Filed 6/15/16 Pinto v. Pantaleoni CA1/1
Received for posting 6/16/16
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SHEREEN PINTO et al.,
Plaintiffs and Appellants,
A143214
v.
ANTHONY PANTALEONI et al., (San Francisco City & County
Super. Ct. No. CGC-11-516428)
Defendants and Respondents.
ORDER MODIFYING OPINION AND
DENYING REHEARING
[NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the opinion filed May 16, 2016, be modified as follows:
1. On page 3, the following new footnote 2 should be added at the end of the
sentence beginning “Unlike with the podium,” and ending “despite proper design”
in the third paragraph on the page (all subsequent footnotes should be
renumbered):
2
There are other Aquatech reports in the record. One bears the subject
notation “Site Testing and DT May 24th, 2011” and was stored in a computer file
“Z:\Common\ . . . \Attachments to 0817.2011 email
1
toGoyette\2716sitesum052411cas.doc testing.doc.” This report describes the
various tests conducted at the building and states in pertinent part:
“Original building plans were made available . . . . An initial review
indicates a flat structural substrate to be waterproofed with Grace Bituthene,
covered with a sloped topping slab 1/4”/ ft. per page A-4.2 (and others). Plan
page A-8.1, details 5 and 10 indicate a sloped topping slab, perhaps with a sloped
structural slab, but there are no such notes and these details can easily be regarded
as a level structural slab.”
In their petition for rehearing, plaintiffs contend this report (1) undermines
the August 12 report as suggesting a design defect and (2) is dated August 17,
making it the later more reliable report. To begin with, regardless of the date of
this report, it supports, rather than undermines a design defect as it indicates an
“initial review” of the plans showed they called for an improper “flat structural
substrate.” That other portions of the plans may have been unclear about the
flatness or slope of the substrate does not negate the other observations. As for the
date of this report, the architects cited to it in their summary judgment reply papers
as a May 24, 2011, report. This is also consistent with the report’s subject line and
file name, and at no time in the trial court or in this court, until the rehearing
petition, did plaintiffs take issue with the May 24 date. Additionally, a third
report, bearing dates of May 24 and May 26, has the identical language. The
August 17 date merely reflects the date it was sent to the mediator, Goyette, as
indicated by the document’s filename, “0817.2011 email to Goyette\
2716sitesum052411cas.doc testing.doc.” In any case, the August 12 report which
we have quoted above, clearly states it is summarizing the other reports, and given
the contents of these reports and the overall context, it is indisputable that the
report plaintiffs are now pointing to did not divulge anything new or different after
the August 12 report we have discussed above.
2. On page 11, newly renumbered footnote 7 (originally filed as fn. 6) shall be
modified to read as follows (all subsequent footnotes should be renumbered
accordingly):
7
Contrary to plaintiffs’ assertion, the “mediation privilege” codified in
Evidence Code section 1119 does not bar use of the settlement demand letter.
This is so even when we amplify the mediation privilege through Civil Code
section 6000, subdivision (l), a provision plaintiffs did not cite until their petition
for rehearing. That section provides: “All defect lists and demands,
communications, negotiations, and settlement offers made in the course of the
2
prelitigation dispute resolution process provided by this section shall be
inadmissible pursuant to Sections 1119 to 1124, inclusive, of the Evidence Code
and all applicable decisional law.”
The problem for plaintiffs is they never raised the privilege at any time in
the trial court, and so cannot assert it for the first time on appeal or rehearing, and
thereby change the factual complexion of the case.
“A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous admission of
evidence unless [¶] . . . [t]here appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion.” (Evid. Code, § 353;
Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726 [failure to object “deprives
the proponent of the evidence an opportunity to establish a better record or some
alternative basis for admission”].) This rule applies to evidence admitted where a
privilege might have been asserted. (People v. Collie (1981) 30 Cal.3d 43, 49;
Conservatorship of Bones (1987) 189 Cal.App.3d 1010, 1018; People v.
Henderson (1981) 117 Cal.App.3d 740, 745; see also Code Civ. Proc., § 437c,
subd. (b)(5) [“Evidentiary objections not made at the hearing shall be deemed
waived.”]; Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001)
26 Cal.4th 1, 10, fn. 7 [“Failure to object to admission of evidence of events
occurring during a prior mediation has been held to constitute a waiver.”].)
