Bradler v. Craig

• Decision Date: 30 June 1969
• Citation: 79 Cal.Rptr. 401,274 Cal.App.2d 466
• Court: California Court of Appeals Court of Appeals
• Parties: Rudolf BRADLER and Hilde Bradler, Plaintiffs and Appellants, v. C. Dick CRAIG and Santa Barbara Savings and Loan Association, et al.,Defendants and Respondents. Civ. 33310.

Page 401

79 Cal.Rptr. 401

274 Cal.App.2d 466

Rudolf BRADLER and Hilde Bradler, Plaintiffs and Appellants, v. C. Dick CRAIG and Santa Barbara Savings and Loan Association, et al.,Defendants and Respondents.

Civ. 33310.

Court of Appeal, Second District, Division 3, California.

June 30, 1969.

Hearing Denied Aug. 27, 1969.

John M. Sink, Santa Barbara, for plaintiffs and appellants.

Westwick, Collison & Talaga, Santa Barbara, for defendant and respondent C. Dick Craig.

Griffith & Thornburgh, by Peter J. Samuelson, Santa Barbara, for defendant and respondent Santa Barbara Savings and Loan Ass'n.

SCHWEITZER, Associate Justice.

By their second amended complaint, plaintiffs seek damages for alleged negligent construction of a house against the general contractor, C. Dick Craig, and the construction and purchase money lender, Santa Barbara Savings and Loan Association. General demurrers, filed by both defendants, were sustained with leave to amend. Plaintiffs failed to amend within the time allowed by the court and the action was dismissed as to those defendants. (Code Civ.Proc. § 581, subd. 3.) Plaintiffs appeal from the separate judgments of dismissal.

The Pleadings

(1) The Complaint. The complaint alleges that Craig was a licensed general contractor; that during the period January 1, 1948 to June 30, 1948, Craig and others were engaged as general contractors in planning, designing, grading, cutting, filling, compacting and developing a lot located at 2601 Montrose Place, Santa Barbara County, and in constructing a house thereon; that Santa Barbara Savings and Loan Association (hereafter referred to as Santa Barbara) was the purchase and construction money lender with respect to said lot and four other lots; that the five lots were purchased at the same time by the same person (unidentified), each for the purpose of development and resale; that Santa Barbara financed the construction of the house at 2601 Montrose Place and in connection therewith 'approved the plans and specifications and construction methods used and supervised and inspected and approved the finished structure,' and in addition recorded the notice of completion on June 29, 1948; that both defendants knew at the time 'that said property contained adobe, or expansive soil, requiring special structural safeguards which were not included in this house and knew that said property (and house) would thereafter be bought, owned and occupied as a residence by persons other than the then owner or owners of said lot.'

The complaint further alleges that Craig negligently prepared the building site and negligently constructed the house; that Santa Barbara 'negligently supervised, inspected, financed and approved said work'; that the negligent acts consisted of locating the house on unsteady ground, the installation of septic tanks too near the house, and the laying of water, sewer and leach lines upon unstable footings and with improper closures without compensating safeguards; that defendants knew that, due to the expansion, contraction and movement of the adobe soil, the house would be damaged as a proximate result of their negligence; that defendants knew that during construction of the house, the soil caused some damage to the house, and that instead of correcting the fault, defendants made only superficial repairs; that on information and belief plaintiffs allege that 'some or all of the persons who owned this property before plaintiffs bought it knew (of the foregoing defects).'

Plaintiffs allege that they bought the house on June 1, 1966 from Leona Cornwall, a defendant but not a party to this appeal; that at the time of purchase plaintiffs were unaware of the defects and there was nothing apparent that would put them on notice of any defective condition; that commencing in August 1966, as a direct and proximate result of the negligence of Craig and Santa Barbara, the soil caused damage to the house to the extent that it is 'gradually becoming dangerous and unsuitable for human habitation'; that on information and belief plaintiffs allege that 'the cracks in said structure * * * which started in about August 1966, are not cracks that had occurred at any time before plaintiffs bought this property. * * *' Plaintiffs seek as damages their purchase price, the cost of stopgap repairs, and moving and demolition expense when the house becomes uninhabitable.

(2) The Demurrers. Craig's demurrer was sustained on the grounds that the complaint failed to state a cause of action in that (1) it failed to allege that Craig was a developer who held out the completed building for sale to the public generally, and (2) the action is barred by the statute of limitations. (Code Civ.Proc. § 338, subd. 2, three year limitation for action for injury to real property.) 'Craig's demurrer was also sustained on the additional ground that the purported cause of action was uncertain in that it could not be ascertained therefrom when plaintiffs' predecessors in interest became aware of any defects in the house and lot.

