Filed 9/28/23 Devault v. Telgian Corp. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LORI FOSS DEVAULT,

Plaintiff and Appellant,

v.

TELGIAN CORPORATION, 

Defendant and Respondent,

 D080137

 (Super. Ct. No. 37-2018-

 00027709-CU-PA-CTL)

LORI FOSS DEVAULT,

Plaintiff and Appellant,

v.

A.J. PADELFORD & SON, INC.,

Defendant and Respondent.

 D080925

 (Super. Ct. No. 37-2018-

 00027709-CU-PA-CTL)

APPEAL from judgments of the Superior Court of San Diego County, 

Matthew C. Braner, Judge. Affirmed.

Law Offices of Nicholas A. Boylan and Nicholas A. Boylan for Plaintiff 

and Appellant.
2

Collins + Collins, Michele L. Gamble, Kevin J. Healy and James C. 

Jardin for Defendant and Respondent Telgian Corporation.

Wood Smith Henning & Berman, Stephen M. Caine; Law Offices of 

John A. Hauser and Lynne Ann Pearson Houry for Defendant and 

Respondent A.J. Padelford & Son, Inc.

I.

INTRODUCTION

Plaintiff Lori Foss Devault appeals from judgments entered in favor of 

defendants A.J. Padelford & Son, Inc. (Padelford) and Telgian Corporation 

(Telgian) after the court granted the defendants’ separate motions for 

summary judgment on her claim for negligence against them. Padelford and 

Telgian were the general contractor and subcontractor, respectively, on a 

construction project for a Home Depot store for which construction was 

completed in 2000. Devault was employed at that Home Depot store in 

November 2017 when she allegedly injured her head after striking a fire hose 

rack that was mounted next to solid double doors.

Devault alleged that Padelford and Telgian were negligent in designing 

and/or installing the fire hose rack in close proximity to a set of double doors. 

Telgian moved for summary judgment first, arguing that Devault’s claim 

against it was untimely because the defect about which Devault was 

complaining was a patent defect, as to which a four-year statute of 

limitations applies to claims against parties who are involved in the 

improvement of real property pursuant to Code of Civil Procedure1 section 

337.1. Telgian argued in the alternative that the patency of the defect 

1 Further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
3

rendered Devault’s claim barred under the “completed and accepted” 

doctrine, as well. The trial court concluded that Telgian had established 

through undisputed facts that the defect underlying Devault’s claim against 

Telgian was patent as a matter of law, which meant that the claim was 

untimely under section 337.1 and was barred under the “completed and 

accepted” doctrine. The court therefore granted summary judgment in favor 

of Telgian. A few months later, Padelford moved for summary judgment on 

the same grounds, and the court reached the same conclusion, granting 

summary judgment in Padelford’s favor.

The trial court entered separate judgments as to Padelford and Telgian, 

and Devault appealed from both. We consolidated the appeals for purposes of 

oral argument and opinion.2

On appeal, Devault contends that the trial court erred in concluding 

that there remain no material facts in dispute as to the patency of the alleged 

defect regarding the location of the fire hose rack that Devault alleges caused 

her injuries. In particular, Devault asserts that there remains a factual 

dispute as to whether the “combination of no-window warehouse doors and 

close proximity of the fire-hose apparatus (in the design/construction) 

constituted a latent defect.” (Fn. and some underscoring omitted.) Devault 

contends that the trial court “completely disregard[ed], discount[ed] and/or 

misinterpret[ed] the expert testimony” she submitted, and that such expert 

2 During the pendency of the appeals, Devault filed an unopposed motion 

to consolidate the two matters. Although this court initially deferred 

consideration of Devault’s motion to consolidate, on July 14, 2023, we ordered 

that case Nos. D080137 (Devault v. Telgian Corporation) and D080925 

(Devault v. A.J. Padelford & Son, Inc.) be consolidated under case No. 

D080137.
4

testimony established that a dispute of material fact remains to be 

determined by a jury.

We conclude, as did the trial court, that the deficiency at the heart of 

Devault’s negligence claim is patent as a matter of law. As a result, the fouryear statute of limitations set out in section 337.1 requires that any claims 

against Padelford and Telgian based on such a defect be brought within four 

years of the completion of construction. Because Devault’s claim was brought 

nearly two decades after the Home Depot store construction was completed, 

the claim is untimely as to Padelford and Telgian. We therefore affirm the 

judgments entered in favor of these defendants.

II.

FACTUAL AND PROCEDURAL HISTORY

A. Factual background

Defendant Padelford was the general contractor for the construction of 

the Home Depot store in which Devault was working at the time of the 

alleged injury. Defendant Telgian designed a fire suppression system for the 

Home Depot store, which included a fire hose rack attached to a wall at the 

back of the store. Construction on the store, including the fire hose rack, was 

completed in 2000.

Devault began working at the Home Depot in early 2017; she typically 

worked 20 hours per week, and sometimes worked as much as 32 to 40 hours 

per week. Devault “constantly walked past” the fire hose rack while working. 

The fire hose rack was mounted on a wall next to two solid double doors, both 

of which were openly visible; Devault disputes that the hazard created by the 

fire hose rack was readily apparent, however. According to Devault, the 

“combination defect” of the fire hose rack’s location and proximity to “the 

perimeter of the high-traffic [windowless] doorway” was a hazard “not visibly 

apparent to a layman.”
5

While Devault was working on November 1, 2017, she struck her head 

on the fire hose rack after coming through the set of doors that were adjacent 

to the fire hose rack. Devault was injured as a result of her head striking the 

fire hose rack.

