute by the provisions of subdivision (e).12 The owner urges that the failure to mention the surety on a bond of one who performs any of the functions referred to in subdivision (a), permits an action to be maintained against such surety even though any cause of action against the principal would be barred. It is equally arguable that the Legislature, by failure to mention persons assuming the liability of those in subdivision (a) among those who are referred to in subdivision (e) as excluded from the provisions of the statute, intended that the normal rules of suretyship would apply and that such sureties would be excluded. (See People v. Fidelity, etc., Co. of Maryland, supra, 28 Cal.App.2d 325, 333, 82 P.2d 495.)
Reference is also made to several provisions of the bond. By its terms the surety became liable to ‘fully reimburse and repay to [the owner] all outlay and costs which [the owner] may incur . . . in the replacing and/or making good of any defective material or faulty material or faulty workmanship in the work of the Contractor and/or any and all subcontractors which may be discovered within one year subsequent to the completion and acceptance of the work . . .’ (Emphasis added.) Owner contends that there is distinction between its cause of action arising from the failure of the contractor to properly construct the work, and a cause of action arising from the contractor's failure to correct patent defects. Although the clause suggests that the contractor's liability for defects which were not discoverable within one year was to be excluded from the liability assumed by the surety, it does not expressly so state. Under those circumstances the owner is entitled to proceed on the surety's liability in connection with other obligations of the contractor, including its continuing obligation with respect to damages from latent, non-discoverable, defects as outlined in the earlier discussion concerning the statute of limitations. (See Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal.App.3d 948, 959–960, 111 Cal.Rptr. 210.) Nevertheless the clause should not be used to impose a greater responsibility on the surety than on its principal.
The bond further provides ‘that the liability of said Principal and said Sureties shall at all times, and under all circumstances be coextensive . . ..’ (See fn. 5 above.) The owner contends that the foregoing phrase if read in context is directed to the agreement that the surety is not be released because of any alteration, modification, departure of deviations of or from the terms of the contract, and that it is not directed toward releasing the surety if the principal might be released. It is unnecessary to examine the contrary argument advanced by the surety because as we have seen the liability of the surety under the circumstances of this case is measured by the liability of the principal.
The owner contends that the statute, as effective March 4, 1972, should not be given retroactive operation and should only apply to developments and improvements substantially completed after that date. Under that construction the new statute could not affect the time to file an action against either the contractor or the surety, and it would leave the period of limitation as it existed prior to the effective date of the statute. On the other hand, the subject of the section is actions, and it may be said that it was intended to confer a defense to all actions of the nature embraced therein which were filed after the effective date of the statute. It would only be considered retroactive if there was an attempt to apply the statute to a pending action which had been filed more than ten years after the completion of the development or improvement involved.
The statute may be considered as retroactive or retrospective if it is construed to operate on matters which have occurred or rights or obligations which existed before the law went into effect. (See Aetna Cal. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 391, 182 P.2d 159; and Los Angeles Bond, etc., Co. v. Heath (1932) 120 Cal.App. 328, 332–333, 7 P.2d 1089.) It is clear, however, that no one has a vested interest in the time fixed for the commencement of a civil action, and that the Legislature may alter the period of limitation with respect to the assertion of accrued rights provided that adequate means of enforcing those rights remain. ‘It is settled that the Legislature may enact a statute of limitations ‘applicable to existing causes of action or shorten a former limitation period, if the time allowed to commence the action is reasonable.’ Mercury Herald Co. v. Moore, 22 Cal.2d 269, 275, 138 P.2d 673, 676, A.L.R. 1111; also, Security-First National Bank v. Sartori, 34 Cal.App.2d 408, 414–415, 93 P.2d 863.' (Scheas v. Robertson (1951) 38 Cal.2d 119, 125, 238 P.2d 982, 986. See also Rand v. Bossen (1945) 27 Cal.2d 61, 65–66, 162 P.2d 457; Rosefield Packing Corp. v. Superior Court (1935) 4 Cal.2d 120, 122, 47 P.2d 716; Kerckhoff-Cuzner Mill & Lumber Co. v. Olmstead (1890) 85 Cal. 80, 84, 24 P. 648; Baldwin v. City of San Diego (1961) 195 Cal.App.2d 236, 240, 15 Cal.Rptr. 576; County of Alameda v. Superior Court (1960) 187 Cal.App.2d 502, 505, 10 Cal.Rptr. 84; Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600, 274 P.2d 476; Casey v. Katz (1952) 114 Cal.App.2d 391, 393, 250 P.2d 291; Rombotis v. Fink (1948) 89 Cal.App.2d 378, 386, 201 P.2d 588; Bank of America Assn. v. Dennison (1935) 8 Cal.App.2d 173, 176, 47 P.2d 296; and Los Angeles Bond, etc., Co. v. Heath, supra, 120 Cal.App. 328, 338, 7 P.2d 1089.)
A preliminary question is the intention of the Legislature. The question of the constitutionality of retroactive legislation and the question of the applicability of a rule of statutory construction are distinct. (See Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d 398, 393–394, 182 P.2d 159.) In the case last cited the court noted, ‘In other words, procedural statutes may become operative only when and if the procedure or remedy is invoked, and if the trial postdates the enactment, the statute operates in the future regardless of the time of occurrence of the events giving rise to the cause of action. [Citation.] In such cases the statutory changes are said to apply not because they constitute an exception to the general rule of statutory construction, but because they are not in fact retrospective. There is then no problem as to whether the Legislature intended the changes to operate retroactively.’ (Id., p. 394, 182 P.2d p. 161.) Nevertheless, the owner asserts that the matter should be governed by section 3 of the Code of Civil Procedure, which reads, ‘No part of [this Code] is retroactive, unless expressly so declared.’ (See Aetna Cal. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d 388, 393, 182 P.2d 159 [increase in compensation benefits only applies to injuries incurred after effective date of increase]; Gordon H. Ball, Inc. v. State of California ex rel. Dept. Pub. Wks. (1972) 26 Cal.App.3d 162, 170, 102 Cal.Rptr. 637 [right to deposit security and secure monies withheld on state contract (Gov.Code, § 14402.5) only applies to contracts entered into after effective date]; Baldwin v. City of San Diego, supra, 195 Cal.App.2d 236, 241, 15 Cal.Rptr. 576 [limitation on time to file claims for pensions construed as prospective with respect to prior accrued claims]; Helm v. Bollman (1959) 176 Cal.App.2d 838, 841–843, 1 Cal.Rptr. 723 [new penalties for injuries to timber (Civ.Code, § 3346) only apply to injuries after effective date]; and Bank of America Assn. v. Dennison, supra, 8 Cal.App.2d 173, 177–180, 47 P.2d 296 [limitations on deficiency judgment (Code Civ.Proc., §§ 337 and 580a) only apply to sale under power of sale after effective date].) With the exception of Baldwin in which the application of the statute to all claims would have cut off vested accrued pension rights, the foregoing precedents did not deal with limitations on the assertion of a cause of action.
The provisions found in section 337.15 were placed in chapter 3 of title 2 [‘Of the Time of Commencing Civil Action’] of part 2 [‘Of Civil Actions'] of the Code of Civil Procedure. That chapter deals with the time of commencing actions other than for the recovery of real property. Its provisions must be read in connection with section 312 which states: ‘Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.’ Chapter 3 begins, ‘The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:’ (§ 335.) There follows generally sections setting forth a designated period, i.e. ‘Within five years:’ (§ 336, see, §§ 336a, 337, 337.5, 338, 339, 340, 341, and 349 3/4.) Other sections appear to concern themselves with special cases. So, in section 337.15 we find the positive statement ‘No action may be brought . . ..’ In determining the intent of the Legislature, section 362 and not chapter 3 should control. Section 362 provides, with respect to all of the chapters dealing with the time of commencing civil actions, ‘This Title does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run, but the laws now in force are applicable to such actions and cases, and are repealed subject to the provisions of this section.’ It is clear that the only exclusion from the operation of the statute are causes of action on which an action has already been commenced, and causes of action already barred. Here, as we have seen, the action as pleaded was not barred under prior law, but neither was it filed prior to the effective date of the new statute. Therefore the new statute should control insofar as it is constitutionally permissible for it to be so applied.
Furthermore, we note that ‘Statutes of limitation are ‘within the jurisdictional power of the legislature of a state’, Saranac Land & Timber Co. v. Comptroller of N. Y., 177 U.S. 318, 324, 20 S.Ct. 642, 645, 44 L.Ed. 786; they are ‘vital to the welfare of society and are favored by the law . . . to be viewed as statutes of repose, and as such constitute meritorious defenses.’ Fontana Land Co. v. Laughlin, 199 Cal. 625, 636, 250 P. 669, 674, 48 A.L.R. 1308.' (Scheas v. Robertson, supra, 38 Cal.2d 119, 125–126, 238 P.2d 982, 986.) In Coast Bank v. Holmes (1971) 19 Cal.App.3d 581, 97 Cal.Rptr. 30, the court found that the provisions of Civil Code section 1717 which made the contract right to attorney's fees reciprocal should be applied to contracts entered into prior to the effective date of the statute. The court stated, ‘The rule against giving statutes retroactive operation unless the intent to do so clearly appears is subordinate to the more fundamental rule of construction that a statute should be interpreted to effectuate legislative intent. [Citation.] [¶] The clear inference to be drawn from the language of section 1717 is that the legislature intended the statute to be operative on past as well as future contracts. The second paragraph of the section provides: ‘Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. . . .’ (Emphasis supplied.) (Civ.Code, § 1717.) The italicized phrase would have been superfluous had the legislature intended the entire section to apply only in futuro.' (19 Cal.App.3d at p. 595, 97 Cal.Rptr. at p. 38.) So here subdivision (d) of section 337.15 makes it clear that the section is one of limitation and not designed to extend or revive causes of action already barred, although completion was within the ten-year period.
