J & N REALTY, INC.

Jackson Plaza Homeowners Assn. v. Alcal Roofing and Insulation (2002), Cal.App.4th

JACKSON PLAZA HOMEOWNERS ASSOCIATION, Plaintiff and Appellant, v. ALCAL ROOFING AND INSULATION Cross-defendant and Respondent. [And five other cases. fn. * ]  

[Opinion certified for partial publication. fn. † ]  

(Superior Court of the City and County of San Francisco, No. 978926, Ronald E. Quidachay, Judge.)  

(Opinion by Rivera, J., with Kay, P. J., and Reardon, J., concurring.)  

COUNSEL  

Williams, Wester, Hall & Nadler and Scott Williams for Appellant Jackson Plaza Homeowners Association.  

Gordon & Rees, S. Mitchell Kaplan and Kathleen A. Foley, for Appellant W. Wong Construction.  

Chapman & Intrieri, John W. Chapman and Kurt T. Hendershott for Respondent Alcal Roofing and Insulation.  

Carroll, Burdick & McDonough, Jack T. Friedman and Tara Narayanan, Lewis, D'Amato, Brisbois & Bisgaard and John N. Carr, Valerian, Patterson, Field & McGraw and Christian Lucia for Respondent Atlas Heating and Ventilating Co., Ltd.  

Glaspy & Glaspy and Brian S. O'Malley for Respondent New West Roofing, Inc.  

Susan H. Handelman for Respondent Gonzalez Roofing & Waterproofing Company.  

OPINION  

RIVERA, J.-  

In this consolidated construction defects action, Jackson Plaza Homeowners Association (HOA) appeals from summary judgments entered in favor of respondent W. Wong Construction and respondent subcontractors Alcal Roofing and Insulation (Alcal), Atlas Heating and Ventilating Co., Ltd. (Atlas), New West Roofing, Inc. (New West) and Gonzalez Roofing & Waterproofing Company (Gonzalez). HOA contends that the trial court erred in ruling that the action was barred by the 10-year statute of limitations set forth in Code of Civil Procedure fn. 1 section 337.15 for actions to recover damages for latent construction defects. We conclude that there is a triable issue of fact on whether the 10-year limitations period was subject to equitable tolling for repairs undertaken by Wong Construction and Gonzalez after the notice of completion was recorded. We therefore reverse the judgment in favor of Wong Construction on HOA's complaint and the judgment in favor of Gonzalez on Wong Construction's cross-complaint.  

I. FACTUAL BACKGROUND

The Jackson Plaza condominium project located at 1591 Jackson Street in San Francisco was completed in 1985. The Madja Corporation was the developer of the project. Respondent Wong Construction was the general contractor of the project. Respondents Alcal, Atlas, New West, and Gonzalez were subcontractors on the project. A notice of completion of the project was recorded on October 26, 1985.  

HOA is a nonprofit corporation organized for the purpose of managing the project. fn. 2 In late 1985 and early 1986, HOA became aware of several problems at the project including water leaks in the roof, the garage and the windows and sliding glass doors. Tai Associates/Architects (TAA), the principal architect for the project, prepared punch lists of the repairs to be completed. In 1990, HOA filed an action against respondents and others. However, HOA subsequently dismissed the action when it determined that the problems could be remedied at minimal cost.  

In 1995, HOA discovered that there were serious water intrusion problems throughout the project. On January 19, 1996, HOA served a notice pursuant to former Civil Code section 1375 on Madja, the developer, setting forth its claim for defects in the design and construction of the project. fn. 3 HOA thereafter filed this action on June 12, 1996. Wong Construction and New West were among the defendants named in the complaint. On April 1, 1997, Wong Construction filed a cross-complaint for indemnity against the respondent subcontractors and others.  

On September 25, 1996, HOA and Wong Construction stipulated to the appointment of John R. Griffiths as a special master in the action to regulate the pretrial proceedings. Wong Construction subsequently conducted limited discovery related to the three-year statute of limitations of section 338. Griffiths stayed discovery except for the purpose of discovery on the issue of the statute of limitations. He set February 27, 1998, as the date for respondents' motion for summary judgment on the section 338 issue and ordered that discovery be completed by January 30, 1998. Griffiths thereafter granted the parties several extensions to complete discovery and continued the hearing on the summary judgment motion. A hearing on the motion was held on August 19, 1998. The trial court denied the motion.  

The parties thereafter conferred with Griffiths. On April 28, 1999, Griffiths ordered that HOA provide all parties with a protocol for its proposed destructive testing. He further ordered that HOA complete that testing by May 15, 1999.  

On September 15, 1999, Alcal moved for summary judgment, contending that Wong Construction's cross-complaint was barred by the 10-year statute of limitations of section 337.15. Atlas also moved for summary judgment against Wong Construction. New West and Gonzalez filed a "joinder" in Alcal's motion. On October 5, 1999, Wong Construction filed an ex parte application to continue the hearing on the motions of Alcal and Atlas so that its own summary judgment motion raising the identical issue could be heard at the same time. On October 12, 1999, the trial court continued the hearing on the motions for summary judgment to December 1, 1999, and ordered that all motions for summary judgment that were filed by October 21, 1999 in the matter would be heard on that date.  

