Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles No. BC336869, Jon M. Mayeda, Judge.
Waters & Kraus, Paul C. Cook, Michael B. Gurien and Michael Leighton Armitage for Plaintiffs and Appellants.
Sedgwick, Detert, Moran & Arnold, Frederick D. Baker.
Gordon & Rees, Michael Pietrykowski and Don Willenburg for Amicus Curiae Ingersoll-Rand Company Leslie Controls, Inc.
Fred J. Heistand for Amicus Curiae The Civil Justice Association of California.
National Chamber Litigation Center, Inc. and Robin S. Conrad; Shook, Hardy & Bacon and Patrick J. Gregory for Amicus Curiae American Tort Reform Association, Coalition for Litigation Justice, Inc., Chamber of Commerce of the U.S.A., American Chemistry Council, American Insurance Association, National Association of Mutual Insurance Companies, Property Casualty Insurers Association of America, National Association of Manufacturers and the State Chamber of Oklahoma.
RUBIN, ACTING P. J.
Terry and Lucille McCann appeal from the trial court’s judgment dismissing their asbestos-related claims against Foster Wheeler, LLC, as barred under Oklahoma’s statute of repose for claims against a designer of an improvement to real property. We affirm.
FACTS AND PROCEEDINGS
Appellant Terry McCann alleges he was exposed to asbestos while working at an oil refinery in Oklahoma in 1957. The alleged source of the asbestos was a refinery boiler designed and manufactured by respondent Foster Wheeler, LLC. (McCann v. Foster Wheeler, LLC (2010) 48 Cal.4th 68, 74, 76-77 (McCann).) Almost 50 years later in 2005, Terry McCann was diagnosed with mesothelioma allegedly caused by his exposure to asbestos. (Id. at p. 74.) The McCanns, who had lived in California since 1975, sued respondent and others in Los Angeles Superior Court for Terry McCann’s asbestos injuries. (Id. at pp. 74, 78 fn.1.)
Respondent Foster Wheeler, LLC raised as an affirmative defense Oklahoma’s statute of repose for injuries arising from an improvement to real property. The Oklahoma statute cuts off liability of designers and other persons associated with the design or construction of an improvement to real property 10 years after the improvement’s substantial completion. The statute states:
“No action in tort to recover damages... for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property [¶]... [¶] shall be brought against any person... performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement.” (Okla. Stat. tit. 12, § 109.)
In contrast to statutes of limitations which, generally speaking, cut off liability some time after a cause of action accrues, statutes of repose end liability some period after an event, such as a project’s completion, regardless of whether an injury occurred or a cause of action accrued. (McCann, supra, 48 Cal.4th at p. 79 fn. 2; Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300, 305; Smith v. Westinghouse Elec. Corp. (Okl. 1987) 732 P.2d 466, 468 fn. 11.)
Respondent moved for summary judgment. (McCann, supra, 48 Cal.4th at pp. 74-75.) Respondent asserted appellant had no evidence that his exposure to asbestos was from a product that respondent had made, sold, or supplied. Moreover, appellant filed his complaint more than 10 years after his alleged asbestos exposure in Oklahoma in 1957. Thus, according to respondent, Oklahoma’s statute of repose time-barred appellant’s complaint. The court denied summary judgment for respondent. Among the triable issues of fact the court found was whether respondent had designed the asbestos-laden refinery boiler, which would entitle respondent to the protection of Oklahoma’s statute of repose. (McCann, at p. 80.)
Respondent thereafter moved under Evidence Code section 402 (section 402). (McCann, supra, 48 Cal.4th at p. 80) A section 402 hearing determines foundational or other preliminary facts upon which admissibility of evidence depends. (See, e.g., People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 209, fn. 6.) Respondent asked that the trial court determine whether, as a preliminary fact, respondent’s work on the boiler in 1957 satisfied the requirements of Oklahoma’s statute of repose covering a designer of an improvement to real property. Respondent reasoned that if the court found the statute barred appellant’s claims, the merits of those claims were irrelevant, making additional trial proceedings unnecessary.