In their petition for rehearing, plaintiffs contend Simmons v. Ghaderi
(2008) 44 Cal.4th 570 (Simmons) does not allow implied waiver of the mediation
privilege by litigation conduct. Simmons, however, addresses a very different sort
of waiver—it rejects the concept of global waiver of the privilege when a litigant
fails to assert it in response to one disclosure (for instance, when privileged
material is attached to a pretrial motion) but later asserts it in another context (for
example, where that same material is introduced at trial). (Id. at p. 577.) Simmons
does not address the situation where, as here, a litigant fails to object in a
particular context (or at any time) in the trial court and then seeks to invoke the
privilege in that same context for the first time on appeal. Thus, Simmons makes
no reference to Evidence Code section 353, nor does it remotely suggest that the
well-established requirement that objections to evidence must be preserved for
review uniquely does not apply to the mediation privilege.
3. On page 15, new footnote 8 should be inserted at the end of the first sentence in
the first paragraph. The sentence ends with the words “of their ignorance,” and
the footnote should be placed following the word “ignorance.” It should read as
follows:
3
8
We note that in the trial court, the architects introduced the Aquatech
reports with their summary judgment moving papers and referenced them in their
statement of proposed undisputed facts. Plaintiffs responded, as discussed above,
raising the defense of the Doe statute. The architects in their reply papers quoted
from the reports extensively, arguing the Doe statute was inapplicable. At the
summary judgment hearing, plaintiffs had ample opportunity to respond to the
points made in the reply and to address the Aquatech reports further, but did not
do so.
There is no change in the judgment.
The petition for rehearing is denied.
Dated:
________________________________
Humes, P. J.
4
Filed 5/16/16 Pinto v. Pantaleoni CA1/1 (unmodified version)
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
SHEREEN PINTO et al.,
Plaintiffs and Appellants,
A143214
v.
ANTHONY PANTALEONI et al., (San Francisco City & County
Super. Ct. No. CGC-11-516428)
Defendants and Respondents.
Plaintiffs, who had interests in a mixed-use development at 15th and Market in
San Francisco, sued various contractors for construction defects. They also sued
fictitious Doe defendants for design defects. Later, after the statute of repose had run on
any new defect claims, plaintiffs amended their complaint to substitute the project’s
architects for Does 1, 2, and 3. The architects moved for and were granted summary
judgment based on the statute of repose.
Plaintiffs assert, as they did below, that California’s Doe pleading statute allows
them to avoid the statute of repose because their substitution of the architects “relates
back” to the timely filing of their initial complaint. For plaintiffs to prevail on this
argument, they must show there is a triable issue of material fact that they were truly and
in good faith “ignorant” of any basis for the architects’ alleged liability. Like the trial
court, we conclude they failed to make this showing, and therefore affirm the judgment.
1
BACKGROUND
Jeremy Kotas and Anthony Pantaleoni own Kotas/Pantaleoni Architects, the
principal architect for a four-story mixed use building located at 15th and Market Street
in San Francisco, California. The Caridad Gravitt Trust, through its successor trustee
William Gravitt, was the project developer. A certificate of final completion and
occupancy for the building issued on March 21, 2002.
The first two floors of the building are commercial space and serve as a “podium”
atop which sit nine residential units. The residential units surround an outdoor courtyard
called the podium deck. A Joint Maintenance Committee cares for common areas,
including the podium, and a homeowners association (HOA) governs the residential
portions of the building.
About nine years after building completion, in early 2011, Gravitt, the developer,
learned of a leak in one of the commercial units and suspected water intrusion from the
podium above. He hired Aquatech Consultancy to investigate.
Meanwhile, the HOA hired a lawyer, Ann Rankin, to investigate a leak emanating
from a landing between two of the residential units which had damaged the unit owned
by Shereen Pinto. Rankin served upon developer Gravitt a “Calderon notice” of the
HOA’s claims pursuant to the then-effective version of Civil Code section 1375.1 The
notice referenced both the landing leak and the podium leak.