On October 22, 1999, HOA filed an ex parte application for a continuance of the hearing on the summary judgment motions. It contended that it did not yet have the results of the destructive testing conducted in September and that it was currently scheduling additional destructive testing. fn. 4 It further argued that it did not have sufficient time to review over 20 boxes of documents in order to prepare a meaningful opposition to the motion prior to the hearing on December 1. The trial court denied the application.  

Meanwhile, on October 29, 1999, Wong Construction served its motion for summary judgment raising the 10-year limitations period of section 337.15 as a bar to HOA's action. New West filed a joinder in this motion.  

Upon recommendation of Griffiths, the trial court continued the hearing to January 5, 2000. On January 11, 2000, the parties stipulated that the hearing on the summary judgment motions would be continued for 30 days. The hearing on the motions was subsequently held on February 10, 2000. The trial court granted the motions and entered judgments in favor of respondents, concluding that HOA's action and Wong Construction's cross-complaint against Alcal and Atlas and "all deemed cross-complaints" were barred by the 10-year statute of limitations set forth in section 337.15. HOA timely appeals the judgments in favor of respondents with the exception of the judgment dismissing the action against Atlas. fn. 5 Wong Construction cross-appeals from the judgment entered on its cross-complaint.  

II. DISCUSSION 

A. Standing fn. *  

Preliminarily, we address the contention of respondents Alcal and Gonzalez that HOA lacks standing to appeal the judgment in their favor on Wong Construction's cross-complaint because HOA was not named in the cross-complaint. We conclude that HOA lacks standing.  

In Salinero v. Pon (1981) 124 Cal.App.3d 120, 127-128, the court held that a plaintiff was an aggrieved party with standing to appeal a summary judgment in favor of a cross-complainant even though he was not a party to the cross-complaint. There, the plaintiff, in a personal injury action, was injured in a fall from an apartment building. He sued the owners of the building who in turn cross-complained against the building's architect. The trial court entered summary judgment in favor of the architect finding that the action was barred by the four-year statute of limitations of section 337.1. (Salinero, at p. 127.) The Court of Appeal held that the plaintiff had standing to assert the unconstitutionality of section 337.1 because he could have substituted the architect as a Doe defendant by amending his complaint before the trial court granted summary judgment. "At least before summary judgment was granted, appellant retained the option of substituting [the cross-defendant] for a doe defendant by amendment of the complaint. The trial court's ruling thus adversely affected [plaintiff's] right to pursue his cause of action against [the cross-defendant architect], given the application of res judicata or collateral estoppel principles to bar any subsequent action by [plaintiff] against [cross-defendant]." (Salinero, at pp. 127-128.)  

Alcal argues that Salinero is distinguishable from the case here in that HOA cannot substitute Alcal as a Doe defendant because the time limit for service of a complaint has expired pursuant to section 583.210. We agree.  

Section 583.210, subdivision (a) provides that "[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision an action is commenced at the time the complaint is filed." Here, HOA filed its complaint against Wong Construction and others on June 12, 1996. More than three years later, on September 15, 1999, Alcal filed its motion for summary judgment while Gonzalez filed its notice of joinder in Alcal's motion on September 28, 1999. Thus, unlike the plaintiff in Salinero, HOA was not in a position to amend its complaint "before summary judgment was granted." (Salinero v. Pon, supra, 124 Cal.App.3d at p. 128.) Alcal is correct that any attempt by HOA to amend its complaint to add the cross-defendants would be untimely under section 583.210.  

Relying on Fleck v. Bollinger Home Corp. (1997) 54 Cal.App.4th 926, HOA argues that it nevertheless has standing because it could have accepted an assignment of Wong Construction's claims in the cross-complaint against Alcal. In Fleck, a construction defects action, the trial court granted the developer's motion for summary judgment on the plaintiff's claim on the ground that it was barred by the 10-year statute of limitations of section 337.15. Thereafter, the plaintiff entered into a settlement agreement with the builder under which the builder assigned its cross-complaint for indemnity against the developer to the plaintiff. (Fleck, at p. 929.) The defendant builder's cross-complaint was timely under an exception in section 337.15, subdivision (c) because he was timely sued in the main action. (Fleck, at p. 932.) The court, reasoning that the purpose of section 337.15, subdivision (c) was to ensure that the 10-year statute did not bar a subsequent tortfeasor who is timely sued from obtaining indemnification against a previous tortfeasor, held that it was proper to permit the subsequent tortfeasor to assign its claim to the plaintiff. (Fleck, at pp. 933-934.) "The policy in California is to permit parties to assign choses in action for wrongs done to property. [Citations.] There is no reason why an improver of property which has a latent defect caused by a former tortfeasor may not assign its cross-complaint for indemnity before it may be found liable for damages." (Id. at p. 932.)  

