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(A version of this article appears in the California
Construction Law Reporter, published by the West Group.)
By James E. Acret
Plaintiffs
are the fourth owners of a two-story commercial building
that was completed in 1987. Defendants are architects and
contractors who designed and built the structure. During
construction, a dispute arose between the first owner and
the architect concerning leaks in the garage head wall.
The dispute went to arbitration, and the arbitrator ruled
in favor of the architect. The third owner became aware
of leaks from decks into offices. The leaks purportedly
were repaired before sale to plaintiffs here. Consultants
employed by plaintiffs reported that persistent leaks are
the result of building-wide deficiencies in the original
design and construction that would not be apparent to a
layperson. After extensive discovery, the trial court granted
a motion for summary judgment on the ground that plaintiffs,
fourth owners, lacked "standing." Affirmed. Krusi
v. S.J. Amoroso Construction Co., Inc., ___ Cal.App.4th
___, ___ Cal.Rptr.2d ___, 2000 Daily Journal D.A.R. 6819
(2000).
The
fundamental issue is when, and in favor of whom, the cause
of action for negligent construction accrued. A cause of
action arises when the defendant's act causes immediate
and permanent injury or when there is actual and appreciable
harm to the property. The cause of action belongs to the
owner at the time of accrual. The owner may transfer that
cause of action to another, but without the clear manifestation
of such an intention, the cause of action is not transferred
to a subsequent owner.
It
is true that a cause of action may arise in favor of a remote
owner against a building's architect, general contractor
and subcontractors. Huang v. Garner,157 Cal.App.3d
404, 203 Cal.Rptr. 800 (1984); Biakanja v. Irving,
49 Cal.2d 647, 320 P.2d 16 (1958). This does not mean, though,
in a case of damage to real property that once a cause of
action in favor of an owner accrues, another cause of action
against the same defendants can accrue to a subsequent owner
unless the damage suffered by the subsequent owner is fundamentally
different from the earlier type of damage. Here, the leaks
experienced by plaintiffs were a continuation, in an increased
form, of the same problems that earlier existed.
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©2000 Howrey LLP
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