B. Procedural background

1. The origination of the lawsuit and the amended complaint

In June 2018, Devault brought an action against Cara Nicole Sipan and 

multiple unnamed Does in which she claimed damages for personal injuries

arising out of a June 6, 2016 auto accident on Route 52 in San Diego. Over a 

year later, on July 9, 2019, Devault filed an amended complaint for damages 

in which she retained her negligence claim against Sipan, but added Telgian 

and Padelford as named defendants in connection with a new, distinct 

negligence claim.3 As to Telgian and Padelford, Devault alleged that she was 

working at the Home Depot store in question on November 1, 2017, and, 

while she was working, she injured her head when she struck it on the fire 

hose rack. Devault alleged that Padelford was the general contractor who 

built the Home Depot building, and further alleged that Telgian was the 

subcontractor responsible for the planning, design, placement and 

installation of the fire hose rack and/or the windowless doors utilized next to 

the fire hose rack in the Home Depot store. Devault asserted that Telgian 

and Padelford were negligent in the plan, design, selection, placement, 

location, and/or installation of the fire hose rack.

2. Telgian’s motion for summary judgment

Telgian moved for summary judgment on August 11, 2021, arguing 

that it was entitled to judgment as a matter of law based on the four-year 

3 Devault was permitted to amend her complaint in the Sipan lawsuit to 

allege additional or “successive” personal injuries.
6

limitations period applicable to claims of patent deficiencies in construction 

provided for in section 337.1. Telgian also asserted that Devault’s claim was 

barred under the “completed and accepted” doctrine.

Devault opposed the motion. In support of her opposition, Devault 

submitted her own declaration, as well as the declarations of three other 

individuals—Brad Avrit, John P. (Jack) Diehl, and Nicholas Boylan.4

Telgian objected to certain of Devault’s evidence. Specifically, Telgian 

objected on multiple grounds to the entirety of the Diehl and Avrit 

declarations, as well as to paragraphs 6, 7, and 8 of Devault’s declaration.

The trial court heard argument on Telgian’s motion for summary 

judgment on December 10, 2021, and took the matter under submission. The 

court issued its ruling three days later. In considering the motion for 

summary judgment, the trial court sustained in full Telgian’s evidentiary 

objections to the declarations of Brad Avrit and John Diehl, but overruled in 

full Telgian’s objections to Devault’s declaration.5 After dispensing with the 

evidentiary rulings, the court granted Telgian summary judgment. In 

issuing its ruling, the court concluded that the four-year statute of limitations 

provided for in section 337.1 applied to Devault’s claim against Telgian 

because the deficiency about which she was complaining was a patent 

deficiency, as a matter of law, because the fire hose rack and its proximity to 

4 Boylan is one of Devault’s attorneys. Avrit is a “licensed civil engineer” 

who has “extensive technical and practical experience in conducting safety 

investigations and analysis of premises.” Diehl is an “Architect.”

5 The court concluded that Avrit’s and Diehl’s declarations were, 

ultimately, irrelevant because one attempted to discuss the “unforeseeable 

risk” of a particular item and the other provided an opinion that the alleged 

hazard “ ‘was not and would not be apparent to a layman,’ ” but the 

appropriate question was whether the hazard “is ‘apparent by reasonable 

inspection.’ ”
7

the door was “obvious.” The trial court also concluded, as an alternative 

ground for granting summary judgment, that the “completed and accepted 

doctrine” operated to bar Devault’s claim against Telgian. Pursuant to the 

“completed and accepted doctrine,” where the defect alleged is not a latent 

defect, an injured third party may not hold a contractor liable for allegedly 

negligently completed construction once the construction work has been 

accepted by the owner of the building. (See Jones v. P.S. Development Co., 

Inc. (2008) 166 Cal.App.4th 707, 712, disapproved of on different grounds in 

Reid v. Google (2010) 50 Cal.4th 512, 532, fn.7 (Reid).) The court reiterated 

that it had determined that the defect alleged in this case is a patent defect, 

as a matter of law.

In response to Devault’s argument that there remains a triable issue of 

fact as to whether the defect was, in fact, latent because the defect was in the 

“ ‘combination of the no-window warehouse door with the location of the 

unguarded, un-protected metal fire-house apparatus,’ ” the trial court noted 

that Devault’s statements to the effect that she could not have appreciated 

the hazard of the doors in combination with the fire hose rack were 

unavailing, because the issue is not whether she “appreciated the danger,” 

but rather whether the fire hose rack’s location vis-à-vis the door was 

objectively obvious and apparent. Despite having previously sustained

Telgian’s objections to Devault’s experts’ declarations, the trial court 

nevertheless also specifically rejected as speaking to the wrong standard both 

Avrit’s assertion that the combination of no-window doors and the placement 

of the fire hose rack “ ‘presented an unforeseeable risk,’ ” and Diehl’s 

assertion that the “ ‘danger . . . presented by the location of the fire-hose 

valve apparatus, in close proximity to the perimeter of the high-traffic 

doorway . . . was not and would not be apparent to a layman.’ ” The court 
8

noted that the test for patency is instead whether the deficiency alleged is 

“ ‘apparent by reasonable inspection.’ ”

The trial court entered judgment in favor of Telgian on January 3, 

2022. Devault filed a timely notice of appeal from the judgment entered in 

favor of Telgian.

3. Padelford’s motion for summary judgment

Approximately two months after the trial court entered judgment in 

favor of Telgian, Padelford moved for summary judgment on the same 

grounds as Telgian and argued that issue preclusion compelled the same 

result, given that Telgian and Padelford “hold[ ] the same posture” in the 

litigation.