Here, however, unlike the plaintiff in Fleck, HOA did not settle its claim with Wong Construction or obtain an assignment of Wong Construction's cross-complaint for indemnity; nor is there any indication in the record that an assignment was pending. Hence, any discussion of an assignment here is pure speculation and is insufficient to support a finding that HOA had standing to oppose the summary judgment motions of the cross-defendants or that it has any standing here to appeal the judgments on those motions. (See § 902 [only aggrieved party may appeal]; Shearer v. United California Theatres (1955) 133 Cal.App.2d 720, 722-723 [plaintiff lacked standing to appeal summary judgment entered in favor of cross-defendants in cross-action to which she was not a party]; Stanley v. Robert S. Odell and Co. (1950) 97 Cal.App.2d 521, 523 [defendants who were not parties to the cross-complaint had no standing to appeal from the judgment on that complaint].) We therefore dismiss HOA's appeal insofar as it purports to appeal the judgments entered in favor of Alcal and Gonzalez on Wong Construction's cross-complaint.  

B. Joinders fn. *  

HOA contends that the trial court erred in permitting Gonzalez and New West to file joinders in the motions filed by Alcal and Wong Construction. While HOA lacks standing to challenge Gonzalez's joinder in Alcal's motion, New West's joinder in Wong Construction's motion did not violate section 437c, subdivision (b). That joinder contained a memorandum of points and authorities and a separate statement of undisputed material facts. New West thus complied with section 437c, subdivision (b).  

Although Gonzalez's joinder simply incorporated by reference the points and authorities and separate statement filed by Alcal, Wong Construction does not contest the propriety of the joinder on appeal and did not object to the joinder in the trial court. Despite procedural irregularities in the joinder of Gonzalez, the trial court did not err in considering the motions inasmuch as the same facts were germane to all the motions. Moreover, it would have constituted a substantial waste of time and judicial resources to require the parties to submit to further proceedings. (See Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 372, fn. 13; but see Frazee v. Seely (2002) 95 Cal.App.4th 627, 636 [moving party's failure to comply with the requirement that it include a separate statement of material facts in its moving papers on summary judgment motion is grounds to deny motion].)  

C. Procedural Due Process fn. *  

HOA contends that section 437c is unconstitutional because it does not afford a party opposing a motion for summary judgment an adequate opportunity to prepare a response. It also argues the particular facts of this case demonstrate that it was denied due process.  

HOA fails to demonstrate that section 437c is unconstitutional. (See Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 122 [party challenging constitutionality of statute must demonstrate that its provisions pose a fatal conflict with constitutional prohibitions].) First, its arguments that the statute ignores the realities of litigation are feckless. fn. 6 Second, HOA has failed to show that it was denied any due process in this action. Wong Construction's motion for summary judgment was served on October 29, 1999, with a hearing date of December 1, 1999. However, by stipulation, the hearing was continued and ultimately held on February 10, 2000. Thus, although the statute normally allows about two weeks to prepare and file an opposition, HOA did not file its opposition to the motion until January 27, 2000, three months after the motion was served. Moreover, HOA did not submit an affidavit seeking a continuance to develop additional facts in opposition to the motion. (§ 437c, subd. (h).) Under these circumstances, HOA is not in a position to claim that its due process rights were violated or that it had inadequate time in which to respond to Wong Construction's motion.  

D. Section 337.15  

1. Equitable tolling  

HOA contends that section 337.15 was tolled during the period in which respondents repaired defects in the construction of the project. This contention has merit.  

Section 337.15 establishes a 10-year statute of limitations for actions to recover damages based on latent construction defects. In pertinent part, section 337.15 provides: "(a) No action may be brought to recover damages from any person . . . who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following: [¶] (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property." (Italics added.)  

The issue of whether the 10-year statute of limitations of section 337.15 is subject to equitable tolling during periods of repair is currently before our Supreme Court in Lantzy v. Centex Homes (2001) 89 Cal.App.4th 1059, review granted August 22, 2001, S098660. Several courts have held, however, that in construction defect actions, the statute of limitations is tolled during periods in which the defendant attempts to repair the defect. (Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 585 ["statute of limitations is tolled where one who has breached a warranty claims that the defect can be repaired and attempts to make repairs"]; Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1360 [recognizing that section 337.15 is tolled for periods of repair]; Cascade Gardens Homeowners Assn. v. McKellar & Associates (1987) 194 Cal.App.3d 1252, 1256 and cases cited therein; 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 684, p. 871.) "Tolling during a period of repairs rests upon the same basis as does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon the words or actions of the defendant that repairs would be made." (A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 355.)  

In Cascade Gardens Homeowners Assn. v. McKellar & Associates, supra, 194 Cal.App.3d at page 1256, the homeowners association filed its action for defective construction 10 years and 1 month after the date the notice of completion was recorded. The court held that the statute of limitations was tolled during a four-month period in which the developer made repairs to correct roof leaks. (Id. at pp. 1257-1258.)  

In A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at page 355, this court held that repairs undertaken by someone other than the original entity that did the original work did not toll the section 337.15 limitations period. There, approximately seven months before the running of the 10-year statute, the developer retained a contractor to repair the interior drywall framing of the Hillsdale Mall. (A & B Painting, at pp. 353, 355.) We declined to extend Cascade to toll the limitations period on the developer's action against the contractor, reasoning that repairs by the contractor, a third party that was not originally responsible for the defect, did not involve reliance on the entity which warranted the original work and thus did not furnish a basis for tolling. (A & B Painting, at pp. 354-355.) We also rejected a claim that work done in 1982, the year following the filing of the notice of completion, tolled the 10-year statute because the developer failed to show that the repair work included any of the developer's present complaints. fn. 7 (Id. at p. 356.)  

