Opinion
A city sues various defendants for damages stemming from installation of asbestos in its buildings. The statute of limitations for injury to city’s real property is three years. (Code Civ. Proc., § 338, subd. (b).) The statute of limitations begins to run when city suffers an appreciable and actual harm.
Here we hold, among other things, appreciable harm is not limited to the existence of an actual health hazard. As pleaded, the city’s knowledge of deterioration to its buildings caused by asbestos constitutes the infliction of an appreciable harm that begins the statute of limitations running.
Plaintiff City of San Diego appeаls a judgment in favor of defendants, are manufacturers and distributors of asbestos-containing building materials. The trial court’s ruling was based upon the three-year statute of limitations of Code of Civil Procedure section 338, subdivision (b), and a failure to state a cause of action for nuisance and equitable indemnification. We affirm.
Facts
On May 25, 1988, plaintiff City of San Diego (City) brought an action against 31 defendants who manufactured, distributed or otherwise were involved with asbestos-containing building materials. City alleged it owned or leased more than 1,000 public buildings that contained these materials. In its second amended complaint, City alleged asbestos particles, fibers and dust have contaminated city-owned and city-leased buildings due to “normal wear, aging, abrasions, and impacts, as well as routine maintenance and repair.” City seeks recovery for, among other things, money it spent and will spend to identify and abate the asbestos danger, and for loss of use and decline in value of its property.
*579
City alleged the asbestos-containing building materials included insulation, gaskets, backings, tape, floor and ceiling tile, acoustical materials, plaster, textiles, boilers, ventilating materials and fireproofing. (See
Mullen
v.
Armstrong World
Industries,
Inc.
(1988)
The five defendants involved with this appeal are: W. R. Grace & Co.— Connecticut, a manufacturer of fireproofing insulation and acoustical plaster; United States Gypsum Company, a manufacturer of acoustical plaster; Thorpe Insulation Company, a distributor of thermal system insulation; Hamilton Materials, Inc., a manufacturer and supplier of decorative ceiling compounds; and Proko Industries, Inc., also a manufacturer and supplier of decorative ceiling compounds. In the 1960’s and 1970’s, City purchased and installed asbestos-containing building materials manufactured or distributed by these defendants.
Initially, City alleged causes of action for negligence, strict liability, breach of express and implied warranties, restitution, nuisance, fraud, punitive damages, successor liability and conspiracy. Defendants challenged these causes of action, upon grounds of the statute of limitations and failure to state a cause of action, by demurrer, judgment upon the pleadings and summary judgment. The trial court granted these motions.
This appeal concerns the negligence, strict liability, nuisance and equitable indemnification causes of action alleged in City’s second and third amended complaints.
The parties to this litigation agree that the three-year statute of limitations for “[a]n action for . . . injury to real property” applies here. (Code Civ. Proc., § 338, subd. (b).) May 25, 1985, is the day three years before City filed this lawsuit against these asbestos manufacturers and distributors. Evidence offered in support of defendants’ summary judgment motions contending City’s lawsuit is рrecluded by the three-year limitations period of section 338, subdivision (b), established this:
Before May 25, 1985, City conducted an extensive investigation and evaluation of asbestos-containing materials in many city buildings. City’s safety director, Rick Gumming III, directed this investigation. Dr. Kenneth S. Cohen, a certified industrial hygienist, toxicologist and safety engineering consultant, assisted Gumming in an evaluation of city buildings, including bulk sampling and air testing. Between 1978 and 1985, two professional testing labs conducted 500 air quality tests and analyses in city buildings.
*580 Also before May 25, 1985, Dr. Cohen trained approximately 200 city maintenance personnel concerning the health dangers of disturbing in-place asbestos and held asbestos training sessions for other city custodial employees. In 1983, City prepared an eight-minute videotape entitled “Understanding Asbestos,” that was shown to many city employees who worked in city buildings constructed with asbestos-containing building materials. City also printed 500 posters stating, “Caution. Asbestos Dust Hazard. Certain Construction Materials within this building have been identified as containing asbestos fibers. Avoid Creating Dust. Breathing Asbestos Fibers May Cause Serious Bodily Harm.” These signs were posted in city buildings.
City also formed an “Asbestos Containment Team,” known as “The Tiger Team.” Team members received special training in dealing with asbestos, wore protective clothing, including respirators, received health screening, including chest X-rays and pulmonary function tests, and were paid a premium hourly rate in their duties.
