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Aas v. Superior Court of San Diego County12/4/2000
ge to the house), must be removed, at some cost, in order to prevent the danger from materializing. There is an analogy to fixtures in the law of real and personal property-improvements to property that cannot be removed without damaging it. See, e.g., UCC § 9-313." (Id. at p. 810, italics added.)
The Eljer approach obviates the need to consider the Biakanja factors (Biakanja v. Irving (1958) 49 Cal.2d 647, 650; see Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1449)-although even under those factors I believe, like the Chief Justice but unlike the majority, that damages are sufficiently ascertainable to justify liability. The rule I favor would state that property damage occurs when what may be termed fixtures for purposes of discussion, inseparable from the structure of the houses or condominiums and inaccessible for repair without destroying existing features, are negligently built or installed. (Cf. Cal. U. Com. Code, § 9102, subd. (41).)
We here consider alleged latent defects, capable of causing serious injury or major property damage, that may only be found years or decades after the developer caused them, yet require repair to avoid later injury or major property loss. (In this regard, Code of Civil Procedure section 337.15 permits recovery for property damage caused by latent defects in construction only for 10 years after the work is substantially completed. The statute of limitations is already a substantial bar to any threat of limitless liability.) I believe a narrow rule could be drawn to provide a tort remedy for such defects. It seems that a finely crafted rule would not need to apply to such items as negligent heating, air conditioning, and ventilation work, or, to refer to the majority's rather dismissive examples, "doors that are out of plumb, discolored drain stoppers, and inoperable garbage disposals" (maj. opn., ante, at p. 22). (See Council of Co-Owners v. Whiting-Turner (1986) 308 Md. 18, 35, fn. 5 [517 A.2d 336, 345] [limiting recovery to fixing defects that pose "a clear danger of death or personal injury "].) I regret the majority's unwillingness to adopt even a minimal safeguard. The proper view, I believe, is that articulated in Biakanja: "Liability has [been] imposed, in the absence of privity, upon suppliers of goods and services which, if negligently made or rendered, are `reasonably certain to place life and limb in peril.' " (Biakanja v. Irving, supra, 49 Cal.2d 647, 649.)
MOSK, J.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Review Granted 64 Cal.App.4th 916
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