In FNB Mortgage Corp. v. Pacific General Group (1999) 76 Cal.App.4th 1116, 1134 (FNB Mortgage), the court held that section 337.15 is not subject to equitable tolling for repairs. The court distinguished the 10-year limitations period of section 337.15 from other limitations statutes, stating that section 337.15 establishes an outside limit for actions against a contractor for latent defects. (FNB Mortgage, at p. 1131.) It reasoned that the purpose of the statute was to " 'protect contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work . . .' [citation]" and that equitable tolling of the statute for repairs would run afoul of this purpose. (Id. at pp. 1132-1133.)  

We disagree with the holding of FNB Mortgage. As the Supreme Court acknowledged in Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 642, "section 337.15 [is] an ordinary statute of limitations, subject to the same rules . . . as other statutes of limitations." One of these rules, equitable tolling of a limitations statute for periods of repair, is well established. (Cascade Gardens Homeowners Assn. v. McKellar & Associates, supra, 194 Cal.App.3d at p. 1256.) Further, permitting tolling of the limitations statute during periods of repair does not frustrate the purpose of section 337.15. To the contrary, a contractor cannot be deemed to be surprised by a claim for a construction defect when it has been put on notice that a problem exists by virtue of its attempt to repair the problem during the limitations period. The purpose of a limitations statute is to " '[prevent] surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' [Citations.]" (Elkins v. Derby (1974) 12 Cal.3d 410, 417, fn. omitted.) Nor are contractors subject to perpetual exposure to liability as a result of our holding. We presume that in most cases, as in the case here, the period of repair will be of relatively short duration and thus will not unduly extend the statutory period.  

Moreover, the facts of FNB Mortgage are clearly distinguishable from those here. There, FNB entered into an agreement with the plaintiff to toll the limitations period. FNB, however, did not protect itself by entering into a similar agreement with Pacific General, the developer with which it contracted to construct an apartment complex. (FNB Mortgage, supra, 76 Cal.App.4th at pp. 1121-1122, 1124.) While the plaintiff's underlying action was timely due to the tolling agreement, FNB's cross-complaint was barred because it was filed after the expiration of the 10-year limitations period. (Id. at p. 1135.) The court determined that any promises by Pacific General to the plaintiff to repair defects in the complex had no effect on whether FNB chose to file suit as it would not have induced FNB's reliance to delay the filing of its cross-complaint. (Ibid.) "It was in FNB's control whether plaintiff's action was filed within the 10-year period, and it chose to extend the time for plaintiff, while doing nothing to protect its right to bring its own claim for indemnity. A contractor or subcontractor, whether suspecting or unsuspecting, does not lose the protections of the 10-year limitations period under section 337.15 because of the conduct of another party that extends the time for suit against itself." (Ibid.)  

Here, HOA presented evidence in its opposition to Wong Construction's summary judgment motion that Wong Construction engaged in significant repair work during 1986, and as late as December 3, 1986, relating to the water leakage problems that resulted in the present action. In contrast to FNB Mortgage, there is evidence that HOA relied on Wong Construction's promises to repair the defects during this period. Indeed, as noted in TAA's letter dated December 3, 1986 to Wong Construction, "[w]e are hoping that, by completing these items [including repairs to areas affected by water leakage] as soon as possible, we will delay the Homeowners from taking legal action before the end of the year." This evidence at the very least raises a triable issue of fact supporting HOA's position that the 10-year statute was tolled during some part of 1996 on HOA's complaint against Wong Construction, in which case HOA's action, filed on June 12, 1996, may well have been timely. The resolution of this issue requires a full evidentiary hearing in the trial court in which the parties can address whether the evidence proffered by HOA establishes that repairs related to the defects alleged in the complaint were made after the filing of the notice of completion, and if so, for what period the statute was tolled.  

HOA, however, did not show that New West made any repairs during the 10-year period following the filing of its complaint. (See A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at pp. 354-355 [limitations period will not be tolled for entity that does not undertake repairs].) Nor did it submit any evidence that New West engaged in any willful misconduct such that the action would fall within the exception to the 10-year period for actions based on willful misconduct or fraudulent concealment. fn. 8 (§ 337.15, subd. (f).) Given these omissions, we will affirm the summary judgment entered in favor of New West on HOA's complaint.  

2. Controlling date fn. *  

If HOA is able to show that the limitations period was equitably tolled due to repairs, the trial court will be required to determine the applicable dates for the commencement of the 10-year period and the date(s) of its tolling. In calculating the limitations period, HOA contends that the controlling date is the date on which it served a Calderon notice on Madja, January 19, 1996, rather than October 25, 1995, 10 years from the date the notice of completion was recorded. While a Calderon notice under Civil Code section 1375, subdivision (b)(3)(A) extends the 10-year limitations period of section 337.15 for an additional 150 days, we conclude that HOA's action filed June 12, 1996, was timely only if the limitations period was tolled for repairs for the period between October 25, 1995, 10 years from the date the project was substantially complete, and January 19, 1996.  

a. Substantial completion  

Subdivision (g) of section 337.15 defines the term substantial completion: "The 10-year period specified in subdivision (a) shall commence upon substantial completion of the improvement, but not later than the date of one of the following, whichever first occurs: [¶] (1) The date of final inspection by the applicable public agency. [¶] (2) The date of recordation of a valid notice of completion. [¶] (3) The date of use or occupation of the improvement. [¶] (4) One year after termination or cessation of work on the improvement. [¶] The date of substantial completion shall relate specifically to the performance or furnishing design, specifications, surveying, planning, supervision, testing, observation of construction or construction services by each profession or trade rendering services to the improvement."  