Before May 25, 1985, there were instances of degrading or deterioration of asbestos-containing building materials in city buildings. In 1983, for example, the San Diego Police Headquarters building contained an asbestos boiler blanket that was “in very poor condition and . . . ripped.” In 1984, asbestos insulation covering piping in the men’s restroom at Brown Field became damaged. Full-day air sampling at that time disclosed, however, that airborne asbestos fibers fell below current health standards.
In 1982, a ceiling at the Mission Beach Plunge collapsed when a transient living in the ceiling crawl space stepped through the ceiling. The ceiling collapse apparently produced “ ‘high’ ” asbestos fiber counts similar to “a controlled rip-out of insulation in the hold of a Naval Vessel,” according to Dr. Cohen. In 1984, a city employee wrote city officials and informed them the lube area of the city service stаtion in which he worked had “[asbestos] coming off of overhead pipes and falling] all over the place.”
In 1980, safety director Gumming wrote the deputy city manager concerning asbestos exposure to 400 to 500 city employees. He stated: “These exposures are encountered when asbestos-cement water pipe is cut; when making brake and clutch repairs; when cutting dry wall impregnated with asbestos; and when doing maintenance/repair work in crawl spaces, on ceiling tiles or on pipe insulation impregnated with asbestos.” In 1983, Gumming noted “there is no safe level of exposure [to asbestos].”
On January 31, 1985, City filed a claim for $50 million damages in the United States Bankruptcy Court proceeding concerning the bankruptcy of *581 Johns-Manville Corporation and its related entities. City claimed the $50 million damages were “[b]elieved to be the cost of repair of the city buildings and damages sustained by employees, past, present and future,” due to the presence of asbestos-containing building materials in city-owned and city-leased buildings. City alleged it was “presently” performing encapsulation, enclosure and removal of friable 1 asbestos-containing material and was “presently . . . invеstigating]” future encapsulation, enclosure and removal of such material.
Prior to May 25,1985, many newspapers and technical journals published articles documenting the human health hazards presented when asbestos-containing building materials degraded, releasing asbestos fibers and dust into the air. On April 5, 1984, the United States Environmental Protection Agency promulgated its “National Emission Standards for Hazardous Air Pollutants: Amendment to Asbestos Standards,” concerning equipment and workplace requirements regarding asbestos-containing building materials. (40 C.F.R. § 61.01 et seq. (1993).)
In its opposition to defendants’ motion for summary judgment, City acknowledged and admitted that it knew before May 25, 1985, that city-owned and city-leased buildings contained asbestos-containing building materials that posed a human health hazard. City offered to stipulate “it knew asbestos was a dangerous and defective product well before 1984 [and] it knew asbestos was in many of its buildings well before 1984.”
On appeal, City contends: 1) the three-year statute of limitations does not commence to run until a particular building is contaminated by a significant release of asbestos fibers or dust; 2) defendants are liable to City for their creation of a nuisance on City property; 3) City has a cause of action for equitable indemnification against defendants, ¿though it is not presently liable to an injured third party; 4) the rule barring recovery for economic losses does not preclude City’s claims; and 5) public policy allows public entities to obtain recompense under the circumstances here.
The amicus curiae briefs of 66 California cities and counties, the California State Association of Counties, the California Manufacturers Association, and the amicus curiae brief of Trizec Properties, Inc., Mаrina Airport Buildings, Ltd., California Sansome Co., and Polk Market Co. have been helpful in the resolution of this appeal.
*582 Discussion
I.
City argues its action against defendants is not barred by the three-year limitations period of Code of Civil Procedure section 338, because City first suffered damage within three years of filing this action. City contends “damage” occurs when a building becomes contaminated by sufficient asbestos fibers to pose a human health hazard. Until then, City argues it has no cause of action upon which the statute of limitations can run.
(CAMSI IV
v.
Hunter Technology Corp.
(1991)
A summary judgment raises only questions of law, which we review independently on appeal.
(Biljac Associates
v.
First Interstate Bank
(1990)
In tort actions, the statute of limitations commences upon the occurrence of the last element essential to a cause of action.
(Leaf
v.
City of San Mateo
(1980)
In its second amended complaint, City alleged that it determined “[w]ithin the statutory time period," that asbestos fibers and dust were contaminating city buildings due to “normal wear, aging, abrasions and impacts, as well as routine maintenance." City also alleged “new and further deterioration” occurred with time. Within the statute of limitations, City pleaded it discovered friable аsbestos presented “a substantial risk of severe injury . . . caused by inhalation of asbestos fibers. . . .” This knowledge required City to inspect its property and remove or encapsulate asbestos-containing building materials.