Gravitt’s attorney, Mark Humbert, forwarded the Calderon notice to the architects
on August 18, 2011. He did so believing the architects were “design professionals” who
bore “potential responsibility,” and thus were entitled to notice from the developer under
1
That statute, which has since been repealed and recodified, set forth pre-
litigation requirements when “a complaint for damages against a builder, developer, or
general contractor . . . of a common interest development” is contemplated because of
“defects in the design or construction of the common interest development.” (Former
Civ. Code, § 1375, repealed by Stats.2012, ch. 180 (A.B.805), § 1; see Civ. Code,
§ 6000.)
2
former Civil Code section 1375, subdivision (e)(2). Humbert’s letter stated it was
enclosing “reports from Aquatech . . . and estimates by Draeger Construction to repair
problems caused by the design and construction of the property.”
The Aquatech reports Humbert included were all signed by Charles Saul. The
report dated August 12, 2011, summarized Aquatech’s findings to date.
As to the podium leak, it found:
“1. The building plans indicate a flat structural slab (substrate) to be covered with
a waterproof membrane, covered with a sloped topping (walking) slab. [¶] 2. The
substrate was constructed flat. [¶] 3. The waterproof membrane used must be
adhered to a sloped substrate. [¶] 4. The waterproof membrane was installed
contrary to manufacturer’s installation instructions.”
These findings suggested a design flaw, as the building plans indicated for a flat
substrate, despite the need for a sloped one given the Bituthene membrane the plans
specified. The recommended fix was to, among other things, install a different kind of
membrane that would be compatible with a flat substrate.
As to the landing leak, the report found:
“1. The building plans indicate a sloped wood substrate. [¶] 2. The substrate was
constructed flat. [¶] 3. The waterproof membrane used must be adhered to a
sloped substrate. [¶] 4. The waterproof membrane was installed contrary to
manufacturer’s installation instructions.”
Unlike with the podium, there was no suggestion of deficient design, but rather a
suggestion the landing was deficiently built despite proper design.
Humbert’s August letter also informed the architects about an upcoming
mediation, telling them he had included “an email from mediator Ann Goyette, setting a
mediation in this matter for Wednesday, September 21, 2011. We request that you place
your insurer(s) on notice of this mediation, and we request your and their presence at the
mediation.”
Humbert now disclaims having had any pre-litigation knowledge of facts
suggesting potential liability on the part of the architects. In his declaration filed in
3
opposition to the motion for summary judgment, Humbert avers that, in September 2011
(a month after he forwarded the Calderon notice and Aquatech reports), he
“communicated with Charles Saul of Aquatech—who had been investigating the Podium
and preparing the reports noted above—regarding [the architects’] potential liability.”
His declaration continues: “Although Mr. [Saul] is not an architect, Aquatech specializes
in water infiltration investigations. As a result of this communication, I did not believe I
had a basis to pursue a claim against” the architects. There is no declaration from Saul.
In mid-September 2011, the mediation got rescheduled, with plans for a
preparatory teleconference on September 21 and mediation on October 5.
Also in mid-September, the HOA’s lawyer, Rankin, sent settlement demand letters
to both Gravitt and the architects. Each demand sought compensation for $116,136 in
damages incurred by the HOA and Pinto in responding to the landing leak. The letter to
the architects closed by stating:
“Unless this claim can be resolved informally or by mediation by October 5, 2011,
the Association and Ms. Pinto intend to file suit against your client and against the
developer and general contractor. Please put your client’s professional liability
insurer on notice of this claim and inform the claims representatives of the
deadline. Thank you for your anticipated courtesies.”
The architects did not attend the mediation and no resolution with them was
reached.
At the end of October, Rankin sent a letter to the various parties, including the
architects “ ‘seeking cooperation in our ongoing efforts to resolve the legal proceedings
arising from the work performed at 2189 Market Street without resort to filing a
lawsuit.’ ” The letter sought an extension of time to file suit under tolling provisions of
former Civil Code section 1375. It threatened a failure to consent would result in
litigation. The architects did not grant an extension.
In November 2011, Scott Williams, the attorney who had been representing the
Joint Maintenance Committee, which oversees podium maintenance, took over
4
representation of all the soon-to-be plaintiffs—the HOA (formerly represented by
Rankin), Pinto, Gravitt (formerly represented by Humbert), the trust, and the Joint
Maintenance Committee.