HOA contends that the notice of completion was invalid because the project was not substantially complete on October 26, 1985. It relies on several cases in which the courts have considered whether a party substantially performed its contractual obligations. (See, e.g., Tolstoy Const. Co. v. Minter (1978) 78 Cal.App.3d 665; Thomas Haverty Co. v. Jones (1921) 185 Cal. 285.) HOA's reliance on the doctrine of substantial performance is misplaced.  

As Wong Construction points out, there is no need to construe the meaning of the term substantial completion because it is defined in section 337.15. Subdivision (g) of section 337.15 defines the events that constitute substantial completion of an improvement and thus start the running of the limitations period. The recording of a valid notice of completion is one of those events. fn. 9 (§ 337.15, subd. (g)(2); A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at p. 356 [notice of completion is event that commences the 10-year statute of limitations].)  

"If the statute's language is clear and unambiguous, there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature." (Schwetz v. Minnerly (1990) 220 Cal.App.3d 296, 302.) We nonetheless note that the Legislature set forth its objective in enacting subdivision (g) of section 337.15 in the Legislative Counsel's Digest as follows: " 'Under existing law, an action for damages for or arising from a latent deficiency against persons who develop real property or who perform various services relative to the construction of improvements on real property may be barred after 10 years following substantial completion of the particular development or work of improvement. Existing law does not define the term "substantial completion." [¶] This bill would define the term "substantial completion." ' " (Schwetz, at pp. 306-307.) Hence, under section 337.15, Madja's recording of the notice of completion on October 26, 1985, triggered the commencement of the 10-year statute of limitations.  

b. Civil Code section 1375  

If HOA establishes equitable tolling of the limitations period between October 25, 1995, and the filing of the Calderon notice on January 19, 1996, for a period of at least 86 days, HOA's compliance with the provisions of Civil Code section 1375 would extend the limitations period for an additional 150 days. fn. 10 Under this scenario, HOA's action filed June 12, 1996, would be timely.  

3. Willful misconduct fn. *  

If HOA is unable to establish equitable tolling below, we conclude that it cannot rely on the willful misconduct exception to section 337.15. Under subdivision (f) of section 337.15, the 10-year statute does not apply to actions based on willful misconduct or fraudulent concealment.  

"The term 'willful misconduct' as used in the statute encompasses not only intentional wrongdoing, but negligence of such a character as to constitute reckless disregard for the rights of others." (Felburg v. Don Wilson Builders (1983) 142 Cal.App.3d 383, 391.) "Three elements are necessary to raise a negligent act to the level of willful misconduct: actual or constructive knowledge of the peril to be apprehended; actual or constructive knowledge that injury is a probable as opposed to a possible result of the danger; and a conscious failure to act to avert that peril." (Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1242.)  

In Felburg v. Don Wilson Builders, supra, 142 Cal.App.3d 383, plaintiff homeowners sued a developer for willful misconduct and fraudulent concealment after discovering that the subsidence of their house was due to the fact that it was built over an old oil sump. The court concluded that there were triable issues of fact on the issue of whether the willful misconduct exception to section 337.15 applied. The court determined that the developer failed to refute the plaintiffs' expert's declaration that opined, "it would have been impossible to pour the foundation of the home without seeing the evidence, in plain view, that the lot was over an oil sump. The evidence was so clear . . . that 'it makes me of the opinion that there was a conscious effort to ignore this condition.' " (Felburg, at pp. 390, 392.) The court held that the expert's declaration, in addition to other evidence presented by the plaintiffs, suggested sufficient grounds for trial on the merits of whether the developer knew of the presence of the oil sump and possibly concealed it with fraudulent intent. (Id. at p. 392.)  

Here, HOA relies on the declaration of Adam Posard to establish the three elements of willful misconduct. The Posard declaration alleged that Uniform Building Code (UBC) requirements for fire resistive construction were violated. In particular, he alleged that installation of plumbing, mechanical and ventilation duct penetrations into the firewalls of the project were not fire resistive. Posard further stated that Wong Construction, Atlas and F. W. Spencer & Son, Inc. (F. W. Spencer) fn. 11 knew of the UBC requirements, that their solution to correct the structural problem failed to remedy it, that they should have known that the duct penetrations placed the project's occupants at risk in the event of a fire, and that they consciously acted to leave the duct penetrations unprotected. fn. 12  

Unlike the evidence proffered in Felburg v. Don Wilson Builders, supra, 142 Cal.App.3d at pages 390, 392, Posard's declaration does not establish that the contractors willfully acted to violate UBC requirements related to firewall construction or that they sought to conceal the possible code infractions. To the contrary, the declaration cites to evidence of correspondence among Wong Construction, TAA, and F. W. Spencer in which they sought to remedy the problem. According to this evidence, TAA and a structural engineer stopped F. W. Spencer from proceeding to install the plumbing and sheet metal in the project and cutting any studs or any wood members. F. W. Spencer informed Wong Construction of the stop order and requested that space be designed to accommodate the plumbing, piping, and sheet metal ducts.  