Appellant joined respondent’s motion for a section 402 hearing and filed his own cross-motion requesting such a hearing. (McCann, supra, 48 Cal.4th at p. 80.) Appellant reasoned respondent could not prove the statute of repose applied because respondent could not “make the necessary foundational showing that its boiler was an improvement to real property.” Thus, appellant concluded, the section 402 hearing should lead the court to prohibit respondent from offering in later trial proceedings evidence that appellant’s claims were time-barred. Appellant told the trial court that he “hereby join[s] Foster Wheeler’s request for a hearing under Evidence Code section 402 on the issue of the application of Oklahoma’s statute of repose (Ok[la]. Stat. tit. 12, § 109), although [appellants] object and oppose the ultimate relief request. [Appellants] request the Court conduct a hearing pursuant to Evidence Code section 402, to determine whether Foster Wheeler has evidence of the foundational facts necessary to present the statute of repose issue to the jury. Should Foster Wheeler fail to present evidence demonstrating it has evidence to meet all necessary elements of the defense, then this Court should enter an order precluding Foster Wheeler from introducing evidence on the defense at the time of trial.”
The court heard the section 402 motion in February 2006. The parties submitted written argument, declarations, and deposition testimony to support their positions. Exhibiting the hallmarks of a bench trial, the trial court weighed the evidence and found Oklahoma’s statute of repose applied. (McCann, supra, 48 Cal.4th at pp. 77, 80.) Summarizing the trial court proceeding, our Supreme Court stated: “[T]he parties agreed that the trial court, instead of a jury, should determine whether the Oklahoma statute applied. After considering the declarations filed by each party and a number of judicial decisions interpreting the Oklahoma statute, the trial court found that Foster Wheeler was a designer of an improvement to real property within the meaning of the Oklahoma statute of repose....” (McCann, at p. 75.) From its finding that the statute of repose applied, the trial court found appellant’s evidence on the merits was irrelevant. The trial court held: “In finding that Foster Wheeler acted as a designer and that the boiler was an improvement to real property, the Court finds that Oklahoma’s Statute of Repose applies as a matter of law. Foster Wheeler’s Motion for a Preliminary Hearing is granted.” The court entered judgment for respondent.
Appellant appealed from the judgment. In briefs filed in this court, he contended that Oklahoma’s statute of repose did not apply under California’s choice of law provisions. He also contended that even if Oklahoma law applied, the boiler was not an improvement to real property and respondent had not designed it. In a published decision (later depublished when the Supreme Court granted review), we reversed the judgment. We held the trial court erred in applying Oklahoma law because choice of law provisions required application of California’s statute of limitations, not Oklahoma’s statute of repose, to appellant’s complaint. (McCann, supra, 48 Cal.4th at p. 75.) Because it was undisputed the complaint was timely under California law, we remanded the matter to the trial court for further proceedings.
Respondent filed a petition for review by our Supreme Court. Our Supreme Court granted review and held we were mistaken in finding Oklahoma law did not apply. (McCann, supra, 48 Cal.4th at p. 76.) The Supreme Court remanded the matter to us with directions that we address appellant’s alternative contentions that, even if Oklahoma law applied under choice of law provisions, the statute of repose did not apply because respondent had not designed an improvement to real property. (Id., at pp. 89, fn. 7, 103.) Reversing our earlier decision, we now affirm the trial court’s judgment for respondent.
Strictly speaking, our Supreme Court’s remand order directed us to address only “whether the boiler in question constituted an improvement to real property.” In our depublished decision, we wrote that we were not then deciding “whether the trial court also erred in determining that Foster Wheeler was the designer of an improvement to real property.” (McCann v. Forster Wheeler (B189898, Feb. 28, 2008) p. 5; see also McCann, supra, 48 Cal.4th at p. 89.) We believe the Supreme Court intended for us also to address appellant’s additional contention that respondent did not design the improvement because appellant raised both the improvement and designer contentions in his appeal, and both must apply for the statute of repose to pertain.