In opposing Padelford’s motion for summary judgment, Devault again 

submitted declarations by Avrit, Diehl, and Boylan, as well as her own 

declaration. Devault’s declaration is identical to the one she submitted in 

opposition to Telgian’s motion for summary judgment. Avrit’s and Diehl’s 

declarations are also for the most part identical to the ones they submitted in 

opposition to Telgian’s motion for summary judgment. However, the new 

declarations include the addition of a single new paragraph. For example, 

Avrit’s new declaration includes the following paragraph:

“I have read Judge Braner’s Order granting summary 

judgment to Telgian in this case, and I hope the following 

clarification and/or addition to my opinions are helpful to 

the Court with respect to summary judgment motion of A.J. 

Paddelford [sic]. Specifically: It is my opinion that the 

combination hazard described in this declaration was not 

and would not be apparent to an average consumer and/or 

an average worker in that specific warehouse environment 

involved, based on a reasonable inspection by such an 

average person. It [ha]s been a part of my work and 

experience for decades to determine whether particular 

hazards are unreasonably dangerous based on the type of 

people, the qualifications of the people, the education of the 
9

people, and the abilities on the people who will be 

functioning in the particular environment and the 

particular circumstances presented, where the injury 

occurs. This necessarily involves determining whether the 

injured person is a typical, average consumer, like the 

Plaintiff here, or the injured person is a sophisticated, 

knowledgeable, experienced and/or expert person and 

familiar professional operating in a professional 

environment as a skilled worker. I employed my decades of 

experience and training on that point in reaching and

expressing my opinion here that an average consumer 

and/or an average worker functioning in the unique, Home 

Depot consumer warehouse environment would not be able 

to see, ‘foresee’, recognize or be aware of the obscure hazard 

presented by the combination of conditions presented at the 

immediate perimeter of the high-traffic warehouse 

passageway adjacent to the no-window doors.”

Diehl’s updated declaration includes the exact same language 

contained in this paragraph from Avrit’s updated declaration, with the 

exception of the final sentence, which includes slight alterations. In Diehl’s

declaration, his final sentence is as follows (with alterations indicated by the 

use of strikeouts for removed language and the use of italics for added 

language):

“I employed my decades of experience and training on that

point in reaching and expressing my opinion here that an 

average consumer and/or an average worker functioning in 

the unique, Home Depot consumer warehouse environment 

would not be able to see, ‘foresee’, recognize or be aware of 

the obscure hazard presented by the combination of 

conditions presented at the immediate perimeter of the 

high-traffic, two-way warehouse passageway adjacent to 

the no-window doors, upon normal or reasonable 

inspection.”

Boylan’s declaration was also different from the declaration he 

submitted in opposition to Telgian’s motion for summary judgment; however, 
10

because Boylan submitted his declarations in connection with his role as an 

attorney involved in the lawsuit, his declarations were utilized only for the 

purpose of submitting discovery responses and appellate documents as 

evidence.

The trial court set a hearing on Padelford’s motion for summary 

judgment for June 24, 2022. Prior to the hearing, the court issued a tentative 

ruling in which it proposed granting Padelford’s motion for summary 

judgment in full and on the same grounds as the court granted Telgian’s 

motion for summary judgment. The attorneys for both parties submitted on 

the court’s tentative ruling, and the court thereafter confirmed its tentative 

ruling as its final ruling without further argument from the attorneys.

In issuing its ruling, the trial court concluded that the four-year statute 

of limitations provided for in section 337.1 also applied to Devault’s claim 

against Padelford because the deficiency about which she was complaining 

was a patent deficiency, as a matter of law. As the court had concluded in 

Telgian’s prior summary judgment proceeding, it again concluded that the 

fire hose rack and its proximity to the door was an “obvious” deficiency. 

Additionally, given the patency of the defect, the “completed and accepted 

doctrine” operated to bar Devault’s claim against Padelford.

The trial court again dismissed certain contentions in Devault’s 

experts’ declarations to the effect that they were suggesting that the defect 

was, in fact, latent because the defect comprised the “ ‘combination of the nowindow warehouse door with the location of the unguarded, un-protected 

metal fire-house apparatus.’ ” The court also reiterated that Devault’s 

statements to the effect that she could not have appreciated the hazard of the 

doors in combination with the fire hose rack were unavailing, because the 

issue is not whether she “appreciated the danger,” but rather whether the fire 

hose rack’s location vis-à-vis the door was objectively obvious and apparent.
11

The trial court entered judgment in favor of Padelford on July 15, 2022.

Devault filed a timely notice of appeal from the judgment entered in 

favor of Padelford.

III.

DISCUSSION

A. Summary judgment standards

We review de novo an order granting a motion for summary judgment. 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)

In performing our independent review, we apply the same three-step 

process as the trial court. “Because summary judgment is defined by the 

material allegations in the pleadings, we first look to the pleadings to identify 

the elements of the causes of action for which relief is sought.” (Baptist v. 

Robinson (2006) 143 Cal.App.4th 151, 159.) “We then examine the moving 

party’s motion, including the evidence offered in support of the motion.” 

(Ibid.) A defendant moving for summary judgment has the initial burden of 

showing that a cause of action lacks merit because one or more elements of 

the cause of action cannot be established or there is a complete defense to 

that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 

25 Cal.4th at p. 850.) The expiration of the applicable statute of limitations 

is one such complete defense. (Cucuzza v. City of Santa Clara (2002) 

104 Cal.App.4th 1031, 1037.) A defendant moving for summary judgment 

based on the affirmative defense of the statute of limitations carries its 

burden by presenting evidence establishing that the plaintiff's claim is time 

barred. (The Police Retirement System of St. Louis v. Page (2018) 

22 Cal.App.5th 336, 340 (Police Retirement System).)

Only if the defendant’s moving papers make a prima facie showing that 

justifies a judgment in the defendant’s favor does the burden shift to the 

plaintiff to make a prima facie showing of the existence of a triable issue of 
12

material fact. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Kahn 

v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.) In 

the context of a statute of limitations defense, if the defendant has carried its 

burden, then the plaintiff must submit evidence that would allow a 

“reasonable trier of fact [to] find in plaintiff[’s] favor on the statute of 

limitations issue.” (Police Retirement System, supra, 22 Cal.App.5th at 

p. 340; Aguilar, supra, 25 Cal.4th at p.850 [“There is a triable issue of 

material fact if, and only if, the evidence would allow a reasonable trier of 

fact to find the underlying fact in favor of the party opposing the motion in 

accordance with the applicable standard of proof”].)

