1

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered 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

d efendant 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. Th e 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 attempt s to rectify the situation, without

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

windows a nd doors an e

- mail recapping the problems, complaining none of

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

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

wholly “recut.”2

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

instant lawsuit

. Lusardi move d for, and was granted, summary judgment on

the ground the statute s 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.

B ACKGROUND 1

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 th e 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 astrag a ls 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 m anufacturer

, recapping the problems and complaining that for two

years the y 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 o n 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 fil l ing the space with

rubbers and other strips does not work.”

Th e following year, in 2013, Th ieriot retained an attorney

. S he also

retained an expert who pr ovided a report in mid

- July addressing the

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

which Thieriot was not already aware

, nor did he pinpoint a specific cause of

the problems.

I n mid

- December 2016

— more than s ix and a half years after the spr ing

of 2010

, by which time Thier i ot 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 asser ting 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 a ctively concealed defects

, and had

overstated its abilit y 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 h ad 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 Thier i ot another four weeks to file opposition.

Thieriot again failed to file timely opposition. F our 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 a n 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 transcri pts , a ssert ing 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 anoth er 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

. ” I n 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 al ready 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 deposition s before the initial due date for her5

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

c ounsel ask ed Lusardi’s attorney to agree to use of the rough transcripts or

ask ed the court reporters for expe dited transcripts.

During the hearing, a fter 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 c ounsel 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.

D ISCUSSION

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 claim s show there are triable issues that preclude summary

judgement.

Code of Civil Procedure s ection 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. Th e

application to continue the motion to obtain necessary discovery may also be6

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

response to the motion is due.” 3

A s 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 ess ential 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 inc lude 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

und er 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 continuan ce 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 Ca l.App.4th at

p. 39 8 ; accord

, Frazee v. Seely (2002) 95 Cal.App.4th 627, 635 .) I n 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 fac ts 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) 1 23 Cal.App.4th 246, 257.)

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

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

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

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

points and authorities or her own declaration

, how th e deposition testimony8

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

sought summary judgment.

In her open ing 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 remai ned

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 asserted ly persist ing

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 fram es 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 advance d on appeal. As we have recited, a ll

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, Thier i ot made no showing in the trial court, and has made

none on appeal, that the PMK deposition transcript s established facts

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

of a continuance. F or this reason

, alone, th e trial court did not abuse its

discretion in denying Thierio t’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, t he only argument Thieriot has advance d 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 un timel y 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 “tolli ng” 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 o pening 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 misrepresentat ion 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 “ac cord[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 tr ial 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

– 64 0 ( 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 equitabl e powers.” I n 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 ( La ntzy, 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 o n 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.

A t the end of the summary judgment hearing

, the trial court ruled on

Thieriot’s e quitable tolling argument and explained at considerable length

why it was reject ing it.

First, Th i eriot did not ma k e 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 w ill not consider arguments not raised in opposing papers.

Second, Th i eriot did n ot allege equitable tolling in her second amended

complaint

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

otherwise time

- barred claim s c ould proceed. (See Thomas

, supra,

95 Cal.App.4th at p. 433 [complaint contain ed no allegations support ing

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 discover y 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

S upreme Court’s decision in Lantzy

. . . . [Furthermore,] [b]ased on the record

before the Court, if there were any periods subject to tolling, t he 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 Co urt 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 f ailure to raise equitable tolling in her written

6 We therefore overlook the apparent procedural problems with

Th i eriot’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. T he court concluded t hat 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 Th i eriot 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 period s beyond July 2012.

Theiriot ’s princip a l argument as to why the trial court assertedly erred

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

2015

. ” I n support of th is 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 constructio n 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 rem edy 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, supr a, 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 warr anties.

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 breac h 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 C ourt 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.4 th at pp. 373

– 374.)

In doing so, the court considered the plaintiffs’ argument s 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 unt il 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, stat ing “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 prolonged15

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 Th ieriot 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 p p. 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

. ) T he 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. Equitable16

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 t h is 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 o bjectively 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

th e 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. E ven

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 .”].)

A s has oft en been recited, u nder the discovery rule, t he limitations

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

circumstances to put a reasonable person on inquiry.

. . . ” ’ ” [Citations.] A17

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

decid e 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 20 16 complaint was untimely as to all her causes of action

. 7

D ISPOSITION

The judgment is affirmed. Costs on appeal to r espondent.

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

in addition to erroneously ruling that her fraud and misrepresentation claims

were time barred, the court al so 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