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Re: merchantability - implied or otherwise
Two California appellate courts have handed down rulings clarifying the application of statutes of limitations when construction defects are alleged and when the limitations can be tolled on the basis of equitable estoppel. The 10-year statute of repose is not subject to equitable tolling while promises or attempts to repair are pending. Suits to recover for construction defects are subject to limitation periods of 3 or 4 years depending on whether the theory is breach of warranty (Code of Civil Procedure §337, 4 years for an action founded upon an instrument in writing) or tortious injury to property (§338, 3 years for injury to real property). These periods begin to run only when the defect would be discoverable by reasonable inspection.
On the other hand, §337.15 imposes an absolute requirement that suit be brought within 10 years after substantial completion regardless of the date of discovery of the defect. The plain language of §337.15 suggests that the 10-year period is not subject to extension.
The purpose of §337.15 is to protect contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work. The Legislature meant the generous 10-year period to be firm and final.
The 10-year limit could, however, be subject to equitable estoppel, which would apply if the intentional conduct of a defendant induced the plaintiff to forebear suit. Elements of equitable estoppel are: 1) potential defendant represents that all damage has been or will be repaired, thus making it unnecessary to sue; 2) plaintiff reasonably relies on the representation and refrains from bringing a timely action; 3) representation is false; and 4) plaintiff proceeds diligently once the truth is discovered.
As far as judges go they are not the cream of the legal field in that a good practicing attorney in California with a decent work load can clear 350 to 500 K a year, where your average judge makes less than a third of that amount. True, there are perks for being a judge, but income wise it’s a real step down so are the best and brightest of our legal profession standing in line to become judges?
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