Miller v. Lakeside Village Condominium Assn.

Plaintiff Meredith Miller appeals from summary judgment granted in favor of defendant Lakeside Village Condominium Association, Inc. (Lakeside Village) on plaintiff’s fourth amended complaint for damages for personal injuries allegedly caused by defendant’s negligence in failing to repair and maintain the plumbing system in plaintiff’s condominium. 1 The primary question on appeal is whether the trial court properly concluded that *1616 there was no triable issue of material fact on the statute of limitations defense and that as a matter of law defendant was entitled to judgment.

Procedural and Factual Background

Miller filed her action on August 27, 1986. The gravamen of the fourth amended complaint is the claim that defendant’s failure to maintain and repair the plumbing in plaintiff’s condominium caused the premises to become mold-infested and caused plaintiff to suffer from a fungal infection, which condition was diagnosed in December 1986 as immune dysregulation.

According to the allegations of the verified fourth amended complaint, the facts in the parties’ separate statements which the parties agree are undisputed, and other testimony which is not disputed,…

I concur in the judgment because the facts of this case do not compel application of the landmark decision in Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316 [ 164 Cal.Rptr. 591 ]. I write separately, however, to register my disagreement with the majority’s treatment of the important rule and supporting rationale enunciated in that decision. Unlike the majority, I do not adopt the DeRose (DeRose v. Carswell (1987) 196 Cal.App.3d 1011,1024 [ 242 Cal.Rptr. 368 ]) court’s characterization of the decision as a “too restrictive” application of the Supreme Court’s decision in Davies v. Krasna (1975) 14 Cal.3d 502 [ 121 Cal.Rptr. 705 , 535 P.2d 1161 , 79 A.L.R.3d 807 ] (reiterating the rule the statute of limitations commences running when a plaintiff suffers actual and appreciable harm). Instead, I read Martinez-Ferrer as embodying a distinct rule. Under appropriate circumstances the occurrence of some actual and appreciable harm will not foreclose a later suit for a serious physically distinct injury which first manifests itself after the limitations period has expired as to the initial harm.

Martinez-Ferrer highlighted the problem of plaintiffs who experience…

Plaintiff Meredith Miller appeals from summary judgment granted in favor of defendant Lakeside Village Condominium Association, Inc. (Lakeside Village) on plaintiff's fourth amended complaint for damages for personal injuries allegedly caused by defendant's negligence in failing to repair and maintain the plumbing system in plaintiff's condominium. [1] The primary question on appeal is whether the trial court properly concluded that there was no triable issue of material fact on the statute of limitations defense and that as a matter of law defendant was entitled to judgment.

Miller filed her action on August 27, 1986. The gravamen of the fourth amended complaint is the claim that defendant's failure to maintain and repair the plumbing in plaintiff's condominium caused the premises to become mold-infested and caused plaintiff to suffer from a fungal infection, which condition was diagnosed in December 1986 as immune dysregulation.

According to the allegations of the verified fourth amended complaint, the facts in the parties' separate statements which the parties agree are undisputed, and other testimony which is not disputed, plaintiff moved into her…