Howe v. Pioneer Mfg. Co.

• Citation: 262 Cal.App.2d 330,68 Cal.Rptr. 617
• Parties: N. H. HOWE, Helen H. Howe, and Lynne Howe, Plaintiffs and Appellants, v. The PIONEER MANUFACTURING COMPANY, a corporation, and D. Robert Bennett, Defendants and Respondents. Civ. 23905.
• Decision Date: 21 May 1968
• Court: California Court of Appeals

Page 617

68 Cal.Rptr. 617

262 Cal.App.2d 330

N. H. HOWE, Helen H. Howe, and Lynne Howe, Plaintiffs and Appellants, v. The PIONEER MANUFACTURING COMPANY, a corporation, and D. Robert Bennett, Defendants and Respondents.

Civ. 23905.

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

May 21, 1968.

Vincent Hallinan, Carl B. Shapiro, Patrick Sarsfield Hallinan, LeRoy Rice, San Francisco, for appellants.

Bronson, Bronson & McKinnon, San Francisco, for respondent Pioneer Mfg. Co.

Ropers, Majeski & Phelps, Redwood City, for respondent Bennett.

SIMS, Associate Justice.

Plaintiffs Howe, his wife and adult daughter, who with a minor son occupied the premises of defendant Bennett, under a lease, have appealed ¹ from summary judgments entered in favor of their landlord and the manufacturer who allegedly fabricated and installed the gas furnace in the premises. Plaintiffs' claims for damages for personal injuries based on defendants' negligence and breach of warranty were dismissed as barred by the statute of limitations. A similar claim asserted on behalf of the minor son was not so dismissed. In addition, the parents' claim to recover rent for alleged constructive eviction was stricken.

The defendants assert that since the alleged negligence or breach of warranty in the manufacture, installation and maintenance of the defective furnace, and the first alleged injuries resulting therefrom, both occurred more than one year prior to the filing of the complaint, the action was barred by the one-year provision of section 340, subdivision 3, of the Code of Civil Procedure. Plaintiffs, in attacking the lower court's judgments, which gave legal sanction to the defendants' views, contend that the correct time for the commencement of the statutory period is when the injured party knows or should have known that he has had a right violated, and not when he merely knows that he is sick or ill; that a factual issue was tendered on the question of whether plaintiffs knew or should have known of the breach of duty by defendants or either of them, and that therefore it was error to grant the summary judgments.

It is concluded, for the reasons set forth below, that plaintiffs are entitled to allege and prove any separate injury suffered within one year prior to the filing of the complaint, and that any defense based on their prior knowledge, or cause for knowledge of the source of their injuries and the wrongful acts or omissions of the defendants which allegedly caused the escape of gas, raises factual questions which are not resolved on the record. It was, therefore, error to grant the summary judgments.

The claim to recover the rent paid as damages for constructive eviction is not seriously pressed, and, as noted below, was properly dismissed because the allegations of the amended complaint demonstrate it has no merit.

The record

On October 5, 1964, plaintiffs N. H. Howe, individually and as guardian adlitem of Lee Martin Howe, a minor, Helen H. Howe, and Lynne Howe, filed their original verified complaint in the Superior Court of San Mateo County, against Pioneer Manufacturing Company, Meyer Brother Construction Company, D. Robert Bennett, M.D., and various fictitious defendants.

The complaint contained six causes of action. The first four set forth the respective claim of each plaintiff and alleged negligence on the part of the defendants. The fifth cause of action was for breach of warranty, express and implied. In these first five causes of action, plaintiffs alleged that on December 7, 1960 they had taken possession of certain premises in San Mateo, California, leased from defendant, Bennett, for residential purposes; that 'thereafter on many diverse occasions and until * * * the 21st day of January, 1964 the plaintiffs * * * would from time to time become violently ill and nauseated, and on some occasions become unconscious and hospitalized'; that these injuries were caused by a gas furnace, negligently manufactured, installed and inspected and tested by defendants; that this furnace was dangerous and defective; and that plaintiffs' illness 'was unexplained and undetermined until * * * the 21st day of January 1964 when it was discovered * * * that as a direct and proximate result of said dangerous and defective furnace, gas had been permeating the said premises and poisoning the said plaintiffs.'

In the final, and sixth cause of action, plaintiffs alleged that they had rented the property for the four-year period from defendant Bennett; that defendant had covenanted and agreed that the premises were fit and proper for use as a residence; and that in fact the defective furnace and the leaking gas, rendered the premises unwholesome and unfit. The parents, therefore, sought repayment of the rent paid to defendants for the period because of a constructive eviction.

