Thieriot v. Lusardi Construction CA1/1 ( 2023 )

Filed 5/5/23 Thieriot v. Lusardi Construction CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ELISABETH THIERIOT,
Plaintiff and Appellant, A164165
v. (Marin County
LUSARDI CONSTRUCTION CO., Super. Ct. No.
CIV1604500)
Defendant and Respondent.
Plaintiff and appellant Elisabeth Thieriot (Thieriot) contracted with
defendant Lusardi Construction Company (Lusardi) to install over 100 new
custom-designed and manufactured mahogany-framed windows and doors at
her Tiburon residence. Lusardi was not involved in either the design,
purchase, or manufacture of the windows and doors. The installation began
in early 2009 and was completed by late 2009. Almost immediately, Thieriot
was aware the windows and doors did not work properly and were not
weather tight. Lusardi made attempts to rectify the situation, without
success. In late July 2012, Thieriot sent Lusardi and the manufacturer of the
windows and doors an e-mail recapping the problems, complaining none of
the repair efforts had solved them, and asserting a “permanent” solution was
required which she asserted meant the windows and doors needed to be
wholly “recut.”
1
Four and a half years later, in December 2016, Thieriot filed the
instant lawsuit. Lusardi moved for, and was granted, summary judgment on
the ground the statutes of limitations had run on all causes of action.
On appeal, Thieriot maintains the trial court abused its discretion in
denying her a second continuance to oppose the motion and erred as a matter
of law in granting summary judgment. We affirm.
BACKGROUND1
In 2008, Thieriot started a lengthy remodel of her Tiburon home, and
contracted with Lusardi to install 117 new, custom designed and
manufactured mahogany-framed windows and doors. Lusardi had no
involvement in the design, purchase, or manufacturer of the windows and
doors.
Lusardi commenced installation in early 2009 and completed its work
in late 2009. It sent its final billing in February 2010.
Within months of completion, and at the latest by the spring of 2010,
Thieriot was aware of water intrusion, wind and dust seepage, difficulties
opening windows, warped astragals on the French Doors, and an uneven fit
between the sash and the frames in many of the windows and doors.
Thieriot contacted Lusardi, and the contractor made efforts to correct
the problems over the course of the next two years.
In late July 2012, Thieriot sent an e-mail to Lusardi and the window
and door manufacturer, recapping the problems and complaining that for two
years they had not been corrected. She stated “the time has come to fix what
is broken,” and that the failed repair efforts “only made it so very clear it
We provide an overview of the facts and procedural history here and
1
provide a more detailed discussion of the facts in connection with our
discussion of the issues on appeal.
2
needs [a] permanent solution.” She further asserted that to correct the
problems, the windows and doors needed to be “recut . . . to fit the frames so
then there will be a fit between them. The idea of filling the space with
rubbers and other strips does not work.”
The following year, in 2013, Thieriot retained an attorney. She also
retained an expert who provided a report in mid-July addressing the
problems Thieriot had identified. The expert did not identify any problem of
which Thieriot was not already aware, nor did he pinpoint a specific cause of
the problems.
In mid-December 2016—more than six and a half years after the spring
of 2010, by which time Thieriot had become aware of problems with the
windows and doors, and four and a half years after her July 2012 e-mail to
Lusardi and the manufacturer recapping the problems, complaining about
the failed repair efforts, and asserting the windows and doors need to be
recut—Thieriot filed the instant lawsuit against Lusardi and three other
contractors. Thieriot alleged Lusardi had not used reasonable care in
installing the windows and doors, had actively concealed defects, and had
overstated its ability to perform. She asserted causes of action for breach of
contract, unfair competition, fraud, and negligent misrepresentation.
In late May 2021, Lusardi moved for summary judgment on the ground
Thieriot’s claims were barred by the statutes of limitations.2
2 Lusardi alternatively moved for summary adjudication on the claims
for unfair competition, fraud, and negligent misrepresentation on the ground
Thieriot could not establish it had made any misrepresentation of fact, that it
had knowledge of falsity or possessed an intent to defraud her. As we shall
discuss, we need not, and do not, reach these issues.
3
Thieriot did not file timely opposition. Instead, eight days after the
deadline to do so passed, she filed an ex parte application to continue the
motion. In a declaration in support, Thieriot’s attorney stated he had had an
adverse reaction to a Covid-19 vaccination and was unable to prepare the
opposition. The trial court granted the application and continued the
hearing, giving Thieriot another four weeks to file opposition.
