Fleck v. Bollinger Home Corp

In Fleck v. Bollinger Home Corp. (1997) 54 Cal.App.4th 926, a construction defects action, the trial court granted the developer's motion for summary judgment on the plaintiff's claim on the ground that it was barred by the 10-year statute of limitations of Code of Civil Procedure section 337.15. Thereafter, the plaintiff entered into a settlement agreement with the builder under which the builder assigned its cross-complaint for indemnity against the developer to the plaintiff. (Fleck, at p. 929.) The defendant builder's cross-complaint was timely under an exception in section 337.15, subdivision (c) because he was timely sued in the main action. (Fleck, at p. 932.) The court, reasoning that the purpose of section 337.15, subdivision (c) was to ensure that the 10-year statute did not bar a subsequent tortfeasor who is timely sued from obtaining indemnification against a previous tortfeasor, held that it was proper to permit the subsequent tortfeasor to assign its claim to the plaintiff. (Fleck, at pp. 933-934.) "The policy in California is to permit parties to assign choses in action for wrongs done to property. There is no reason why an improver of property which has a latent defect caused by a former tortfeasor may not assign its cross-complaint for indemnity before it may be found liable for damages." (Id. at p. 932.) In sum, Prudential developed a building pad in the 1970's, and left uncompacted fill on the lot. (Fleck, at p. 929.) Bollinger, a builder, then constructed a home for the plaintiffs on this lot sometime between 1984 and 1989. (Fleck, at pp. 929, 935.) In 1992, the plaintiffs brought an action against Bollinger, Prudential, and others for damage to their home. (Fleck, at p. 929.) The trial court properly granted Prudential's motion for summary judgment on the ground that the complaint was barred under section 337.15. (Fleck, at p. 929.) Bollinger then filed a cross-complaint against Prudential, which it assigned to the plaintiffs in a settlement agreement. (Fleck, at p. 930.) In finding that Bollinger could assign its cross-complaint for indemnity to the plaintiffs, the reviewing court observed that Bollinger's cross-complaint against Prudential was timely under section 337.15, subdivision (c). (Fleck , at pp. 931-932.)