Atlas, in turn, notified F. W. Spencer of its problems with insufficient space for its heating, exhaust and flue duct work on the project. In order to resolve these problems, changes were made to the framing on the third and upper floors of the project to accommodate the mechanical and plumbing piping and duct work. The walls were "furred" to accommodate the pipe work.  

Other than Posard's conclusory opinion in his declaration that the actions of Wong Construction, F. W. Spencer and Atlas, in making duct penetrations without including the fire stopping as required by the UBC, amounted to willful misconduct, there is no evidence to support that opinion. fn. 13 Rather, the evidence shows that the contractors made efforts to correct the design and construction of the firewalls. To the extent that Posard is correct that duct penetrations made by the mechanical and plumbing subcontractors were not fire resistive in compliance with the UBC, there is insufficient evidence to show that the omission was done in conscious disregard of a probability of damage due to fire. The evidence, at most, raises an issue as to whether the contractors were negligent in constructing the firewalls. Under these circumstances, the trial court properly determined that the willful misconduct exception to section 337.15 was inapplicable.  

E. Wong Construction's Cross-appeal fn. *  

The trial court granted summary judgment on Wong Construction's cross-complaint for equitable indemnity against the subcontractors, ruling that it was barred by the 10-year limitations period of section 337.15. We affirm the court's judgment in favor of subcontractors Alcal, Atlas and New West. Even if HOA establishes that its complaint was not time-barred, there is no evidence in the record that those subcontractors performed any repairs that would support equitable tolling of the limitations period on the cross-complaint. (See A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at pp. 354-355 [limitations period will not be tolled for repairs undertaken by an entity that did not do the original work].)  

Although section 337.15, subdivision (c) permits an indemnity cross-complaint to be filed beyond the 10-year limitations period if the underlying action was timely filed (Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 609; Fleck v. Bollinger Home Corp., supra, 54 Cal.App.4th at pp. 931-932), the exception applies only when the action was timely under subdivision (a) of the statute. Subdivision (c) provides that an " 'action' includes an action for indemnity brought against a person arising out of that person's performance or furnishing of services or materials referred to in this section, except that a cross-complaint for indemnity may be filed pursuant to subdivision (b) of Section 428.10 in an action which has been brought within the time period set forth in subdivision (a) of this section." (Italics added.) This language means "that a cross-complaint for indemnity may be filed more than 10 years after the alleged indemnitor has substantially completed his services, provided that the underlying action was itself brought within the 10-year limitation period of the statute. [¶] Thus, a defendant timely sued under section 337.15, subdivision (a), may file under subdivision (c) a cross-complaint for indemnity against a third party who could not otherwise be reached by a direct action for indemnity filed by the defendant, or by a direct suit for damages filed by the plaintiff." (Valley Circle Estates v. VTN Consolidated, Inc., supra, 33 Cal.3d at p. 609.) This statutory language precludes the cross-complaint against subcontractors Alcal, Atlas and New West here. The cross-complaint, filed on April 1, 1997, was filed more than 10 years after the notice of the completion and was therefore not timely under subdivision (a) of section 337.15. As there is no evidence that these subcontractors performed any repairs to toll the limitations period of subdivision (a), the cross-complaint is barred under section 337.15.  

There is, however, evidence in the record that Gonzalez may have performed repairs after the notice of completion was filed. Until the timeliness of HOA's complaint against Wong Construction is determined--which, as we have already noted, is an issue of fact--the exception under section 337.15, subdivision (c) forecloses the argument of Gonzalez that the cross-complaint is barred by the 10-year limitations period. If HOA's complaint against Wong Construction is timely, there is a triable issue of fact as to whether Wong Construction's cross-complaint for indemnity as against Gonzalez is also timely due to equitable tolling. The trial court's order granting summary judgment on the cross-complaint against Gonzalez must therefore be reversed.  

F. Attorney Fees fn. *  

The trial court awarded Alcal, Atlas, New West and Gonzalez attorney fees based on provisions in their subcontracts with Wong Construction providing that fees be awarded to the prevailing party. On our own motion, we consolidated Wong Construction's appeal from the court's orders on fees with the underlying appeals from the judgments. We reverse the order entered on Gonzalez's motion for attorney fees but otherwise affirm the orders granting fees. fn. 14  

Civil Code section 1717, subdivision (a) provides that "[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney's fees in addition to other costs." The party prevailing on the contract is "the party who recovered a greater relief in the action on the contract." (Id., subd. (b)(1).) "We will not disturb the trial court's determination of the prevailing party absent a clear abuse of discretion." (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1158.)  

Wong Construction contends that the trial court abused its discretion in awarding fees pursuant to Civil Code section 1717 because none of the subcontractors prevailed on the contract. It argues that the court's ruling in the subcontractors' favor on their summary judgment motions based on the statute of limitations defense was not a determination that they prevailed on the contract. We cannot agree.  