Thieriot again failed to file timely opposition. Four days after the new
deadline, she filed opposing points and authorities, along with a declaration
by counsel claiming good cause and a reasonable excuse for late filing (stating
he had also had an adverse reaction to a second Covid-19 vaccination). The
court accepted the filing.
In her points and authorities, Thieriot stated the depositions of
Lusardi’s two designated “Persons Most Knowledgeable” (PMK’s) had just
been completed and she did not yet have the transcripts, asserting the
depositions were “necessary to defend against the motions of summary
judgment . . . as to this point,” “this point” referring to statements about
Lusardi’s construction experience. She also stated the deposition of the
employee of another defendant who allegedly convinced her to hire Lusardi to
do the installation work had not yet been taken but was scheduled, and that
deposition was “also necessary to help establish the facts on which the
specific complaint relies.” In the final paragraph of her declaration in
opposition to the motion, Thieriot asked to continue the motion under Code of
Civil Procedure section 437c, subdivision (h) “[if] the court does not find that
this matter should proceed based upon the evidence already presented.”
In reply, Lusardi stated it had offered to make its two PMKs available
for deposition months earlier, in mid-July. But Thieriot’s attorney made no
effort to schedule the depositions before the initial due date for her
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opposition. After obtaining the extension to file opposition, counsel did not
take the depositions until less than a week before the new due date. Nor had
counsel asked Lusardi’s attorney to agree to use of the rough transcripts or
asked the court reporters for expedited transcripts.
During the hearing, after he presented argument, Thieriot’s counsel
apparently lost his Zoom connection, so the trial court continued the matter
to the following week. Counsel did not appear at the continued hearing, but
all other counsel did. At the conclusion of the hearing, the trial court denied
a further continuance under Code of Civil Procedure section 437c, subdivision
(h), adopted its tentative decision, and granted Lusardi’s motion for summary
judgment.
DISCUSSION
The Request for Continuance
Thieriot maintains the trial court erred in denying her request to
continue the summary judgment motion to enable her to obtain deposition
transcripts she claims show there are triable issues that preclude summary
judgement.
Code of Civil Procedure section 437c, subdivision (h) provides: “If it
appears from the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential to justify
opposition may exist but cannot, for reasons stated, be presented, the court
shall deny the motion, order a continuance to permit affidavits to be obtained
or discovery to be had, or make any other order as may be just. The
application to continue the motion to obtain necessary discovery may also be
5
made by ex parte motion at any time on or before the date the opposition
response to the motion is due.”3
As the statute reflects, “[t]o mitigate summary judgment’s harshness,
the statute’s drafters included a provision making continuances—which are
normally a matter within the broad discretion of trial courts—virtually
mandated ‘ “upon a good faith showing by affidavit that a continuance is
needed to obtain facts essential to justify opposition to the motion.” ’ ” (Bahl
v. Bank of America (2001) 89 Cal.App.4th 389, 395 (Bahl); see Braganza v.
Albertson’s LLC (2021) 67 Cal.App.5th 144, 152 (Braganza).) Thus,
“[c]ontinuance requests under section 437c, subdivision (h), are to be liberally
granted. [Citations.] ‘[T]he interests at stake are too high to sanction the
denial of [such] a continuance [request] without good reason.’ [Citation.]
These interests include the importance of deciding cases on their merits
rather than on procedural deficiencies.” (Braganza, at p. 152.)
However, a continuance is not guaranteed. The purpose of the required
affidavits or declarations is to enlighten the court as to what outstanding
discovery is necessary to oppose summary judgment. (Chavez v. 24 Hour
Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.) “[I]t ‘is not sufficient
under the statute merely to indicate further discovery or investigation is
contemplated. The statute makes it a condition that the party moving for a
continuance show “facts essential to justify opposition may exist.” ’ ” (Bahl,
supra, 89 Cal.App.4th at p. 397.) “The affidavit is required to show that ‘ “(1)
the facts to be obtained are essential to opposing the motion; (2) there is
reason to believe such facts may exist; and (3) the reasons why additional
3 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
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time is needed to obtain [or discover] these facts.” ’ ” (Braganza, supra,
67 Cal.App.5th at p. 153.)
There has been “a split of opinion among the California appellate courts
‘as to the effect of the absence of [] an explanation’ of why discovery was not
completed sooner, when a party seeks a continuance under section 437c,
subdivision (h). [Citation.] That split of authority continues to this day.”
(Braganza, supra, 67 Cal.App.5th at p. 155.)
