We are of the opinion, for the reasons we now state, that the judgment should be reversed. Defendant raised the statute again in January 1979 by way of a motion for summary judgment and the motion was granted. ![]() The city first raised the 10-year statute of limitations in June 1977 by demurrer to the first amended complaint the demurrer was overruled. When the City of San Mateo refused to take action to correct the alleged defective condition of its property a claim was filed against it on November 5, 1976, and plaintiffs filed this action (hereinafter referred to as Suit II) on January 28, 1977, alleging inverse condemnation, continuing nuisance, and a dangerous and defective condition of public property. Investigation also showed that the section of the sanitary sewer main extending in an easement along the north side of plaintiffs' home was located too close to the foundation, and that its close proximity, combined with lack of compaction of the material in that portion of the trench, was resulting in the north side of the building being deprived of lateral and subjacent support. Subsequent investigation revealed that back-fill in the City of San Mateo's storm and sanitary sewer trenches on and near plaintiffs' property had not been compacted, and that the trenches were acting as subterranean water channels which were funneling water onto plaintiffs' property. While excavating in the vicinity of City of San Mateo's sewers, a cave-in occurred exposing a previously excavated sewer trench. With the proceeds of the settlement, plaintiffs began construction of the recommended drainage system in August 1976. The City of San Mateo was not named in Suit I. The action sought recovery from the original developers on the basis of defective engineering and manufacture of plaintiffs' lot pad and against the former owners for fraud and nondisclosure. The Leafs attempted to secure a settlement from San Mateo Investment Company, the developer/builder, and when negotiations failed brought an action (hereinafter referred to as Suit I) in January 1974 against San Mateo Investment Company, the sellers, and various engineers and contractors. It was recommended that a subsurface drainage system be installed to stop the subsidence and that the structure be restored to a level condition approximately one year after drainage installation. The problem was symptomatic on the south side of plaintiffs' duplex, and the only test borings were made on that side of plaintiffs' property. The Leafs consulted with two different engineering firms, the first in August 1972 and the second in July 1973, the consensus being that the structural problems were being caused by differential settlement and subsidence due to movement of the fill on plaintiffs' lot caused by water absorption. Shortly after occupying their duplex in June 1972, the Leafs discovered that some of the floors were not level, and that there were some cracks in the exterior of the building. Final completion and acceptance of the subdivision is believed to have occurred in 1965. The duplex is believed to have been constructed in 1963, and sold upon completion to the initial owners in June 1963. In January of 1972 the appellants, Ron and Ellen Leaf, purchased a parcel of real property, which included a duplex, in the City of San Mateo. Upon granting the summary judgment, the court also granted the demurrer without leave to amend of cross-defendant San Mateo Investment Company because no cause of action was stated. The trial court also found that by virtue of a previous lawsuit arising out of the same subsidence problem, plaintiffs knew or should have known the existence of facts giving them a cause of action against the defendant. Summary judgment was granted on the ground that plaintiffs' suit was barred by the 10-year statute of limitations, Code of Civil Procedure, section 337.15, protecting developers of real estate from unlimited claims for property damage caused by latent construction defects. This is an appeal from summary judgment entered against plaintiffs in an action in inverse condemnation, continuing nuisance, and dangerous condition of public property, arising from subsidence-related damage to real property alleged to be the result of defective sewage and drainage systems of defendant City of San Mateo. Nelson for Cross-defendant and Respondent. Olson, City Attorney, Wayne Luttringer and Jedeikin & Connor for Defendant, Cross-complainant and Appellant. CITY OF SAN MATEO, Defendant, Cross-complainant and Appellant SAN MATEO INVESTMENT COMPANY, Cross-defendant and Respondent. ![]() RON LEAF et al., Plaintiffs and Appellants, v.
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