In Coast Bank, the court also quoted from Abrams v. Stone (1957) 154 Cal.App.2d 33, 315 P.2d 453, as follows: ‘In the construction of remedial statutes such as the one now before us regard must always be had for the evident purpose for which the statute was enacted, and if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied, although the statute does not, in terms, so direct, unless, of course, to do so would impair some vested rights or impinge upon some constitutional guaranty [citation].’ (154 Cal.App.2d at p. 42, 315 P.2d at p. 459. See 19 Cal.App.3d at p. 595, 97 Cal.Rptr. 30.) Here it is obvious that the intent of the statute is, as has been stated, to ‘terminate substantive liability by decreeing that after the passage of a specified time the causal connection between defect and injury will no longer be legally recognized.’ (See Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 642, fn. 10, 105 Cal.Rptr. 890, 896 above; and see Code Civ.Proc., § 340.5.) If public policy, as enunciated through the act of the Legislature, requires that disputes involving alleged breach of contract or negligence in the development or improvement of real estate should find repose, with respect to the parties mentioned in the statute, in any event at the expiration of ten years, there is no reason to distinguish between developments substantially completed before or after the effective date of the statute. It is therefore concluded that the Legislature intended the statute to apply to existing causes of action insofar as it was constitutionally possible so to do.
The owner points out that in a significant number of the cases in which shortening of the limitation period was upheld, there was an express provision of a period in which accrued rights, still cognizable under the preexisting law, could be asserted. (See Scheas v. Robertson, supra, 38 Cal.2d 119, 125, 238 P.2d 982; and Rombotis v. Fink, supra, 89 Cal.App.2d 378, 384, 201P.2d 588 [lienholders given at least 15 1/2 months to foreclose]; and Mercury Herald Co. v. Moore (1943) 138 P.2d 673, 22 Cal.2d 269 [new procedure for extinguishing a lien inapplicable until a year after effective date].) On the other hand, in Rosefield Packing Corp. v. Superior Court, supra, where a change was made in the computation of the time after which it is compulsory to dismiss an action not brought to trial (Code Civ.Proc., § 583), the court granted a writ of prohibition against trial of an action not brought to trial within the new period. The court stated, ‘In the instant case, the statute went into effect on August 21, 1933. The 5-year period from the filing of the complaint ended August 17, 1934. The plaintiff, therefore, had practically an entire year to bring his case to trial, after the enactment of the amendment. There can be no doubt but that this was a reasonable time, and that consequently the amended statute may be applied to the action without violating any constitutional right of the plaintiff. Much shorter periods have been upheld. [Citations.]’ (4 Cal.2d at p. 123, 47 P.2d at p. 717. See also Kerckhoff-Cuzner Mill & Lumber Co. v. Olmstead, supra, 85 Cal. 80, 85, 24 P. 648; and County of Alameda v. Superior Court, supra, 187 Cal.App.2d 502, 505, 10 Cal.Rptr. 84.)13 In Miami Valley C. P. Co. v. Pacific Nat. Back (1936) 13 Cal.App.2d 621, 57 P.2d 233, the court rejected a similar contention that the failure of the amendments to section 583 of the Code of Civil Procedure (see fn. 13, supra) to provide an express period of time within which to set prior actions for trial rendered the amendments unconstitutional as to such action. (13 Cal.App.2d at pp. 623–624, 57 P.2d 233. Cf. O'Connor v. Altus (1975) 67 N.J. 106, 335 A.2d 545, with Misitis v. Steel City Piping Co. (1971) 441 Pa. 339, 272 A.2d 883.)
In this case the provisions of the new statute did not operate to bar the existing cause of action.14 They may, therefore, be applied to the action which was not filed until after they became effective. The question of whether the nine-month period from the discovery of the injury in January 1972 to the time of the expiration of the ten-year period in September 1972 was a reasonable period, may more appropriately be considered in connection with the owner's contention that such issue raised a triable question of fact.
The owner asserts that it was an error to grant the surety under section 437c of the Code of Civil Procedure a summary judgment because the record reflects two triable issues of fact.
It is asserted that insofar as the new statute is applied, the question of what is a reasonable time after its enactment within which to file an action (see part II above, and Rossi v. Caire (1921) 186 Cal. 544, 548, 199 P. 1042) is a question of fact. Some support for this view is found in Day v. Metropolitan Life Ins. Co. (1936) 11 Cal.App.2d 681, 54 P.2d 502. There, by way of example, the court stated, with respect to the necessity of establishing violation of a particular individual constitutional right when a statute is not unconstitutional on its face, ‘This principle is illustrated in the numerous cases which have arisen relating to the application of statutes of limitation generally. If the time fixed by a statute within which an action may be commenced, or a right asserted, is an unreasonable time, the statute will not be declared unconstitutional or void for that reason, but the courts will permit the action to be brought within such time as may be found to be reasonable. 5 Cal.Jur., p. 755; Doehla v. Phillips, 151 Cal. 488, 491, 91 P. 330; Rhoda v. Alameda County, 134 Cal.App. 726, 735, 26 P.2d 691. The question as to what is a reasonable time for that purpose is more or less a question of fact, and, like the question of the reasonableness of police regulations, the courts may look to the general circumstances and conditions arising out of the particular case. Abbey Land & Improvement Co. v. County of San Mateo, 167 Cal. 434, 139 P. 1068, 52 L.R.A.(N.S.) 408 . . .’ (11 Cal.App.2d at p. 684, 54 P.2d at p. 503.)
It is noted that it is ‘the courts' which may look to the general circumstances and conditions arising out of a particular case. Reference to the authorities cited reflects two references to Terry v. Anderson (1877) 95 U.S. 628, 24 L.Ed. 365 where the court said: ‘The parties to a contract have no more a vested interest in a particular limitation which has been fixed, than they have to an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and as to the forms of action or modes of remedy, it is well settled that the legislature may change them at its discretion, provided adequate means of enforcing the right remain.’ (95 U.S. at p. 633. See Doehla v. Phillips (1907) 151 Cal. 488 at p. 492, 91 P. 330; and Rhoda v. County of Alameda (1933) 134 Cal.App. 726 at p. 735, 26 P.2d 691.)
The question is one of law to be determined by the court. The circumstances referred to in the case on which the owners rely, are the facts concerning whether the new limitation cuts off all right to sue, and, if not, the time remaining in which an action may be commenced. Those facts are not disputed. Support for this view is found in Rosefield Packing Corp. v. Superior Court, supra, where the court stated with respect to an earlier case (see fn. 13 above). ‘It is clear that the Shoemaker case proceeds upon an erroneous interpretation of the principle considered in the Coleman case. Whether there was a reasonable time in these cases is not a matter committed to the discretion of the trial court. The question is one of constitutionality of the statute which in terms applies to the pending case; and if it appears that there was a reasonable time for exercise of the remedy before the statutory bar became fixed, the lower court cannot consider individual hardship or other circumstances, but must give effect to the express provisions of the law. On this point the case of Shoemaker v. Superior Court, supra, must be disapproved.’ (4 Cal.2d at p. 124, 47 P.2d at p. 718. See also Capeheart v. Heady (1962) 206 Cal.App.2d 386, 388, 23 Cal.Rptr. 851.)
We have no hesitancy in holding that the nine-month period in which the owner could have filed an action against the contractor and its surety was as a matter of law a reasonable period. (See Terry v. Anderson, supra, 95 U.S. 628, 633, 24 L.Ed. 365 [9 months and 17 days]; Scheas v. Robertson, supra, 38 Cal.2d 119, 124–125, 238 P.2d 982 [15 1/2 months]; Rand v. Bossen, supra, 27 Cal.2d 61, 64, 162 P.2d 457 [6 months]; Mercury Herald Co. v. Moore, supra, 22 Cal.2d 269, 275–276, 138 P.2d 673 [1 year]; Murphy v. Murphy (1936) 5 Cal.2d 640, 641, 55 P.2d 1169 [71 days]; Rosefield Packing Corp. v. Superior Court, supra, 4 Cal.2d 120, 123, 47 P.2d 716 [11 months, 27 days]; Kerckhoff-Cuzner Mill & Lumber Co. v. Olmstead, supra, 85 Cal. 80, 85, 24 P. 648 [30 days]; Niagara Fire Ins. Co. v. Cole (1965) 235 Cal.App.2d 40, 43, 44 Cal.Rptr. 889 [1 year]; Baldwin v. City of San Diego, supra, 195 Cal.App.2d 236, 241, 15 Cal.Rptr. 576 [90 days]; County of Alameda v. Superior Court, supra, 187 Cal.App.2d 502, 505, 10 Cal.Rptr. 84 [8 months]; Halbert v. Berlinger (1954) 127 Cal.App.2d 6, 14, 273 P.2d 274 [6 months]; Casey v. Katz, supra, 114 Cal.App.2d 391, 393, 250 P.2d 291 [6 months]; Rombotis v. Fink, supra, 89 Cal.App.2d 378, 391, 201 P.2d 588 [15 1/2 months]; Cal. Emp. Stab. Com. v. Chichester, etc., Co. (1946) 75 Cal.App.2d 899, 902, 172 P.2d 100 [6 months]; and Miami Valley C. P. Co. v. Pacific Nat. Bk., supra, 13 Cal.App.2d 621, 624, 57 P.2d 233 [7 months]. Note also, Beeson v. Schloss (1920) 183 Cal. 618, 622–624, 192 P. 292 [6 months]; Tebbets v. Fidelity and Casualty Co. (1909) 155 Cal. 137, 139, 99 P. 501 [6 months]; Capeheart v. Heady (1962) 206 Cal.App.2d 386, 388–389, 23 Cal.Rptr. 851 [3 months]; and Ward v. System Auto, etc., Garages (1957) 149 Cal.App.2d Supp. 879, 880–881, 309 P.2d 577 [3 months].)