In Bahl, for example, the court stated, “when a party submits an
affidavit demonstrating that facts essential to justify opposition may exist
but have not been presented to the court because the party has not been
diligent in searching for the facts through discovery, the court’s discretion to
deny a continuance is strictly limited.” (Bahl, supra, 89 Cal.App.4th at
p. 398; accord, Frazee v. Seely (2002) 95 Cal.App.4th 627, 635.) In Braganza,
however, the court stated, “ ‘[t]here must be a justifiable reason why the
essential facts cannot be presented. An inappropriate delay in seeking to
obtain the facts may not be a valid reason why the facts cannot then be
presented. The statute itself authorizes the imposition of sanctions for
declarations presented in bad faith or solely for purposes of delay. (§ 437c,
subd. (j).) A good faith showing that further discovery is needed to oppose
summary judgement requires some justification for why such discovery could
not have been completed sooner.’ ” (Braganza, supra, 67 Cal.App.5th at
p. 156, quoting Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257.)
We need not choose sides on this issue, however, as the trial court not
only denied Thieriot’s request for a continuance because she “repeatedly
failed to abide by statutory and court deadlines” and “the continued delay
[was] inexcusable,” but also because she made no showing, in either her
points and authorities or her own declaration, how the deposition testimony
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“would be material to this dispute,” i.e., to the grounds on which Lusardi
sought summary judgment.
In her opening brief, Thieriot asserts the deposition transcript of PMK
Dale Macy “would provide material facts that the problems with the
construction occurred into 2015.” She claims this “was verbally stated during
the . . . hearing . . . by . . . counsel,” and she “noted this throughout her
declaration.” She further maintains in her opening brief that this evidence
“was critical to establish that a genuine question of material fact remained
regarding whether the statutes of limitations had been tolled in 2015 when
[she] was continuing to remedy the problems with the doors and windows.”
However, Thieriot did not need any PMK deposition transcript to
establish that the problems with the windows and doors remained unresolved
as of 2015. She, herself, had personal knowledge of the assertedly persisting
problems with the windows and doors, as well as knowledge of any other facts
that purportedly supported her claim that the limitations periods were tolled.
Indeed, she alleged in her verified complaint that in December 2015 a large
storm occurred that damaged one of the sets of French doors and she
discovered at that time that the frames appeared not to have been made of
solid mahogany but of a mixture of woods wrapped with mahogany cladding.
She further averred in her declaration, dated “9/2021,” that the problems
remained, and she still did “not have a safe house.”
Moreover, in the trial court, which is the critical venue for evaluating a
request for a continuance under section 437c, subdivision (h), she did not
make the argument she has now advanced on appeal. As we have recited, all
she provided to the trial court were generic claims of asserted need for
further discovery devoid of any specific explanation as to why the deposition
transcripts were “essential” to opposing Lusardi’s motion.
8
In short, Thieriot made no showing in the trial court, and has made
none on appeal, that the PMK deposition transcripts established facts
“essential to justify opposition” which could not “be presented” in the absence
of a continuance. For this reason, alone, the trial court did not abuse its
discretion in denying Thieriot’s request to continue the summary judgment
motion so she could obtain transcripts of the PMK depositions.
The Statutes of Limitations
Thieriot also challenges the trial court’s grant of summary judgment.
Generally speaking, we review de novo the trial court’s grant of
summary judgment. (Hampton v. County of San Diego (2015) 62 Cal.4th 340,
347.)
However, the only argument Thieriot has advanced in her appellate
briefing is that she “set forth all the facts needed to establish a tolling
argument” and the trial court erred in not ruling “the applicable statute of
limitations was tolled” for a sufficient period of time to save her claims. In
other words, Thieriot does not take issue with the trial court’s ruling that her
claims are untimely under the “discovery rule” of accrual that applies to her
claims.4 (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 369–370
4While Lusardi identified the differing limitations periods for breach
of contract (four years) and for unfair competition, fraud, and negligent
misrepresentation (three years), its discussion of accrual under the delayed
discovery rule is applicable to all of the claims. Thieriot follows suit on
appeal, collectively arguing she raised a triable issue as to “tolling” the
applicable limitations periods. At oral argument, Thieriot’s attorney
suggested the 10-year statute of limitations for latent construction defects set
forth in section 337.15 applied. However, this was never urged in the trial
court, and in her opening brief on appeal, Thieriot states, “The statute of
limitations on Appellant’s breach of contract and unfair competition causes of
action were four years. . . .”
