1

Filed 5/5/23 Thieriot v. Lusardi Construction CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ELISABETH THIERIOT,

Plaintiff and Appellant,

v.

LUSARDI CONSTRUCTION CO.,

Defendant and Respondent.

 A164165

 (Marin County

 Super. Ct. No. 

CIV1604500)

Plaintiff and appellant Elisabeth Thieriot (Thieriot) contracted with 

defendant Lusardi Construction Company (Lusardi) to install over 100 new 

custom-designed and manufactured mahogany-framed windows and doors at 

her Tiburon residence. Lusardi was not involved in either the design, 

purchase, or manufacture of the windows and doors. The installation began 

in early 2009 and was completed by late 2009. Almost immediately, Thieriot 

was aware the windows and doors did not work properly and were not 

weather tight. Lusardi made attempts to rectify the situation, without 

success. In late July 2012, Thieriot sent Lusardi and the manufacturer of the 

windows and doors an e-mail recapping the problems, complaining none of 

the repair efforts had solved them, and asserting a “permanent” solution was 

required which she asserted meant the windows and doors needed to be 

wholly “recut.” 
2

Four and a half years later, in December 2016, Thieriot filed the 

instant lawsuit. Lusardi moved for, and was granted, summary judgment on 

the ground the statutes of limitations had run on all causes of action.

On appeal, Thieriot maintains the trial court abused its discretion in 

denying her a second continuance to oppose the motion and erred as a matter 

of law in granting summary judgment. We affirm.

BACKGROUND1

In 2008, Thieriot started a lengthy remodel of her Tiburon home, and 

contracted with Lusardi to install 117 new, custom designed and 

manufactured mahogany-framed windows and doors. Lusardi had no 

involvement in the design, purchase, or manufacturer of the windows and 

doors. 

Lusardi commenced installation in early 2009 and completed its work

in late 2009. It sent its final billing in February 2010. 

Within months of completion, and at the latest by the spring of 2010, 

Thieriot was aware of water intrusion, wind and dust seepage, difficulties 

opening windows, warped astragals on the French Doors, and an uneven fit 

between the sash and the frames in many of the windows and doors. 

Thieriot contacted Lusardi, and the contractor made efforts to correct 

the problems over the course of the next two years. 

In late July 2012, Thieriot sent an e-mail to Lusardi and the window 

and door manufacturer, recapping the problems and complaining that for two 

years they had not been corrected. She stated “the time has come to fix what 

is broken,” and that the failed repair efforts “only made it so very clear it 

1 We provide an overview of the facts and procedural history here and 

provide a more detailed discussion of the facts in connection with our 

discussion of the issues on appeal.
3

needs [a] permanent solution.” She further asserted that to correct the 

problems, the windows and doors needed to be “recut . . . to fit the frames so 

then there will be a fit between them. The idea of filling the space with 

rubbers and other strips does not work.” 

The following year, in 2013, Thieriot retained an attorney. She also 

retained an expert who provided a report in mid-July addressing the 

problems Thieriot had identified. The expert did not identify any problem of 

which Thieriot was not already aware, nor did he pinpoint a specific cause of 

the problems. 

In mid-December 2016—more than six and a half years after the spring 

of 2010, by which time Thieriot had become aware of problems with the 

windows and doors, and four and a half years after her July 2012 e-mail to 

Lusardi and the manufacturer recapping the problems, complaining about 

the failed repair efforts, and asserting the windows and doors need to be 

recut—Thieriot filed the instant lawsuit against Lusardi and three other 

contractors. Thieriot alleged Lusardi had not used reasonable care in 

installing the windows and doors, had actively concealed defects, and had 

overstated its ability to perform. She asserted causes of action for breach of 

contract, unfair competition, fraud, and negligent misrepresentation. 