The manufacturer's demurrer to the original complaint on the grounds that each cause of action was barred by the statute of limitations was sustained. On October 15, 1965, plaintiffs filed their amended complaint. This complaint differed from the original complaint in that the allegations with reference to the date when plaintiffs claimed to have become ill were changed from 'on many diverse occasions between the 7th day of December 1960 and the 21st day of January 1964' to 'on or about November 27, 1963, and on many diverse occasions thereafter.' However, the cause of action of the minor plaintiff continued to allege the dates contained in the original complaint.

The manufacturer and the landlord each filed a demurrer to the amended complaint which set up the statute of limitations and certain grounds of special demurrer, and each interposed a notice of motion for summary judgment. Each motion recited it was based on the pleadings, records and files, and upon an earlier affidavit filed in connection with a similar motion by the construction company. ² No other affidavit or declaration was filed in support of either motion, but the attorney then representing the plaintiffs filed a counterdeclaration.

The court had before it the pleadings filed by the plaintiff. The defendants were entitled to rely on the uncontradicted allegations of the plaintiffs' complaint insofar as these allegations supported their motions. (Joslin v. Marin Mun. Water Dist. (1967) 67 A.C. 127, 142--144, 60 Cal.Rptr. 377, 429 P.2d 889; Thornton v. Victor Meat Co. (1968) 260 A.C.A. 469, 478--479, 67 Cal.Rptr. 887.) The plaintiffs are bound by the allegations in their original complaint and the court could also properly consider them against the pleaders. (Hardy v. Admiral Oil Co. (1961) 56 Cal.2d 836, 840, 16 Cal.Rptr. 894, 366 P.2d 310; Bustamente v. Haet (1963) 222 Cal.App.2d 413, 415, 35 Cal.Rptr. 176; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 60, 9 Cal.Rptr. 555.)

The defendants allege before this court that 'the original transcripts (of the depositions) were before the court.' This assertion is apparently predicated upon the provisions of subdivision (f) of section 2019 of the Code of Civil Procedure, which direct the officer taking a deposition to file it with the court. There is nothing in the record to indicate that the depositions, which are referred to in the papers filed in connection with the motions, had, in fact, been filed with the court prior to the hearing on the motions. Nor does it appear that the depositions or their contents were offered in evidence at that hearing, except insofar as extracts were contained in the affidavit and in the declaration. A deposition may be used to support or oppose a motion for summary judgment where made part of the record by stipulation. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 469, 33 Cal.Rptr. 661.) Under the circumstances of this case, however, the mere references to 'pleadings, records and files' in the notice of motion, and to 'the papers or records on file or lodged with the Clerk' in the designation of papers or records on appeal, will not suffice to show that the entire depositions were received as exhibits or evidence at the hearing and therefore should be considered on this appeal. Review is limited to those portions of the depositions which were abstracted and placed before the court in the affidavit and in the declaration filed in connection with the motion.

Principles governing summary judgment

In R. D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 57 Cal.Rptr. 841, 425 P.2d 785, the rules governing consideration of a motion for summary judgment were tersely stated as follows: 'In considering a motion for summary judgment the trial court must determine whether the (opponent) has by affidavit presented any facts that give rise to a triable issue. (Citations.) The court does not resolve conflicting factual allegations, for the purpose of the procedure is to discover whether the parties have evidence requiring assessment at a trial. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for trial. (Citations.) Accordingly, the affidavits of the moving party are strictly construed and those of his opponent, even if in conclusionary terms, are liberally construed. Summary judgment is proper only if the affidavits in support of the moving party are sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue.' (66 Cal.2d at pp. 376--377, 57 Cal.Rptr. at p. 844, 425 P.2d p. 787. See also Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785; Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 555--556, 122 P.2d 264; Chavez v. Carter (1967) 256 A.C.A. 652, 655, 64 Cal.Rptr. 350; Perry v. Zabriskie (1966) 246 Cal.App.2d 477, 478, 54 Cal.Rptr. 759; Garlock v. Cole (1962) 199 Cal.App.2d 11, 14--15, 18 Cal.Rptr. 393; Buffalo Arms, Inc. v. Remler Co. (1960) 179 Cal.App.2d 700, 702--703, 4 Cal.Rptr. 103; and Thornton v....