California Appellate Law Blog : California Appellate Lawyer & Attorney : Archer Norris Law Firm : Trial, Business, Torts : Sacramento, Bay Area, Los Angeles, California

The Court of Appeal rejected this argument, observing that the defects the Gundogdus claimed to have caused their damages were defects that occurred during the construction of the building; not during King Mai’s passive ownership of it. To interpret section 337.15(e) as tolling the ten-year statute under such circumstances would be to circumvent the very protection that the statute of limitation was designed to avoid – a contractor’s indefinite exposure to liability for its work. Because the Gundogdus’ complaint was necessarily premised on King Mai’s liability as the developer of the property – and not as its owner – there was no reason to apply the exception to the ten-year statute in subdivision (e).

The Gondogdus also asserted that King Mai was equitably estopped from asserting the ten-year statute pursuant to Lantzy v. Centex Homes (2003) 31 Cal.4th 363. The Gundogdus argued that King Mai falsely promised to make repairs to the property, on which promise the Gundogdus relied in delaying the filing of their complaint for damages. However, the Court of Appeal observed that the Gundogdus acknowledged on summary judgment that they were aware of defects in the home by February 11, 2004 at the latest, at which time King Mai unequivocally informed the Gundogdus it would make no further repairs to the property. The limitations period did not expire until November of 2005, and the Gundogdus failed to file their suit until April of 2006. Thus, the Gundogdus were precluded as a matter of law from arguing that they proceeded diligently once the truth of the condition of their property was discovered, as necessary to sustain a claim of equitable estoppel.

Through its analysis, the Court of Appeal underscored the different protections afforded to contractors and owners under section 337.15 as a consequence of each entity’s distinct liabilities with respect to property. It also provides valuable guidance to trial and appellate courts on the importance of the distinction between liabilities for defects arising in the course of construction and those arising after completion.

On Friday, the First District ruled that appellant’s arguments in Gong v. Kwong (2007) were in bad-faith and frivolous.(.pdf) The court dismissed the appeal outright and ordered sanctions in favor of both the respondent and the clerk of the court to the tune of $21,000 to be paid jointly by both the appellant and his attorneys. The court was not pleased by appellant’s “creative” arguments to avoid his child support award:

"[They] have taken a phrase or two and have fashioned from them an argument that attempts to subvert the trial court’s intent in order to deny support to Kwong’s children and interest on his obligation his former wife for a nine-month period."

These cases actually highlight an oft overlooked area of appellate practice – the filing of motions at the appellate level. While it in no way compares with motion practice at the trial court level, the procedural rules at the appellate level do offer some opportunities for arguing that a case should be dismissed, or sanctions issued, without necessarily waiting for the entire briefing process to be completed. In certain instances (e.g. when you are facing a “slubby mass”) these motions can be an opportunity to save a client some money, and time, before jumping into the often long briefing process in appellate court.

When I first began handling appeals, most of the work came from my colleagues at my firm.   I would love to claim that people sought my advice before structuring their litigation, but that rarely happened. Instead, I was the last stop -- often visited by attorneys who weeks before had been riding the high of winning that big verdict only to receive a notice of appeal in their inbox. The reality that the jury verdict or trial court’s decision in their favor was not the end of the dispute would bring them to my door.

Any appellate practitioner will tell you that waiting until after the verdict should not be the first time a litigator considers the potentially appealable issues in a case. By the time the jury renders its verdict, the record and arguments relevant to the issues have been made and your client is bound by both on appeal.

Now at Archer Norris we have an extremely effective collaboration between the trial attorneys and our appellate team. We work together before and during litigation at the trial court level to insure our client’s case is ready for a potential appeal before a notice of appeal is filed. We collaborate on trial strategy at the outset of a case, before summary judgment motions, and in preparing the evidence for trial. Do we write appellate briefs, writ petitions and responses thereto, and appear for oral argument before the various appellate courts? Of course. But the collaboration between our trial counsel and our appellate department protects our clients’ potential for success on appeal. Trial strategy is thorough and well planned, thus eliminating the possibility that an inadequate record or the waiver of a legal argument will diminish our chances on appeal.

What does this have to do with the California Appellate Blog? My colleague, Kim Amick, and I are taking this collaboration “online” as they say. If you are looking for daily case summaries or in-depth analyses of opinions issued on a specific practice area, we will offer that occasionally, but our goal is to highlight those opinions that affect the day-to-day practice of litigators and appellate lawyers. Most importantly, we strive to be a resource for trial and appellate counsel and to foster awareness that the decisions you make from day one affect a potential appeal.

Welcome and enjoy! If you have any questions or comments, Kim and I would be happy to hear from you at rblumhardt@archernorris.com or kamick@archernorris.com.  

Best Regards,

Ric Blumhardt