In determining whether the parties have met their respective burdens, 

“the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ 

reasonably drawn therefrom [citation], and must view such evidence 

[citations] and such inferences [citations], in the light most favorable to the 

opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843.) “There is a triable 

issue of material fact if, and only if, the evidence would allow a reasonable 

trier of fact to find the underlying fact in favor of the party opposing the 

motion in accordance with the applicable standard of proof.” (Id. at p. 850, 

italics added, fn. omitted.) Thus, a party “cannot avoid summary judgment 

by asserting facts based on mere speculation and conjecture, but instead 

must produce admissible evidence raising a triable issue of fact.” 

(LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)

B. The law regarding limitations on claims involving patent and latent 

defects

Section 337.1, subdivision (a) provides that a cause of action based on a 

“patent” deficiency in the construction of an improvement to real property 
13

must be brought within four years of the substantial completion of the 

improvement.6

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 applies only to a specific class of 

defendants who are associated with the design and construction of real 

property improvements. The statute promotes development and construction

by “free[ing] those associated with it from the specter of lawsuits in the 

distant future. Those who fear venturing into such activities will be less 

deterred when a ceiling is placed on the period for which they can be held 

liable. The concept of promoting construction tends to harmonize with the 

public policy favoring the full enjoyment and use of real property.” (Wagner 

v. State of California (1978) 86 Cal.App.3d 922, 929–930.) “A contractor is in 

the business of constructing improvements and must devote his capital to 

that end; the need to provide reserves against an uncertain liability 

extending indefinitely into the future could seriously impinge upon the 

conduct of his enterprise.” (Regents of University of California. v. Hartford 

Acc. & Indem. Co. (1978) 21 Cal.3d 624, 633, fn. 2, superseded by statute on 

6 Section 337.1, subdivision (a) states: “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.”
14

different grounds as stated in Lantzy v. Centex Homes (2003) 31 Cal.4th 363,

375, fn. 9.)

Importantly, the statutory framework does not leave a plaintiff wholly 

without a remedy for injuries caused by defects. Although section 337.1 

exists to limit the liability of a class of defendants engaged in the construction

of real property improvements, subdivision (d) of the provision expressly 

prohibits another class of defendants from using it as a defense: “The 

limitation prescribed by this section shall not be asserted by way of defense 

by any person in actual possession or the [sic] 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.” Thus, after the statutory limitation period 

elapses, only those construction industry defendants who are specifically 

identified in the statute are freed from responsibility for harm from patent 

deficiencies, while responsibility for harm resulting from those deficiencies 

remains in a “person in actual possession or control” (§ 337.1, subd. (d)) of the 

real property improvement. (Tomko Woll Group Architects, Inc. v. Superior 

Court (1996) 46 Cal.App.4th 1326, 1337 (Tomko).)7

Subdivision (e) of section 337.1 defines a “patent deficiency” as “a 

deficiency which is apparent by reasonable inspection.” Thus, “[a] patent 

defect can be discovered by the kind of inspection made in the exercise of 

ordinary care and prudence, whereas a latent defect is hidden and would not 

7 “The rational basis for this legislative [decision to permit continued 

liability for a person in actual possession or control of a building while 

limiting the time construction industry defendants may be held liable] is that 

such a person will have control over the property at the time of the accident, 

will be in the best position to discover a defect and to prevent injury, and will 

be likely to have insurance.” (Tomko, supra, 46 Cal.App.4th at p. 1337.)
15

be discovered by a reasonably careful inspection.” (Delon Hampton & 

Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 255 

(Delon Hampton).) “In the context of a patent defect, the word ‘patent’ 

‘ “refers to the patency of danger and not merely to exterior visibility.” ’ 

[Citation.]” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 

1461, 1470 (Sanchez).)

“ ‘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.]’ 

[Citations.]” (Delon Hampton, supra, 227 Cal.App.4th at p. 255, italics 

added; see Sanchez, supra, 47 Cal.App.4th at pp. 1470-1471 [a danger is 

“patent as a matter of law” where “it would be discovered by the inspection 

an owner would make in the exercise of ordinary care and prudence”]; 

Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 970 (Neiman) [alleged 

defect of failure to place contrast stripes on stairs is “ ‘patent as a matter of 

law; it would be discovered by the inspection an owner would make in the 

exercise of ordinary care and prudence’ ”].)

C. Analysis

1. Telgian

a. Evidentiary issues

Although Devault does not mention the trial court’s evidentiary rulings 

in its briefing, we must begin by addressing what evidence is to be considered 

on appeal from the granting of summary judgment. Important for our 

purposes is the fact that the trial court sustained what appears to be all of 

Telgian’s objections to the Avrit and Diehl declarations, which included 
16

objections to portions of these declarations made on multiple grounds, as well 

as multiple objections made to the entirety of the declarations.8

Devault does not specifically address the trial court’s evidentiary 

rulings in her opening brief, and, as a result, she has forfeited any argument 

that the trial court erroneously sustained Telgian’s objections. (See, e.g., Roe 

v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.) Rather, and 

apparently operating under the incorrect assumption that the trial court did 

not exclude the entirety of her two experts’ declarations, Devault does seem to 

take issue with a brief portion of the trial court’s order in which the court 

specifically indicated that the experts’ declarations failed to comment on the 

relevant question in the case. Devault contends that the trial court “was 

wrong to disregard, misinterpret and deem ‘irrelevant’ the expert testimony.” 