DISCUSSION
Oklahoma’s law of repose protects a designer of an improvement to real property from liability for injuries that the improvement causes more than 10 years after the improvement’s substantial completion. (McCann, supra, 48 Cal.4th at p. 88.) Citing Oklahoma law, the trial court concluded respondent satisfied the statute’s elements. It found respondent had designed the boiler and the boiler was an improvement to real property. The trial court stated: “In considering the evidence put forth regarding all these factors [to which case law looks], including the evidence of the tax treatment of the boiler, the Court finds that the boiler was an improvement to real property.” The court reached its findings after what amounted to a bench trial urged by both parties. When a trial court sits as the trier of fact, we apply the substantial evidence standard of review to the court’s factual findings. (Plaza Home Mortg., Inc. v. North American Title Co, Inc. (2010) 184 Cal.App.4th 130, 135; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1178, fn. 27.)
Appellant waived the court’s error, if any, in conducting a bench trial in derogation of appellant’s right to a jury trial. (Taylor v. Union Pac. R. Corp. (1976) 16 Cal.3d 893, 900 [“a party cannot without objection try his case before a court without a jury, lose it and then complain that it was not tried by jury.”]; Tyler v. Norton (1973) 34 Cal.App.3d 717, 722 [“After proceeding, without objection, to try their case for two days before a judge, [party] may not, after losing, raise the procedural issue.”]; see also Escamilla v. California Ins. Guarantee Assn. (1983) 150 Cal.App.3d 53, 59-62 [party implicitly waived demand for jury trial after remaining silent when court conducted bench trial after inviting party to express its view about its right to a jury trial].) As the Supreme Court also found, the parties agreed on what amounted to a bench trial and appellant raised no objection to the procedure until this appeal.
A. Substantial Evidence Boiler Was Improvement to Real Property
The statute of repose does not define an “improvement to real property.” Oklahoma courts instead look to five factors in determining whether machinery, such as the boiler at issue here, is an improvement to real property. Those factors are (1) the boiler’s tax treatment as subject to either an ad valorem or a personal property tax; taxation as personal property weighs against the boiler’s being an improvement; (2) ownership by one entity of both the boiler and the realty on which the boiler sits; a single owner weighs in favor of the boiler’s being an improvement; (3) the boiler’s permanence; (4) the boiler’s effect on the realty’s value; and (5) the intentions of the realty owner who owned the refinery and respondent as the entity who supplied the boiler. (Torres v. Cintas Corp. (N.D.Okla. 2009) 672 F.Supp.2d 1197, 1211 (Torres).)
Here, substantial evidence demonstrated the boiler satisfied Oklahoma’s criteria for an improvement to real property:
During oral argument before us in 2006, appellant virtually conceded substantial evidence existed of the boiler’s being an improvement to real property, stating respondent “put in a lot of evidence, perhaps even substantial evidence” proving it was so.
● Single owner: The parties agree that the oil refiner (Sunoco) owned both the boiler and the refinery in which the boiler was located. This factor weighs in favor of the boiler’s being an improvement to real property. (Torres, supra, 672 F.Supp.2d at p. 1211.)
● Permanence: The boiler stood about 25 feet high, weighed many tons, was bolted to a concrete pad, and could not be moved unless disassembled, thus making it for all practical purposes a permanent feature of the refinery. Reflecting those physical realities, nothing in the record indicates the boiler has moved in the half century since its installation. (60 Okla. Stat. Ann. § 5 [“Real or immovable property consists of: 1. Land. 2. That which is affixed to land....”]; 60 Okla. Stat. Ann. § 7 [“A thing is deemed to be affixed to land when it is... permanently resting upon it, as in the case of buildings, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws”].)