Plaintiffs filed suit the following month, on December 8, 2011, against the general
contractor and several subcontractors asserting defects related to the landing and damage
to Pinto’s unit, and to the podium and damage to the commercial area.
In their initial complaint, plaintiffs also named fictitious “Doe” defendants,
alleging: “Plaintiffs are ignorant of the true names and capacities of defendants sued
herein as Does 1 through 3000, and plaintiffs are further ignorant of the appropriate
charging allegations and theories of liability with respect to said fictitiously named
defendants, and plaintiffs therefore sue such defendants by such fictitious names.
Plaintiffs will amend this complaint to allege their true names and capacities when
ascertained. Based on information and belief, each of the defendants so designated
herein is legally responsible and liable in same manner for the events and happenings
referred to herein, and is therefore liable and responsible to plaintiffs for amounts to be
hereinafter determined.”
In particular, “Defendants Does 1 through 200,” alleged plaintiffs, “designed,
engineered, surveyed, provided plans and specifications for, supervised and provided
other services related to the design and supervision of construction of the Property.”
Thus, Does 1 through 200 were alleged to have engaged in negligent design and breach
of warranty.
In his declaration in opposition to the motion for summary judgment, Williams
averred that he did not, before filing the initial complaint, “consult with an architect or
design professional regarding the liability of Kotas or any of the other design
professionals on the project.” Nor did he “review any of the project documents, the plans
or specifications, or any of the contracts with the designers and contractors on the project,
including Kotas’ contract.” Further, he “did not receive any information from Aquatech,
5
MCA or any other source indicating that Kotas was liable for the deficiencies in the
Podium, the Landings, or any other defects or damages at the property.”
Three months after plaintiffs filed their complaint an important date passed—
March 21, 2012—marking 10 years from the issuance of the certificate of final
completion and occupancy for the project. As will be discussed, Code of Civil Procedure
section 337.152 requires that claims based on the design or construction of real property
be brought within 10 years of substantial completion of the property’s development.
Williams claims to have “first learned” of the architects’ potential liability about a
year after that, in March 2013, when one of plaintiffs’ experts discovered it while
preparing for his deposition. The entirety of the explanation for this belated discovery, as
stated in Williams’ declaration in opposition to the motion for summary judgment, is as
follows: “In the course of preparing for his deposition, Omar Hindiyeh of CMA
Consulting, one of plaintiffs’ experts, became aware of [the architects’] liability and so
informed me.” Plaintiffs provided no information about what documents and materials
their expert reviewed, why the expert now suspected liability, or even the theory of such
liability.
In any event, on April 9, 2013, plaintiffs filed an amendment to their complaint,
substituting the architects for Does 1–3. They also filed a certificate of merit under
section 411.35, which stated a third-party architect had reviewed the work of Kotas,
Pantaleoni, and their firm, and opined they had been negligent in their design services.
The architects answered the amended complaint in June and raised the 10-year
statute of repose in Code of Civil Procedure section 337.15 as an affirmative defense.
Plaintiffs filed a second amended complaint in early 2014. In addition to
negligence and breach of warranty, the new pleading asserted a breach of contract cause
2
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
6
of action against the architectural firm. Again, the architects answered, asserting
section 337.15 as a bar.
The architects eventually moved for and were granted summary judgment on the
basis of the statute of repose.
DISCUSSION
“ ‘A defendant moving for summary judgment based upon an affirmative defense,
as here, bears an overall burden of persuasion that there is a complete defense to the
plaintiff’s action. . . .’ [Citation.] In other words, the defendant must persuade the court
there is no triable issue of fact as to that defense. [Citation.] In meeting the burden of
persuasion, the defendant ‘bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact’ as to the defense.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 . . . .) ‘Once the defendant
has met that initial burden of production, the burden shifts to the plaintiff to present
evidence showing the existence of a triable issue of one or more material facts as to that
defense.’ [Citation.] A triable issue of material fact exists if ‘ “the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof” at trial.’ ” (Fazio v.
Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1057 (Fazio).)
Our review of an order granting summary judgment is de novo. (Fazio, supra,
233 Cal.App.4th at p. 1058.) “We exercise our independent judgment as to the legal
effect of the undisputed facts [citation] and must affirm on any ground supported by the
record.” (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140.) We view
the evidence in the light most favorable to the nonmoving, losing party. (Fazio, at
pp. 1057–1508.) Nevertheless, an opposing party must still come forward with
“admissible evidence . . . , not merely claims or theories” or mere “conclusionary”
statements or “conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand
(2003) 106 Cal.App.4th 1, 10–11.)