The owner states without elaboration that the second triable issue is ‘when the obligation of respondent [the surety] arose under its performance bond.’ It refers only to the terms of the bond as incorporated in the declaration of its attorney. No conflicting evidence relating to the provisions of the bond has been referred to. In fact none was produced by declaration, or otherwise. It is, therefore, axiomatic that the question of the interpretation of the obligation undertaken by the contractor and the surety under those provisions is a matter of law. It has been resolved as obligation the surety in the same manner as the contractor, its principal (see part I above).
The owner contends that the provisions of section 337.15 of the Code of Civil Procedure violate United States and California constitutional provisions which guarantee equal protection of the laws.15 It asserts that it is improper to distinguish between those who develop real property or who perform or furnish the design, specifications, surveying, planning, supervision,, testing or observation of construction, or who perform construction of an improvement, and other classes such as any person who is in actual possession or actual possession or control as owner, tenant, or otherwise, of an improvement to real property, or who is a manufacturer or materialman furnishing materials incorporated in the improvements.
Preliminarily we note that no objection to the constitutionality of the statute was raised by the in the court below in opposition to the demurrer or the motion for summary judgment interposed by the surety. Nor was such an objection made with respect to similar defenses interposed by the architect and contractor which were heard at the same time. ‘The right to question the constitutionality of a statute may be waived. ‘It is a general rule applicable in civil cases that a constitutional question must be raised at the earliest opportunity or it will be considered as waived.’ 12 C.J. 785.' (Hershey v. Reclamation District No. 108 (1927) 200 Cal. 550, 564, 254 P. 542, 547; Bidart Bros. v. Elmo Farming Co. (1973) 35 Cal.App.3d 248, 263, 110 Cal.Rptr. 819, and Jenner v. City Council (1958) 164 Cal.App.2d 490, 498, 331 P.2d 176.) Although the surety has objected to owner's standing to raise the equal protection argument, as is considered below, it has not objected to the owner's tardy assertion of the point on that ground. It has answered the owner's contentions and urged the constitutionality of the statute. We, therefore, conclude that the matter is controlled by principles we reviewed in Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 97 Cal.Rptr. 431.
In Bayside, we stated with respect to the rule referred to above, ‘Jenner v. City Council, however, merely reiterates the general rule that appellate courts will not ordinarily consider matters raised for the first time on appeal. [Citation.] There are many situations where appellate courts will consider such matters. They will often be considered where the issue relates to questions of law only. [Citations.] Appellate courts are more inclined to consider such tardily raised legal issues where the public interest or public is involved. [Citation.] And whether the rule shall be applied is largely a question of the appellate court's discretion. [Citation.]’ (20 Cal.App.3d at pp. 4 and 5, 97 Cal.Rptr. at p. 433.) In that case we also noted, ‘. . . the long-established rule that an appellate court will not enter upon the resolution of constitutional questions unless absolutely necessary to a disposition of the appeal. [Citations.]’ (Id., pp. 5–6, 97 Cal.Rptr. p. 433.) Here, as in that case, we find that to fully dispose of the appeal it is necessary to pass upon the constitutional question raised by the owner. (See Fujioka v. Kam (1973) 55 Haw. 7, 9, 514 P.2d 568, 569–570.)
The surety contends that since the owner as plaintiff in this action is not being denied the limitation on liability afforded other classes, it has no standing to raise the constitutional objection. (See Azusa Western, Inc. v. City of West Covina (1975) 45 Cal.App.3d 259, 265–266, 119 Cal.Rptr. 434; and Community Television of So. Cal. v. County of Los Angeles (1975) 44 Cal.App.3d 990, 998, 119 Cal.Rptr. 276.) On the other hand it is clear that the owner is adversely affected by the statute insofar as it purports to relieve the surety's principal, the contractor, and others of liability, and limits the scope of those from who relief may be secured by the owner. The situation is analogous to that reviewed in Burns v. State Compensation Ins. Fund (1968) 265 Cal.App.2d 98, 71 Cal.Rptr. 326, where the court permitted an employee to urge the equal protection argument with respect to the constitutionality of a statute which in effect exempted inspectors for workmen's compensation insurers for liability for their negligence, but left independent safety engineers subject to liability. The court observed, ‘. . . it is often stated that where, as here, a statute is alleged to be discrimatory, only a member of a class discriminated against can attack it. However, where the complaining party is injured by the legislation, although not a member of the class discriminated against, he may raise the question. [Citations.] Although appellant is not a member of the class of independent safety engineers allegedly discriminated against, he is ‘injured’ by the challenged legislation since it narrows the group against which he can recover for the same kind of negligent inspection of his employer's plant.' (265 Cal.App.2d at pp. 104–105, 71 Cal.Rptr. at p. 330.)
As of the spring of 1969 some 30 jurisdictions had adopted statutes which affected the time during which an action may be brought against architects, designers, engineers and building contractors. (See Comment, Limitation of Action Statutes for Architects and Builders—Blueprint for Non-Action (1969) 18 Catholic U.L.Rev. 361, fn. 1; and note Code Civ.Proc., § 337.1 added by States.1967, ch. 1326, § 1, effective Nov. 8, 1967, with respect to any patent deficiency.) In five states the statute enacted has been declared unconstitutional.16 In eight other states the applicable statute has been upheld and applied.17
Examination of the provisions of section 337.15 and the history of its enactment reveals that it is somewhat unique in that it apparently does not apply to ‘Injury to or the wrongful death of any person arising out of any such latent deficiency’ as is defined in the section. As introduced in the Legislature (AB No. 2742, Apr. 15, 1971), subdivision (a) of the proposed new section had a third paragraph reading ‘(3)’ followed by the words quoted above. (Cf. § 337.1.) By amendments in the Assembly on July 22, 1971, and in the Senate on October 22, 1971, references to injury and death were deleted from the bill and it was adopted in the present form. (See fn. 2 above.) It is clear that the Legislature only intended the limitation embraced in the statute to apply to actions for damages to repair or to compensate for the deficiency itself (§ 337.15, subd. (a)(1)), and to actions for damages for injury to property proximately caused by such deficiency (id., ¶(2).) Comparison with section 337.1 which has a third paragraph containing the deleted language reinforces that conclusion.
Secondly, we note the dual character of the statute. Insofar as it affects an action of the type referred to with respect to a latent deficiency which is not discovered within 10 years after completion of the development or improvement, the statute cuts off the right of action before it accrues under the developing law noted in the beginning of this opinion.18 The question of whether the Legislature can restore the former general theory that a cause of action for breach of an implied or express warranty arises upon the acceptance of the goods or work (see 2 Witkin, Cal.Procedure (2d ed.1970) Actions, §§ 264 and 293, pp. 1117 and 1140–1141; and cf. Aced v. Hobbs-Sesack Plumbing Co., supra, 55 Cal.2d 573, 583–584, 12 Cal.Rptr. 257, 360 P.2d 897), or limit the period in which discovery must be made to sustain an action for negligence (see Oakes v. McCarthy Co., supra, 267 Cal.App.2d 231, 254–255, 73 Cal.Rptr. 127), then becomes a matter of substantive law. (See Limitation of Action Statutes, etc., supra, 18 Catholic U.L.Rev. 361, 372–374; Skinner v. Anderson (1967) 38 Ill.2d 455, 458, 231 N.E.2d 588, 590; Kallas Millwork Corp. v. Square D Co. (1975) 66 Wis.2d 382, 387–388, 225 N.W.2d 454, 457; Plant v. R. L. Reid, Inc. (1975) 294 Ala. 155, 313 So.2d 518, 521, and Bagby Elevator and Electric Co., Inc. v. McBride (1974) 292 Ala. 191, 198, 291 So.2d 306, 312; Saylor v. Hall (Ky.1973) 497 S.W.2d 218, 224–225; and Rosenberg v. Town of North Bergen (1972) 61 N.J. 190, 199–200, 293 A.2d 662.) It relates to the power of the Legislature to abrogate the assertion of a right, by definition not accrued, but which, in the absence of the statute, might have accrued and been enforceable.