In a number of respects, the boiler was similar to the conveyor system inside the grocery distribution warehouse in Goad v. Buschman Co. (N.D.Okla. 2008) 2008 WL 906173, *6 affd. Goad v. Buschman Co. (10th Cir. 2009) 316 Fed.Appx. 813, which found a conveyor system was an improvement to real property. In Goad, the court explained, “In evaluating the permanence of the improvement, it is undisputed that the conveyor system is anchored to the floor of the Distribution Center by drilling, then inserting anchors into the concrete, then bolting the system into the anchors. The conveyor system is further affixed to the building by angle bracing, stabilizing legs, floor support columns and ceiling hangers. In addition, the conveyor system is hard-wired into the facility. Although the system is not welded to the floor or imbedded into the foundation, the nature of the conveyor system is such that it was intended to be permanently attached to the building by its design.... Accordingly, this Court concludes that the permanence factor weighs in favor of a finding that the conveyor system is an improvement to real property.”
Appellant contends the boiler was not permanent because its disassembly was not impossible, thus making it a temporary component of the refinery. Appellant likens the boiler to production line machinery examined in Durham v. Herbert Olbrich GMBH & Co. (10th Cir. 2005) 404 F.3d 1249, 1256 (Durham). The Durham court found the machinery did not satisfy the permanence criteria even though it was bolted to the factory floor and was “gargantuan, ” measuring approximately 20 feet wide, 20 feet high, and 200 feet long and weighing between 60 to 80 tons. Despite the unwieldiness of moving the machinery, the Durham court concluded the machinery was not permanent because it could be dismantled and removed from the building without causing harm to the machinery or the factory housing it. (Id. at p. 1256.) The Durham court stated: “Once the machinery is dismantled and removed, the Armstrong facility could be used for any other suitable purpose. In these circumstances, we conclude that the permanence factor weighs in favor of a finding that the production-line machinery is not an improvement to real property.” (Id. at p. 1256.) We find Durham’s assessment of the permanence of the machinery it considered at best demonstrates that there may have been a conflict in the evidence before us. The trial court here could reasonably resolve that conflict in respondent’s favor, and so long as substantial evidence supported that resolution, it stands on appeal.
● Effect on realty’s value: The boiler was part of the oil refinery’s production process. In serving that purpose, it follows that the boiler increased the refinery’s value. This increase weighs in favor of the boiler’s being an improvement to real property.
Appellant draws a distinction between increasing the value of a business and increasing the value of the realty housing the business. (Compare Durham, supra, 404 F.3d at p. 1257 [hot oil drum constituting part of production line did not enhance value of realty because building’s owner could change and put the building to other uses] with Goad v. Buschman Co., supra, 2008 WL 906173, *7 [conveyor system designed to building’s specifications enhanced realty’s value].) We find appellant draws too fine a distinction. Apart possibly from agriculture and extractive industries, such as mining, which draw wealth directly from the land, virtually every commercial use of realty will likely involve one or more structures housing a business. Under appellant’s reasoning, few, if any, improvements to these structures will be improvements to realty because they will be enhancing the value of the business, not the realty. We do not believe the Oklahoma legislature intended the statute of repose, which aims to protect professionals such as architects and engineers who design improvements to real property, to have the narrow scope that appellant posits.
In support of his distinction, appellant observes that Oklahoma’s tax rolls for the refinery show the realty’s value as $12.8 million, and the value of the refinery’s personal property as $57.8 million. Noting the difference between those two values, appellant asserts most of the refinery’s value lies in the business’s personal property, not its realty, and thus the boiler adds little to the realty’s value. Appellant writes: “The vast amount of the value on this property is in the business property, not the value of the land and improvements. Thus if the boiler were dismantled and removed, the value of the realty would be unaffected.” Appellant’s conclusion is a non-sequitur because it does not follow from the fact that the lion’s share of the refinery’s tax value lies in personal property that the boiler does not enhance the realty’s value.
