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Spiers v. Company11/14/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Ritchie and Joni Spiers (husband and wife) appeal from a judgment entered in favor of respondents Jon Douglas Company and Debi Lee, after respondents' motion for summary judgment was granted. We affirm.
Summary
The complaint in this case was filed September 20, 2000. As to respondents, it brought three causes of action for fraud, all of which arose from appellants' 1995 purchase of a house. Respondents were appellants' real estate agents. The complaint sought damages for the cost of repairs, loss of use, and similar items, and also alleged that appellants had suffered personal injury . That allegation is based on appellants' theory that they became ill as a result of mold caused by roof leaks, although the theory is not apparent on the face of the complaint.
The factual allegations of the complaint were, in brief:
During escrow, respondents (among others) falsely represented that the roof, which was three years old, had a five-year warranty; that the sagging drywall in the ceiling of the family room and bedroom was "for aesthetic effect;" and that any problems with the ceiling would be covered by the roof warranty.
During escrow, the sellers agreed to repair the tile around a shower and make the shower water-tight. The contractor hired to make the repair found evidence of water leaking behind the walls. The sellers told him to repair the shower pan only, and not to tell anyone about the walls. Respondents knew, but did not reveal, that there was extensive fungus damage in the shower walls and damaged wood that should be replaced.
Regarding discovery of the problems in the house, appellants alleged that they observed water damage in the interior after a rain storm on November 16, 1997, and that in February of 1998, after portions of the roof and the ceiling drywall were removed, they learned the roof had been defectively constructed, had deteriorated, and had leaked for a long time. Appellants called respondent Lee and the sellers and asked for the name of the roofing company which had made the warranty. The sellers did not return the call. Lee told appellants that during escrow, the sellers' broker had informed her that the roofing company had gone out of business.
In the first cause of action, appellants alleged that respondents committed fraud by making false representations about the roof warranty and the sagging drywall and by failing to disclose the damage in the shower stall. In the second cause of action, they alleged that respondents committed fraud by falsely representing that they had conducted a competent and diligent inspection of the property, and by failing to disclose that the sagging ceiling drywall was evidence that the roof had serious leaks and that a remodel was not in compliance with building codes. The fourth cause of action, for constructive fraud, realleged every earlier allegation and alleged that the conduct described in those allegations constituted a breach of respondents' fiduciary duty and constructive fraud.
Respondents moved for summary judgment on the ground that the complaint was filed outside the three-year statute of limitations. (Code Civ. Proc., ยง 338.)
At summary judgment, it was undisputed that:
Escrow closed on August 10, 1995. On September 1, appellants learned that the wall furna
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