In late May 2021, Lusardi moved for summary judgment on the ground 

Thieriot’s claims were barred by the statutes of limitations.2 

2 Lusardi alternatively moved for summary adjudication on the claims 

for unfair competition, fraud, and negligent misrepresentation on the ground 

Thieriot could not establish it had made any misrepresentation of fact, that it 

had knowledge of falsity or possessed an intent to defraud her. As we shall 

discuss, we need not, and do not, reach these issues. 
4

Thieriot did not file timely opposition. Instead, eight days after the 

deadline to do so passed, she filed an ex parte application to continue the 

motion. In a declaration in support, Thieriot’s attorney stated he had had an 

adverse reaction to a Covid-19 vaccination and was unable to prepare the 

opposition. The trial court granted the application and continued the 

hearing, giving Thieriot another four weeks to file opposition. 

Thieriot again failed to file timely opposition. Four days after the new 

deadline, she filed opposing points and authorities, along with a declaration 

by counsel claiming good cause and a reasonable excuse for late filing (stating 

he had also had an adverse reaction to a second Covid-19 vaccination). The 

court accepted the filing. 

In her points and authorities, Thieriot stated the depositions of 

Lusardi’s two designated “Persons Most Knowledgeable” (PMK’s) had just 

been completed and she did not yet have the transcripts, asserting the 

depositions were “necessary to defend against the motions of summary 

judgment . . . as to this point,” “this point” referring to statements about 

Lusardi’s construction experience. She also stated the deposition of the 

employee of another defendant who allegedly convinced her to hire Lusardi to 

do the installation work had not yet been taken but was scheduled, and that 

deposition was “also necessary to help establish the facts on which the 

specific complaint relies.” In the final paragraph of her declaration in 

opposition to the motion, Thieriot asked to continue the motion under Code of 

Civil Procedure section 437c, subdivision (h) “[if] the court does not find that 

this matter should proceed based upon the evidence already presented.” 

In reply, Lusardi stated it had offered to make its two PMKs available 

for deposition months earlier, in mid-July. But Thieriot’s attorney made no 

effort to schedule the depositions before the initial due date for her 
5

opposition. After obtaining the extension to file opposition, counsel did not 

take the depositions until less than a week before the new due date. Nor had 

counsel asked Lusardi’s attorney to agree to use of the rough transcripts or 

asked the court reporters for expedited transcripts. 

During the hearing, after he presented argument, Thieriot’s counsel 

apparently lost his Zoom connection, so the trial court continued the matter 

to the following week. Counsel did not appear at the continued hearing, but 

all other counsel did. At the conclusion of the hearing, the trial court denied 

a further continuance under Code of Civil Procedure section 437c, subdivision 

(h), adopted its tentative decision, and granted Lusardi’s motion for summary 

judgment. 

DISCUSSION

The Request for Continuance

Thieriot maintains the trial court erred in denying her request to 

continue the summary judgment motion to enable her to obtain deposition 

transcripts she claims show there are triable issues that preclude summary 

judgement. 

Code of Civil Procedure section 437c, subdivision (h) provides: “If it

appears from the affidavits submitted in opposition to a motion for summary

judgment or summary adjudication, or both, that facts essential to justify

opposition may exist but cannot, for reasons stated, be presented, the court

shall deny the motion, order a continuance to permit affidavits to be obtained

or discovery to be had, or make any other order as may be just. The

application to continue the motion to obtain necessary discovery may also be
6

made by ex parte motion at any time on or before the date the opposition

response to the motion is due.”3

As the statute reflects, “[t]o mitigate summary judgment’s harshness, 

the statute’s drafters included a provision making continuances—which are 

normally a matter within the broad discretion of trial courts—virtually 

mandated ‘ “upon a good faith showing by affidavit that a continuance is 

needed to obtain facts essential to justify opposition to the motion.” ’ ” (Bahl

v. Bank of America (2001) 89 Cal.App.4th 389, 395 (Bahl); see Braganza v. 

Albertson’s LLC (2021) 67 Cal.App.5th 144, 152 (Braganza).) Thus, 

“[c]ontinuance requests under section 437c, subdivision (h), are to be liberally

granted. [Citations.] ‘[T]he interests at stake are too high to sanction the

denial of [such] a continuance [request] without good reason.’ [Citation.] 