● Parties’ Intent: Appellant notes that no one working for the refinery or respondent at the time of the boiler’s installation testified during the section 402 hearing, thus providing no direct evidence of whether the parties intended the boiler to be an improvement to real property.
● Tax Treatment: Appellant notes that since the 1950’s, Oklahoma apparently has taxed refinery boilers as personal business property. (See Okla. Stat. tit. 68, § 15.4 and 68 Okla. Stat. Ann. § 2807 [“Personal property, for the purpose of ad valorem taxation, shall be construed to include: [¶]... 8. All machinery and materials used by manufacturers, and all manufactured articles, including all machinery and equipment of... refineries....”].) Appellant contends the boiler’s seeming treatment as business personal property defeats respondent’s claim that the boiler was an improvement to real property. In support, appellant cites the Oklahoma Supreme Court’s decision in Smith v. Westinghouse Elec. Corp. (Okla. 1987) 732 P.2d 466, which appellant interprets as holding the boiler’s tax treatment is the single most important, if not almost dispositive, factor prohibiting the boiler’s classification as an improvement to real property. Appellant relies on the following language from Smith: “In Oklahoma, the answer [whether machinery is an improvement to real property] must be derived from our taxing scheme. Because ad valorem taxes for the electrical equipment in suit are assessed solely against the public utility using it, the transformers in question were not improvements to real property.” (Id. at p. 470.)
Appellant’s contention fails because the boiler’s tax treatment is important, but not dispositive, under Oklahoma law. Torres, supra, 672 F.Supp.2d at page 1211 recently explained that “The tax treatment of property is not dispositive as to whether something is treated as an improvement to real property. The ownership status and location of the property is also a significant factor. If the property is owned by the same entity that owns the real property, this suggests that the property may be an improvement to real property.” (See also Durham, supra, 404 F.3d at p. 1256 [item’s tax treatment weighs more “heavily” than any other single factor but “is not dispositive”]; Williams v. Harrop Industries, Inc. (Okla.Civ.App. Div.3 2003) 73 P.3d 902, 904 [“Although we are not presently convinced that Smith holds the ad valorem tax treatment of the equipment is controlling on this issue, any analysis must, at the very least, include consideration of the ad valorem tax treatment of the equipment”].) In fact, Smith’s characterization of the equipment turned on the equipment’s ownership being different from the realty’s ownership. As the court in O’Dell v. Lamb-Grays Harbor Co. (W.D.Okla. 1995) 911 F.Supp. 490 explained: “Plaintiffs argue that Smith v. Westinghouse Electric Corp., [supra, ] requires that the sole test for determining whether a particular piece of property is an ‘improvement to real property’ within the meaning of 12 O.S. § 109 is derived from Oklahoma’s ad valorem taxing scheme. Plaintiffs assert that since the slat conveyor and controls are taxed as personal property, they cannot, as a matter of law, constitute an ‘improvement to real property’ as contemplated in § 109.... The court agrees... that Smith is distinguishable from the present case. In Smith, the determinative factor was not that the transformer was taxed as personal property, but that it was taxed as the personal property of someone other than the owner of the real property where it was located.” (Id. at p. 493; see also Goad v. Buschman Co., supra, 2008 WL 906173, *3-4, 5 [noting importance to Smith that item was not owned by building’s owner].)
In any event, we do not know Oklahoma’s tax treatment of the boiler because neither side presented the refinery’s tax records to the trial court. Appellant contends respondent’s failure to document the boiler’s tax treatment as realty was fatal to respondent’s claim that the boiler was an improvement to real property. In support, appellant cites Riley v. Brown & Root, Inc. (10th Cir. 1990) 896 F.2d 474. Appellant’s reliance on Riley is unavailing. In that decision, the Tenth Circuit Court of Appeals reversed the federal district court’s summary judgment applying Oklahoma’s statute of repose because, while the district court’s judgment was on appeal, the Oklahoma Supreme Court issued its decision in Smith emphasizing the importance of an item’s tax treatment in determining whether the item was an improvement to real property. The Tenth Circuit explained at Riley page 477:
“[W]e believe this case must be remanded to the district court for reconsideration in light of a change in the governing state law. After the district court granted summary judgment... and during pendency of this appeal, the Oklahoma Supreme Court decided Smith v. Westinghouse Electric Corp., [supra, ] 732 P.2d 466[]. In Smith, the Oklahoma Supreme Court announced that the test for determining whether the electrical equipment in question was an improvement to real property within the meaning of section 109 would be ‘derived from our [ad valorem] taxing scheme.’ [Citation.]” (Riley, at p. 477.)