For several reasons, we reject City’s argument. First, in its second amended complaint, City claimed asbestos-related damages for testing, inspecting, safeguarding, and abating asbestos-containing building materials. City did not narrowly limit its claimed damages to those buildings contaminated by “significant” asbestos dust and fiber release. Now City appears to be arguing for a narrower claim of damages than pleaded. Defendants are entitled to rely upon and City is bound by the allegations in its pleadings.
(Uram
v.
Abex Corp.
(1990)
Second, City’s allegations, set forth in its second amended complaint, establish that asbestos dust and fiber release occurred continuously from time of sale and installation of the asbestos-containing building material. Thus, City alleged “as a result of normal wear, aging, abrasions and impacts, as well as routine maintenance and repair,” asbestos dust and fibers have contaminated City buildings. City also alleged the city buildings “would be continually contaminated” and “new and further deterioration” would occur so long as asbestos-containing buildings materials were present. These judicial admissions therefore establish City has suffered more than “nominal” damages since sale and installation of asbestos-containing building materials, well оutside the three-year limitations period.
(Davies
v.
Krasna, supra,
*584
Moreover, the trial court properly rejected City’s argument concerning its causes of action on a building-by-building and product-by-product basis because City’s admissions of continuing injury since installation and sale,
ante,
establish “appreciable and actual harm” beyond the three-year limitations period.
{Davies
v.
Krasna, supra,
Third, on January 31, 1985, three years and four months before filing this action, City filed a claim in federal bankruptcy court, regarding the bankruptcy of Johns-Manville Corporation and related entities. This bankruptcy claim demanded $50 million damages for abatement work “presently being performed” and that “being investigated.”
This claim establishes City suffered more than “nominal” damages beyond the three-year statute of limitations period. Moreover, it matters not that the claim was directed to Johns-Manville Corporation and not these defendants since the statute of limitations is not delayed because plaintiff does not know the wrongdoer’s identity.
{Jolly
v.
Eli Lilly & Co., supra,
Defendants Hamilton Materials, Inc., and Proko Industries, Inc. contend City’s action is precluded by Code of Civil Procedure section 337.15, a statute limiting actions for design or construction defects in improvements to real property to ten years after substantial completion of the development or improvement. The trial judge concluded otherwise as a matter of law. Although we note there is legal support for the trial judge’s ruling, we need not discuss this issue in view of our discussion of section 338, subdivision (b).
(Sevilla
v,
Stearns-Roger, Inc.
(1980)
II.
City alleged in its third amended complaint and contends here that deterioration of asbestos-containing building materials in city buildings has created a continuing nuisance. City аrgues the broad statutory definition of nuisance set forth in Civil Code section 3479, “[a]nything which is injurious to health, . . . or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . ,” encompasses the degradation and release of asbestos fibers and dust from asbestos-containing building materials. City claims the manufacturer of an allegedly defective product can be liable in nuisance, generally a land-connected tort, because “[t]he stream of commerce can carry pollutants every bit аs effectively as a
*585
stream of water.” City disputes that defendants’ ability to abate or control a nuisance, a theory defendants successfully urged in the trial court, is a necessary predicate to a nuisance cause of action, particularly where City seeks money damages, not abatement.
(Shurpin
v.
Elmhirst
(1983)
Amicus curiae Association of California Counties urges that City has pleaded a cause of action for continuing nuisance. City’s damages, amicus curiae asserts, are continuing and occur with each significant release of asbestos fibers, dust or particles. (See
Capogeannis
v.
Superior Court
(1993)
The trial court here granted judgment on the pleadings concerning City’s nuisance cause of action because the trial court believed California law requires a defendant to own or control the means causing the nuisance. We need not discuss whether this is so because City has essentially pleaded a products liability action, not a nuisance action. The ruling of the trial court was correct but for a different legal reason.
(United Pacific Ins. Co.
v.
Hanover Ins. Co.
(1990)
Nuisance has been described as an “impenetrable jungle.” (Prosser & Keeton, Law of Torts (5th ed. 1984) § 86, p. 616.) “[Nuisance] has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or cоmprehensive definition.” {Ibid.., fns. omitted.)
In California, a broad statutory definition of nuisance appears to embrace nearly any type of interference with the enjoyment of property.
{Stoiber
v.
Honeychuck
(1980)
California law has permitted recovery in nuisance where a defendant has owned or controlled property from which the nuisance arose
{Donahue
v.
*586
Stockton Gas etc. Co.
(1907)
City cites no California decision, however, that allows recovery for a defective product under a nuisance cause of action. Indeed, under City’s theory, nuisance “would become a monster that would devour in one gulp the entire law of tort. „ .
(Tioga Public School Dist.
v.
U.S. Gypsum
(8th Cir. 1993)
Other jurisdictions considering this issue have not permitted plaintiffs to recover damages fоr defective asbestos-containing building materials under a nuisance action.