(Capitalization and boldface omitted.) However, Telgian’s evidentiary 

objections were made on multiple grounds, not solely relevance grounds, and 

the court did not limit its sustaining of the evidentiary objections to lack of 

relevance. Because the trial court sustained all of Telgian’s objections to the 

Avrit and Diehl declarations and did not specify only lack of relevance as 

supporting its exclusion of the evidence, the absence of any argument as to 

why such rulings were in error constitutes forfeiture of any further claim that 

the evidence should have been admitted. As a result, we have no occasion to 

consider that evidence. (See Hartford Casualty Ins. Co. v. Swift Distribution, 

Inc. (2014) 59 Cal.4th 277, 286 [In evaluating whether the standards for 

granting summary judgment have been satisfied, we “ ‘ “consider[ ] all the 

evidence before the trial court except evidence to which an objection was made 

and sustained” ’ ” (italics added)].)

8 The trial court stated, “Telgian Corporation’s Objections to [the] 

Declaration[s] of Brad Avrit and Jack Diehl are SUSTAINED.”
17

b. Telgian carried its initial burden to present evidence that 

the danger posed by the asserted defect is patent and that 

the statute of limitations on a claim against it has run, and 

Devault cannot show that there remains a triable issue of 

material fact

The record demonstrates that Telgian met its initial burden to present 

evidence that the danger posed by the asserted defect is patent and that the 

four-year statute of limitations under section 337.1 has elapsed.

It is undisputed that the completion date for the Home Depot store was 

February 24, 2000. Since section 337.1 “ ‘fixes the point at which the period 

of limitations begins to run at the completion of construction and not the 

accrual of any cause of action resulting therefrom’ ” (Tomko, supra,

46 Cal.App.4th at p. 1334, italics omitted), any cause of action arising from a 

patent defect would have had to have been brought against Telgian by 

February 24, 2004.

Because Devault brought suit against Telgian more than 15 years after 

the statute of limitations elapsed for claims arising from patent defects, the 

pertinent question for purposes of Telgian’s motion for summary judgment is, 

therefore, whether the defect about which Devault complains was a patent 

defect. With respect to this question, our review of the record establishes 

that Telgian submitted undisputed evidence demonstrating that the defect at 

issue is a patent defect. Specifically, Telgian relied on Devault’s deposition 

testimony and photographic evidence to demonstrate the patency of the 

defect. Devault acknowledged in her deposition that she had observed both 

the fire hose rack and the windowless doors, which are located close 

proximity, and she confirmed that photographs introduced as an exhibit at 

her deposition reflected the doors and fire hose rack as she encountered them 

on November 1, 2017. The photographic evidence demonstrates that the fire 

hose rack was placed on the wall that also houses two double doors, and that 
18

the fire hose rack is in close proximity to those doors. Telgian also submitted 

a photograph demonstrating how far from the wall the fire hose rack 

protrudes. There is no dispute that the fire hose rack itself was plainly 

visible and would have been discovered by an average person in the course of 

a reasonably careful inspection.

Devault nevertheless contends, however, that Telgian failed to meet its 

burden because its evidence demonstrated only that the fire hose rack, by 

itself, “could be considered open and obvious,” while it did not submit 

evidence that the “combination of the location of the fire-hose apparatus with 

the immediately adjacent no-window doors . . . constituted an open and 

obvious, i.e., patent, hazard.” (Some underscoring omitted.) We disagree.

As to the proximity of the fire hose rack to the doorway and the depth of 

its protrusion from the wall to which it is attached—i.e., the “combination” of 

the doorway and the attached fire hose rack—the undisputed evidence shows 

that the fire hose rack “is located adjacent to two no-window doors,” and that 

“the distance of the fire hose apparatus [is] 4 inches to the right of the nowindow doors and protrud[es] 15-5/8 inches from the wall.” The fact that a 

15 and 5/8 inch protruding metal structure was placed merely 4 inches from 

two double windowless doors is open and readily observable with the naked 

eye. So, too, is the danger that such an object would pose to any individual 

walking through the door; the hazard resulting from the placement of the fire 

hose rack in such proximity to the doorway is apparent and obvious upon 

reasonable inspection by the average consumer. Certainly, it is within the 

common experience of human beings that a large metal fire hose rack of more 

than 15 inches in depth that is mounted immediately adjacent to a doorway 

(and thus immediately adjacent to the path of travel through that doorway) 

would present a danger to someone on that path should that individual for 

any reason veer off course or be caused to veer off course. The evidence 
19

Telgian put forth thus made it clear that the asserted defect—i.e., the fact 

that the fire hose rack was placed too close to the door frame of doors that did 

not include windows—was “obvious and apparent to any reasonably 

observant person.” (Sanchez, supra, 47 Cal.App.4th at p. 1470.) In other 

words, Telgian’s evidence demonstrated that the defect was patent as a 

matter of law.

Our conclusion is consistent with cases in which courts have 

determined that other defects are patent as a matter of law, as well, given 

the nature of the danger associated with these defects as being a matter of 

common experience. For example, the absence of a fence around a swimming 

pool has been held to be a patent defect. (See Mattingly v. Anthony 

Industries, Inc. (1980) 109 Cal.App.3d 506, 510–511 (Mattingly) [“[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 that are visible to 

pedestrians have been determined to be a patent defect as a matter of law. 