9
(Lantzy) [discussing limitations periods and discovery rule applicable to
“construction defect” claims]; Brisbane Lodging, L.P. v. Webcor Builders, Inc.
(2013) 216 Cal.App.4th 1249, 1257–1258 [same]; E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1316, 1318 [discussing limitations
periods and discovery rule for negligent misrepresentation and fraud].)
Rather, she claims only that the court should have ruled the applicable
limitations periods were “tolled” for a sufficient period of time to render her
claims timely.5
The appellate courts have articulated differing standards of review
when it comes to equitable tolling. In Thomas v. Gilliland (2002)
95 Cal.App.4th 427, 430, 434 (Thomas), in upholding a dismissal following a
demurrer based on limitations grounds, a ruling that usually is reviewed de
novo, the court stated that a ruling applying or refusing to apply the doctrine
of equitable tolling is “accord[ed] [] a different standard of review. Equitable
tolling is a fact intensive issue and it is determined based upon evidence.
Accordingly, we are compelled to affirm the trial court’s rejection of the
theory if there is substantial evidence to support its determination.” In Mills
v. Forestex Co. (2003) 108 Cal.App.4th 625, 639–640 (Mills), in affirming a
summary judgment based on limitations grounds and rejecting equitable
tolling, the court stated, “we review the decision for abuse of discretion when
the court granted or denied a motion for summary judgment in the exercise of
its equitable powers.” In Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736,
748, in reversing a judgment on limitations grounds following a bench trial,
5 We also note the doctrine of equitable tolling differs from equitable
estoppel (Lantzy, supra, 31 Cal.4th at p. 383 [“Equitable tolling and equitable
estoppel are distinct doctrines.”]), and Thieriot’s briefing is confined to the
doctrine of equitable tolling.
10
the appellate court stated, “[w]hether the trial court provided legally
sufficient reasons for determining that the doctrine of equitable [tolling] does
not apply in this case presents a question of law that we review de novo.”
(See Saint Francis Memorial Hospital v. State Dept. of Public Health (2020)
9 Cal.5th 710, 730 (Saint Francis) [remanding to the court of appeal to
determine whether the petitioner’s “conduct was reasonable and in good
faith” and thus supported equitable tolling, suggesting the issue is a legal
one, at least on undisputed facts, that can be decided by an appellate court in
the first instance].) Given that the operative facts here are undisputed, we
shall apply the de novo standard articulated in Hopkins and implicitly
endorsed in Saint Francis.
At the end of the summary judgment hearing, the trial court ruled on
Thieriot’s equitable tolling argument and explained at considerable length
why it was rejecting it.
First, Thieriot did not make a tolling argument in her written
opposition to Lusardi’s motion, but raised the issue for the first time at the
hearing on the motion in opposing the court’s tentative ruling. The court
stated it generally will not consider arguments not raised in opposing papers.
Second, Thieriot did not allege equitable tolling in her second amended
complaint, even though she had the burden of pleading and proving that her
otherwise time-barred claims could proceed. (See Thomas, supra,
95 Cal.App.4th at p. 433 [complaint contained no allegations supporting
claim that equitable tolling applied].) In short, the trial court ruled that two
procedural hurdles seemingly barred Thieriot’s belatedly raised tolling
argument.
11
The court’s third reason for rejecting Thieriot’s tolling argument went
to the merits.6 The court correctly recited that “[t]he doctrine of equitable
tolling requires timely notice, lack of prejudice, and reasonable good faith
conduct on the part of the plaintiff,” and concluded none of these elements
“are presented by the facts here.” (See Saint Francis, supra, 9 Cal.5th at
p. 724 [equitable tolling applies when three “ ‘elements’ ” are present: “ ‘[(1)]
timely notice, and [(2)] lack of prejudice, to the defendant, and [(3)]
reasonable and good faith conduct on the part of the plaintiff’ ”].)
The court then pointed out the windows and doors “were installed in
late 2009” and “plaintiff by her own admission was aware of problems in
early 2010.” Thus, under the discovery rule, Theriot’s claims accrued at that
time—a ruling, as we have observed, with which Theriot does not take issue
on appeal. The trial court went on to state “[t]here is no general rule that the
statute is tolled during repairs, subsequent repairs. That’s the California
Supreme Court’s decision in Lantzy. . . . [Furthermore,] [b]ased on the record
before the Court, if there were any periods subject to tolling, the latest the
accrual could be tolled for repairs would be July of 2012. At which point, the
documented records showed that they were working on matters, did not
believe there was more that could be done to resolve the problems identified.