(Tioga Public School Dist.
v.
U.S. Gypsum, supra,
Detroit Board of Education
v.
Celotex Corporation, supra,
Mangini
v.
Aerojet-General Corp., supra,
Selma Pressure Treating Co.
v.
Osmose Wood Preserving Co., supra,
III.
City contends it is entitled to equitable indemnification from defendants because in abating the asbestos in city buildings, it has ameliorated a human health hazard. City acknowledges it has not been sued by any plaintiff for money damages or other relief arising from the presence of asbestos fibers, asbestos dust or in-place asbestos-containing building materials in city buildings. City believes
Selma Pressure Treating Co.
v.
Osmose Wood Preserving, Co., supra,
For several reasons, the trial court properly granted summary judgment regarding City’s cause of action for equitable indemnification. First, City has not incurred damages for payment to any third party in settlement of a claim or in satisfaction of a judgment. Second, since no statute or regulation imposes joint liability on City and defendants for costs of managing or removing asbestos-containing building materials, City and defendants are not jointly and severally liable to a third party. Third, the three-year limitations period of Code of Civil Procedure section 338, subdivision (b), precludes City’s cause of action for equitable indemnification.
Our Supreme Court has consistently ruled that a cause of action for indemnity does not accrue until the indemnitee suffers loss through payment of an adverse judgment or settlement.
(Valley Circle Estates
v.
VTN Consolidated, Inc.
(1983)
Here City has not pleaded any loss suffered through settlement or satisfaction of judgment. City also has admitted in a pretrial statement of damages that no damages “to date” arise from payment of third party claims or judgments. Thus, City has not pleaded a valid claim for equitable indemnification.
Moreover, no statute or regulation imposes joint liability on City and defendants for costs of managing or removing asbestos-containing material. Unless the prospective indemnitor and indemnitee are jointly and severally liable to the plaintiff, there is no basis for indemnification.
(Selma Pressure Treating Co.
v.
Osmose Wood Preserving Co., supra,
Nor do the regulations of the California Occupational Safety and Health Agency impose tort liability on City and defendants concerning asbestos removal or management. Title 8 of the California Code of Regulations, section 5208 contains general industrial safety orders concerning occupational exposure to asbestos. Section 5208 concerns monitoring employee exposure to airborne asbestos and engineering controls and work practices to prevent employee exposure. City does not identify any other statute or regulation that imposes tort liability upon it and defendants for management or remоval of asbestos. Thus, City has not established it and defendants are jointly and severally liable to another for managing or removing asbestos-containing material.
*589
Mangini
v.
Aerojet-General Corp., supra,
In
Selma Pressure Treating Co.
v.
Osmose Wood Preserving Co., supra,
As a third reason City’s equitable indemnification cause of action fails, the three-year limitations period of Code of Civil Procedure section 338, subdivision (b), precludes such action. As discussed,
ante,
part I, City’s cause of action commenced when it suffered “appreciable harm,” such harm having occurred before May 25, 1985.
(Davies
v.
Krasna, supra,
City’s third amended complaint also alleges a cause of action for declaratory relief based upon its right to equitable indemnification. To support its claim for declaratory relief, City must have an enforceable right to equitable indemnity.
(Gillies
v.
La Mesa etc. Irr. Dist.
(1942)
*590 IV.
City contends public policy requires that it be permitted to proceed with this action against defendants. City points out that Civil Code section 3523 provides that “[f]or every wrong tihere is a remedy.”
Nevertheless, the statute of limitations is a defense potentially available to every defendant in this state. City’s remedy is with the Legislature to amend the statute of limitations to allow recovery in asbestos actions or to bar the defense in actions brought by public entities. As City recognizes, other states have employed these methods to permit actions such as this to proceed.
In view of our resolution here, we need not discuss other issues raised by the parties. Thus, we do not discuss City’s contention that its alleged damages are contamination and resulting injury to city buildings, rather than damages for a defective product or one that does not perform as expected. In California, these latter damages, of course, are not recoverable in a products liability or negligence action.
(Sacramento Regional Transit Dist.
v.
Grumman Flxible
(1984)
We also do not discuss whether City adequately cited or referred to material facts it disputed. (Code Civ. Proc., § 437c, subd. (b).)
Accordingly, the judgment is affirmed. City shall bear costs on appeal.
Stone (S. J.), P. J., and Yegan, J., concurred.
A petition for a rehearing was denied December 28, 1994, and appellant’s petition for review by the Supreme Court was denied February 23, 1995. Mosk, J., was of the opinion that the petition should be granted.