Appellant incorrectly interprets Riley as standing for the proposition that respondent was ‘required to introduce evidence of the tax treatment of its boiler’ and that respondent’s failure to offer that evidence constituted a failure of proof barring application of the statute of repose. Riley does not discuss failure of proof; it merely remanded the case for reconsideration in light of a change in applicable state law. But this contention is of one piece with appellant’s erroneous view that tax treatment is dispositive. In any event, the trial court was entitled to give appropriate weight to each party’s failure to develop tax treatment evidence.
B. Substantial Evidence Respondent Was Designer of Improvement to Real Property
The trial court found respondent had designed the boiler, thus satisfying the second requirement for the statute of repose’s application. The court stated: “The declaration of Robert Tracey establishes that the boiler was not a standardized product, but was customized to meet the unique needs and certain specifications necessary for the operation of the refinery, the boiler was shipped to the refinery and reassembled on site, and the boiler was a stationary part of the refinery. In considering the evidence put forth, the Court finds that although a manufacturer, Foster Wheeler also acted as the designer.”
Substantial evidence in the record supported the trial court’s finding. Respondent’s proposal to supply the boiler to the refinery included design specifications covering different types of fuel for the boiler, its performance at different “load points, ” and its guaranteed “load capacity.” Respondent’s engineering expert declared that “Obviously, with all the considerations... to meet this customer’s requirements, the steam generator demanded a significant amount of engineering and expertise to comply.” The expert testified “thousands and thousands of hours” went into “engineering with hand calculations, preparation of requisitions for material and equipment components that go into the boiler [including]... detailed design, the preparation of all the drawings, shop drawings....”
Appellant contends respondent offered no evidence it designed an improvement to real property as opposed to designing a manufactured product. According to appellant, respondent designed the boiler to fit into the refinery’s production process rather than to fit onto the land, and the refinery owner, not respondent, designed and built the concrete pad on which the boiler sat. Appellant writes: “[T]he boiler was simply bolted to a piece of steel on top of a flat slab of concrete, and nothing about the boiler was specially designed to fit the realty. All of the ‘special design’ features that Mr. Tracey identified in his declaration were designs relating solely to the operation of the boiler, having nothing to do with the realty.”
We conclude appellant draws too fine a distinction between a manufacturing process and the realty housing that process. The court in Goad v. Buschman Co., supra, 2008 WL 906173, rejected similar hair-splitting involving a conveyor system inside a distribution warehouse. The Goad court explained: “While Buschman utilized mostly ‘standard’ conveyor materials, the conveyor system as a whole was designed for this particular Distribution Center and was configured to fit within the footprint of the building. [¶]... [¶] Installation took approximately 11 weeks utilizing a crew of 11 to 12 men. Installation required the presence of Buschman employees, who were responsible for on-site installation, startup and testing of the system. The special size and make-up of the conveyor system, along with the amount and type of labor required for its installation, signifies that Buschman was not simply supplying a standard mass-produced piece of equipment that ‘by chance became affixed to [Alberstons’] property, ’ but was instead designing and constructing a system that would adequately fulfill the needs of this particular building. [Citation.] This is the type of activity that is intended to be protected under Oklahoma’s statute of repose.” (Goad, at *6.)