It is well settled that a party is entitled to fees under Civil Code section 1717 " 'even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable or nonexistent, if the other party would have been entitled to attorney's fees had it prevailed.' " (Hsu v. Abbara (1995) 9 Cal.4th 863, 870.) "The statute would fall short of [its] goal of full mutuality of remedy if its benefits were denied to parties who defeat contract claims by proving that they were not parties to the alleged contract or that it was never formed." (Ibid.) Similarly, this goal would be defeated if recovery of fees was denied to a party prevailing in the action on procedural grounds. (See Elms v. Builders Disbursements, Inc. (1991) 232 Cal.App.3d 671, 674-675 [party that obtained dismissal of an action when plaintiff failed to bring it to trial within five years was prevailing party entitled to recover fees under Civil Code section 1717]; see also Wong v. Thrifty Corp. (2002) 97 Cal.App.4th 261 [lessor entitled to fees under Civil Code section 1717 in action where lessor accepted lessee's section 998 offer to compromise].)  

Here, the subcontractors were the prevailing parties on Wong Construction's cross-complaint for indemnity under the contracts between the parties. The subcontracts contained the following attorney fees provision: "In the event either CONTRACTOR or SUBCONTRACTOR institutes suit in court against the other party, or against the surety of such party, in connection with any dispute or matter arising under this Agreement, the party which prevails in that suit shall be entitled to recover from the other its attorney's fees in reasonable amount, which shall be determined by the court and included in the judgment in said suit." Wong Construction's contention that the subcontractors did not prevail on the contracts because their summary judgment motions were granted based on the statute of limitations defense rather than the merits of a contract claim is nonsensical and unsupported by any pertinent authority. fn. 15 The subcontractors prevailed on the contracts through their respective summary judgment motions. (Hsu v. Abbara, supra, 9 Cal.4th at p. 870.) They were thus prevailing parties on the subcontracts within the meaning of Civil Code section 1717.  

Wong Construction also contends that Civil Code section 1717 applies only to attorney fees incurred to litigate contract claims. The language of the fee provision refutes this contention.  

"If a contractual attorney fee provision is phrased broadly enough . . . it may support an award of attorney fees to the prevailing party in an action alleging both contract and tort claims: '[P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract.' [Citation]" (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) Whether a contractual provision for attorney fees authorizes fees for a tort cause of action depends on the intent of the parties. (Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1798.) That intent is inferred, if possible, from the written provisions of the contract. (Ibid.; see also Santisas v. Goodin, supra, 17 Cal.4th at p. 608.)  

The attorney fees provisions in the subcontracts between the parties provide for an award of fees "in connection with any dispute or matter arising under this Agreement . . . ." The parties thus agreed that the prevailing party would be awarded fees whether the litigation related to contract or noncontract claims, or both. (Santisas v. Goodin, supra, 17 Cal.4th at p. 608.) In light of the broad language of the fees provision, the trial court did not abuse its discretion to the extent it awarded fees for noncontract claims.  

Finally, Wong Construction contends that the fees awarded were excessive and not supported by the record. The record, however, contains abundant evidence supporting the fee awards.  

An award of attorney fees rests within the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion, for example, where the amount of the award is "so large or small that it shocks the conscience and suggests passion and prejudice influenced the determination." (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507.) In making its determination, the trial court considers a number of factors including "the necessity for and the nature of the litigation, the amount involved, and the success or failure of the attorney's efforts, including the amount of recovery." (Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559, 569.) Based on a consideration of various factors, the trial court may rely on its own expertise and knowledge to calculate reasonable attorney fees. (Niederer v. Ferreira, supra, 189 Cal.App.3d at p. 1507.) The court is not limited to the affidavits submitted by the attorney (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 625) and may award attorney fees in excess of the hourly calculation provided by the attorney (City of Oakland v. Oakland Raiders (1988) 203 Cal.App.3d 78, 85).  

Here, the subcontractors provided ample documentation of the attorney fees incurred through the declarations of counsel and billing records, and there is no indication that the fees were inflated or unusually large. (Cf. Martino v. Denevi (1986) 182 Cal.App.3d 553, 559-560 [evidence insufficient to support fee award where the only evidence presented was the attorney's request for a flat fee].) There is simply nothing in the record to suggest that the fees awarded were unreasonable. The value of legal services is a matter within the trial court's expertise. (Melnyk v. Robledo, supra, 64 Cal.App.3d at p. 623.) On the record before us, we conclude that the trial court did not abuse its discretion in its awards of fees to the subcontractors.  

III. DISPOSITION

HOA's purported appeals of the summary judgments entered in favor of Alcal (A091787) and Gonzalez (A092084) are dismissed. The judgment entered in favor of New West on HOA's complaint (A092537) is affirmed, as is the judgment entered in favor of New West on Wong Construction's cross-complaint (A092000). The judgments in favor of Wong Construction and Gonzalez in A092062 are reversed. In all other respects, the judgments in A092062 are affirmed. The order awarding Gonzalez attorney fees in A092730 is reversed. The remaining orders in A092730 are affirmed, with costs to Alcal, Atlas and New West. The parties are to bear their own costs on all other appeals.  