As we have seen, no right of the owner in this case was so summarily cut off before it arose. The only effect of the statute was to shorten the time in which the cause of action, which accrued on discovery in January 1972, could be asserted. Nevertheless, if the limitation cannot be enforced against actions filed before March 4, 1972, and should prove to be unenforceable with respect to actions filed after that date when discovery was effected more than 10 years after substantial completion, it would be discriminatory to apply it to those, who, as did the owner in this case, discovered the deficiency within the 10-year period. We therefore examine the power of the Legislature to establish a period of absolute repose. In Ferreira v. Barham (1964) 230 Cal.App.2d 128, 40 Cal.Rptr. 739, the court upheld the right of the Legislature to abrogate the right of a guest to sue as it was contained in section 17158 of the Vehicle Code. It has subsequently been determined that the Legislature abused its power in so doing,19 but the principles, though subsequently determined to have been misapplied in Ferreira remain. The court referred to the rule ‘that the Legislature may constitutionally alter, modify or eliminate prospectively common law rules governing private tort liability where it acts reasonably upon the basis, and within the scope, of its regulatory police power.’ (230 Cal.App.2d at p. 130, 40 Cal.Rptr. at p. 741.) The court observed, ‘First of all it may be stated that our California Supreme Court has flatly—and quite recently—asserted the existence of broad legislative powers in the general filed of discussion we enter. In 1948 in Modern Barber Colleges v. California Employment Stab. Com., 31 Cal.2d 720, on page 726, 192 P.2d 916, on page 920, it stated, that the Legislature ‘has complete power to determine the rights of individuals. . . . It may create new rights or provide that rights which have previously existed shall no longer arise, . . ..’ And in 1927 it said in Fall River Valley Irrigation Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, at page 67, 259 P. 444, at page 449, 56 A.L.R. 264: ‘No question can arise as to the power of the Legislature to modify or abrogate a rule of the common law.’' (Id.) After reviewing cases dealing with the guest law (cf. fn. 19 above), the court prefaced a review of cases in other fields as follows: ‘In California legislative alterations, modifications and even abrogations of unvested common law rights analogous to the guest law have consistently been upheld against attacks, whether on the grounds of violation of due process or of equal protection.’ (Id., p. 132, 40 Cal.Rptr. P. 742. See also Flournoy v. State of California (1964) 230 Cal.App.2d 520, 524, 41 Cal.Rptr. 190.) The court concluded, ‘Living in society, man has delegated to his representatives, including courts and legislatures, the power to set up and apply rules so that all men (both plaintiffs and defendants) can live together in the same community. The process of making rules, whether common law or statutory, is a balancing process. [¶] Effectually appellants would ‘freeze’ common law principles. . . . But society is not static; it is fluid; it is also complex with the complexities modernly increasing . . . in geometric progression. Therefore, the law, both statutory and common law, must keep pace. Hence the statutory changes in common law rules by the Legislature made as a matter of state policy to meet current needs and upheld by the courts as a proper exercise of the police power (within the limitations enunciated), all as discussed above, are not violation of the human rights of free men; not violation of due process; not a denial of equal protection.' (Id., p. 135, 40 Cal.Rptr., p. 744.)20
The test of the statute as an exercise of the police power which satisfies due process of law parallels that which is necessary to avoid attack for denial of equal protection. Regulation which entrenches on property rights satisfies the due process clause if it has a reasonable relation to a proper public purpose and is neither arbitrary nor discriminatory.21 (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 410, 128 Cal.Rptr. 183, 546 P.2d 687. See also Gray v. Whitmore (1971) 17 Cal.App.3d 1, 20–21, 94 Cal.Rptr. 904; Doyle v. Board of Barber Examiners (1963) 219 Cal.App.2d 504, 509–510, 33 Cal.Rptr. 349.) In the Agricultural Labor Relations Bd. case the majority also quoted the following with approval, “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ [Citation.] ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogically, it may be, and unscientific.” (Dandridge v. Williams (1970) 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501.) Moreover, ‘a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment.’ (Richardson v. Belcher (1971) 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231, 235.)' (16 Cal.3d at p. 410, 128 Cal.Rptr. at p. 195, 546 P.2d at p. 699. See also Schwalbe v. Jones (1976) 16 Cal.3d 514, 517–518, 128 Cal.Rptr. 321, 546 P.2d 1033; Ganschow v. Ganschow (1965) 14 Cal.3d 150, 158, 120 Cal.Rptr. 865, 534 P.2d 705; Adams v. Superior Court (1974) 12 Cal.3d 55, 62, 115 Cal.Rptr. 247, 524 P.2d 375; Wood v. Public Utilities Commission (1971) 4 Cal.3d 288, 294–295, 93 Cal.Rptr. 455, 481 P.2d 823; In re Ricky H. (1970) 2 Cal.3d 513, 522, 86 Cal.Rptr. 76, 468 P.2d 204; County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839, 846, 44 Cal.Rptr. 796, 402 P.2d 868; Thayer v. Madigan (1975) 52 Cal.App.3d 16, 18, 125 Cal.Rptr. 28; Burns v. State Compensation Ins. Fund, supra, 265 Cal.App.2d 98, 105, 71 Cal.Rptr. 326; Sanders v. County of Yuba (1967) 247 Cal.App.2d 748, 754–755, 55 Cal.Rptr. 852; and Von Arx v. City of Burlingame (1936) 16 Cal.App.2d 29, 35–36, 60 P.2d 305. Cf. Hartford Co. v. Harrison (1937) 301 U.S. 459, 461–462, 57 S.Ct. 838, 81 L.Ed. 1223; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22–24, 112 Cal.Rptr. 786, 520 P.2d 10; Brown v. Merlo (1973) 8 Cal.3d 855, 861–862, 106 Cal.Rptr. 388, 506 P.2d 212; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 369, 341 P.2d 310; Gray v. Whitmore (1971) 17 Cal.App.3d 1, 21–22, 94 Cal.Rptr. 904; and O'Kane v. Caturia (1963) 212 Cal.App.2d 131, 137, 27 Cal.Rptr. 818.)
In its most recent exposition, which arose, as did this case, from a challenge to a statute which precluded recovery despite the defendant's negligence, the court reiterated the following rules: “The . . . basic and conventional standard for reviewing economic and social welfare legislation in which there is a ‘discrimination’ or differentiation of treatment between classes or individuals . . . manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and ‘requir[es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.’ (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487, 500. . . .)' (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16, 112 Cal.Rptr. 786, 797, 520 P.2d 10, 21 . . .) ‘[T]he burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it. (Lindsley v. Natural Carbonic Gas Co. (1911), 220 U.S. 61, 78–79, 31 S.Ct. 337, 55 L.Ed. 369 . . .; Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101 . . .; see also Developments in the Law—Equal Protection (1969) 82 Harv.L.Rev. 1065, 1077–1087.)’ (Id., at p. 17, 112 Cal.Rptr. [786, 797] at p. 798, 520 P.2d [10, 21] at p. 22.)' (Schwalbe v. Jones, supra, 16 Cal.3d 514, 517–518, 128 Cal.Rptr. 321, 323, 546 P.2d 1033, 1035.) It further stated, ‘The issue before us is therefore this: Have plaintiffs borne the burden establishing that this classification bears no rational relationship to any conceivable legitimate state purpose?’ (Id., fn. limiting Brown v. Merlo, supra, omitted.)
With the foregoing precepts in mind we may examine the authorities on which the owner relies. The Illinois statute considered in Skinner v. Anderson, supra, 38 Ill.2d 455, 231 L.E.2d 588 covered actions to recover damages for any injury to property or to the person including wrongful death, ‘arising out of the defective and unsafe condition of an improvement to real estate.’ It purported to protect ‘any person performing or furnishing the design, planning, supervision of construction or construction of such improvement.’ (38 Ill.2d at p. 457, 231 N.E.2d at p. 589.) As does the California statute it included an action for indemnity, and denied protection ‘to any owner, tenant or person in actual possession and control of the improvement.’ (Id.) The court found that the four-year limitation prescribed by the statute violated provisions of the Illinois Constitution, similar to those found in subdivision (b) of section 7 of Article I of the California Constitution (see fn. 15 above). The Illinois provisions read, ‘The general assembly shall not pass local or special laws . . .. Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.’ (Ill.Const., art. IV, § 22.) The test applied, similar to that discussed above as existing in this state, is that the section ‘does . . . require that the classification be reasonably related to the legislative purpose. And where that relationship was nonexistent the statute has been held to contravene the constitutional provision. [Citations.]’ (38 Ill.2d at p. 460, 231 N.E.2d at p. 591.)
The statutory requirement is that ‘such cause of action shall have accrued within four years after the performance or furnishing of such services and construction.’ The court observed, ‘If, as the defendant suggests, the objective of the statute is to require that trials of action based upon defects in construction be held within a relatively short time after the work is completed, that objective is achieved only partially, and in a discriminatory fashion. If the damage or injury occurs at any time within four years after construction is completed, the time within which the action must be commenced is governed by other statutory limitations. In such cases the time between completion of construction and the required institution of suit may well exceed four years.’ (Id., pp. 459–460, id., pp. 590–591.)
Having construed the statutes as granting architects and contractors a special or exclusive immunity (id., p. 459, id., p. 590), the court added: ‘More important is the fact that of all those whose negligence in connection with the construction of an improvement to real estate might result in damage to property or injury to person more than four years after construction is completed, the statute singles out the architect and the contractor, and grants them immunity. It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact responsible. Not only is the owner or person in control given no immunity; the statute takes away his action for indemnity against the architect or contractor.’ (Id., pp. 459–460, id., pp. 590–591; Fujioka v. Kam, supra, 55 Haw. 7, 10, 514 P.2d 568, 570–572, and Kallas Millwork Corp. v. Square D Co., supra, 66 Wis.2d 382, 389–390, 225 N.W.2d 454, 458.)
Finally the court found the statute had an arbitrary quality because anyone who furnished materials used in constructing the improvement, would remain liable for damage to property or injury to persons attributable to defects in such material. (Id. [id.]; Fujioka v. Kam, supra, 55 Haw. 7, 13, 514 P.2d 568, 572; and Kallas Millwork Corp. v. Square D Co., supra, 66 Wis.2d 382, 390, 225 N.W.2d 454, 458–459.)