Santa Barbara's demurrer was sustained on the grounds that the complaint failed to state a cause of action in that (1) it failed to allege that Santa Barbara negligently supervised, inspected, financed, and approved the work on the house for sale to the public generally; (2) it failed to allege that Santa Barbara owed a duty to plaintiff; and (3) it failed to allege a joint venture between Craig and Santa Barbara. Santa Barbara's demurrer was also sustained on the additional ground that the purported cause of action was uncertain in that the identity of the person who allegedly purchased the five lots with a loan from Santa Barbara could not be ascertained therefrom. Santa Barbara's demurrer on the ground that the action was barred by the statute of limitations (Code Civ.Proc. § 338, subd. 2) was overruled.

(3) Construction of Pleadings. Since plaintiffs have elected not to amend their complaint, a strict construction of the pleadings is required. For the purpose of this appeal we must assume that they pleaded as strong a case as they can (Sierra Investment Corp. v. County of Sacramento, 252 Cal.App.2d 339, 341, 60 Cal.Rptr. 519) and that the facts alleged in their complaint are true. (Hauger v. Gates, 42 Cal.2d 752, 755, 269 P.2d 609; 2 Witkin, Cal.Procedure (1954) Pleading, § 213.)

The Statute of Limitations

The complaint is based upon negligent conduct in 1948. An action thereon would therefore be barred in 1951 (Code Civ.Proc. § 338, subd. 2) unless plaintiffs can bring themselves within the judicially developed exception that in '(a)ctions based on progressively developing or continuing wrongs where nature, extent or permanence of the harm are difficult to discover' the running of the statute is postponed 'until the time of discovery of (or opportunity to discover) the facts.' (1 Witkin, Cal.Procedure (1954) Actions, § 113.)

This exception was considered recently in OAKES V. MCCARTHY CO., 267 CAL.APP.2D ---,^A 73 Cal.Rptr. 127, a suit for damages allegedly resulting from negligent soil preparation, brought by a home owner against the subdivider-builder, where the court said at pages ^b --- - ---, 73 Cal.Rptr. 142: 'Only when the consequential damage is sufficiently appreciable to a reasonable man may we hold an owner to a duty of expeditiously pursuing his remedies. As to when the consequential damage reached this point was a question of fact. (Citations.) And the ultimate issue as to whether the cause of action for negligence was barred by the statute of limitations became a mixed question of law and fact. (Citations.) It was, therefore, proper to submit the issue to the jury under proposed instructions of law.'

The showing of excuse for late filing must be made in the complaint. The only allegations in the complaint to excuse the delay are set forth in paragraphs V and VI thereof: 'Plaintiffs are further informed and believe and upon that ground allege that the cracks in said structure hereinbelow described, ¹ which started in about August 1966, are not cracks that had occurred at any time before plaintiffs bought this property; also, that some or all of the persons who owned this property before plaintiffs bought it knew, by reason of facts and circumstances not presently known to plaintiffs, that said house and property were defective as hereinabove set forth.' ² (Par. V.) 'At the time of purchase (1966), plaintiffs were unaware of any defects in said house and property; the appearance of said house and property was not such to suggest or put plaintiffs on notice of any defective condition at that time.' (Par. VI.)

Under Oakes, supra, the statute commenced to run when "the consequential damage is sufficiently appreciable to a reasonable man." Plaintiffs allege this was August 1966. Although they allege their predecessors in interest knew of the alleged defects, there is no allegation as to when the prior owners acquired such knowledge, or whether the defects caused any appreciable damage during the 18-year period before plaintiffs purchased the property. Knowledge or notice of defects or damage that came to the attention of their predecessors in interest would be imputed to plaintiffs as of the date thereof. Likewise, if the facts imposed a duty on plaintiffs' predecessors in interest, plaintiffs are chargeable with that duty as of the date the facts became known. If the defects were such that a reasonable man would have taken corrective action, the statute would commence to run. If there was damage as a result of such defects and such damage met the test of Oakes, the statute would commence to run.

'The showing of excuse for late filing must be made in the complaint. Formal averments or general conclusions to the effect that the facts were not discovered until a stated date, and that plaintiff could not reasonably have made an earlier discovery, are useless. The complaint must set forth specifically (1) the facts of the time and manner...