These interests include the importance of deciding cases on their merits

rather than on procedural deficiencies.” (Braganza, at p. 152.) 

However, a continuance is not guaranteed. The purpose of the required 

affidavits or declarations is to enlighten the court as to what outstanding 

discovery is necessary to oppose summary judgment. (Chavez v. 24 Hour

Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.) “[I]t ‘is not sufficient

under the statute merely to indicate further discovery or investigation is

contemplated. The statute makes it a condition that the party moving for a

continuance show “facts essential to justify opposition may exist.” ’ ” (Bahl,

supra, 89 Cal.App.4th at p. 397.) “The affidavit is required to show that ‘ “(1)

the facts to be obtained are essential to opposing the motion; (2) there is

reason to believe such facts may exist; and (3) the reasons why additional

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

unless otherwise indicated. 
7

time is needed to obtain [or discover] these facts.” ’ ” (Braganza, supra,

67 Cal.App.5th at p. 153.) 

There has been “a split of opinion among the California appellate courts

‘as to the effect of the absence of [] an explanation’ of why discovery was not

completed sooner, when a party seeks a continuance under section 437c,

subdivision (h). [Citation.] That split of authority continues to this day.” 

(Braganza, supra, 67 Cal.App.5th at p. 155.) 

In Bahl, for example, the court stated, “when a party submits an

affidavit demonstrating that facts essential to justify opposition may exist

but have not been presented to the court because the party has not been

diligent in searching for the facts through discovery, the court’s discretion to

deny a continuance is strictly limited.” (Bahl, supra, 89 Cal.App.4th at

p. 398; accord, Frazee v. Seely (2002) 95 Cal.App.4th 627, 635.) In Braganza,

however, the court stated, “ ‘[t]here must be a justifiable reason why the

essential facts cannot be presented. An inappropriate delay in seeking to

obtain the facts may not be a valid reason why the facts cannot then be

presented. The statute itself authorizes the imposition of sanctions for

declarations presented in bad faith or solely for purposes of delay. (§ 437c,

subd. (j).) A good faith showing that further discovery is needed to oppose

summary judgement requires some justification for why such discovery could

not have been completed sooner.’ ” (Braganza, supra, 67 Cal.App.5th at

p. 156, quoting Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257.) 

We need not choose sides on this issue, however, as the trial court not

only denied Thieriot’s request for a continuance because she “repeatedly

failed to abide by statutory and court deadlines” and “the continued delay

[was] inexcusable,” but also because she made no showing, in either her

points and authorities or her own declaration, how the deposition testimony
8

“would be material to this dispute,” i.e., to the grounds on which Lusardi

sought summary judgment. 

In her opening brief, Thieriot asserts the deposition transcript of PMK

Dale Macy “would provide material facts that the problems with the

construction occurred into 2015.” She claims this “was verbally stated during

the . . . hearing . . . by . . . counsel,” and she “noted this throughout her

declaration.” She further maintains in her opening brief that this evidence

“was critical to establish that a genuine question of material fact remained

regarding whether the statutes of limitations had been tolled in 2015 when

[she] was continuing to remedy the problems with the doors and windows.” 

However, Thieriot did not need any PMK deposition transcript to

establish that the problems with the windows and doors remained unresolved

as of 2015. She, herself, had personal knowledge of the assertedly persisting

problems with the windows and doors, as well as knowledge of any other facts

that purportedly supported her claim that the limitations periods were tolled. 

Indeed, she alleged in her verified complaint that in December 2015 a large

storm occurred that damaged one of the sets of French doors and she

discovered at that time that the frames appeared not to have been made of

solid mahogany but of a mixture of woods wrapped with mahogany cladding. 

She further averred in her declaration, dated “9/2021,” that the problems

remained, and she still did “not have a safe house.” 

