Opinion
Shell Oil Company (Shell) appeals 14 of 34 judgments entered in an action by 34 homeowners against Shell and others including Western Plastic and Rubber Company (Western) for defective polybutylene (PB) pipes used in the construction of the plumbing systems in their homes. Shell contends the court erred by allowing the jury to determine Shell was liable for negligence even though the PB pipes in 14 homes did not leak or otherwise fail. Shell further contends the court erred by ruling that еconomic loss alone can support a tort cause of action. 1
Western was found strictly liable to the 34 homeowners, but it appeals only the postjudgment order awarding homeowners their costs as prevailing parties under Code of Civil Procedure 2 section 1032. Western contends it was the section 1032 prevailing party because the homeowners ultimately recovered no net monetary award after settlement amоunts with other defendants were credited against the jury’s damage awards.
We reverse the 14 judgments against Shell from which Shell appeals and affirm the order awarding the 34 homeowners their section 1032 costs *207 against Western. Western has not appealed the judgments against it in favor of the 34 homeowners.
Factual and Procedural Background
Shell manufactured a PB resin used by Western and other companies to make PB pipes for plumbing systems. In the early 1980’s, PB pipes were installed as pаrt of the plumbing systems of 34 new homes owned by the 34 homeowners who filed this action. Some of the 34 homes experienced leaks in their plumbing systems, and the 34 homeowners filed this action against Shell, Western and others involved in the design, manufacture, distribution and installation of the plumbing systems and their components.
In an “omnibus” order apparently applying to multiple lawsuits involving PB plumbing systems, the court overruled a demurrer seeking dismissal of claims made by those homeowners who did not allege their plumbing systems had leaked or experienced other failures. Before trial, the court also denied Shell’s in limine motion for a finding that the owners of homes without leaks cannot state causes of action for either strict liability or negligence.
The parties stipulated that 14 of the 34 homeowners had suffered no leaks in the plumbing systems of their homes. 3 The court denied Shell’s motion for a directed verdict against thosе 14 homeowners. The jury’s special verdicts found Shell liable to all 34 homeowners for negligence and Western liable to all 34 homeowners on a strict liability theory for design or manufacturing defects. The jury found Shell “liable for negligence as to those plaintiffs who have not had a leak in their plastic plumbing system.” The jury made special findings of the damages suffered by each of the 34 homeowners and then found that 80 percent of those damagеs were attributable to Shell and 20 percent were attributable to Western. The jury effectively found that the aggregate amount of damages suffered by all 34 homeowners was $222,282. However, after making offsets for the homeowners’ prior settlements with other defendants, the court entered separate judgments for each of the 34 homeowners against Shell and Western in the amount of $0.
*208 Discussion
I
The Owners of Homes Without Leaks Have Suffered No Damage Giving Rise to a Cognizable Action for Negligence
Shell contends that the 14 owners of homes without leaks in their plumbing systems cannot state a cause of action for negligence because they have suffered no damage, and that the court erred by allowing the jury to decide Shell’s liability for negligence as to those homeowners. We agree.
Although Shell and the 14 homeowners agree that these homes suffered no plumbing system leaks, the homeowners assert that their “damage” consists of the degradation and “micro-cracking” of their PB plumbing systems. They further assert they proved at trial that their plumbing systems were reasonably certain of failing in the future. Shell argues that these factors do not present any cognizable damage which would support a negligence cause of action.
A
Khan
v.
Shiley Inc.
(1990)
The Court of Appeal rejected the patient’s argument that a malfunction of an inherently defective product is not required to establish a product liability claim.
(Khan
v.
Shiley Inc., supra,
The court found this element of causation to be missing. It reasoned: “[The patient’s] alleged injury was not caused by any defect in the valve. Rather, it was caused, if at all, by the knowledge the valve may, at some future time, fracture.” (
San Francisco Unified School Dist.
v.
W.R. Grace & Co.
(1995)
Citing the seminal case of
Seely
v.
White Motor Co.
(1965)
The court concluded: “As no cause of action could be stated for strict liability or negligence in an asbestos-in-building case without physical injury to person or property, Seely compels the conclusion that a tort cause of action cannot accrue until physical injury occurs. Once physical injury to property occurs—assuming that damage is the last element of the tort cause of action to occur—the cause of action accrues and the limitations period commences.
“. . . In order to be consistent with the principles of Seely, it appears that until contamination occurs, the only damages that arise are economic lоsses that do not constitute physical injury to property recoverable in strict liability or negligence. Physical injury resulting from asbestos contamination, not the mere presence of asbestos, must have occurred before a cause of action for strict liability or negligence can accrue in an asbestos-in-building case and the limitations period commence." (37 Cal.App.4th at pp. 1329-1330.)
The court summarized its analysis: “In Californiа, no cause of action accrues—i.e., the statute of limitations does not commence—until all elements of the cause of action, including that of damage or injury, have occurred. There must be appreciable harm before the damage element of a cause of action accrues, triggering the commencement of the limitations period. In a strict liability or negligence case, the compensable injury must be physical harm to persons or property, not mere economic loss. Accordingly, we hold that in an asbestos-in-building case, the mere presence of asbestos constitutes only a threat of future harm. Contamination by friable asbestos is the physical injury and the actual, appreciable harm that must exist before a property owner’s strict liability or tort cause of action against an asbestos manufacturer accrues and the limitations period commences.” *211 (37 Cal.App.4th at p.1335.) Accordingly, the court reversed the summary judgment and remanded the matter to the trial court for determination of whether there had been actual asbestos contamination more than three years before the school district filed suit. {Id. at pp. 1341-1342.)