(Tomko, supra, 46 Cal.App.4th at p. 1339 [“Pavement, and the dangers 

attendant to it, are matters of such common experience that a visible defect 

substantial enough to cause a pedestrian to trip and fall constitutes a patent 

defect.”].) Similarly, the defective construction of a landing that allowed

water to pool on the landing and to drain into an office was held to be a 

patent defect as a matter of law. (Sanchez, supra, 47 Cal.App.4th at 

pp. 1470–1471.)

Defects involving stairs and corresponding guardrails have also been 

found to be patent as a matter of law. For example, in Neiman, supra, 

210 Cal.App.4th at pages 971-972, the lack of contrast marking stripes on 

stairs as required by the plans for the theatre and by the California Building 
20

Standards Code was an “ ‘obvious and apparent’ condition,” and was 

therefore a patent defect. Similarly, too much space between guardrails is a 

patent defect 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 Luckman Partnership, Inc. v. Superior Court 

(2010) 184 Cal.App.4th 30, 36.) Beyond this, the alleged defects of a “ ‘too 

low’ ” banister and a “ ‘too narrow’ ” stairwell at a rail station were 

determined to be patent defects on summary judgment. (Delon Hampton, 

supra, 227 Cal.App.4th at p. 256 [“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.”].)

Devault contends that Merrill v. Buck (1962) 58 Cal.2d 552 (Merrill) 

should control here and argues that application of Merrill demonstrates that 

there is a triable issue of material fact that remains. In Merrill, a tenant had 

just moved into an apartment, and on her first day there she opened an 

unmarked door in a central hallway believing it to be a closet. (Id. at p. 556.) 

The tenant took a step forward and fell down a stairway that led to a 

basement, which caused her to suffer significant injuries. (Ibid.) The tenant 

sued the landlord and her realtor, alleging that they had failed to warn her of 

the dangerous condition of a steep staircase with no handrail being placed 

behind the door—a condition of which they were both aware when they had 

showed her the property during a pre-move-in inspection. (Ibid.) The 

landlord and realtor had not only failed to inform the tenant that there was a 

staircase behind the door, but they had never even informed her that the 

apartment had a basement. (Ibid.) In this context, the Supreme Court 

stated that “ ‘patent’ in the test of duty to warn refers to the patency of danger 

and not merely to exterior visibility.” (Id. at p. 558, italics added.) 
21

Apparently attempting to analogize the danger posed to a new tenant by the 

condition of a nonvisible stairway “hidden” behind a hallway door to the 

“mounting of a metal fire-hose apparatus, lying immediately behind a nowindow door” (underscoring omitted), Devault contends that the “danger” 

posed by the fire hose rack was not “ ‘visible’ ” to “an ‘average’ worker.” 

However, Devault’s claim for negligence is not based on an assertion that the 

general contractor and subcontractor had a duty to warn her of the hazard 

posed by the defect. Rather, she is claiming negligence on the part of the 

contractor and subcontractor in the construction of a building that was 

completed 17 years before her injury ever occurred. For this reason, Merrill

does not provide relevant authority for purposes of this action.9

Therefore, to the list of defects that courts have determined to be 

patent deficiencies as a matter of law for purposes of section 337.1 and or 

purposes of the “completed and accepted” doctrine, we now add the asserted 

defect of a visible fire hose rack placed “too close” to a set of windowless doors 

through which store employees make ingress and egress. Based on the 

9 Indeed, this court has not found a single case, published or not, citing 

to Merrill, supra, 58 Cal.2d 552, in the context of review of a judgment 

entered after a trial court determined that a claim was untimely under 

section 337.1 due to the patency of the alleged defect. Nor have we found a 

single case, published or not, citing to Merrill in the context of review of a 

judgment entered after a trial court determined that a negligence claim 

against a builder was barred by the “completed and accepted doctrine,” the 

other basis for the trial court’s summary judgment ruling in this case. 

Although Devault suggests that Merrill has been “used . . . as a basis for the 

reversal of summary judgment,” it is clear from a review of the single 

published case cited by Devault that Merrill has been cited and relied on only 

in the context of a case involving a claim for a failure to warn, not claims for 

negligence in construction (see Hall v. Rockcliff Realtors (2013) 

215 Cal.App.4th 1134, 1141 [holding that a real estate agent has a duty to 

notify visitors of marketed property of concealed dangerous conditions of 

which the agent has actual or constructive knowledge]).
22

evidence presented by Telgian, the closeness of the fire hose rack to the 

doorway that created a hazard is a matter of common experience and would 

be “obvious and apparent to any reasonably observant person” (Sanchez, 

supra, 47 Cal.App.4th at p. 1470).

In sum, the trial court did not err in concluding that Telgian carried its 

burden of showing that the defect was patent as a matter of law. There is 

simply no evidence Devault could have submitted that would allow a 

reasonable trier of fact to conclude that the defect alleged here was latent, 

even if her expert declarations had not been excluded by the court. The 

danger posed by the placement of the fire hose rack in relation to the 

windowless doors here is a danger that the average person would be able to 

ascertain as matter of common experience, and one that no reasonable person 

could conclude was hidden.

2. Padelford

a. Evidentiary issues

Padelford, like Telgian, made multiple objections to the Avrit and Diehl 

declarations submitted by Devault in support of her opposition to its motion 

for summary judgment. Padelford objected to the declarations in full, and 

also separately objected to specific statements made by Avrit and Diehl in the 

declarations. However, unlike how the court handled Telgian’s evidentiary 

objections to the experts’ declarations, with respect to Padelford’s evidentiary 

objections, the court made no rulings.10 In such a circumstance, we must 

10 Although the trial court did make ambiguous statements in its order 

that suggest that the court determined that certain statements made by 

Avrit and Diehl in their declarations “do not address the precise issue in this 

motion” and were thus “irrelevant,” the court did not at any point specify that 

it was either overruling or sustaining Padelford’s evidentiary objections, nor 

did it specify that it was not admitting the evidence in the experts’ 

declarations.
23

presume that the trial court overruled Padelford’s objections and must 

therefore “view[ ] the objectionable evidence as having been admitted into 

evidence,” because such an approach “is consistent with section 437c, 

subdivision (c), requiring the trial court to consider all the evidence except 

that to which objections were made and sustained.” (Reid, supra, 50 Cal.4th 

at p. 534, italics added.)

