Conolley v. Bull

• Decision Date: 24 January 1968
• Citation: 65 Cal.Rptr. 689,258 Cal.App.2d 183
• Parties: Edward S. CONOLLEY and Mildred N. Conolley, Plaintiffs and Respondents, v. Harry Max BULL, Defendant and Appellant. Civ. 23740.
• Court: California Court of Appeals Court of Appeals

Page 689

65 Cal.Rptr. 689

258 Cal.App.2d 183

Edward S. CONOLLEY and Mildred N. Conolley, Plaintiffs and Respondents, v. Harry Max BULL, Defendant and Appellant.

Civ. 23740.

Court of Appeal, First District, Division 1, California.

Jan. 24, 1968.

Rehearing Denied Feb. 16, 1968.

Hearing Denied March 20, 1968.

Douglas G. Cowan, Cowan & Stone, Walnut Creek, for appellant.

Dodge, Reyes, Brorby, Kahn & Driscoll, Julius Kahn, III, Oakland, for respondents.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment entered after a trial by the court awarding plaintiffs $9,925.46 plus costs ¹ in an action for rescission of a land sale contract, praying for damages in the alternative. The award of damages was predicated upon the theories of negligence and strict liability. We have concluded that the judgment is supportable on the former but not on the latter theory.

Defendant makes the following contentions: (1) That witnesses called by plaintiffs were not qualified to testify as expert witnesses; (2) that the court should not have permitted the complaint to be amended to conform to proof of September 1965, more than three years after the occurrence of the damage to plaintiffs' property in 1962, and hence beyond the applicable period of limitations for an action for injury to real property (Code Civ.Proc. § 338, subd. (2)); (3) that his motion under Code of Civil Procedure, section 631.8 should have been granted because the trial court made findings that indicated insufficient evidence to support the theories of the original complaint; and (4) that the evidence, the findings of fact and conclusions of law are insufficient to support the judgment on any theory.

The Record

Defendant, a real estate speculator dealing mostly in residential property, obtained a building permit to build a home on his lot at 789 Reliez Station Road, Lafayette, Contra Costa County. The lot was on a slope. Brock Purcell Company contracted with defendant to build the house and did all of the excavation, put in the foundation, and did most of the construction. Defendant testified that he was not present when the foundation was put in but he knew that the piers were about 12 feet deep. Defendant did not arrange for any soil tests on the property.

When construction was about to begin in July of 1960, Joseph E. Brooks, the owner of an adjacent lot, went to the construction site and asked defendant if he knew that there was a slide condition in the area. According to Brooks, defendant replied, 'Don't worry about it. We are going to take care of all that.' Brooks spoke to defendant because a landslide had occurred on Brooks' property in 1958. After speaking to defendant, Brooks wrote him a letter on July 11, 1960, stating that there was a spring located on the property under construction and that 'In the event your building on this property creates any problems for me, I will look to you for restitution.' Brooks enclosed a letter written to him in 1958, when the slide on his property occurred, from the Contra Costa County Flood Control & Water Conservation District. This letter stated that a county supervisor had inspected the drainage situation in the vicinity of Brooks' property, that the underground movement of subsurface water created a spring in the area and caused slides to occur, and that Brooks should engage a commercial soil testing laboratory to recommend a feasible drainage method.

Defendant testified that he knew there had been a slide on property located three to four hundred feet away from 789 Reliez Station Road, but did not remember any conversation with Brooks nor any correspondence with him.

The subject property was listed for sale and sold through Barcelon Realty. Plaintiff Edward S. Conolley, a real estate salesman, bought the property after giving it a brief examination to ascertain its suitability to house his family. He was aware that there was a culvert emptying onto what appeared to be a part of the lot, and he told Barcelon that he was concerned about the culvert and thought maybe there should have been a drain ditch. Accordingly, the agreement of sale was made conditional on Conolley's subsequent approval of the drainage conditions. However, after reexamining the house and being advised by Barcelon that the foundation was 'built like the Rock of Gibraltar,' Conolley deleted this condition from the agreement.

