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McGill v. M.J. Brock & Sons12/15/1999
As modified January 13, 2000. Petition for rehearing denied. There is no change in judgment.
JAMES L. MCGILL, ET AL., PLAINTIFFS AND APPELLANTS,
v.
M. J. BROCK & SONS, INC., DEFENDANT AND RESPONDENT.
(Super.Ct.No. RCV9551)
Wildish, Nialis & Bonetati, Daniel R. Wildish and Michael A. Reynolds for Plaintiffs and Appellants. Epstein & Turner, David B. Epstein and Michael R. Weiss for Defendant and Respondent.
The opinion of the court was delivered by: McKINSTER J.
CERTIFIED FOR PARTIAL PUBLICATION *
OPINION
APPEAL from the Superior Court of San Bernardino County. Frederick Mandabach, Judge. Reversed.
The plaintiffs appeal from a summary judgment entered against them after the trial court determined that their action was barred by the statute of limitation. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs own houses in a residential subdivision known as Rolling Ridge which is adjacent to State Route 71 ("Highway 71") in Chino Hills. With one exception, the plaintiffs purchased their homes in 1987 from the builder, M. J. Brock & Sons, Inc. ("Brock"). Plaintiffs Ben and Kristen Romero purchased their home in 1990 from the initial buyer.
The plaintiffs sued a variety of defendants, including Brock, in 1994. As amended, the complaint asserted 13 counts against Brock, seeking damages and rescission on theories of intentional, negligent or innocent misrepresentation (counts 1-8 & 25), mutual or unilateral mistake (counts 9 & 10), failure of consideration (count 11), and breach of contract (count 12). In substance, the plaintiffs alleged that when the plaintiffs bought their houses from Brock, Brock had affirmatively represented that buyers would enjoy peace, tranquillity and a pleasant view, and that Brock had failed to disclose to the plaintiffs the plan to realign Highway 71 and to expand it from a two-lane road to a six- lane freeway.
In 1996, Brock moved for summary judgment. It argued that the plaintiffs' action was barred by the applicable statute of limitation, that it owed no duty of disclosure to some of the plaintiffs, and that the plaintiffs could not have reasonably relied upon any failure to disclose. The trial court granted the motion on the first ground, and issued a judgment in favor of Brock. The plaintiffs appeal.
Issues
The only issues on appeal are two of those raised in the motion for summary judgment: Did the plaintiffs justifiably rely on Brock's failure to disclose? Are the plaintiffs' claims barred by the statute of limitation?
Analysis
A. BROCK HAS FAILED TO DEMONSTRATE THAT THE PLAINTIFFS COULD NOT HAVE JUSTIFIABLY RELIED UPON ITS FAILURE TO DISCLOSE CALTRANS'S PLANS TO EXPAND HIGHWAY 71.
Brock contends that all of the plaintiffs' claims are barred by the rule in Borba v. Thomas (1977) 70 Cal.App.3d 144. It is mistaken.
In Borba v. Thomas, supra, the buyer of a farm sued the seller for damages for fraud, alleging that the seller had affirmatively misrepresented that the buyer would have "`no problem'" in obtaining the approval of the U.S. Bureau of Reclamation for the use of federal water on the property. (Id., 70 Cal.App.3d at p. 147.) The jury returned a damage verdict for the plaintiff, but the trial court entered a judgment notwithstanding the verdict. (Ibid.) The appellate court affirmed the trial court. (Ibid.)The Borba court reasoned that "where there is no relation of special trust or
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