Moreover, in the trial court, which is the critical venue for evaluating a

request for a continuance under section 437c, subdivision (h), she did not

make the argument she has now advanced on appeal. As we have recited, all

she provided to the trial court were generic claims of asserted need for

further discovery devoid of any specific explanation as to why the deposition

transcripts were “essential” to opposing Lusardi’s motion. 
9

In short, Thieriot made no showing in the trial court, and has made

none on appeal, that the PMK deposition transcripts established facts

“essential to justify opposition” which could not “be presented” in the absence

of a continuance. For this reason, alone, the trial court did not abuse its

discretion in denying Thieriot’s request to continue the summary judgment

motion so she could obtain transcripts of the PMK depositions.

The Statutes of Limitations

Thieriot also challenges the trial court’s grant of summary judgment.

Generally speaking, we review de novo the trial court’s grant of 

summary judgment. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 

347.)

However, the only argument Thieriot has advanced in her appellate 

briefing is that she “set forth all the facts needed to establish a tolling 

argument” and the trial court erred in not ruling “the applicable statute of 

limitations was tolled” for a sufficient period of time to save her claims. In 

other words, Thieriot does not take issue with the trial court’s ruling that her 

claims are untimely under the “discovery rule” of accrual that applies to her 

claims.4 (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 369–370 

4 While Lusardi identified the differing limitations periods for breach 

of contract (four years) and for unfair competition, fraud, and negligent 

misrepresentation (three years), its discussion of accrual under the delayed 

discovery rule is applicable to all of the claims. Thieriot follows suit on 

appeal, collectively arguing she raised a triable issue as to “tolling” the 

applicable limitations periods. At oral argument, Thieriot’s attorney 

suggested the 10-year statute of limitations for latent construction defects set 

forth in section 337.15 applied. However, this was never urged in the trial 

court, and in her opening brief on appeal, Thieriot states, “The statute of 

limitations on Appellant’s breach of contract and unfair competition causes of 

action were four years. . . .” 
10

(Lantzy) [discussing limitations periods and discovery rule applicable to 

“construction defect” claims]; Brisbane Lodging, L.P. v. Webcor Builders, Inc. 

(2013) 216 Cal.App.4th 1249, 1257–1258 [same]; E-Fab, Inc. v. Accountants, 

Inc. Services (2007) 153 Cal.App.4th 1308, 1316, 1318 [discussing limitations 

periods and discovery rule for negligent misrepresentation and fraud].)

Rather, she claims only that the court should have ruled the applicable 

limitations periods were “tolled” for a sufficient period of time to render her 

claims timely.5

The appellate courts have articulated differing standards of review 

when it comes to equitable tolling. In Thomas v. Gilliland (2002) 

95 Cal.App.4th 427, 430, 434 (Thomas), in upholding a dismissal following a 

demurrer based on limitations grounds, a ruling that usually is reviewed de 

novo, the court stated that a ruling applying or refusing to apply the doctrine 

of equitable tolling is “accord[ed] [] a different standard of review. Equitable

tolling is a fact intensive issue and it is determined based upon evidence.

Accordingly, we are compelled to affirm the trial court’s rejection of the 

theory if there is substantial evidence to support its determination.” In Mills 

v. Forestex Co. (2003) 108 Cal.App.4th 625, 639–640 (Mills), in affirming a 

summary judgment based on limitations grounds and rejecting equitable 

tolling, the court stated, “we review the decision for abuse of discretion when 

the court granted or denied a motion for summary judgment in the exercise of 

its equitable powers.” In Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 

748, in reversing a judgment on limitations grounds following a bench trial, 

5 We also note the doctrine of equitable tolling differs from equitable 

estoppel (Lantzy, supra, 31 Cal.4th at p. 383 [“Equitable tolling and equitable 

estoppel are distinct doctrines.”]), and Thieriot’s briefing is confined to the 

doctrine of equitable tolling. 
11

the appellate court stated, “[w]hether the trial court provided legally 

sufficient reasons for determining that the doctrine of equitable [tolling] does 

not apply in this case presents a question of law that we review de novo.” 