7
Prima Facie Showing That Claims Are Time Barred
The architects plainly made out a prima facie case that plaintiffs’ claims against
them are barred by section 337.15. They were not named as defendants until well over
10 years after completion of the project at 15th and Market, even taking into account
extensions of that period under the Calderon notice process. Thus, the pivotal issue is
whether plaintiffs can avoid the 10-year statute through the “relation back” doctrine.
The use of fictitious Doe defendants in California arises from statute. When a
plaintiff “is ignorant of the name of a defendant” and plaintiffs “state that fact in the
complaint . . . such defendant may be designated in any pleading or proceeding by any
name, and when his true name is discovered, the pleading or proceeding must be
amended accordingly.” (§ 474.)
An amendment substituting a named defendant for a Doe defendant can relate
back to a timely initial pleading and thereby “defeat[] the bar of [a] statute of
limitations,” so long as the requirements of section 474 are met. (Marasco v. Wadsworth
(1978) 21 Cal.3d 82, 85; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943
(McOwen) [with a timely complaint, the issue becomes relation back]; Fuller v. Tucker
(2000) 84 Cal.App.4th 1163, 1169–1170 (Fuller); Woo v. Superior Court (1999)
75 Cal.App.4th 169, 176 (Woo) [“If the requirements of section 474 are satisfied, the
amended complaint substituting a new defendant for a fictitious Doe defendant filed after
the statute of limitations has expired is deemed filed as of the date the original complaint
was filed.”].) Thus, section 474 can be characterized as an exception to a statute of
limitations defense. (Woo, supra, 75 Cal.App.4th at p. 176 [section 474 a “recognized
exception” to rule that amendments adding new defendants do not relate back to earlier
complaints].)3
3
Section 474 is said to give a plaintiff up to three extra years to name defendants.
(Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932.) This is due to the
interaction of section 474 and section 583.210, which requires service of a complaint on a
8
Here, as in most relation back cases, the crucial question is the state of plaintiffs’
knowledge or their ability to know the relevant facts—that is, were they truly ignorant of
any basis for the architects’ alleged liability before filing their amendment substituting
them for Does. (See McOwen, supra, 153 Cal.App.4th at p. 942.) “ ‘In keeping with
th[e] liberal interpretation of section 474, it is now well established that even though the
plaintiff knows of the existence of the defendant sued by a fictitious name, and even
though the plaintiff knows the defendant’s actual identity (that is, his name), the plaintiff
is “ignorant” within the meaning of the statute if he lacks knowledge of that person’s
connection with the case or with his injuries.’ ” (Ibid.; see also Fuller, supra,
84 Cal.App.4th at p. 1170.)
At this juncture in the analysis, we make two assumptions to simplify the
discussion. First, we assume, without deciding, that the proper naming of Doe
defendants under section 474 defeats not only the bar of a statute of limitations, but also a
statute of repose such as the 10-year statute of repose set forth in section 337.15 at issue
here.4 Second, we assume, without deciding, that the architects bore the initial burden of
producing evidence showing plaintiffs were not “ignorant” of the architects’ potential
liability, even though section 474 appears to be an exception to, and not an element of,
defendant within three years of its filing. (Bernson, supra, at p. 932; Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383, 398.) So ultimately, a timely Doe action “ ‘effectively
enlarg[es] the . . . limitations period for three years.’ ” (Norgart, supra, at p. 398.)
4
While “a statute of limitations creates ‘a time limit for suing in a civil case,
based on the date when the claim accrued’ . . . [¶] [a] statute of repose . . . puts an outer
limit on the right to bring a civil action. That limit is measured not from the date on
which the claim accrues but instead from the date of the last culpable act or omission of
the defendant. A statute of repose ‘bar[s] any suit that is brought after a specified time
since the defendant acted (such as by designing or manufacturing a product), even if this
period ends before the plaintiff has suffered a resulting injury.’ ” (CTS Corp. v.
Waldburger (2014) __ U.S. __ [134 S.Ct. 2175, 2182–2183].)
