Filed 6/23/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DELON HAMPTON & ASSOCIATES, 

CHTD.,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

LOS ANGELES COUNTY 

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Real Party in Interest.

 No. B252356

 (Los Angeles County

 Super. Ct. No. BC489953)

ORIGINAL PROCEEDINGS in mandate. Robert H. O’Brien, Judge. Petition 

granted.

Collins Collins Muir+Stewart, Michele L. Gamble, Alexandra N. Krasovec and 

James C. Jardin for Petitioner.

No appearance for Respondent.

Krutcik & Georggin, James A. Krutcik, A. Nicholas Georggin and Alexandra 

Buechner for Real Party in Interest.

*

Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is 

certified for publication with the exception of part III of the Discussion.
2

INTRODUCTION

In 1993, real party in interest Los Angeles County Metropolitan Transportation

Authority (MTA) completed the rail station at 4th Street and Hill Street in Los Angeles. 

In 2011, Jose Madrigal fell on a stairwell at the station. Alleging that the stairwell was 

“too small” and that its banister was “too low,” Madrigal sued the MTA. The MTA 

cross-complained against, among others, petitioner Delon Hampton & Associates, CHTD 

(Hampton), which provided design and/or construction services at the station. Hampton 

demurred to the first amended cross-complaint based on Code of Civil Procedure section 

337.1,

1 which contains a four-year limitations period for patent defects. The trial court 

overruled the demurrer. Because we conclude that the defects alleged were patent, we 

grant Hampton’s petition for writ of mandate and direct the trial court to sustain the 

demurrer without leave to amend.

BACKGROUND

The rail station at 4th and Hill streets was completed in 1993. On August 15, 

2011, Madrigal “ ‘fell over and/or from a stairwell’ ” at the rail station, which was a part 

of the development of the Southern California Rapid Transit District Metro Rail Project.

Madrigal filed a complaint on August 9, 2012 against MTA for dangerous 

condition of public property and statutory liability and for negligence. He alleged, 

“ ‘Among other defects, the banister of the stairwell was too low and the stairwell too 

small given the number, age, and volume of persons entering and exiting the Metro Rail 

station.’ ” MTA “ ‘failed to provide adequate safeguards against this known dangerous 

condition by, among other acts and omissions, failing to properly design, construct, 

supervise, inspect and repair the Premises causing the same to be defective and unsafe for 

its intended purposes.’ ”

1 All further undesignated statutory references are to the Code of Civil Procedure.
3

MTA cross-complained against numerous entities involved in the construction of 

the rail station where Madrigal fell, including Hampton, which “performed design and/or 

construction services for construction of the Premises.” As to Hampton, the first 

amended cross-complaint alleged causes of action for equitable indemnity, comparative 

contribution, apportionment of fault, and declaratory relief.

2

Hampton demurred to the first amended cross-complaint on the ground that the 

causes of action were barred by the four-year statute of limitations in section 337.1, 

subdivision (a)(1), and any deficiencies in design were patent under that section.3

Hampton requested judicial notice of the March 15, 1993 notice of completion of the 

project.4

On September 11, 2013, the trial court overruled the demurrer, finding that the

defect was not patent as a matter of law.5

2

The cross-complaint alleged a cause of action for express indemnity against 

Morrison-Knudsen Company, Inc., which is not a party to this appeal.

3 Other cross-defendants who are not a party to this appeal joined the demurrer.

4

The trial court did not rule on the request.

5 At the same time the trial court overruled Hampton’s demurrer to the first 

amended cross-complaint, the court sustained with leave to amend the demurrer of 

ICF Kaiser Engineers, Inc. MTA filed a second amended cross-complaint, which 

Hampton answered and which is the operative pleading. That pleading is identical to the 

first amended cross-complaint except that this paragraph was added: “CrossComplainant is informed and thereupon believes that the KAISER entities are not 

protected by any claim of bankruptcy protection for a variety of reasons, including but 

not limited to the KAISER entity sued upon herein was not named in any bankruptcy 

petition, and/or no bankruptcy protection exists for those claims which arose after the 

filing of the Bankruptcy Petition.” 

The general rule is that the filing of an amended complaint supersedes the original 

complaint, precluding appellate review of the original complaint. (See e.g., Schneider v. 

Brown (1890) 85 Cal. 205, 206.) The rule, however, makes little sense under the 

circumstances before us, where the allegations against the demurring cross-defendant are 

identical in the two pleadings. We therefore find that the petition is not moot. 
4

DISCUSSION

I. Standard of review.

To determine whether a plaintiff has properly stated a claim for relief, “our 

standard of review is clear: ‘ “We treat the demurrer as admitting all material facts 

properly pleaded, but not contentions, deductions or conclusions of fact or law. 