The Illinois court concluded that the state Constitution was violated because there was no sound basis, in reason and principle for regarding architects and contractors as a distinct and separate class for the purpose of the particular legislation. (38 Ill.2d at p. 461, 231 N.E.2d at p. 591.) In Hawaii the statute expressly applied only to ‘any registered and/or duly licensed person performing or furnishing professional or licensed services in the design, planning, supervision, or observation of construction of construction of the improvement’ etc. (55 Haw. at p. 8, 514 P.2d at p. 569, fn. 1.) The court found ‘that the object or purpose of the legislation was to grant immunity to registered and licensed persons performing services in the construction industry’ (id., p. 11, id., p. 571), and it concluded, following the reasoning of the Illinois case, ‘the statute calls for arbitrary and capricious discrimination and must therefore be declared an invidious discrimination violative of the equal protection guaranty [of the Hawaiian State Constitution and the United States Constitution].’ (Id., p. 13, id., p. 572.) In Wisconsin, the statute was similar to the Illinois statute. The court followed the Illinois and Hawaii cases and held the statute was unconstitutional because there are no ‘real differences to distinguish the favored class—those persons who perform and furnish the ‘design, planning, supervision of construction or construction’ of improvements to real property—from other classes, such as materialmen, who are ignored by the statute, and owners and occupants, who are specifically excepted.' (66 Wis.2d at p. 389, 225 N.W.2d at p. 458.)
Both the Illinois court and the Wisconsin court flirted with constitutional provisions which purport to grant every person a remedy for all injuries or wrongs which he may receive in person or property, but neither court relied on such a provision in declaring the statute unconstitutional. (See Ill.Const., art. II, § 19, and Skinner v. Anderson, supra, 38 Ill.2d at pp. 458–459, 231 N.E.2d 588, and Wis.Const., art. I, § 9, and Kallas Millwork Corp. v. Square D Co., supra, 66 Wis.2d 382, 388 and 393, 225 N.W.2d 454, 457 and 460.) In Saylor v. Hall, supra, 497 S.W.2d 218, the court relied upon a similar constitutional provision and ruled that it was unconstitutional to provide that a right of action for latent defects in improvements constructed in 1955, which was recognized at the time the statute was passed in 1964, but which did not occur until 1969 when a stone fireplace collapsed, would be cut off by the passage of five years without discovery. (497 S.W.2d at p. 218. Cf. Bagby Elevator and Electric Co., Inc. v. McBride, supra, 292 Ala. 191, 196, 291 So.2d 306, 310.)22
We find no cognizable constitutional provision in this state. Legislative policy, which is also embodied in section 337.15 of the Code of Civil Procedure, is generally in accord with the constitutional provisions last mentioned.23 The precept was recognized in Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 173, when the court stated, ‘Fundamental in our jurisprudence is the principle that for every wrong there is a remedy and that an injured party should be compensated for all damage proximately caused by the wrongdoer. Although we recognize exceptions from these fundamental principles, no departure should be sanctioned unless there is a strong necessity therefor.’ (66 Cal.2d at p. 433, 58 Cal.Rptr. at p. 18, 426 P.2d at p. 178. See also Gibson v. Gibson (1971) 3 Cal.3d 914, 922, 92 Cal.Rptr. 288, 479 P.2d 648 [parental immunity abrogated]; Klein v. Klein (1962) 58 Cal.2d 692, 694–695, 26 Cal.Rptr. 102, 376 P.2d 70 [interspousal immunity abrogated]; and Fernandez, Due Process: The Constitutional Right to a Remedy (1976) 15 C.T.L.A.Journal 187.) In this case we are not concerned with the judicial establishment, abrogation or modification of court pronounced rules of law, but the question of whether the Legislature has any vestige of control over what rights may be asserted. Schwalbe v. Jones, supra, as the latest pronouncement on the subject would appear to govern.
In Oregon the court overruled the contention that such a constitutional provision precluded a general statute reading, ‘In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.’ (Josephs v. Burns & Bear (1971) 260 Or. 493, 495, 491 P.2d 203, 204.) The court stated, ‘It has always been considered a proper function of legislatures to limit the availability of causes of action by the use of statutes of limitation so long as it is done for the purpose of protecting a recognized public interest. It is in the interest of the public that there be a definite end to the possibility of future litigation resulting from past actions. It is a permissible constitutional legislative function to balance the possibility of outlawing legitimate claims against the public need that at some definite time there be an end to potential litigation.’ (Id., p. 503, id., pp. 207–208). See also Johnson v. Star Machincry Company (1974) 270 Or. 694, 702, 530 P.2d 53, 57; Yakima Fruit v. Central Heating (1972) 81 Wash.2d 528, 532, 503 P.2d 108, 111, and Freezer Storage, Inc. v. Armstrong Cork Co. (1975) 234 Pa.Super. 441, 448–449, 341 A.2d 184, 187–189.) The Oregon case, however, although it mentions without disapproval a subsequently enacted statute similar to the Hawaiian statute (id., p. 500, id., p. 206), does not pass upon the equal protection argument. (Cf. Kallas Millwork Corp. v. Square D Co., supra, 66 Wis.2d 382, 392, 225 N.W.2d 454, 460, and Saylor v. Hall (Ky.), supra, 497 S.W.2d 218, 221.)
In Carter v. Hartenstein (1970) 248 Ark. 1172, 455 S.W.2d 918 [app. dis'm for want of a substantial federal question (1971) 401 U.S. 901, 91 S.Ct. 868, 27 L.E.2d 800], the court upheld a 1967 statute, which was similar to that in Illinois, as applied to an action for wrongful death arising in 1968 from failure of an elevator installed in 1958. It distinguished the Skinner case on the ground it was interpreting a state constitutional provision, and overruled objections that the statute was discriminatory, contravened equal protection of the laws, and was local and special legislation. The court pointed out that the failure to include materialmen, and owners, tenants and occupiers was not capricious but fair, reasonable and appropriate, because it was logical to hold the owner alone after substantial completion and acceptance of the improvement. (248 Ark. at p. 1176, 455 S.W.2d at p. 920. See also Salesian Society v. Formigli Corp. (1972) 120 N.J.Super. 493, 497, 295 A.2d 19, 22–24, aff'd Salesian Society v. Formigli Corp. (1973) 124 N.J.Super. 270, 306 A.2d 466, and Nevada Lakeshore Co., Inc. v. Diamond Electric, Inc. (1973) 89 Nev. 293, 296, 511 P.2d 113, 114.) It categorically stated that ‘a vital distinction . . . exists between owners and suppliers and those engaged in the professions and occupations of design and building.’ (248 Ark. at p. 1176, 455 S.W.2d at p. 921. See also Williams v. Edmondson (1975) 257 Ark. 837, 839, 520 S.W.2d 260, 268; Rosenberg v. Town of North Bergen, supra, 61 N.J. 190, 201, 293 A.2d 662, 667, and Freezer Storage, Inc. v. Armstrong Cork Co., supra, 234 Pa.Super. 441, 448–449, 341 A.2d 184, 186–187.)
The first ground stated finds some support in the development of the law of this state. That law is traced in Stewart v. Cox (1961) 55 Cal.2d 857, 13 Cal.Rptr. 521, 362 P.2d 345, as follows: ‘In an early case this court stated that where the work of an independent contractor is completed and accepted by the owner, the contractor is not liable to third persons for damage or injury suffered as a result of the negligent manner in which he performed his contract. Boswell v. Laird, 1875, 8 Cal. 469, 498; in accord Kolburn v. P. J. Walker Co., 38 Cal.App.2d 545, 550, 101 P.2d 747. An exception to this rule was first recognized where the thing constructed was imminently dangerous to third persons to the knowledge of the contractor (Johnston v. Long, 56 Cal.App.2d 834, 837, 133 P.2d 409), and the exception was later extended in accordance with MacPherson v. Buick Motor Co., 217 N.Y. 382, 11 N.E. 1050, 1053, L.R.A.1916F, 696, [Ann.Cas.1916C, 440] to all things ‘reasonable certain to place life and limb in peril when negligently made.’ Hale v. Depaoli, 33 Cal.2d 228, 232, 201 P.2d 1, 13 A.L.R.2d 183, other citations omitted.
‘In Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 724–725, 321 P.2d 736, 739, we quoted the following language from Prosser on Torts (2d ed.1955), pp. 517–519: ‘Until quite recent years it was the prevailing rule that the contractor would be liable for any injury resulting from his negligence before his work was completed, but that his responsibility was terminated and he was not liable to any third person once the structure was completed and accepted by the owner. . . . The present state of the law is not altogether clear because of the survival of so many of these exceptions, which afford an opportunity to hold the defendant liable without stating any general rule. It appears, however, that the analogy of MacPherson v. Buick Motor Co., is at last being accepted. Several recent decisions have placed building contractors on the same footing as sellers of goods, and have held them to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by the negligence, even after acceptance of the work.’' (55 Cal.2d at p. 862, 13 Cal.Rptr. at p. 523, 362 P.2d at p. 347.)
In Stewart v. Cox, supra, the court determined that the liability of a contractor or subcontractor to third persons should be determined by general rules rather than by arbitrarily placing them in a separate category subject to a special rule. (Id., p. 863, 13 Cal.Rptr. 521, 362 P.2d 345.) It may be true that the rule adopted is more rational than that which it replaced, but it does not follow that it is irrational for the Legislature to return to a qualified version of the rule originally developed by the judiciary, and in doing so to permit an action after discovery, only if discovery is effected so as to permit an action to be commenced within ten years. It further may be noted, that insofar as the liability to the property of third persons is concerned (§ 337.15, subd. (a)(2)) the effect of the section is to make the owner, tenant or other possessor of the property responsible for insuring against the loss, and to relieve those mentioned of the necessity of securing insurance which will cover contingent liabilities for an infinite period of time. It is arguable that in the long run the distribution of those risks over persons who are responsible for improvements over ten years old will tend to lessen the costs of insurance to the favored classes, and that the resultant costs of construction to those who use the services of that class. The ten-year period that the exceptions in subdivision (f) of the statute are reasonably adapted to protecting the owner from the results of most shoddy work. The courts long recognized the sharing of risks through liability insurance, and no reason suggests itself why the legislators are not as capable of planning for such eventualities as judges. The fact that the former are more responsive to popular will may be an advantage in insuring greater flexibility of systems of apportioning loss which meet with popular disapproval than is the case with the judiciary.