On appeal, however, Padelford contends that the Avrit and Diehl 

declarations are “irrelevant to create a triable issue of fact regarding what a 

reasonable person might perceive” (boldface and some capitalization omitted). 

Padelford argues that the expert declarations were irrelevant because expert 

opinion was not necessary to assist the court or a trier of fact in appreciating 

whether the defect about which Devault complains in this action was patent 

or latent.11

In Reid, supra, 50 Cal.4th at pages 531–532, the Supreme Court held 

that a party may preserve its evidentiary objections on appeal, despite the 

trial court’s failure to rule expressly on those objections, so long as the party 

11 Padelford’s position is that we should conclude that the trial court did, 

in fact, “sustain[ ]” Padelford’s objections to the Avrit and Diehl declarations 

“in the minute order [through] the Court’s statements” to the effect that the 

experts’ “opinions were, in fact, immaterial and ‘irrelevant.’ ” We disagree 

with Padelford’s suggestion that the court “sustained” the evidentiary 

objections to the expert declarations. Although we agree with Padelford that 

the trial court made certain equivocal statements regarding the experts’ 

declarations, we ultimately conclude that the trial court engaged with the 

declarations on their merits and found them to be insufficient to create a 

triable issue of material fact, but not that the court made evidentiary rulings 

that the declarations were, in fact, inadmissible. We therefore interpret 

Padelford’s argument in this regard as one urging our review of the 

admissibility of the experts’ declarations with respect to the issue of the 

latency or patency of the claimed defect, even though Padelford frames the 

argument as one encouraging our affirmance of the trial court’s purported 

evidentiary rulings (that we conclude it did not make).
24

makes such objections in writing before the hearing or orally at the hearing. 

It is thus clear that Padelford’s written evidentiary objections to the Avrit 

and Diehl declarations operated to preserve those objections, and we may 

consider on appeal whether such objections are well-taken.

The Reid court also cited with approval the appellate court’s approach 

in considering and reviewing de novo the defendant’s evidentiary objections 

as to which no trial court rulings had been made. (Reid, supra, 50 Cal.4th at 

p. 535 [affirming evidentiary determinations made by reviewing court and 

declining to remand for trial court to make evidentiary determinations where 

“the Court of Appeal reviewed [the defendant’s evidentiary objections] de 

novo, consistent with the general standard of review applicable to summary 

judgment rulings, that any doubts as to the propriety of granting a summary 

judgment motion should be resolved in favor of the party opposing the 

motion”].) We therefore take that same approach here and review de novo 

Padelford’s evidentiary objections that the Avrit and Diehl declarations were 

inadmissible as irrelevant and not the subject of proper expert testimony to 

the extent that the experts asserted opinions about the inability of a 

“layperson” to anticipate the danger posed by the proximity of the fire hose 

rack to the windowless doors.

Expert witness testimony is limited to an opinion on “a subject that is 

sufficiently beyond common experience [so] that the opinion of an expert 

would assist the trier of fact.” (Evid. Code, § 801.) When the proffered 

testimony regards a matter within the common experience of lay people and 

the fact finder can draw a conclusion from the facts as easily as the expert, 

the expert testimony is inadmissible. (Westbrooks v. State of California

(1985) 173 Cal.App.3d 1203, 1210 (Westbrooks).)

As we have already indicated in our previous discussion, the danger 

posed by a large metal fire hose rack that has been placed near solid doors 
25

and that protrudes more than a foot from that wall falls within common 

experience, and lay people are capable of assessing danger of such a nature. 

(See, e.g., Mattingly, supra, 109 Cal.App.3d at pp. 510–511 [danger from 

absence of fence around swimming pool falls within common experience];

Tomko, supra, 46 Cal.App.4th at p. 1339 [dangers associated with pavement 

are matters of common experience]; Sanchez, supra, 47 Cal.App.4th at 

pp. 1470–1471 [danger from defect in landing causing water to pool was 

matter of common experience]; cf. Fielder v. City of Glendale (1977) 

71 Cal.App.3d 719, 732 [no need for expert opinion to establish height 

differential defect in sidewalk was trivial; “It is well within the common 

knowledge of lay judges and jurors just what type of a defect in a sidewalk is 

dangerous”]; Westbrooks, supra, 173 Cal.App.3d at p. 1210 [“The significance 

of the presence of flares, a deputy sheriff and a sheriff’s vehicle during a 

stormy night is within common experience of lay jurors”].) Therefore, the 

opinions provided by Avrit and Diehl do not regard subject matter that 

extends beyond common experience, rendering them irrelevant and, 

consequently, inadmissible. (See Westbrooks, at p. 1210.)

b. Padelford carried its initial burden to present evidence that 

the danger posed by the asserted defect is patent and that 

the statute of limitations on a claim against it has run, and 

Devault has not and cannot show that there remains a 

triable issue of material fact as to this defense

Just as Telgian did before it, Padelford presented undisputed evidence 

that the completion date for the Home Depot store was February 24, 2000. 

