Patent Deficiency

Under CCP § 337.1 “patent deficiency” is defined as “a deficiency which is apparent by reasonable inspection.” “A patent defect is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence. This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection.” (Wagner v. State of California (1978) 86 Cal.App.3d 922, 927.)

“The test used to determine whether a deficiency is patent is not a subjective one, applied to each individual user; rather, it is an objective test based on the reasonable expectations of the average consumer.” (Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 511.) “This test generally presents a question of fact, unless the defect is obvious in the context of common experience; than a determination of patent defect may be made as a matter of law (including on summary judgment).” (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256.)

Statutory Provision

Code of Civil Procedure section 337.1 provides:

1. Except as otherwise provided in this section, no action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement for any of the following:
1. Any patent deficiency in the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to, or survey of, real property;
2. Injury to property, real or personal, arising out of any such patent deficiency; or
3. Injury to the person or for wrongful death arising out of any such patent deficiency.
2. If, by reason of such patent deficiency, an injury to property or the person or an injury causing wrongful death occurs during the fourth year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than five years after the substantial completion of construction of such improvement.
3. Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any action.
4. The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action. "(e) As used in this section, `patent deficiency' means a deficiency which is apparent by reasonable inspection. "(f) Subdivisions (a) and (b) shall not apply to any owner-occupied single-unit residence."

(See Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 510 n. 1.)

Judicial Interpretation of the Statute of Limitations Provision

In deciding Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, the court held that, “Sections 337.1 and 337.15 apply to actions for damages against persons involved in the construction of improvements to real property . . . and establish four-year and 10-year statutes of limitation for patent and latent defects, respectively. (Id. citing Winston Square Homeowner's Assn. v. Centex West, Inc. (1989) 213 Cal.App.3d 282, 290.)

The limitation periods in sections 337.1 and 337.15 start to run upon "substantial completion" of the improvement, and establish the outside limit within which an action must be filed, regardless of when the defect is discovered. That is, while the limitations period may in certain circumstances be less than the limit specified in the statute, it cannot be more. (Roger E. Smith, Inc. v. SHN Consulting Engineers & Geologists, Inc. (2001) 89 Cal.App.4th 638, 649.) The notice of completion on the Mills's house was filed on March 20, 1991.

Which of the two statutes applies turns on whether the defect is latent or patent. Whether a construction defect is latent or patent depends on whether it is 'apparent by reasonable inspection. (Secs. 337.1(e); 337.15(b).) A patent defect “is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence. This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection.” (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1367-1368) “Whether a defect is apparent by reasonable inspection is a question of fact.” (see Tomko, supra, 46 Cal.App.4th at 1339 [test is objective one]) “What constitutes a reasonable inspection ‘is a matter to be determined from the totality of circumstances of the particular case[]’ and ‘must vary with the nature of the thing to be inspected and the nature and gravity of the harm which is sought to be averted.’ Whether a reasonable inspection would render a defect apparent is determined in light of ‘the reasonable expectations of the average consumer.’” (Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 511.)