(See Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 

9 Cal.5th 710, 730 (Saint Francis) [remanding to the court of appeal to 

determine whether the petitioner’s “conduct was reasonable and in good 

faith” and thus supported equitable tolling, suggesting the issue is a legal 

one, at least on undisputed facts, that can be decided by an appellate court in 

the first instance].) Given that the operative facts here are undisputed, we

shall apply the de novo standard articulated in Hopkins and implicitly 

endorsed in Saint Francis. 

At the end of the summary judgment hearing, the trial court ruled on 

Thieriot’s equitable tolling argument and explained at considerable length 

why it was rejecting it.

First, Thieriot did not make a tolling argument in her written

opposition to Lusardi’s motion, but raised the issue for the first time at the

hearing on the motion in opposing the court’s tentative ruling. The court

stated it generally will not consider arguments not raised in opposing papers. 

Second, Thieriot did not allege equitable tolling in her second amended

complaint, even though she had the burden of pleading and proving that her

otherwise time-barred claims could proceed. (See Thomas, supra,

95 Cal.App.4th at p. 433 [complaint contained no allegations supporting

claim that equitable tolling applied].) In short, the trial court ruled that two

procedural hurdles seemingly barred Thieriot’s belatedly raised tolling

argument.
12

The court’s third reason for rejecting Thieriot’s tolling argument went

to the merits.6 The court correctly recited that “[t]he doctrine of equitable

tolling requires timely notice, lack of prejudice, and reasonable good faith

conduct on the part of the plaintiff,” and concluded none of these elements

“are presented by the facts here.” (See Saint Francis, supra, 9 Cal.5th at 

p. 724 [equitable tolling applies when three “ ‘elements’ ” are present: “ ‘[(1)] 

timely notice, and [(2)] lack of prejudice, to the defendant, and [(3)] 

reasonable and good faith conduct on the part of the plaintiff’ ”].) 

The court then pointed out the windows and doors “were installed in

late 2009” and “plaintiff by her own admission was aware of problems in

early 2010.” Thus, under the discovery rule, Theriot’s claims accrued at that

time—a ruling, as we have observed, with which Theriot does not take issue

on appeal. The trial court went on to state “[t]here is no general rule that the

statute is tolled during repairs, subsequent repairs. That’s the California

Supreme Court’s decision in Lantzy. . . . [Furthermore,] [b]ased on the record

before the Court, if there were any periods subject to tolling, the latest the

accrual could be tolled for repairs would be July of 2012. At which point, the

documented records showed that they were working on matters, did not

believe there was more that could be done to resolve the problems identified. 

Even if the Court accrues the statute to that point, the claims would still be

untimely.” 

Thus, the trial court did not categorically refuse to apply the equitable

tolling doctrine. While it identified two procedural problems in considering

the doctrine—Theiriot’s failure to raise equitable tolling in her written

6 We therefore overlook the apparent procedural problems with 

Thieriot’s tolling argument. (See Thomas, supra, 95 Cal.App.4th at p. 433.) 
13

opposition to Lusardi’s motion and failure to plead the doctrine in her second

amended complaint—it went on to consider the merits of her claim that

tolling rendered her claims timely. The court concluded that even assuming

equitable tolling can apply to a period during which repairs are attempted, in

this case any tolling ceased as of July 2012, because at that point, it was clear

to Thieriot that Lusardi’s efforts had not and would not solve the problems

with the windows and doors and an entirely different approach was required.

Accordingly, the tolling issue before us is a limited one—did the trial

court err in not tolling the limitations periods beyond July 2012.

Theiriot’s principal argument as to why the trial court assertedly erred

is based on the fact problems with the windows and doors “continued in

2015.” In support of this argument, she relies on a number of older cases in

which limitations periods were tolled during the time defendants were

attempting to make repairs.

