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Court of Appeal, Fourth District, Division 2, California.

Craig EVANS, Plaintiff and Appellant, v. The CITY OF ANAHEIM, et al., Defendants and Respondents.

Civ. 27377.

Decided: July 14, 1982

Peake & Clark and Jack Hylton Clark, Santa Ana, for plaintiff and appellant. Rutan & Tucker and Ira G. Rivin, Costa Mesa, for defendants and respondents Tico 620, Inc. and Adrian Wilson. Murtaugh, Hatcher & Miller, Bradford H. Miller and Michael J. Nelson, Santa Ana, for defendant and respondent Del E. Webb Corp.


 Plaintiff appeals from the grant of summary judgment in favor of three of several defendants in this personal injury suit.1  Defendants moved for summary judgment on the ground that the action was barred as to them by Code of Civil Procedure section 337.15,2 a ten-year statute of limitations.

In this case of first impression in this district, we conclude that section 337.15 does not apply to personal injury actions, and will therefore reverse.


In his complaint, plaintiff alleged that he sustained bodily injuries during a fall through a plate glass door at the Anaheim Convention Center (the Center).   Among other things, plaintiff alleged that the door and the door opening mechanism were defective.   The three defendants involved in this appeal (defendants) are the successors in interest and the former principal of the architect, and the general contractor for the construction of the Center.

The parties agree that construction of the Center was substantially completed more than ten years before plaintiff filed his complaint.   Defendants therefore moved for summary judgment on the sole ground that the lawsuit was barred by section 337.15, which provides, in pertinent part:  “(a) No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following:  [¶]  (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property.  [¶]  (2) Injury to property, real or personal, arising out of any such latent deficiency.  [¶]  (b) As used in this section, ‘latent deficiency’ means a deficiency which is not apparent by reasonable inspection․  [¶¶]  (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.”

Defendants' motion was granted, and plaintiff appealed, arguing that section 337.15 does not bar a suit for personal injuries, and, by granting defendants' motion, that the court deprived plaintiff of a remedy without due process of law.



We now consider whether section 337.15 bars a personal injury action for damages brought against those involved in the design and construction of an improvement to real property more than ten years after the substantial completion of the improvement.

 In construing a statute “[w]e begin with the fundamental rule that a court ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’  [Citation.]  In determining such intent ‘[t]he court turns first to the words themselves for the answer.’   [Citation.]  We are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’   [Citations.]  ‘If possible, significance should be given to every word, phrase, sentence and part of an act in persuance of the legislative purpose.’   [Citation.]  ‘[A] construction making some words surplusage is to be avoided.’  [Citation.]  ‘When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.’  [Citations.]  Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.  [Citations.]”  (Moyer v. Workmen's Compensation Appeals Bd., 10 Cal.3d 222, 230–231, 110 Cal.Rptr. 144, 514 P.2d 1224.)

 Defendants point out that subdivision (a) of the statute begins with the broad language, “No action may be brought․”  Subdivision (a) is broad enough, goes the argument, to include an action for personal injuries.   However, if subdivision (a) were interpreted to be all-inclusive, subdivisions (a)(1) and (a)(2), which specify two types of suits which are barred by the statute, would be rendered superfluous.   We also believe that defendants' construction of subdivision (a) ignores its form.   Reducing the section to its simplest form, subdivision (a) states, “No action may be brought ․ for any of the following:  (1) Any latent deficiency․  (2) Injury to property․”  We believe the statute, on its face, imposes a limitations period only in the two areas of action enumerated in subdivisions (a)(1) and (a)(2).   Personal injury actions are not mentioned in the statute.

Our interpretation of the statute is fortified by an examination of its legislative history.   Assembly Bill No. 2742, which was eventually enacted as section 337.15, originally contained three subdivisions to subdivision (a).   Subdivision (a)(3) of the original bill specifically provided that the limitations period applied to the “[i]njury to or the wrongful death of any person arising out of any such latent deficiency.”  (Assem. Bill No. 2742 (1971 Reg.Sess.) April 15, 1971.)   The bill was sent to the Committee on the Judiciary, which recommended deleting subdivision (a)(3).   The bill was finally enacted as amended by the Committee on the Judiciary.   That the Legislature rejected the provision stating that the limitations period applied to personal injury cases “is most persuasive to the conclusion that the act should not be construed to include the omitted provision.”  (Madrid v. Justice Court, 52 Cal.App.3d 819, 825, 125 Cal.Rptr. 348;  cited with approval in California Manufacturers Association v. P. U. C., 24 Cal.3d 836, 846, 157 Cal.Rptr. 676, 598 P.2d 836.)