9
the 10-year time bar.5 We, thus, turn to the question of ignorance and the parties’
evidentiary showings.
To claim ignorance and take advantage of the relation back doctrine, a plaintiff
need not first attempt to investigate to determine the identity or liability of a potential
defendant. (Fuller, supra, 84 Cal.App.4th at p. 1172.) The test is the plaintiff’s
knowledge at the time of filing, not the plaintiff’s reasonable diligence, and Doe pleading
can be used whether a plaintiff’s ignorance derives from misfortune or negligence. (Id. at
p. 1170.)
Nevertheless, over a century ago, our Supreme Court has indicated the Doe
pleading statute should not reward the plaintiff who overlooks “ ‘readily accessible’ ”
means of identifying a defendant. (Bernson v. Browning-Ferris Industries (1994)
7 Cal.4th 926, 942 (dsn. opn. of Kennard, J.), quoting Irving v. Carpentier (1886) 70 Cal.
23, 26.) A plaintiff may not have a duty to unearth new information, but a plaintiff does
bear a responsibility for reviewing “readily available information” in his or her
possession. (Woo, supra, 75 Cal.App.4th at p. 180.) “A requirement of reviewing
readily available information is not a significant burden, is not inconsistent with the cases
that impose no duty of inquiry on plaintiffs who never knew the defendant’s identity, and
assures the good faith of plaintiffs who seek to use the section 474 relation-back
doctrine.” (Ibid., criticizing Balon v. Drost (1993) 20 Cal.App.4th 483, 486 [divided
5
Compare Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278,
1293 [as for the statutory exception to the section 337.15 time bar—the exception for a
contractor’s willful misconduct—“plaintiffs, not defendants, had the burden of
production, specifically, the burden of producing sufficient evidence to raise a triable
issue of material fact”], with Varshock v. California Dept. of Forestry and Fire
Protection (2011) 194 Cal.App.4th 635, 651 [“Where, as here, an affirmative defense
contains an exception, a defendant must also negate the exception as part of its initial
burden on summary judgment if, but only if, the complaint alleges facts triggering
potential applicability of the exception.”].
10
panel concludes the plaintiff, who forgot the name of a defendant and did not review a
police report with the name in it, could avail herself of section 474].)
The architects offered several significant pieces of evidence of plaintiffs’
knowledge: (1) the August 2011 letter from the developer’s lawyer to the architects,
notifying them, under former Civil Code section 1375, of potential responsibility and also
enclosing the Aquatech reports; (2) the September 2011 demand letter from the
residential HOA’s lawyer to the architects;6 and (3) correspondence from both the
commercial and residential owners demanding the architect’s presence at mediation
proceedings.
These documents, which were in the hands of plaintiffs’ lawyers, including the
lawyer who filed this lawsuit, were sufficient to make out a prima facie case of
knowledge foreclosing use of the relation back doctrine. In particular, in the hands of
plaintiffs’ litigation counsel, the Aquatech reports were “readily available information,”
and they suggested a possible design problem. (Woo, supra, 75 Cal.App.4th at p. 180.)
The mediation demands, which threatened litigation and whose intent was to pull the
architects into a proceeding at which they would likely be asked to compensate plaintiffs
for design defects, also signaled a belief that the architects likely bore some liability.
And while the residential HOA’s settlement demand letter pertained to the landing leak,
6
Contrary to plaintiffs’ assertion, the “mediation privilege” codified in Evidence
Code section 1119 does not bar use of the settlement demand letter. First, it appears
plaintiffs never raised the privilege below, and so cannot assert it on appeal. (Code Civ.
Proc., § 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be
deemed waived.”]; see Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001)
26 Cal.4th 1, 10, fn. 7 [“Failure to object to admission of evidence of events occurring
during a prior mediation has been held to constitute a waiver.”].) Having not raised and
litigated the objection below, there is also insufficient evidence linking the demand letter
to, for instance, the conduct of ongoing mediation. Second, even if parties engage in
mediation, not every communication between them is shielded by the privilege. The
privilege does not protect “communications, negotiations, and settlements made in the
regular course of the litigation.” (Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137,
161.)