It has been assumed in the cases voiding the legislation that materialmen are not relieved, whereas contractors and architects are granted repose after expiration of the statutory period. That may be true under the Hawaiian statute, but we are not prepared to say that a supplier is not a ‘person who . . . performs . . . construction of an improvement to real property’ when he furnishes material or equipment which he knows is to be incorporated in that improvement. In New Jersey in response to an attack on the classification the court stated: ‘For convenience we have referred to the beneficiaries of this legislation as architects and building contractors. But the favored class is much larger. It includes ‘any person performing or furnishing the design, planning, supervision of construction or construction or such improvement to real property.’ We do not attempt at this to enumerate all of the classes of persons coming within this statutory group. These might include, as examples only, the designer of a sewage plant for a development complex, a landscape gardener or a well driller. We can find here no such exclusion from the class as to justify a determination that this is a special law coming within the prohibition of our state Constitution. [Citations.]' (Rosenberg v. Town of North Bergen, supra, 61 N.J. 190, 201, 293 A.2d 662, 668. See also Yakima Fruit v. Central Heating, supra, 81 Wash.2d 528, 532, 503 P.2d 108.) Our statute also adds developers (see O'Connor v. Altus, supra, 67 N.J. 106, 118, 335 A.2d 545, 551–552), and includes ‘specifications,’ ‘surveying,’ ‘testing,’ and ‘observation’ among the services mentioned. It is therefore perhaps broader than that upheld in New Jersey.
The New Jersey case is particularly instructive because it explains the reason for the legislation, which parallels the situation in this state. The court stated, ‘It appears probable that two rather recent but unrelated developments in the law may well have provided the motivation for this widespread legislation. The common result of the developments to which we refer has been to enlarge very appreciably the area of potential liability to which architects and building contractors, among others, may be liable. We think it likely that these statutes are a legislative response seeking to delimit this greatly increased exposure. In order to afford background against which to discern more clearly what may have been the legislative intent in passing this act, we take brief note of these two changes in the law as they have come about here in New Jersey. [¶] The first of these developments has taken place in the field of limitation of actions and is commonly referred to as the ‘discovery’ rule.' (Rosenberg v. Town of North Bergen, supra, 61 N.J. 190, 194–195, 293 A.2d 662, 664.) After reviewing cases which developed the law in a manner similar to that which has occurred in this state, the court observed, ‘This rule which decrees that in appropriate cases a statute of limitations shall not be deemed to run until a wrong has been discovered or should have been discovered, fosters, the just result of protecting those who have suffered injury from losing a right to redress because of ignorance of the wrong done. In achieving this salutary result the rule does, however, necessarily prolong the potential exposure of wrongdoers and of those who may be thought to be wrongdoers.’ (Id., p. 197, id., p. 665.)
The court continued, ‘The second development in the law which we think may have provoked this legislation is the recently adopted rule that an architect's or a contractor's liability for negligent planning or construction will not terminate, as a matter of law, upon the work having been completed and accepted by the owner or employer.’ (Id. [id.].) It concluded, ‘While we are firmly of the opinion that each of these new rules marks an enlightened advance in the field of tort liability, it is nevertheless apparent that their adoption has resulted in an increased exposure on the part of architects, contractors and the like. We think that in enacting [the statute] the Legislature sought to provide what it deemed to be a reasonable measure of protecting against this greater hazard.’ (Id., p. 198, id., p. 666.)
For the foregoing reasons we believe the attack on the constitutionality of the statute under the provisions of the United States and the California Constitution, as advanced by the owner, must be rejected. In passing we note that the persons injured in their purse are rationally a different class of persons than those injured in their body or killed, and we therefore do not fault the Legislature from having deleted protection against actions for personal injuries from the absolute bar of the statute.
The judgment is affirmed.
1. Summary judgment was also entered in favor of the architects and the general contractor, but the action has proceeded on them on newly amended causes of action to which the surety is not a party.
2. Section 337.15 provides: ‘(a) 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 such 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.‘(c) As used in this section, ‘action’ includes an action for indemnity brought against a person arising out of his performance or furnishing of services or materials referred to in this section, except that a cross-complaint for indemnity may be filed pursuant to Section 442 in an action which has been brought within the time period set forth in subdivision (a) of this section.‘(d) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for bringing any action.‘(e) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement, at the time any deficiency in such improvement constitutes the proximate cause for which it is proposed to bring an action.‘(f) This section shall not apply to actions based on willful misconduct or fraudulent concealment.’
3. See Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 378, 115 Cal.Rptr. 648, 525 P.2d 88; Sabella v. Wisler (1963) 59 Cal.2d 21, 28–29, 27 Cal.Rptr. 689, 377 P.2d 889; Dow v. Holly Manufacturing Co. (1958) 49 Cal.2d 720, 725–726, 321 P.2d 736; Hale v. Depaoli (1948) 33 Cal.2d 228, 230–232, 201 P.2d 1; Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 249 and 267, 73 Cal.Rptr. 127; Conolley v. Bull (1968) 258 Cal.App.2d 183, 197–198, 65 Cal.Rptr. 689; and Mack v. Hugh W. Comstock Associates (1964) 225 Cal.App.2d 583, 587, 37 Cal.Rptr. 466.
4. See Pollard v. Saxe & Yolles Dev. Co., supra, 12 Cal.3d 374, 378, 115 Cal.Rptr. 648, 525 P.2d 88; Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 582, 12 Cal.Rptr. 257, 360 P.2d 897; Mack v. Hugh W. Comstock Associates, supra, 225 Cal.App.2d 583, 588, 37 Cal.Rptr. 466; and Kuitems v. Covell (1951) 104 Cal.App.2d 482, 484–485, 231 P.2d 552.
5. ‘The CONDITION of this obligation is such that if the said Contractor shall well and faithfully keep and perform all of the covenants and agreements of said contract, and of all alterations, modifications and extensions thereof, by the contractor to be kept and performed, and shall fully complete all of the work described in the said Contract, and all alterations, modifications and extensions thereof, and shall save and hold harmless the said THE REGENTS OF THE UNIVERSITY OF CALIFORNIA from any and all loss or damage arising out of the failure of said Contractor, and/or any and all subcontractors, to fulfill sail Contract, and all alterations, modifications and extensions thereof, and shall fully reimburse and repay to THE REGENTS OF THE UNIVERSITY OF CALIFORNIA all outlay and costs which THE REGENTS OF THE UNIVERSITY OF CALIFORNIA may incur in making good any default of said Contractor and/or subcontractors, and in the replacing and/or making good of any defective material or faulty material or faulty workmanship in the work of the Contractor and/or any and all subcontractors which may be discovered within one year subsequent to the completion and acceptance of the work in said Contract provided for, then the above obligation shall be void; otherwise it shall be and remain in full force and effect.‘It is expressly covenanted and agreed by and between said Contractor and said Sureties that the liability of said Principal and said Sureties shall at all times, and under all circumstances, be co-extensive, and that said Sureties shall not be discharged, released or exonerated from liability under this bond, in whole or in part, by any alteration and/or modification of said Contract, whether notice thereof is given said Sureties or not, and that said Sureties shall be bound thereby, and also bound by any departure or deviation on the part of THE REGENTS OF THE UNIVERSITY OF CALIFORNIA from the terms of said Contract.’
6. It may be argued that insofar as the general contractor, as principal, by the terms of the general contract or of the bond, agreed to indemnify the owner for losses occasioned by the acts or omissions of others, it became a true indemnitor, like an insurer. This analysis, however, would not apply to its liability for its own negligence or breach of an express or implied warranty.
7. Civil Code section 2825 provides: ‘A surety is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor.’ (See Bloom v. Bender (1957) 48 Cal.2d 798, 802, 313 P.2d 568 [rule noted]; Gaffigan v. Lawton (1934) 1 Cal.2d 722, 723, 37 P.2d 79 [statute of limitations on creditor's claim against principal]; Gottschalk v. Draper Companies (1972) 23 Cal.App.3d 828, 831, 100 Cal.Rptr. 434 [discharge of principal by Code Civ.Proc., § 580b]; Zellner v. Lasky (1970) 13 Cal.App.3d 787, 792, 91 Cal.Rptr. 810 [principal's discharge in bankruptcy]; and Duerr v. Sloan (1920) 50 Cal.App. 512, 518, 195 P. 475 [failure to file claim in principal debtor's estate]. Note also Superior Wholesale Elec. Co. v. Cameron (1968) 264 Cal.App.2d 488, 494, 70 Cal.Rptr. 636 [principal's discharge in bankruptcy]; Roberts v. Graves (1969) 269 Cal.App.2d 410, 415–417, 75 Cal.Rptr. 130, and Heckes v. Sapp (1964) 229 Cal.App.2d 549, 552–555, 40 Cal.Rptr. 485 [discharge of principal by Code Civ.Proc., § 580b]. Cf. Union Bank v. Gradsky (1968) 265 Cal.App.2d 40, 43–47, 71 Cal.Rptr. 64 [creditor's election to hold nonjudicial sale bars action against both principal and surety under Code Civ.Proc., § 580d].)