The Legislature's intention that section 337.15 would not bar an action for personal injury cases becomes even more apparent when that section is compared to a related statute, section 337.1.   Section 337.1, which was enacted four years before section 337.15, imposes a four-year limitations period on certain actions arising from patent 3 deficiencies in real property improvements.   Section 337.1, subdivision (a)(3), like the deleted subdivision (a)(3) in Assembly Bill No. 2742, specifically provides that the four-year limitations period applies to cases arising from personal injuries or wrongful death.

We must assume that in enacting section 337.15, the Legislature was aware of the provisions of the closely related section 337.1, and that the exclusion of subdivision (a)(3) in section 337.15 was advertent.  (Anthony v. Super. Ct., 109 Cal.App.3d 346, 355, 167 Cal.Rptr. 246.)  “ ‘Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ․ is significant to show that a different intention existed.’ ”  (People v. Drake, 19 Cal.3d 749, 755, 139 Cal.Rptr. 720, 566 P.2d 622, quoting People v. Valentine, 28 Cal.2d 121, 142, 169 P.2d 1.) 4

We conclude, in enacting section 337.15, that the Legislature did not intend to impose a limitations period on personal injury actions.


Defendants have cited two cases for the proposition that section 337.15 will bar a personal injury action.   We now consider these cases.

In Ernest W. Hahn, Inc. v. Super. Ct., 108 Cal.App.3d 567, 166 Cal.Rptr. 644, the Second District, Division Two, made the statement that section 337.15 would bar a personal suit against a building contractor where the suit was brought more than ten years after the building was completed.  (Id. at p. 569, 166 Cal.Rptr. 644.)   In this case, plaintiff slipped on an allegedly defective step at defendant's restaurant.   The restaurant had been built more than ten years earlier.   Defendant cross-complained against the building contractor for indemnification.   The contractor's motion for summary judgment was denied.   The contractor sought a peremptory writ of mandate ordering the trial court to grant cross-defendant's motion.   As the Hahn court stated, “[t]he sole issue presented in these proceedings is whether Code of Civil Procedure section 337.15 operates to bar an action for indemnity․”  (Id. at p. 569, 166 Cal.Rptr. 644;  emphasis added.)   In concluding that cross-defendant's action was barred by section 337.15, the Hahn court was not required to consider the precise question raised by the case at bench.   We believe that the Hahn court's statement that plaintiff's personal injury suit was barred was merely a gratuitous observation.   As such, it is not helpful in determining the case at bench.5

In Fisher v. Morrison Homes, Inc., 109 Cal.App.3d 131, 167 Cal.Rptr. 133 a child was struck and killed by an automobile as the child rode his bicycle from a pedestrian pathway into the intersecting street.   The child's parents brought a wrongful death action against the designer and builder of the pathway, which had earlier been dedicated to the public use.   The boy's death was proximately caused by the failure to erect barriers at the point of intersection of the pathway and street.   Defendant's motion for nonsuit was granted on the ground that having dedicated the pathway, defendant was absolved of all tort liability arising out of its defective design.   In passing, the First District, Division Three noted that “[p]otential liability would be cut off under most instances ․ after 10 years in actions for injuries caused by latent defects.  (Code Civ.Proc. § 337.15.) 3.”  (Id. at 109 Cal.App.3d p. 139, 167 Cal.Rptr. 133.)   In the footnote accompanying this observation, the Fisher court stated that the parties had not discussed the applicability of section 337.15 or section 337.1, and specifically declined to address the question whether either section acted as a bar to plaintiffs' action.  (Id. at p. 139, fn. 3, 167 Cal.Rptr. 133.)   In short, the Fisher case provides no guidance to us because it declined to address the issue presented by the case now before us.