Even if the Court accrues the statute to that point, the claims would still be
untimely.”
Thus, the trial court did not categorically refuse to apply the equitable
tolling doctrine. While it identified two procedural problems in considering
the doctrine—Theiriot’s failure to raise equitable tolling in her written
6 We therefore overlook the apparent procedural problems with
Thieriot’s tolling argument. (See Thomas, supra, 95 Cal.App.4th at p. 433.)
12
opposition to Lusardi’s motion and failure to plead the doctrine in her second
amended complaint—it went on to consider the merits of her claim that
tolling rendered her claims timely. The court concluded that even assuming
equitable tolling can apply to a period during which repairs are attempted, in
this case any tolling ceased as of July 2012, because at that point, it was clear
to Thieriot that Lusardi’s efforts had not and would not solve the problems
with the windows and doors and an entirely different approach was required.
Accordingly, the tolling issue before us is a limited one—did the trial
court err in not tolling the limitations periods beyond July 2012.
Theiriot’s principal argument as to why the trial court assertedly erred
is based on the fact problems with the windows and doors “continued in
2015.” In support of this argument, she relies on a number of older cases in
which limitations periods were tolled during the time defendants were
attempting to make repairs.
Our Supreme Court discussed this line of cases in Lantzy, rejecting the
plaintiffs’ assertion “that in construction defect cases, the rule of tolling for
repairs is well established.” (Lantzy, supra, 31 Cal.4th at p. 372.) The high
court explained: “[T]wo Court of Appeal decisions, Grange Debris [Box &
Wrecking Co. v. Superior Court (1993)] 16 Cal.App.4th 1349, 1360 and
Cascade Gardens [Homeowners Assn. v. McKellar Associates (1987)]
194 Cal.App.3d 1252, 1256–1258, have concluded that the 10–year
limitations period of section 337.15 is tolled while the defendant’s promises or
attempts to remedy the defect are pending. For this holding, Grange Debris
relied solely on Cascade Gardens. Cascade Gardens, in turn, invoked the
‘clear authority’ of several earlier decisions, Aced v. Hobbs–Sesack Plumbing
Co. (1961) 55 Cal.2d 573, 585 . . . (Aced), Mack v. Hugh W. Comstock
Associates (1964) 225 Cal.App.2d 583, 589 . . . (Mack), and Southern Cal.
13
Enterprises v. Walter & Co. (1947) 78 Cal.App.2d 750, 755 . . . (Southern Cal.
Enterprises). (Cascade Gardens, supra, at p. 1256.) [¶] But Aced, Mack, and
Southern Cal. Enterprises are inapposite to the question before us. They
predate the 1971 adoption of section 337.15, and were narrowly concerned
with how to apply the limitations period for express or implied warranties.
These cases simply confirmed that the statute of limitations for breach of
warranty does not begin to run until discovery of the defect, and is thereafter
tolled during periods the warrantor claims he can honor the warranty by
repairing the defect, and attempts to do so. (Aced, supra, 55 Cal.2d 573, 577,
585 [radiant heating system; plaintiff stipulated he was relying solely on a
theory of implied warranty]; Mack, supra, 225 Cal.App.2d 583, 585, 589
[radiant heating system; plaintiff alleged breach of express warranty];
Southern Cal. Enterprises, supra, 78 Cal.App.2d 750, 752–753, 755 [installed
carpet; plaintiff alleged breach of express warranty].)” (Lantzy, at p. 372.)
The Supreme Court went on to hold that neither the structure nor the
purpose of the outside 10-year limitations period for construction defect
claims set forth in section 337.15 justifies use of equitable tolling to extend
that lengthy period. (Lantzy, supra, 31 Cal.4th at pp. 373–374.)
In doing so, the court considered the plaintiffs’ arguments that
equitable tolling for repairs “protects homeowners from unscrupulous
builders who might otherwise make false promises or ‘band-aid’ repairs in
order to forestall suit until after the 10–year period had passed” and
“encourages resolution of construction defect disputes without resort to the
courts.” (Lantzy, supra, 31 Cal.4th at p. 382.) The court rejected these
arguments, stating “a tolling rule seems just as likely to discourage a
potential defendant from undertaking voluntary remedial efforts before the
limitations period expires. If his efforts failed, he would only have prolonged
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the already lengthy period during which he was exposed to suit. [¶] Moreover,
if a plaintiff can show, in a particular case, that the defendant’s promises or
attempts to repair prevented a timely suit, the defendant may be equitably
estopped from invoking the protection of the statute of limitations. . . . Thus,
an automatic rule of equitable tolling is not necessary to counteract
fraudulent assurances of repair.” (Id. at pp. 382–383, fn. omitted.)