8. Civil Code section 2809 provides, ‘The obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; and if in its terms it exceeds it, it is reducible in proportion to the principal obligation.’ (See U. S. Leasing Corp. v. duPont (1968) 69 Cal.2d 275, 290, 70 Cal.Rptr. 393, 444 P.2d 65; Mortgage Finance Corp. v. Howard (1962) 210 Cal.App.2d 569, 571, 26 Cal.Rptr. 917; Goatman v. Pacific Ready-Cut Homes, Inc. (1931) 112 Cal.App. 397, 402, 297 P. 68; and Anderson v. Shaffer (1929) 98 Cal.App. 457, 460, 277 P. 185. Cf. Bloom v. Bender, supra, 48 Cal.2d 793, 801–804, 313 P.2d 568 [waiver]; Union Bank v. Gradsky, supra, 265 Cal.App.2d 40, 43–44, fn. 3, 71 Cal.Rptr. 64 [waiver]; and Heckes v. Sapp, supra, 229 Cal.App.2d 549, 554, 40 Cal.Rptr. 485 [effect of Code Civ.Proc., § 580b].)Section 2810 reads in pertinent part, ‘A surety is liable notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal; but he is not liable if for any other reason there is no liability upon the part of the principal at the time of the execution of the contract, or the liability of the principal thereafter ceases, unless the surety has assumed liability with knowledge of the existence of the defense. . . .’ (See Lewis & Gueen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 155, 308 P.2d 713; Rochester Capital Leasing Corp. v. K & L Litho Corp. (1970) 13 Cal.App.3d 697, 705, 91 Cal.Rptr. 827; and Union Bank v. Gradsky, supra, 265 Cal.App.2d 40, 46, 71 Cal.Rptr. 64. Cf. Bloom v. Bender, supra, 48 Cal.2d 793, 802, 313 P.2d 568; and Gottschalk v. Draper Companies, supra, 23 Cal.App.3d 828, 830–832, 100 Cal.Rptr. 434 [§ 2825 Controls].)Section 2819 provides: ‘A surety is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the surety the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended.’ (See Southern Cal. First Nat. Bank v. Olsen (1974) 41 Cal.App.3d 234, 239–241, 116 Cal.Rptr. 4; Union Bank v. Gradsky, supra, 265 Cal.App.2d 40, 46, 71 Cal.Rptr. 64; Mortgage Finance Corp. v. Howard, supra, 210 Cal.App.2d 569, 571, 26 Cal.Rptr. 917; Brock v. Western Nat. Indem. Co. (1955) 132 Cal.App.2d 10, 16, 281 P.2d 571; and People v. Fidelity, etc., Co. of Maryland (1938) 28 Cal.App.2d 325, 332, 82 P.2d 495. Cf. Bloom v. Bender, supra, 48 Cal.2d 793, 800–801, 313 P.2d 568 [waiver]; and Zellner v. Lasky, supra, 13 Cal.App.3d 787, 790, fn. 1, 91 Cal.Rptr. 810.)
9. Civil Code section 2845 provides: ‘A surety may require his creditor, subject to the provision of Section 1058a of the Code of Civil Procedure, to proceed against the principal, or to pursue any other remedy in his power which the surety cannot himself pursue, and which would lighten his burden; and if in such case the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced.’ (See Union Bank v. Gradsky, supra, 265 Cal.App.2d 40, 43–44, fn. 3, 71 Cal.Rptr. 64 [effect of Code Civ.Proc., §§ 580a–580d]; Ingalls v. Bell (1941) 43 Cal.App.2d 356, 365, 110 P.2d 1068 [effect of 1939 amendments to Civ.Code, § 2787]; and Mahana v. Alexander (1927) 88 Cal.App. 111, 116, 263 P. 260 [law prior to 1939].)Section 2874 provides: ‘If a surety satisfies the principal obligation, or any part thereof, whether with or without legal proceedings, the principal is bound to reimburse what he has disbursed, including necessary costs and expenses; but the surety has no claim for reimbursement against other persons, though they may have been benefited by his act, except as prescribed by the next section.’ (See IIeckes v. Sapp, supra, 229 Cal.App.2d 549, 554–555, 40 Cal.Rptr. 485 [no reimbursement to surety if deficiency against principal barred by section 580b].)
10. In Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 105 Cal.Rptr. 890, the court noted, ‘In areas where the problem of time, change, and causation has proved particularly troublesome the legislature has provided the courts with arbitrary mechanical solutions, often in the form of statutes of limitation. These statutes, although couched as procedural limitations on the time within which to bring suit, in effect terminate substantive liability by decreeing that after the passage of a specified time the causal connection between defect and injury will no longer be legally recognized. Examples of recent legislative pronouncements affecting causation are the statute limiting certain malpractice actions against physicians and hospitals to four years from the date of injury (Code Civ.Proc., § 340.5), and the statute limiting actions against developers, contractors, and architects for latent deficiencies in the supervision, construction, and design of an improvement in real property to 10 years. (Code Civ.Proc., § 337.15.)’ (29 Cal.App.3d at p. 642, 105 Cal.Rptr. at p. 896.)
11. ‘The pre-1939 version of Section 2810 of the Civil Code provided that a guarantor was not liable if the principal obligation was ‘unlawful,’ but that he was liable if the principal obligation was ‘void’ because of a ‘mere personal disability of the principal.’ The meaning of the ‘mere personal disability of the principal’ exception, which was retained by the 1939 amendment to Section 2810, can be ascertained from the cases cited in the Field Code as the basis for the provision which was enacted in California as Section 2810. The two cited cases holding a guarantor liable even though the underlying obligation was not enforceable against the principal because of the latter's ‘personal disability’ both involved contracts executed by a married women. Chief Justice Nelson, in Kimball v. Newell, explained that cases holding a guarantor liable notwithstanding a defense in favor of his principal based on coverture, minority, or, in general, incompetence to execute an enforceable contract, constituted an exception to the basic rule that a guarantor can be liable only if there is an underlying valid obligation of the principal debtor. This exception has long been recognized in the law of suretyship and applied by courts without the aid of any statutory prescription. This exception has been extended beyond defenses arising solely out of the personal status of the principal debtor only to the ‘personal’ defense of fraud, and then only in cases in which the principal debtor has failed to rescind the contract or to defend a suit by the creditor on the basis or fraud prior to the latter's action against the guarantor. Moreover, this limited extension of the exception to the defense of fraud does not appear to be the majority rule, and has been rejected by most of the commentators and the Restatement of Security, at least in cases in which the guarantor had no knowledge of the fraud practiced on the principal debtor. Even given California's adoption of the limited extension to the defense of fraud, however, it is clear that defenses of the principal debtor which are not of a ‘personal nature,’ such as the statute of limitations or the anti-deficiency legislation, cannot be considered within the ‘mere personal disability of the principal’ exception to Section 2810.' (Rintala, Suretyship Law (1969) 17 U.C.L.A.L.Rev. 245, 291–293, fns. omitted. Cf. Gottschalk v. Drapers Companies, supra, 23 Cal.App.3d at p. 832, 100 Cal.Rptr. 434.)
12. The action for indemnity mentioned in subdivision (c) refers to the rights of one of the persons mentioned in the statute against another and does not particularly designate an express insurer, indemnitor, guarantor or surety of any such person.
13. In Rosefield Packing Corp. v. Superior Court, supra, the court reviewed prior cases which had considered the problem engendered by the change in the provisions of Code of Civil Procedure section 583—from within five years after filing of the answer to within five years after filing of the complaint. It upheld (4 Cal.2d at p. 123, 47 P.2d 716) the case in which the courts had allowed trial to proceed within the old time limitation, because application of the new provision would have cut off all right to trial of the action filed more than five years prior to the effective date of the statute. (See Coleman v. Superior Court (1933) 135 Cal.App. 74, 76 and 81, 26 P.2d 673; and note Masonic Mines Assn. v. Superior Court (1934) 136 Cal.App. 298, 300, 28 P.2d 691 [applying Coleman to change in law concerning time to pay fees on change of venue].) On the other hand the court disapproved (id., pp. 123–124, 26 P.2d 673) the application of the foregoing principle to a case where the party, as in the principal case, had over a year after the effective date of the new statute in which to bring the action to trial. (See Shoemaker v. Superior Court (1935) 4 Cal.App.2d 586, 588, 41 P.2d 343.)
14. In those cases in which the action would be barred as of the effective date of the new statute by applying the new limitation to shorten the time, the courts in some cases have extended the time for action by computing the time from the effective date of the new provision. (See Key Ins. Exch. v. Biagini (1967) 250 Cal.App.2d 143, 147–148, 58 Cal.Rptr. 408; Pacific Indem. Co. v. Superior Court (1966) 246 Cal.App.2d 63, 68–70, 54 Cal.Rptr. 470; and Niagara Fire Ins. Co. v. Cole (1965) 235 Cal.App.2d 40, 42–43, 44 Cal.Rptr. 889 [period within which to demand arbitration under uninsured motorist clause]; Baldwin v. City of San Diego (1961) 195 Cal.App.2d 236, 243, 15 Cal.Rptr. 576, [90-day claim statute for accrued premiums]; Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600, 274 P.2d 476 [6-year limit on minor's claim for injuries sustained prior to or in connection with birth]; and Casey v. Katz (1952) 114 Cal.App.2d 391, 393, 250 P.2d 291 [claim against estate for tortious injury]. Cf. Bank of America Assn. v. Dennison (1935) 8 Cal.App.2d 173, 179, 47 P.2d 296 [where measured from prior event, cannot measure from effective date].) In the instant case no right of action was cut off by the mere enactment of the statute. No opinion is expressed as to the applicability of the statute to cases where a latent deficiency, discovered after the enactment of the statute, relates to a development or improvement which was substantially completed more than ten years before the discovery and prior to the enactment of the statute. The question of the right of the Legislature to prevent the accrual of a cause of action which might otherwise accrue is not directly involved in this action. (See Coombes v. Getz (1933) 217 Cal. 320, 330–333, 18 P.2d 939, and Bradler v. Craig (1969) 274 Cal.Rptr.2d 466, 476–477, 79 Cal.Rptr. 401.)