Our Supreme Court discussed this line of cases in Lantzy, rejecting the

plaintiffs’ assertion “that in construction defect cases, the rule of tolling for

repairs is well established.” (Lantzy, supra, 31 Cal.4th at p. 372.) The high

court explained: “[T]wo Court of Appeal decisions, Grange Debris [Box &

Wrecking Co. v. Superior Court (1993)] 16 Cal.App.4th 1349, 1360 and 

Cascade Gardens [Homeowners Assn. v. McKellar Associates (1987)]

194 Cal.App.3d 1252, 1256–1258, have concluded that the 10–year 

limitations period of section 337.15 is tolled while the defendant’s promises or 

attempts to remedy the defect are pending. For this holding, Grange Debris

relied solely on Cascade Gardens. Cascade Gardens, in turn, invoked the 

‘clear authority’ of several earlier decisions, Aced v. Hobbs–Sesack Plumbing

Co. (1961) 55 Cal.2d 573, 585 . . . (Aced), Mack v. Hugh W. Comstock

Associates (1964) 225 Cal.App.2d 583, 589 . . . (Mack), and Southern Cal.
14

Enterprises v. Walter & Co. (1947) 78 Cal.App.2d 750, 755 . . . (Southern Cal.

Enterprises). (Cascade Gardens, supra, at p. 1256.) [¶] But Aced, Mack, and 

Southern Cal. Enterprises are inapposite to the question before us. They 

predate the 1971 adoption of section 337.15, and were narrowly concerned 

with how to apply the limitations period for express or implied warranties. 

These cases simply confirmed that the statute of limitations for breach of 

warranty does not begin to run until discovery of the defect, and is thereafter 

tolled during periods the warrantor claims he can honor the warranty by 

repairing the defect, and attempts to do so. (Aced, supra, 55 Cal.2d 573, 577, 

585 [radiant heating system; plaintiff stipulated he was relying solely on a 

theory of implied warranty]; Mack, supra, 225 Cal.App.2d 583, 585, 589

[radiant heating system; plaintiff alleged breach of express warranty]; 

Southern Cal. Enterprises, supra, 78 Cal.App.2d 750, 752–753, 755 [installed 

carpet; plaintiff alleged breach of express warranty].)” (Lantzy, at p. 372.)

The Supreme Court went on to hold that neither the structure nor the 

purpose of the outside 10-year limitations period for construction defect 

claims set forth in section 337.15 justifies use of equitable tolling to extend 

that lengthy period. (Lantzy, supra, 31 Cal.4th at pp. 373–374.)

In doing so, the court considered the plaintiffs’ arguments that 

equitable tolling for repairs “protects homeowners from unscrupulous 

builders who might otherwise make false promises or ‘band-aid’ repairs in 

order to forestall suit until after the 10–year period had passed” and 

“encourages resolution of construction defect disputes without resort to the 

courts.” (Lantzy, supra, 31 Cal.4th at p. 382.) The court rejected these 

arguments, stating “a tolling rule seems just as likely to discourage a 

potential defendant from undertaking voluntary remedial efforts before the 

limitations period expires. If his efforts failed, he would only have prolonged 
15

the already lengthy period during which he was exposed to suit. [¶] Moreover, 

if a plaintiff can show, in a particular case, that the defendant’s promises or 

attempts to repair prevented a timely suit, the defendant may be equitably 

estopped from invoking the protection of the statute of limitations. . . . Thus, 

an automatic rule of equitable tolling is not necessary to counteract 

fraudulent assurances of repair.” (Id. at pp. 382–383, fn. omitted.) 

Thus, our Supreme Court has either squarely overruled or 

distinguished the cases on which Thieriot has predicated her equitable tolling 

argument.

In any case, as we have discussed, the trial court did not categorically 

reject Thieriot’s tolling argument. Rather, the court ruled that even 

assuming the limitations periods can be tolled while a contractor attempts 

repairs, in this case, any tolling beyond her July 25, 2012 e-mail was not 

reasonable.