11
not the podium leak, it also is some evidence plaintiffs believed the architect should face
liability, at least on some theory. (See Optical Surplus, Inc. v. Superior Court (1991)
228 Cal.App.3d 776, 784 [demand letter gives rise to knowledge of identity and liability,
even when the recipient’s response convinces the plaintiff otherwise].)
Insufficiency of Showing to Raise Triable Issue
With the burden shifted, it was incumbent on plaintiffs to present evidence that
(a) they were reasonably ignorant of the theories of liability suggested by the evidence
defendants presented, or (b) if their theory of liability was different, what that theory was
and why they first discovered it only after the 10-year statute had run.
In an attempt to satisfy this burden, plaintiffs offered declarations from their
various attorneys. As we have recited above, their showing boiled down to the following:
Humbert averred that, in September 2011, he “communicated with Charles Saul of
Aquatech—who had been investigating the Podium and preparing the reports noted
above—regarding [the architects’] potential liability. Although Mr. [Saul] is not an
architect,” Humbert stated “Aquatech specializes in water infiltration investigations” and
“[a]s a result of this communication, I did not believe I had a basis to pursue a claim
against” the architects.
Williams, in turn, averred he did not, before filing the initial complaint, either
“consult with an architect or design professional regarding the liability of Kotas or any of
the other design professionals on the project,” or “review any of the project documents,
the plans or specifications, or any of the contracts with the designers and contractors on
the project, including Kotas’ contract,” or “receive any information from Aquatech, MCA
or any other source indicating that Kotas was liable for the deficiencies in the Podium,
the Landings, or any other defects or damages at the property.” Rather, “[i]n the course
of preparing for his deposition, Omar Hindiyeh of CMA Consulting, one of plaintiffs’
experts, became aware of Kotas’ liability and so informed me.”
12
As for the forwarded Calderon Notice, plaintiffs claimed it did not mean anything
and they were simply statutorily required to send it on. As for the request that the
architects participate in the mediation and the settlement demand directed to the
architects, plaintiffs claimed neither indicated any basis for believing the architects might
be liable either—the settlement demand was sent merely because the architects were
“involved” in the pretrial mediation.
We are troubled, to say the least, by plaintiffs’ cavalier dismissal of any
significance of the Calderon Notice, their request that the architects participate in the
mediation, and their settlement demand directed to the architects. These efforts were
designed to involve defendants in anticipated litigation and to extract money from them
for plaintiffs’ claimed losses. It is difficult to reconcile this with plaintiffs’ current
assertion that they had no basis whatsoever to believe the architects bore any
responsibility for their damages. Thus, we are hard pressed to conclude plaintiffs could
ask defendants to mediate and demand payment from them, but could not also timely
name them as defendants in their complaint.
The declarations are best characterized as conclusory and oblique. They do not
explain why the Aquatech reports were not “readily available information” supplying at
least some basis for potential liability by the architects. While Humbert states he
“communicated” with Saul and as “a result” did “not believe” there was a basis to pursue
the architects, this is utterly conclusory. Wilson’s declaration is equally so. The sum
total of the explanation of the belated discovery is a single sentence: “In the course of
preparing for his deposition, Omar Hindiyeh of CMA Consulting, one of plaintiffs’
experts, became aware of Kotas’ liability and so informed me.” This does not explain
what in front of the expert was new or provide a clue as to plaintiffs’ newly discovered
theory of liability. In essence, plaintiffs are claiming they were ignorant, but have
refused to say of what they were ignorant, how their supposedly newfound knowledge
came to light, and why this knowledge supports liability.
13
Plaintiffs seem to believe the architects, themselves, had to make a “foundational
showing as to what [they] did wrong.” Only then, according to plaintiffs, would they
have to put on evidence of their ignorance. This puts the cart before the horse. It would
allow plaintiffs to bring in new defendants without giving any reasons at all, and would
ask newly named defendants to guess why they were being belatedly hailed into court.
Only plaintiffs know the reason they came to believe they had a basis to sue the
architects, and they needed to disclose it. The bald assertion that “now we know, but
before we did not” is too conclusory to stave off summary judgment. (Scherer v. Mark
(1976) 64 Cal.App.3d 834, 841, 843 (Scherer).)
In Scherer, the plaintiff substituted a new defendant, Dr. Mark, for a Doe
defendant after supposedly gleaning information from the deposition of two nurses.