15. The Fourteenth Amendment to the Constitution of the United States provides in pertinent part, ‘. . . No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.’Section 7 of Article I of the California Constitution reads: ‘(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. [¶](b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.’ (Cf. former art. I, § 21, as adopted 1879.)Section 16 of Article IV provides in part: ‘(a) All laws of a general nature have uniform operation.’ (Cf. former art. V, § 11, as adopted 1879.)
16. Skinner v. Anderson (1967) 38 Ill.2d 455, 231 N.E.2d 588; Saylor v. Hall (Ky. 1973) 497 S.W.2d 218; Fujioka v. Kam (1973) 55 Haw. 7, 514 P.2d 568; Bagby Elevator and Electric Co., Inc. v. McBride (1974) 292 Ala. 191, 291 So.2d 306; and Plant v. R. L. Reid, Inc. (1975) 294 Ala. 155, 313 So.2d 518; Kallas Millwork Corp. v. Square D Co. (1975) 66 Wis.2d 382, 225 N.W.2d 454; and note Rosenthal v. Kurtz (1974) 62 Wis.2d 1, 213 N.W.2d 741 and 216 N.W.2d 252.
17. Carter v. Hartenstein (1970) 248 Ark. 1172, 455 S.W.2d 918 [appeal dismissed for want of a substantial federal question (1971) 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800]; and note Williams v. Edmondson (1975) 257 Ark. 837, 520 S.W.2d 260; Josephs v. Burns & Bear (1971) 260 Or. 493, 491 P.2d 203; Rosenberg v. Town of North Bergen (1972) 61 N.J. 190, 293 A.2d 662; and note O'Connor v. Altus (1975) 67 N.J. 106, 335 A.2d 545; and Salesian Society v. Formigli Corp. (1972) 120 N.J.Super. 493, 295 A.2d 19, aff'd (1973) 124 N.J.Super. 270, 306 A.2d 466; Yakima Fruit v. Central Heating (1972) 81 Wn.2d 528, 503 P.2d 108; Agus v. v. Future Chattanooga Dev. Corp. (D.C.Tenn.1973) 1973) 358 F.Supp. 246; Nevada Lakeshore Co., Inc. v. Diamond Electric, Inc. (1973) 89 Nev. 293, 511 P.2d 113; Carr v. Mississippi Valley Elec. Co. (La.App.1973) 285 So.2d 301; but cf. Coon v. Blaney (La.App. 1975) 311 So.2d 622; and Freezer Storage, Inc. v. Armstrong Cork Co. (1975) 234 Pa.Super. 441, 341 A.2d 184.
18. In Davies v. Krasna (1975) 14 Cal.3d 502, 121 Cal.Rptr. 705, 535 P.2d 1161, the court, while rejecting its application to the facts at hand, noted the modern trend as follows: ‘Plaintiff's contention that a period of limitation should not begin to run until the injured party possesses an effective remedy raises issues which turn upon the practical purpose that a statute of limitations serves in our legal system. The fundamental purpose of such statutes is to protect potential defendants by affording them an opportunity to gather evidence while facts are still fresh. [Citations.] Modern adjustments in limitations law, however, have reflected concern for the practical needs of prospective plaintiffs. Our law has evolved, for example, to a point where the limitations clock only begins to run on certain causes of action when the injured party discovers or should have discovered the facts supporting liability.’ (14 Cal.3d at p. 512, 121 Cal.Rptr. at p. 712, 535 P.2d at p. 1168.)
19. In Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, the court sustained a further constitutional attack on the guest law based on the state and United States constitutional provisions asserted in this case. Without denying the general power of the Legislature, the court concluded that since neither the protection of hospitality (8 Cal.3d at pp. 864–872, 106 Cal.Rptr. 388, 506 P.2d 212) nor the ‘collusion prevention’ rationale (id., pp. 872–877) provided a rational reason for singling out the class deprived of a right of action (id., pp. 861–864), and since numerous statutory exceptions rendered the statutory schemes irrational (id., pp. 878–882), the statute was unconstitutional (id., pp. 862–883). The court acknowledged, ‘Our holding, of course, in no way detracts from the principle that ‘the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.’ (Munn v. Illinois (1877) 94 U.S. 113, 134, 24 L.Ed. 77.) Nothing we have said is intended to imply that only the common law rules of negligence can govern automobile liability. We hold only that in undertaking any alteration or reform of such rules the Legislature may not irrationally single out one class of individuals for discriminatory treatment.' (Id., p. 882, 106 Cal.Rptr., p. 407, 506 P.2d, p. 231. Cf. Silver v. Silver (1929) 280 U.S. 117. 123–124, 50 S.Ct. 57, 74 L.Ed. 221, distinguished at 8 Cal.3d at p. 863, fn. 4, 106 Cal.Rptr. 388, 506 P.2d 212, and reactivated in Schwalbe v. Jones (1976) 16 Cal.3d 514, at p. 518, fn. 2, 128 Cal.Rptr. 321, 546 P.2d 1033.)
20. In some jurisdictions the state Constitution contains a clause providing that there must be a remedy for every wrong or words of similar tenor. (See, e. g., Skinner v. Anderson, supra, 38 Ill.2d 455, 458–459, 231 N.E.2d 588, 590 Ill.Const. art. II, § 19; Kallas Millwork Corp. v. Square D Co., supra, 66 Wis.2d 382, 388 and 383, fn. 1, 225 N.W.2d 454, 457 and 460, fn. 1, Wis.Const., art. I, § 9; Saylor v. Hall, supra (Ky.), 497 S.W.2d 218, 222, Ky.Const., § 14; Josephs v. Burns & Bear (1971) 260 Or. 493, 502–503, 491 P.2d 203, 207–208, Or.Const., art. I, § 10; and Freezer Storage, Inc. v. Armstrong Cork Co., supra, 234 Pa.Super. 441, 448–449, 341 A.2d 184, 187–188, Pa.Const., art. I, § 11.) No such provision is involved in this case, but it may be noted that the Oregon and Pennsylvania courts found such a clause did not preclude placing an absolute limit on the time in which an action could be filed although it might not accrue within that period.
21. In this case the statute neither involves a suspect class nor touches upon a fundamental right. Equal protection is therefore measured by the basic and conventional standard for reviewing economic and social welfare legislation. In Brown v. Merlo, supra, which similarly dealt with a restraint on the right to recover for injuries, the court noted that plaintiff had adduced ‘neither authority nor persuasive reasoning . . . for his claim that his right to sue for negligently inflicted injuries is a ‘fundamental interest’ analogous to voting rights or education.' (8 Cal.3d at p. 862, fn. 2, 106 Cal.Rptr. at p. 392, 506 P.2d at p. 216.) The court stated, ‘Under these circumstances, we conclude that the strict scrutiny analysis is not applicable. [Citation.]’ (Id. See Schwalbe v. Jones, supra, 16 Cal.3d 514, 517–518 and fn. 2, 128 Cal.Rptr. 321, 546 P.2d 1033; and Tobriner, J. dissenting at p. 525; Ganschow v. Ganschow (1975) 14 Cal.3d 150, 158, 120 Cal.Rptr. 865, 534 P.2d 705; Adams v. Superior Court (1974) 12 Cal.3d 55, 60, 115 Cal.Rptr. 247, 524 P.2d 375; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16–18, 112 Cal.Rptr. 786, 520 P.2d 10; and Wood v. Public Utilities Commission (1971) 4 Cal.3d 288, 294–295, 93 Cal.Rptr. 455, 481 P.2d 823.)
22. In Alabama, the fifth state which declared legislation in this field unconstitutional, the court first declared a portion of the statute unconstitutional because the title of the bill which referred to it as a statute of limitations failed to show that it was more, in that it cut off rights which had not accrued. (Bagby Elevator and Electric Co., Inc. v. McBride, supra, 292 Ala. 191, 291 So.2d 306, 309–312.) There is a similar provision in the California Constitution (art. IV, § 9 [formerly § 24]). The bill as introduced and passed (AB 2742, Stats.1971, ch. 1569, § 1, p. 3149) was entitled ‘An act to add Section 337.15 to the Code of Civil Procedure, relating to limitation of actions.’ In this state the constitutional provision is construed liberally so as to uphold all parts of legislation which are reasonably germane to the expressed purpose of the act. (See Schwalbe v. Jones, supra, 16 Cal.3d 514, at pp. 523–524, fn. 16, 128 Cal.Rptr. 321, 546 P.2d 1033; and Deyoe v. Superior Court (1903) 140 Cal. 476, 487–489, 74 P. 28.)In Plant v. R. L. Reid, Inc. (1975) 294 Ala. 155, 313 So.2d 518, the remaining provisions of the statute were declared unconstitutional as vague when construed with other relevant statutes. (294 Ala. at p. 161, 313 So.2d at p. 523.
23. Civil Code section 1714 provides: ‘Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.’The ‘Title on Compensatory Relief’ contains the following pertinent provision: ‘Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.’ (§ 3281.)Moreover, included in the ‘Maxims of Jurisprudence’ is the following: ‘For every wrong there is a remedy.’ (§ 3523.)
SIMS, Acting Presiding Justice.
ELKINGTON and BRAY,* JJ., concur.