The only other case known to us which considers the question whether a personal injury action can be barred by section 337.15 is the dissenting opinion in Wagner v. State, 86 Cal.App.3d 922, 150 Cal.Rptr. 489.   In that case, plaintiff sued for defendants' negligent operation of a vehicle.   Defendant cross-complained against an engineering firm, alleging it was negligent in designing the intersection where the collision occurred.   The majority held that plaintiff had alleged only a patent deficiency in design and that the cross-complaint was barred by section 337.1(a)(3).   In the majority's view, section 337.15 was not applicable.

The dissent concluded that the cross-complaint sufficiently alleged a latent defect.   It went on to consider section 337.15, and concluded that, unlike section 337.1, section 337.15 did not specifically impose a limitations period in actions arising from personal injury or wrongful death.   A consideration of the legislative history of section 337.15 led to the conclusion that in enacting the statute, the Legislature did not intend to limit wrongful death and personal injury actions.


Defendants have pointed out that it was the Legislature's purpose in enacting sections 337.1 and 337.15 to promote construction by freeing those in that industry from the spectre of lawsuits in the distant future.  (See Regents of Univ. of Cal. v. Hartford Accident & Indemnity Co., supra, 21 Cal.3d at p. 641, 147 Cal.Rptr. 486, 581 P.2d 197;  Wagner v. State, supra, 86 Cal.App.3d at pp. 929–930, 150 Cal.Rptr. 489.)   We have determined that on its face, section 337.15 provides a limitations period in only two classes of actions:  actions for damages for the deficiency itself (§ 337.15, subd. (a)(1)), and actions for damages to property resulting from latent deficiencies (§ 337.15, subd. (a)(2)).   If the Legislature had intended to impose a limitations period in personal injury and wrongful death actions arising from latent deficiencies, it could have done so by passing A.B. 2742.   It did not.   If defendants believe that they are not adequately protected by sections 337.1 and 337.15, they must make their argument to the Legislature.

In light of our decision that section 337.15 does not bar personal injury actions, we need not consider plaintiff's argument that the trial court rewrote section 337.15 “so as to deprive plaintiff ․ of a property right” without due process of law.


For the foregoing reasons the order granting the motion for summary judgment was error.   The judgment is reversed with directions to vacate the order granting defendants' motion for summary judgment.



1.   The motion for summary judgment was granted only as to the three defendants involved in this appeal.   There are other defendants in this case who were not affected by the entry of summary judgment.   Although the summary judgment was not a disposition of the entire case, it left no issue to be determined as to the defendants involved in this appeal.   Under these circumstances, the summary judgment is appealable under Code of Civil Procedure section 904.1(a).  (See Justus v. Atchison, 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122.)

2.   Unless otherwise indicated, all statutory references in this opinion are to the Code of Civil Procedure.

3.   “(A) deficiency which is apparent by reasonable inspection.”  (§ 337.1, subd. (e).)

4.   Plaintiff has cited Regents of Univ. of Cal. v. Hartford Accident & Indemnity Co., 21 Cal.3d 624, 632, 147 Cal.Rptr. 486, 581 P.2d 197 for the proposition that section 337.15 should be narrowly construed.   We do not believe Regents is pertinent to the case at bench.In Regents, the court decided that section 337.15 as it then read did not bar an action against a surety.   The court noted that a surety was not then within the statutory description of those who were protected by the statute, nor was a surety included in the statutory description of those who could not assert the statute as a defense.   In reaching its judgment, the court relied on the general rule that a statute of limitations which describes only an action against the principal does not bar a suit against the surety.

5.   Plaintiff argues that Hahn is “bad law” on the question whether the indemnity action was barred.   We have no occasion to consider that assertion in this case.We do note, however, that in Grimmer v. Harbor Towers, 133 Cal.App.3d 88, 183 Cal.Rptr. 634 (1982) the court recently held that section 337.15 does not bar a cross-complaint for indemnity in a personal injury suit brought more than ten years after construction was completed.   The Grimmer court held, because the underlying personal injury action was not barred by section 337.15, that the related indemnity action was likewise not barred.   The Grimmer court expressly disagreed with the Hahn decision.

THE COURT.* FN* Before KAUFMAN, Acting P. J., and McDANIEL and TROTTER, JJ.

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