In
Seely
v.
White Motor Co., supra,
B
Applying the foregoing principles to this case, we note that no element of “damage” exists for a negligence cause of actiоn by the owners of homes without leaks in their plumbing systems. Although the 14 homeowners assert that their PB pipes are inherently defective and have suffered degradation and “micro-cracking,” these factors, if true, do not show that there has been the requisite “damage” for a negligence cause bf action. Both Khan and San Francisco Unified School Dist. hold that appreciable present harm, not merely the threat of future harm, is required.
C
To the extent the homeowners contend they have suffered damage to the PB pipes by degradation and “micro-cracking” of the PB pipes,
Seely
and its progeny preclude a negligence cause of action based on damage solely to the defective product.
(Seely
v.
White Motor Co., supra,
63 Cal.2d at pp. 18-19;
Sacramento Regional Transit Dist.
v.
Grumman Flxible, supra,
158 Cal.App.3d at pp. 298-300.) The homeowners cite
J’Aire Corp.
v.
Gregory
(1979)
The record here does not support application of the J’Aire exception. The first and third J’Aire factors were not met: (1) Shell’s manufacture of PB resin did not involve a transaction specifically intended to affect the particular needs of any of the 14 homeowners; and (2) there was insufficient certainty that the 14 homeowners suffered an injury and, in fact, the record shows the homeowners have yet to suffer any injury.
Ott
v.
Alfa-Laval Agri, Inc.
(1995)
D
The court erred by denying Shell’s motions for summary judgment and directed verdict and by allowing the jury to decide the negligence cause of action against Shell as to the 14 homeowners with home plumbing systems thаt had not leaked or otherwise failed. We reverse these 14 judgments against Shell, remand and direct the trial court to enter judgments in favor of Shell against those 14 homeowners. The judgments against Western are not reversed because Western has not filed an appeal from the judgments.
II
The Court Did Not Err by Finding the Homeowners Are Entitled to Their Section 1032 Costs
In its appeal Western contends the trial court erred by finding that the 34 homeowners were prevailing parties entitled to their costs under section 1032. We disagree.
Section 1032, subdivision (b) states: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”
Section 1032, subdivision (a)(4) states: “ ‘Prevailing party’ includes the party with a net monetary recovery, ... a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as аgainst those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.”
The jury found Western strictly liable and awarded the 34 homeowners an aggregate amount of $222,282 in damages. However, after crediting the
*214
aggregate amount of settlements with other defendants, the court entered judgments against Western for $0. Both parties filed memoranda of costs and motions to tax the other party’s costs. The trial court granted the homeowners’ motion, denied Western’s motion and, citing
Syverson
v.
Heitmann
(1985)
Western contends the court erred by finding that the homeowners, rather than Western, prevailed at trial. It asserts that the homeowners failed to obtain the “primary relief sought” and thus should be denied their costs. Western further asserts that the homeowners ultimately recovered no damages against it and that Western should be deemed the section 1032 “prevailing party” even though the jury found it strictly liable and awarded an aggregate amount of $222,282 in damages against it.
As Western notes, the court in
Pirkig
v.
Dennis
(1989)
Contrary to Western’s assertion, the cases of
Syverson
v.
Heitmann, supra, 171
Cal.App.3d 106, and
Ferraro
v.
Southern Cal. Gas Co.
(1980)
The 34 homeowners prevailed on the issues of liability and damages, receiving an aggregate jury award of $222,282. Had some of Western’s codefendants not settled with the homeowners prior to or during trial, judgments would have been entered against Western in the aggregate amount of 20 percent of $222,282. Under these circumstances, Western cannot proclaim itself to be the section 1032 prevailing party. The court correctly found that the 34 homeowners were section 1032 prevailing parties entitled to their costs against Western. 5
Disposition
The judgments are affirmed, except we reverse the 14 judgments against Shell as to those homeowner respondents named in footnote 3, ante, and we remand with directions that the court enter judgments in favor of Shell as to them. We affirm the order awarding the homeowner respondents their section 1032 costs against Western. The parties shall bear their own costs of appeal.
Huffman, Acting P. J., and Nares, J., concurred.
Appellants’ petition for review by the Supreme Court was denied August 27, 1997.
Notes
We have accepted and considered an amicus curiae brief filed by the Association for California Tort Reform in support of Shell’s аppeal.
All statutory references are to the Code of Civil Procedure.
Those 14 homeowners are: (1) Ernie Antinori, (2) Manuel and Nedra Bringas, (3) Bill and Linda Burton, (4) Ernesto and Myma Fune, (5) Richard and Tammi Lampke, (6) Louis and Robretta Lester, (7) Samuel and Maria Lopez, (8) Marlena Murphy, (9) Perry and Deborah Partow, (10) Carolyn Rogness, (11) Jeffrey and Monica Strong, (12) Terrance Sussan and Susan Williams Sussan, (13) Arthur and Ottilie Williams and (14) Chester and Nancy Woods.
All of the cases homeowners cite as support for their judgments against Shell are inapposite. Most of them are distinguishable from
Seely
because they involved injuries to property other than the product itself. (See, e.g.,
Raven’s Cove Townhomes, Inc.
v.
Knuppe Development Co.
(1981)
We do not address the effect of Western’s section 998 offer to the homeowners because Western does not raise this issue in its opening brief. Further, we do not address the trial court’s award of costs to Shell because we dismissed as untimely the homeowners’ appeal of that award.