The trial court erred in granting Shell summary judgment on plaintiff’s nuisance claims based on CCP 337.15’s 10-year statute of repose for suits based on construction defects.  This suit alleged that Shell had contaminated the real property through its ordinary business operations on the site, which it had used as a bulk terminal for petroleum products.  Since the tort arose from ordinary business operations rather than any defect in construction, CCP 337.15 was inapplicable.  On the other hand, the trial court correctly held that CCP 338(b)’s three year limitations period for claims for injury to real property barred plaintiff’s negligence claims against Shell.  The company that bought the site from Shell knew of the contamination, so later owners of the same property could not rely on their own delayed discovery to toll the statute of limitations.  Also, the contamination damaged the property long before the current owners acquired the property.  The fact that the contamination then penetrated new topsoil added on top of the site and buildings constructed on it did not restart the statute of limitations since the contamination of those new improvements was caused by the same pollution that had originally damaged the site.

California Court of Appeal, First District, Division 2 (Kline, P.J.); June 28, 2017 (partially published July 26, 2017); 2017 WL 3172554