C. Trial Court Applied Correct Evidentiary Standard
Appellant contends we must reverse the trial court because it applied the wrong evidentiary standard in ruling on appellant’s and respondent’s section 402 motions. Appellant asserts the court’s section 402 ruling had the effect of barring appellant’s entire claim, making it tantamount to a nonsuit. Appellant contends the court therefore ought to have used the evidentiary standard applicable to nonsuits, which required the court to resolve all conflicts in the evidence in appellant’s favor. Under that standard, the trial court was, according to appellant, “powerless to weigh the evidence relating to [respondent’s] statute of repose defense.”
In support, appellant cites Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15 (Edwards). There, the trial court through the vehicle of a motion in limine determined the applicability of the litigation privilege as a defendant’s affirmative defense. On review, the appellate court deemed the motion in limine “the functional equivalent of an order sustaining a demurrer to the evidence, or nonsuit.” (Id. at p. 27.) Because the motion in limine functioned as a motion for nonsuit, the appellate court applied the standard of review for nonsuits, which appellant urges we apply here.
Edwards is inapt because the section 402 hearing here was not a motion for nonsuit. Instead, it was in substance a bifurcated bench trial on the statute of repose. Our Supreme Court recognized it as such when it stated in its opinion, “After the trial court initially determined that Oklahoma, rather than California, law should apply to the timeliness issue but that there were disputed questions of fact regarding whether the action against Foster Wheeler fell within the reach of the Oklahoma statute of repose, the parties agreed that the trial court, instead of a jury, should determine whether the Oklahoma statute applied. After considering the declarations filed by each party and a number of judicial decisions interpreting the Oklahoma statute, the trial court found that Foster Wheeler was a designer of an improvement to real property within the meaning of the Oklahoma statute of repose and entered judgment dismissing Foster Wheeler as a defendant in plaintiff's underlying action.” (McCann, supra, 48 Cal.4th at p. 75.)
The section 402 motion followed respondent’s unsuccessful motion for summary judgment. The court denied summary judgment because triable issues existed whether the statute of repose applied. Having failed to convince the court to dispatch the case based on what respondent deemed to be undisputed facts, respondent turned to a “Plan B” – a section 402 hearing during which the court would sit as a trier of fact. Embracing respondent’s motion, appellant filed his own cross-motion for a section 402 hearing in which appellant urged the court to rule the statute of repose did not apply. Having put at issue the potentially dispositive effect of the statute of repose, appellant and respondent presented documentary evidence, declarations, and deposition testimony to support their competing views. And when the court, speaking from the bench at the end of the hearing, explained its ruling in respondent’s favor in terms redolent of having weighed the evidence, appellant did not object that the court had misunderstood the evidentiary test or gone beyond what the parties had asked the court to address. On this record, we conclude the court did not apply the wrong evidentiary standard by weighing the evidence.
We acknowledge the unconventional course of the bifurcated bench trial. A moving party such as respondent ordinarily directs a section 402 motion toward forcing an opponent to satisfy the trial court that the opponent has sufficient evidence on a threshold matter to permit putting to the jury issues arising from that matter – for example, a trial court in a 402 hearing deciding whether a statement was an excited utterance before permitting the jury to learn the contents of the utterance. Respondent’s 402 motion did not fit within that ordinary framework because the statute of repose was an affirmative defense for which appellant, as the plaintiff, had no burden of proof. In principle, appellant could have tried his case from beginning to end without bringing up the statute of repose at any time, leaving to respondent the burden of proving the defense. However, appellant’s embracing of respondent’s 402 motion by seeking from the court a ruling that respondent lacked sufficient evidence to assert the statue of repose put the 402 motion to its conventional use. And having sought, albeit unsuccessfully, the benefit of a favorable 402 ruling, appellant cannot now be heard to complain that the court committed procedural error when it ruled on the statute of repose’s applicability.
DISPOSITION
The judgment is affirmed. Each side to bear its own costs on appeal.
WE CONCUR: FLIER, J., O’CONNELL
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.