In Saint Francis, our Supreme Court explained that the third element 

required for equitable tolling—“reasonable and good faith conduct on the part 

of the plaintiff”—“encompass[es] two distinct requirements: A plaintiff’s 

conduct must be objectively reasonable and subjectively in good faith.” (Saint

Francis, supra, 9 Cal.5th at pp. 728–729.) “When it comes to reasonableness, 

the ‘ultimate test’ is ‘objective.’ [Citation.] An analysis of reasonableness 

focuses not on a party’s intentions or the motives behind a party’s actions, 

but instead on whether that party’s actions were fair, proper, and sensible in 

light of the circumstances.” (Id. at p. 729.) The subjective component focuses 

on the party’s intentions, that is, whether the “late filing . . . was the result of 

an honest mistake or was instead motivated by a dishonest purpose.” (Ibid.) 

“Construing equitable tolling’s third element to contain an objective and 

subjective requirement fits the doctrine’s underlying rationales. Equitable 
16

tolling applies only ‘in carefully considered situations to prevent the unjust 

technical forfeiture of causes of action.’ ” (Ibid., quoting Lantzy, supra, 

31 Cal.4th at p. 370.)

We have no difficulty agreeing with the trial court that after two years 

of repair efforts that Thieriot, herself, pronounced were unavailing and 

needed to be abandoned in favor of a different approach, it was no longer 

objectively reasonable for her to continue to sit on her legal rights after her 

July 25, 2012, e-mail.

Given this conclusion, Thieriot’s secondary tolling argument—that she

did not retain counsel until 2013 and did not procure an expert report until 

July 2013—is immaterial. Her delay in both retaining counsel and procuring 

an expert report was not objectively reasonable. 

Furthermore, in asserting the 2013 expert report is significant, Thieriot 

appears to be confusing the concepts of equitable tolling and accrual under 

the discovery rule. As we have pointed out, Thieriot has not taken issue with 

the trial court’s ruling that her claims are time-barred under the discovery 

rule, but only with its ruling that the running of the limitations period was 

not tolled for a sufficient length of time to render her claims timely. Even 

under the discovery rule, however, an expert’s report is not the triggering 

event for limitations purposes where, as here, the plaintiff knew or 

reasonably should have known earlier of her injury and its suspected causes. 

(Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1300 [“It is a 

plaintiff’s suspicion of negligence, rather than an expert’s opinion, that 

triggers the limitation period.”].) 

As has often been recited, under the discovery rule, the limitations

period begins once the plaintiff “ ‘ “ ‘ “has notice or information of 

circumstances to put a reasonable person on inquiry. . . .” ’ ” [Citations.] A 
17

plaintiff need not be aware of the specific “facts” necessary to establish the 

claim; that is a process contemplated by pretrial discovery. Once the plaintiff 

has a suspicion of wrongdoing, and therefore an incentive to sue, she must 

decide whether to file suit or sit on her rights. So long as a suspicion exists, 

it is clear that the plaintiff must go find the facts; she cannot wait for the 

facts to find her.’ ” (Mills, supra, 108 Cal.App.4th at p. 43.) There is no doubt 

that by July 25, 2012, Thieriot had ample suspicion of wrongdoing. Indeed, 

she had ample suspicion of wrongdoing within months of the conclusion of the 

installation work, as she was complaining about an assortment of problems 

with the windows and doors by the spring of 2010. 

In sum, the trial court did not err in concluding the applicable 

limitations periods were not tolled beyond July 2012 and therefore her 

December 2016 complaint was untimely as to all her causes of action.

7

DISPOSITION

The judgment is affirmed. Costs on appeal to respondent.

7 We therefore need not, and do not, address Thieriot’s argument that 

in addition to erroneously ruling that her fraud and misrepresentation claims 

were time barred, the court also erred in ruling her claims failed on the 

merits. 
18

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Swope, J.*

**Judge of the San Mateo County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.

A164165, Thieriot v. Lusardi Construction Company