(Scherer, supra, 64 Cal.App.3d at p. 843.) The substitution, however, came after the
applicable statute of limitations had expired. (Id. at p. 839.) With a level of specificity
(or lack thereof) similar to that which plaintiffs provided here, the plaintiff in Scherer
justified the late substitution by asserting only that “ ‘the exact basis of [Dr. Mark’s]
negligence did not become exactly apparent until the two depositions were taken.’ ” (Id.
at p. 843.) Affirming summary judgment to Dr. Mark on statute of limitations grounds,
the appellate court concluded plaintiff’s “statement is not an assertion of the existence of
a fact giving rise to a cause of action. That statement does not say what if any new fact
was discovered through the deposition. It does not say that the defendant Mark
concealed any such fact. That statement shows only that after the taking of the deposition
plaintiff changed her mind and decided to sue Dr. Mark.” (Id. at pp. 841, 843.)
Accordingly, the appellate court concluded the plaintiffs’ untimely claim against
Dr. Mark could not relate back to defeat the statute of limitations. (Id. at pp. 841, 843.)
As in Scherer, plaintiffs here have not given the architects or the court any
substantive explanation of why they are entitled to use Doe pleading to avoid the 10-year
statute of repose. Thus, in the face of the architects’ prima facie showing, including the
14
contents of the Aquatech report, they presented no evidence raising a triable issue of fact
on the question of their ignorance. (See also Woo, supra, 75 Cal.App.4th at pp. 177–178
[no genuine explanation for why plaintiff knew, forgot, and then remembered identity of
Doe]; Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 117–118 [plaintiff’s ignorance
cannot be shown by asserting no knowledge of “ ‘how deeply as a negligent individual,
[defendant] was involved’ ”].)
This case is unlike Mishalow v. Horwald (1964) 231 Cal.App.2d 517 (Mishalow),
despite plaintiffs’ assertion it “involved circumstances almost identical to those here.” In
Mishalow, the parents sued several doctors and Doe defendants for negligently treating
their son, resulting in his death. (Id. at p. 518.) Later in the case, the parents substituted
a another doctor, Dr. Horwald, for one of the Does. Dr. Horwald asserted the statute of
limitations on summary judgment, claiming the parents had known of his role as the
anesthesiologist to their son since long before the running of the statute. (Ibid.) The
parents, in response, asserted they only recently became aware of the basis of Dr.
Horwald’s liability. The parents’ attorney submitted a declaration explaining at the time
of first filing, the parents only had reason to believe their son’s death occurred because of
an unreasonable delay in starting surgery to remove the child’s spleen; they did not have
knowledge of anything that occurred during the surgery related to anesthesia. Only
during consultation with an expert with specialized knowledge in the use of anesthesia
did the parents’ lawyer learn their son’s death was likely due to the anesthesiologist’s
negligence. (Id. at pp. 518–521.) The appellate court reversed the summary judgment to
Dr. Horwald, concluding, under section 474, there had been no readily accessible way of
sooner discovering Dr. Horwald’s role. (Id. at p. 525.) Mishalow did not involve any
prefiling claims of liability, requests to mediate or settlement demand. Nor did it involve
a situation where a significant report had been prepared which at least suggested the
possibility of negligently drawn plans.
15
Plaintiffs contend section 411.35 also requires reversal of the summary judgment.
This section provides that before suing an architect, a plaintiff’s attorney must first file a
certificate stating he or she: (1) has consulted with another architect who believes the
defendant architect was negligent; (2) did not have time to consult another architect
because of an impending statute of limitations, but will do so promptly; or (3) attempted
to consult with three architects, but none would agree to the consultation. (§ 411.35,
subds. (a)–(b).) According to plaintiffs, the fact that they did not to file a certificate until
they substituted the architects into the case means they must have lacked the requisite
knowledge sufficient to sue them until that time.
But the mere timing of the certificate, something entirely within plaintiffs’ control,
does not answer the question of what plaintiffs knew and when. Moreover, the process
under section 411.35 explicitly allows plaintiffs to file a placeholder certificate so as to
not run afoul of the statute of limitations. (See § 411.35, subd. (b)(2).)
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
16
_________________________
Banke, J.
We concur:
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Humes, P. J.
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Margulies, J.
17