Thus, our Supreme Court has either squarely overruled or
distinguished the cases on which Thieriot has predicated her equitable tolling
argument.
In any case, as we have discussed, the trial court did not categorically
reject Thieriot’s tolling argument. Rather, the court ruled that even
assuming the limitations periods can be tolled while a contractor attempts
repairs, in this case, any tolling beyond her July 25, 2012 e-mail was not
reasonable.
In Saint Francis, our Supreme Court explained that the third element
required for equitable tolling—“reasonable and good faith conduct on the part
of the plaintiff”—“encompass[es] two distinct requirements: A plaintiff’s
conduct must be objectively reasonable and subjectively in good faith.” (Saint
Francis, supra, 9 Cal.5th at pp. 728–729.) “When it comes to reasonableness,
the ‘ultimate test’ is ‘objective.’ [Citation.] An analysis of reasonableness
focuses not on a party’s intentions or the motives behind a party’s actions,
but instead on whether that party’s actions were fair, proper, and sensible in
light of the circumstances.” (Id. at p. 729.) The subjective component focuses
on the party’s intentions, that is, whether the “late filing . . . was the result of
an honest mistake or was instead motivated by a dishonest purpose.” (Ibid.)
“Construing equitable tolling’s third element to contain an objective and
subjective requirement fits the doctrine’s underlying rationales. Equitable
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tolling applies only ‘in carefully considered situations to prevent the unjust
technical forfeiture of causes of action.’ ” (Ibid., quoting Lantzy, supra,
31 Cal.4th at p. 370.)
We have no difficulty agreeing with the trial court that after two years
of repair efforts that Thieriot, herself, pronounced were unavailing and
needed to be abandoned in favor of a different approach, it was no longer
objectively reasonable for her to continue to sit on her legal rights after her
July 25, 2012, e-mail.
Given this conclusion, Thieriot’s secondary tolling argument—that she
did not retain counsel until 2013 and did not procure an expert report until
July 2013—is immaterial. Her delay in both retaining counsel and procuring
an expert report was not objectively reasonable.
Furthermore, in asserting the 2013 expert report is significant, Thieriot
appears to be confusing the concepts of equitable tolling and accrual under
the discovery rule. As we have pointed out, Thieriot has not taken issue with
the trial court’s ruling that her claims are time-barred under the discovery
rule, but only with its ruling that the running of the limitations period was
not tolled for a sufficient length of time to render her claims timely. Even
under the discovery rule, however, an expert’s report is not the triggering
event for limitations purposes where, as here, the plaintiff knew or
reasonably should have known earlier of her injury and its suspected causes.
(Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1300 [“It is a
plaintiff’s suspicion of negligence, rather than an expert’s opinion, that
triggers the limitation period.”].)
As has often been recited, under the discovery rule, the limitations
period begins once the plaintiff “ ‘ “ ‘ “has notice or information of
circumstances to put a reasonable person on inquiry. . . .” ’ ” [Citations.] A
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plaintiff need not be aware of the specific “facts” necessary to establish the
claim; that is a process contemplated by pretrial discovery. Once the plaintiff
has a suspicion of wrongdoing, and therefore an incentive to sue, she must
decide whether to file suit or sit on her rights. So long as a suspicion exists,
it is clear that the plaintiff must go find the facts; she cannot wait for the
facts to find her.’ ” (Mills, supra, 108 Cal.App.4th at p. 43.) There is no doubt
that by July 25, 2012, Thieriot had ample suspicion of wrongdoing. Indeed,
she had ample suspicion of wrongdoing within months of the conclusion of the
installation work, as she was complaining about an assortment of problems
with the windows and doors by the spring of 2010.
In sum, the trial court did not err in concluding the applicable
limitations periods were not tolled beyond July 2012 and therefore her
December 2016 complaint was untimely as to all her causes of action.7
DISPOSITION
The judgment is affirmed. Costs on appeal to respondent.
7 We therefore need not, and do not, address Thieriot’s argument that
in addition to erroneously ruling that her fraud and misrepresentation claims
were time barred, the court also erred in ruling her claims failed on the
merits.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Swope, J.*
**Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A164165, Thieriot v. Lusardi Construction Company
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