Plaintiffs took possession of the house in October or November of 1961, although the escrow did not close until February 16, 1962. On the night of February 16, 1962, while it was raining, a landslide occurred on plaintiffs' property. Water got under the house and it looked as if plaintiffs might lose the house. Barcelon helped them dig trenches to divert the water. On February 19, 1962, plaintiffs served a notice of rescission on defendant. ²

Plaintiffs called Hugh M. O'Neil, a registered civil and structual engineer licensed by the State of California, a graduate of Cal-Tech, who had practiced as a civil and structural engineer and consultant for over 25 years, as an expert witness. O'Neil maintains a soils mechanics department and has published articles on the subject. He made a study of the slide that occurred on plaintiffs' property and concluded that its primary cause was water moving into the soil and creating an unstable condition. Coincident with the slide, the water supply pipe burst and may have contributed to the slide action. O'Neil found two and one-half feet of fill on the land and stated that such slides are especially likely to happen if there is fill on the land, since its weight disturbs the equilibrium of the soil. His testimony indicated that the foundation of plaintiffs' house was unusually deep and strong and that the slide was not caused by any defects in construction of the foundation. He also stated that drainage galleries may prevent such slides as occurred here.

O'Neil testified further that he was famliar with the standards for drilling foundations in Contra Costa County and with the practices of contractors and developers in Contra Costa County during the period 1960--1961 and that the foundation piers used at 789 Reliez Station Road were so deep as to indicate to an experienced contractor or developer that an unusual soil condition existed on the property. He also testified that the average developer in Contra Costa County, upon becoming aware of a slide on property in the vicinity of an area he intends to develop, would call in a soil engineer if he were a competent and experienced developer. O'Neil did not know, however, what percentage of developers in Contra Costa County would call in soil engineers under those conditions.

Paul C. Hiatt, a licensed real estate broker and developer familiar with the standards of developers in Contra Costa County, who was called as a witness by plaintiffs, stated that a soil test probably would cost from $75 to $100 for an individual house and that one should be ordered if there is any question at all. He said one should always have a soil test when building on a hill if someone gives you any kind of a warning about it. He further stated that if a developer received the letters sent by Brooks to defendant and were orally advised that there was a spring and a slide in the area, he should check with the Flood Control District, hire an engineer, and get a soil test. He testified that he had had no personal experience with hillslide building and had never built in central Contra Costa County (where the subject property is located). He had had soil tests on commercial, but not on residential, property.

David Mackay, Jr., a developer in the area called as a witness by defendant, testified on cross-examination that if he were advised that there were springs and there had been a slide on a lot and a neighbor sent him letters like those sent by Brooks to defendant, he would re-inspect the lot and might possibly have engineering work done. If he as a developer had knowledge that an earth slide had occurred and that there might be underground water in the area, he would probably bring in a soils engineer.

A city building inspector testified that he investigated a complaint concerning the construction of the house at 789 Reliez Station Road and that there were then no visually observable drainage problems. He further testified that there had been drainage problems in other areas of that tract.

Qualifications of Expert Witnesses

Defendant contends that neither O'Neil nor Hiatt were qualified to testify to the standards of developers in Contra Costa County. This contention is without merit in the light of the rule applicable to the admissibility of the opinions of experts. 'The opinions of experts are admitted in matters which are not within the common experience of men so that the special knowledge of a person of skill and experience in the particular field may enable him to form an opinion, where men of common experience would not be able to do so. (Citations)' (Manney v. Housing Authority, 79 Cal.App.2d 453, 459, 180 P.2d 69, Code Civ.Proc. § 1870, subd. 9.) ³ Accordingly, whether a witness is qualified to testify as an expert is within the sound discretion of the trial court, and its ruling will not be disturbed in the absence of a manifest showing of abuse of discretion. (People v. Haeussler, 41 Cal.2d 252, 261, 260 P.2d 8; Darling v. Pacific Electric Ry. Co., 197 Cal. 702, 714, 242 P. 703; Mirich v. Balsinger, 53 Cal.App.2d 103, 114, 127 P.2d 639.)

O'Neil, as a practicing civil engineer familiar with soil drainage problems in Contra Costa County and as a consultant in that county for over 25 years, was competent to testify to the probable cause of the slide. In view of these qualifications the trial court was entitled to believe his testimony that he was familiar with the standards of developers in Contra Costa County. The mere fact that O'Neil did not know what percentage of developers might call in a soil engineer did not...