Lantzy

I respectfully dissent. I cannot join the majority in rejecting application of equitable tolling to the 10-year limitation on actions for latent construction defects (Code Civ. Proc., § 337.15). 1 Accordingly, I would affirm the judgment of the Court of Appeal. Second, while I agree with the majority that in an appropriate case a defendant may be equitably estopped to assert that section 337.15’s 10-year limitation has expired, I disagree that there is no reasonable possibility plaintiffs in this case can allege sufficient facts to establish such an estoppel. Consequently, I would allow plaintiffs an opportunity to amend their complaint in order to correct any deficiencies the majority purports to identify.

Tolling

“Statutes of limitations are not so rigid as they are sometimes regarded.” (Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 411 [ 154 P.2d 399 ].) It is well established that statutes of limitation are not to be applied inflexibly where equity and justice favor the application of equitable tolling, and suspension of the running of a particular statute will not frustrate its purpose of preventing surprise through the revival of stale claims. (See Elkins v.…

*366 Opinion

Depending on the theory of recovery, a lawsuit alleging a latent defect in the construction of an improvement to real property must be brought within three or four years after the plaintiff discovers the defect, or should have done so. (See Code Civ. Proc., §§ 337, subd. 1, 338, subds. (b), (c); Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 630 [ 147 Cal.Rptr. 486 , 581 P.2d 197 ] (Regents).) 1 However, a 1971 statute established a further general rule that no action for latent construction defects may be commenced more than 10 years after “substantial completion” of the construction project. (§ 337.15, as enacted by Stats. 1971, ch. 1569, § 1, p. 3149.) 2 This “absolute” 10-year limitations period applies regardless of when the defect was discovered. (Regents, supra, at p. 631 .)

Pre-1971 cases held that the discovery-based limitations period for a latent-defect suit alleging breach of an express or implied warranty is “tolled”—that is, halted and suspended in progress—while the defendant’s promises or attempts to honor the warranty by repairing the defect are pending. Relying heavily on these earlier authorities, and in…

David S. Jaffe; Piper Marbury Rudnick & Wolfe, Jeffrey A. Rosenfeld, Los Angeles, and Stephen R. Mysliwiec for National

Association of Builders as Amicus Curiae on behalf of Defendants and Respondents.

Dale, Braden & Hinchcliffe, George D. Dale and Dianne M. Costales for the California Building Industry Association as Amicus Curiae on behalf of Defendants and Respondents.

BAXTER, J.

Depending on the theory of recovery, a lawsuit alleging a latent defect in the construction of an improvement to real property must be brought within three or four years after the plaintiff discovers the defect, or should have done so. (See Code Civ. Proc, §§ 337, subd. 1, 338, subds. (b), (c); Regents of University of California v. Hartford Ace. & Indem. Co. (1978) 21 Cal.3d 624, 630 , 147 Cal.Rptr. 486 , 581 P.2d 197 ( Regents ).) [1] However, a 1971 statute established a further general rule that no action for latent construction defects may be commenced more than 10-years after "substantial completion" of the construction project. (§ 337.15; as enacted by Stats.1971, ch. 1569, § 1, p. 3149.) [2] This "absolute" 10-year limitations period applies regardless of when the defect was discovered. (…