In Felburg v. Don Wilson Builders (1983) 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 question of whether the willful misconduct exception to Code of Civil Procedure 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.)The Court reversed a summary judgment that was based on a statute of limitations defense in a construction defect case in which the plaintiff homeowners had alleged that the developer of their tract home had intentionally and wrongfully built their home above an oil sump (a hole for debris often found near oil drilling operations), resulting in serious subsidence problems.
The Court concluded in Felburg that Code of Civil Procedure section 337.15's ten-year limitations period did not bar the homeowners' complaint as a matter of law because the record contained sufficient evidence to create a triable issue of material fact regarding the developer's knowledge and possible concealment of the sump with fraudulent intent. (Id. at p. 392.)
The Court emphasized in Felburg that we were not resolving any factual issues but were merely identifying them for further resolution in the trial court. (Ibid.)