Like Telgian, Padelford also submitted undisputed evidence demonstrating 

that the defect at issue is a patent defect, including Devault’s deposition 

testimony and photographic evidence to demonstrate the patency of the 

defect. Again, Devault acknowledged in her deposition that she had observed 

both the fire hose rack and the windowless doors, and she confirmed that 
26

photographs introduced as an exhibit at her deposition reflected the doors 

and fire hose rack, and their proximity to one another, as she encountered 

them on November 1, 2017. As we previously explained in part III.C.1.b., 

ante, the photographic evidence demonstrates that the fire hose rack was 

attached on a wall that also houses two double doors and was placed 

exceedingly near to those doors. The photographic evidence also 

demonstrates how far out the fire hose rack protrudes from the wall. Again, 

the fact that a large, protruding metal structure was placed within inches

from two double windowless doors is an open and readily observable danger 

to those who walk through the pathway of those doors. The danger posed by 

the location of the fire hose rack—i.e., its close proximity to the doorway—is a 

matter of common experience, such that anyone observing it could reasonably 

ascertain the risk from walking too near to it.

The analysis that we applied with respect to our review of the trial 

court’s granting of summary judgment in favor of Telgian applies equally 

here. And we therefore conclude that Padelford, like Telgian before it, 

carried its burden of showing that the defect was patent as a matter of law. 

Again, no reasonable trier of fact could conclude that the defect about which 

Devault is complaining was latent. Instead, the danger posed by the 

placement of the fire hose rack in relation to the windowless doors here is a 

danger that the average person would be able to ascertain as matter of 

common experience, and one that no reasonable person could conclude was 

hidden. Because we conclude that the alleged defect is a latent defect as a 

matter of law, any claim against Padelford would have had to have been 

brought within four years of the completion of the Home Depot building’s 

construction. Devault’s action against Padelford, brought almost two decades 

after completion of the building, is therefore untimely.
27

IV.

DISPOSITION

The judgment of the trial court in favor of defendant Telgian is 

affirmed, as is the judgment of the trial court in favor of defendant Padelford. 

The defendants are entitled to costs on appeal.

HUFFMAN, Acting P. J.

I CONCUR:

CASTILLO, J.
BUCHANAN, J.,

I concur in the result reached by the majority, but on slightly different 

grounds. The majority rightly recognizes that the word “patent” in this 

context “ ‘refers to the patency of danger and not merely to exterior 

visibility.’ ” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 

1461, 1470 (Sanchez).) The majority also notes that a defect may be found 

patent as a matter of law if it is obvious in the context of common experience. 

(Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 

Cal.App.4th 250, 255.) On this record, however, I do not believe we can 

conclude as a matter of law that the proximity of the firehose equipment to 

the doors was an obvious danger in the context of common experience. 

The firehose equipment was mounted on the wall off to the side of the 

double doors in a position that would not obstruct the normal path of anyone 

passing through the doors. There is nothing about the condition of the 

property that created an obvious danger of someone veering off the normal 

path and colliding with the apparatus. Although the equipment and its 

location were visible and obvious, I do not agree that its danger would have 

been obvious—at least not as a matter of law. It probably never occurred to 

anyone that the firehose equipment was dangerously close to the doors. One 

would not necessarily expect someone to swerve sideways out of the ordinary 

line of travel and into the firehose equipment mounted on the wall. If this 

were the only theory for summary judgment, I believe it would at least 

present a triable issue of material fact.

I concur in the result, however, because I conclude that Devault’s claim 

is barred by the completed and accepted doctrine. 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 
2

contractor was negligent, unless the defect in the work was latent or 

concealed. (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969.) 

“ ‘The rationale for this doctrine is that an owner has a duty to inspect the 

work and ascertain its safety, and thus the owner’s acceptance of the work 

shifts liability for its safety to the owner, provided that a reasonable 

inspection would disclose the defect.’ ” (Ibid.) For purposes of this doctrine, a 

danger is “patent as a matter of law” if “it would be discovered by the 

inspection an owner would make in the exercise of ordinary care and 

prudence.” (Sanchez, supra, 47 Cal.App.4th at pp. 1470–1471, italics added.) 

Thus, the question is not whether someone in the injured person’s position 

would have discovered the defect; it is whether the owner would have 

discovered the defect by a reasonable inspection.

Devault’s own evidence established that the defect would have been 

discovered in a reasonable inspection by the owner. In opposition to both 

summary judgment motions, Devault submitted a declaration from her 

expert Brad Avrit stating that: (1) the alleged defect was that the fire hose 

apparatus was installed two feet closer to the doors than shown in the 

designs (according to the testimony of PMK witness Tracey Bellamy); and 

(2) “[a]lthough the Defendant[s] did not install the fire hose apparatus 

themselves, a reasonable inspection during or after the installation would 

have identified the unsafe condition of the location of the fire hose valve.”1

1 Although the trial court excluded Avrit’s declaration in the Telgian 

motion proceedings, Devault asserted these same facts in her statement of 

undisputed facts in opposition to the Telgian motion. Moreover, at least this 

portion of Avrit’s declaration should have been admitted and considered 

because it was directly relevant to the patent defect issue; it applied the 

correct legal standard for a patent defect; and it was based on a proper 

foundation, specifically the testimony of PMK Tracey Bellamy that the
3

For purposes of the completed and accepted doctrine, Devault’s 

evidence that a reasonable inspection would have disclosed the allegedly 

unsafe deviation from the design plans makes the defect patent as a matter 

of law. (Sanchez, supra, 47 Cal.App.4th at pp. 1470–1471.) Devault does not 

contest any of the other elements of the doctrine. Accordingly, I concur in the 

result on the basis that Devault’s negligence claim is barred by the completed 

and accepted doctrine.

BUCHANAN, J.

firehose equipment was installed two feet closer to the doors than shown in 

the designs.