[Citation.] We also consider matters which may be judicially noticed.” [Citation.] 

Further, we give the complaint a reasonable interpretation, reading it as a whole and its 

parts in their context. [Citation.] When a demurrer is sustained, we determine whether 

the complaint states facts sufficient to constitute a cause of action. [Citation.] And when 

it is sustained without leave to amend, we decide whether there is a reasonable possibility 

that the defect can be cured by amendment: if it can be, the trial court has abused its 

discretion and we reverse; if not, there has been no abuse of discretion and we affirm. 

[Citations.] The burden of proving such reasonable possibility is squarely on the 

plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) 

Our review is de novo. (Ibid.) Toward this end, we must liberally construe the complaint 

with a view to achieving substantial justice between the parties. (§ 452.)

II. The defects alleged are patent.

Hampton contends that the first amended cross-complaint is barred by the statute 

of limitations in section 337.1.

6

 We agree.

The statute of limitations in section 337.1 exists to “provide a final point of 

termination, to protect some groups from extended liability.” (Sevilla v. Stearns-Roger, 

Inc. (1980) 101 Cal.App.3d 608, 611.) Section 337.1, subdivision (a), therefore provides: 

“Except as otherwise provided in this section, no action shall be brought to recover 

6 MTA suggests in its return to the petition another reason why the demurrer should 

be overruled: The handrails were defectively manufactured, and section 337.1 does not 

apply to manufacturers of products. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 

643.) The first amended cross-complaint, however, does not contain a claim based on 

manufacturing defect. This argument therefore does not state a ground for overruling the 

demurrer.
5

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: [¶] . . . [¶] (3) Injury to the person or for wrongful 

death arising out of any such patent deficiency.”7

A “ ‘patent deficiency’ means a deficiency which is apparent by reasonable 

inspection.” (§ 337.1, subd. (e); see also Tomko Woll Group Architects, Inc. v. Superior 

Court (1996) 46 Cal.App.4th 1326, 1336.) A patent defect can be discovered by the kind 

7

Section 337.1 of the Code of Civil Procedure, provides in full: “(a) 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. 

“(b) 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. 

“(c) Nothing in this section shall be construed as extending the period prescribed 

by the laws of this state for the bringing of any action. 

“(d) 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.”
6

of inspection made in the exercise of ordinary care and prudence, whereas a latent defect 

is hidden and would not be discovered by a reasonably careful inspection. (Preston v. 

Goldman (1986) 42 Cal.3d 108, 123; Wagner v. State of California (1978) 86 Cal.App.3d 

922, 927 [“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”].) “The test to determine 

whether a construction defect is patent is an objective test that asks ‘whether the average 

consumer, during the course of a reasonable inspection, would discover the defect. . . .’

[Citations.] This test generally presents a question of fact, unless the defect is obvious in 

the context of common experience; then a determination of patent defect may be made as 

a matter of law (including on summary judgment). [Citations.]” (Creekridge Townhome 

Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256; accord, 

Tomko Woll Group Architects, Inc. v. Superior Court, supra, 46 Cal.App.4th at p. 1339 

[“The test to determine whether a deficiency is patent is based on the average consumer’s 

reasonable expectations”]; Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1370.) 

Defects that are latent include an improperly designed heating and air conditioning 

system that causes uncontrollable temperature fluctuations. (Baker v. Walker & Walker, 

Inc. (1982) 133 Cal.App.3d 746, 758-759 [although the effects of the deficiency were 

obvious because the temperature was always too hot or too cold, the deficiency itself was 

unknown].) A railing that gives way due to improper nailing concealed by putty and 

paint is a latent defect. (Hale v. Depaoli (1948) 33 Cal.2d 228.) The absence of a vapor 

barrier, which caused the siding on a building to buckle, “was a latent defect, hidden from 

view beneath the siding.” (Mills v. Forestex Co., supra, 108 Cal.App.4th at pp. 645-646.)

Defects that are patent include the absence of a fence around a swimming pool. 

(Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 510-511 [“[t]he 

swimming pool and the dangers attendant thereto as they relate to the absence of fencing 

are matters of such common experience that assuming, arguendo, the absence of a fence 

constitutes a deficiency in our situation, it is a patent deficiency”].) Raised paving stones 

on a patio are a patent defect. (Tomko Woll Group Architects, Inc. v. Superior Court, 

supra, 46 Cal.App.4th at p. 1339 [“Pavement, and the dangers attendant to it, are matters 
7

of such common experience that a visible defect substantial enough to cause a pedestrian 

to trip and fall constitutes a patent defect”].) Defective construction of a landing that 

allows water to pool on the landing and to drain into an office is a patent defect. 

(Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1470-1471

(Sanchez).)

Defects involving stairs and guardrails have also been found to be patent. In 

Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, for example, the plaintiff alleged 

that improperly “ ‘marked and delineated’ ” stairs at the theatre caused her to fall while 

walking down the stairs. (Id. at p. 965.) Discovery revealed that contrast marking stripes 

required by the plans for the theatre and by the California Building Code were never 

placed on the stairs. Neiman held that the absence of contrast marking stripes on the 

stairs was an “ ‘obvious and apparent’ condition.” (Id. at p. 971.) The defect was 

therefore patent. (Id. at p. 972.) 

Similarly, the spacing between guardrails is a patent condition. (The Luckman 

Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 36.) The plaintiff in 

Luckman climbed through guardrails and injured himself. Because “the spacing of the 

rails was obvious, and the dangers attendant to climbing through guardrails on a catwalk 

are . . . a matter of common experience,” the alleged “defects were patent.” (Ibid.)

Here, the alleged defects are, first, the banister of the stairwell from which 

Madrigal fell was “too low”; and, second, the stairwell was “too narrow,” given the 

number, age, and volume of people using the rail station. The height of the banister and 

the width of the stairwell are not hidden. They are open and apparent defects, and the 

danger of ascending or descending stairs is a matter of common experience. (See, e.g., 

The Luckman Partnership, Inc. v. Superior Court, supra, 184 Cal.App.4th at p. 36.) In 

addition to the defects being visually accessible, simple use of the stairwell would inform

the average consumer whether the banister was too low or the stairwell was too narrow. 

The alleged defects were therefore patent.

MTA responds that whether the defects are patent can only be established through 

a “technical reading of the applicable building codes.” We disagree. The existence of 
8

Building Code provisions concerning stairwells only underscores that the defects should 

have been discovered on a reasonable inspection. Because it is “evident [that] stairs have 

the potential to be dangerous and the risk of falling is heightened on stairs,” the Building 

Code is “replete with safety measures required on stairs.” (Neiman v. Leo A. Daly Co., 

supra, 210 Cal.App.4th at p. 971.)

The defects alleged are patent, and therefore the four-year limitations period in 

section 337.1 bars MTA’s cross-complaint against Hampton.

III. The completed and accepted doctrine.

Because we conclude that the defects alleged are patent, the first amended crosscomplaint is also barred under the completed and accepted doctrine. The doctrine holds 

that when a contractor completes work that is accepted by the owner, the contractor is not 

liable to third parties injured as a result of the condition of the work, even if the 

contractor was negligent in performing the contract, unless the defect in the work was 

latent or concealed. (Sanchez, supra, 47 Cal.App.4th at pp. 1466-1471; see also Jones v. 

P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 717 [“liability for the safety of a 

contractor’s work shifts to the owner upon acceptance of the work, that is, when the 

owner has had an opportunity to examine the work, and thereafter represents that it is 

safe”].)8The doctrine applies to patent, but not latent, defects. (Neiman v. Leo A. Daly 

Co., supra, 210 Cal.App.4th at p. 969.) 

In Sanchez, a subcontractor constructed the entrance stairway and landing for a

building, improperly pouring the concrete in doing so. Two years after the building was 

completed, the plaintiff slipped on rainwater that had pooled on the landing, something 

that the building’s owner and employees had seen occur over the years. The court 

concluded that the defendants were not liable for the plaintiff’s injuries because the 

owner and its employees had long been aware that rainwater pooled on the landing. 

8 Disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 

532, fn. 7.
9

(Sanchez, supra, 47 Cal.App.4th at pp. 1470-1471; see also Jones v. P.S. Development 

Co., Inc., supra, 166 Cal.App.4th at p. 714.)9

Here, the rail station where Madrigal fell was completed in 1993. That MTA 

“ ‘accepted’ ” the rail station was established by the public’s, and specifically, 

Madrigal’s, use of it. (See, e.g., Neiman v. Leo A. Daly Co., supra, 210 Cal.App.4th at 

p. 969 [where theatre was opened to the public, there was no dispute that owner accepted 

the work].) Because MTA accepted Hampton’s completed work, the liability for patent 

defects shifted to MTA.

9

In Montijo v. Swift (1963) 219 Cal.App.2d 351, the architect who designed a 

stairway in which the rail did not extend to the last step could be liable to the plaintiff 

who fell on the stairway. Montijo neither addressed the completed and accepted doctrine 

nor did it make a finding that the defect was patent or latent.
10

DISPOSITION

The petition for writ of mandate is granted. The trial court is directed to sustain 

without leave to amend the demurrer of petitioner Hampton. Petitioner shall recover its 

costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.