Kay, P. J., and Reardon, J., concurred.  

­FN *. Jackson Plaza Homeowners Assn. v. New West Roofing, Inc. (No. A092000); Jackson Plaza Homeowners Assn. v. W. Wong Construction (No. A092062); Jackson Plaza Homeowners Assn. v. Gonzalez Roofing & Waterproofing Co. (No. A092084); Jackson Plaza Homeowners Assn. v. New West Roofing, Inc. (No. A092537); W. Wong Construction v. Alcal Roofing and Insulation (No. A092730).  

­FN †. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.A. through II.C., II.D.2., II.D.3., II.E. and II.F.  

­FN 1. Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.  

­FN 2. Throughout its recitation of the facts and procedural background in its opening brief, HOA purports to set forth a chronology of the case but in numerous instances fails to cite to any evidence in the record to support its facts. It is well settled that a party is required to support the statement of any matter in the record by an appropriate reference to the record. (Cal. Rules of Court, rule 14(a)(1).) To the extent that HOA fails to support its facts with references to the record, we have disregarded its assertions. (Goodstein v. Cedars-Sinai Medical Center (1998) 66 Cal.App.4th 1257, 1260, fn. 1.)  

­FN 3. The parties refer to this notice as the "Calderon" notice. Senator Charles M. Calderon drafted Senate Bill No. 1029 which was subsequently enacted as Civil Code section 1375. (Stats. 1995, ch. 864, § 1, No. 11 West's Cal. Legis. Service, pp. 5117-5121.) Subsequent references to Civil Code section 1375 will refer to the version in effect at the time of service of the Calderon notice.  

­FN 4. HOA conducted destructive testing on September 28 and 29, 1999.  

­FN 5. In its reply brief, HOA explains that it failed to appeal the Atlas judgment as "a result of the confusion created by the multiple orders and judgments."  

­FN *. See footnote, ante, page 1.  

­FN *. See footnote, ante, page 1.  

­FN *. See footnote, ante, page 1.  

­FN 6. For example, HOA claims that the statute is "based on the legislative assumption that litigation attorneys do not have lives."  

­FN 7. In dicta, we noted that had the defects been discovered in 1982, they "would have triggered a shorter period of time in which to bring suit because the defects would then have been patent, rather than latent, and the four-year statute to bring an action on a patent defect would have applied. (§ 337.1.)" (A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at p. 357.)  

­FN 8. In its opening brief, HOA states that it introduced evidence in its opposition to the summary judgments showing that Wong Construction and Atlas committed willful misconduct. HOA makes no reference to New West.  

­FN *. See footnote, ante, page 1.  

­FN 9. HOA has not shown that the notice of completion was invalid. (See Civ. Code, § 3093 [setting forth the requirements for a notice of completion]; see also Eden v. Van Tine (1978) 83 Cal.App.3d 879, 885 [notice of completion constituted substantial completion where there was no evidence produced by plaintiffs that the notice was invalid].)  

­FN 10. The Calderon notice tolls "all statutory and contractual limitations on actions against all parties who may be responsible for the defects claimed, whether named in the notice or not, including claims for indemnity applicable to the claim, for a period of 150 days or a longer period agreed to in writing by the association and the builder." (Civ. Code, § 1375, subd. (b)(3)(A).) It, however, does not toll an applicable limitations period that has already expired. Thus, if HOA is unable to establish equitable tolling of the 10-year limitations period to the time of the Calderon notice, its service of the notice upon Madja was of no avail.  

­FN *. See footnote, ante, page 1.  

­FN 11. F. W. Spencer is a plumbing and heating contractor that worked on the project. It is named as a cross-defendant in Wong Construction's cross-complaint but it did not move for summary judgment and is not a party to these appeals.  

­FN 12. Wong Construction objected to the Posard declaration on the grounds that Posard was not qualified to offer a legal opinion, and that his statements were speculative and lacked foundation. The trial court agreed that the evidence lacked competence and was inadequate to support the evidence of willful misconduct. We agree that the declaration is inadequate, and thus need not reach the other evidentiary objections raised by Wong Construction in the trial court.  

­FN 13. Nor does Posard refer to the relevant UBC provisions that the contractors allegedly violated.  

­FN *. See footnote, ante, page 1.  

­FN *. See footnote, ante, page 1.  

­FN 14. Since we reverse the summary judgment entered in favor of Gonzalez on Wong Construction's cross-complaint, the trial court's postjudgment order awarding Gonzalez fees as the prevailing party must also be reversed.  

­FN 15. Lackner v. LaCroix (1979) 25 Cal.3d 747 and Warren v. Wasserman, Comden & Casselman (1990) 220 Cal.App.3d 1297, cited by Wong Construction for the proposition that the termination of an action by a statute of limitations defense is a technical or procedural termination as opposed to a substantive termination, are not on point. Those cases involved the question of whether a successful statute of limitations defense in an underlying action is a favorable termination for purposes of a subsequent malicious prosecution action. They did not address the question presented here of whether a party that succeeds on a summary judgment motion based on a statute of limitations defense is a prevailing party on a contract within the meaning of Civil Code section 1717.