Huang v. Garner

• Citation: 157 Cal.App.3d 404,203 Cal.Rptr. 800
• Court: California Court of Appeals
• Decision Date: 16 August 1984
• Parties: Florence HUANG, et al., Plaintiffs, Respondents and Appellants, v. Keith E. GARNER, et al., Defendants, Appellants and Respondents, Frank X. Connelly, et al., Defendants and Respondents. AO10448.

Page 800

203 Cal.Rptr. 800

157 Cal.App.3d 404

Florence HUANG, et al., Plaintiffs, Respondents and Appellants, v. Keith E. GARNER, et al., Defendants, Appellants and Respondents Frank X. Connelly, et al., Defendants and Respondents.

AO10448.

Court of Appeal, First District, Division 2, California.

Aug. 16, 1984. ^*

Certified for Partial Publication.

Mullins, Wise & Dickman, San Francisco, for plaintiffs, respondents and appellants Huang, et al.

Misuraca, Beyers & Costin, Santa Rosa, for defendants, appellants and respondents Garner, et al.

Royce & Hayden, Mountain View, for defendants and respondents Frank X. Connelly, et al.

KLINE, Presiding Justice.

STATEMENT OF THE CASE ¹

Plaintiffs Florence C. Huang and Sheila C. Huang commenced this action on July 8, 1975, by filing a "Complaint for Rescission and Restitution and Other Relief Re Purchase of Real Property." The complaint stated numerous causes of action based upon the purchase by plaintiffs on August 1, 1974, for the sum of $1,205,000 of the Caroline Apartments which they alleged had been defectively designed and constructed. ² Plaintiffs named as defendants the real estate brokers involved in the transaction, the sellers of the property, various lenders, intermediate owners of the property and the original owner/developer of the property, defendant Keith E. Garner and his wholly owned construction company defendant Encinal Park Inc., as well as the building designer for the project, defendant Stanley Mattson, and the project's civil engineer, defendant Frank Connelly.

Prior to the beginning of trial, plaintiffs settled with all parties except defendants Garner, Encinal Park Inc., Connelly, and Mattson. The case proceeded to trial against these remaining defendants on the theories of strict liability, negligence and implied warranty. Trial commenced on June 3, 1980, and lasted through June 30, 1980, at which time the jury returned a verdict in favor of plaintiffs and against defendants Garner and Encinal Park, Inc., in the amount of $40,300.

Following resting of the plaintiffs' case, defendants made various motions for nonsuit. The court granted a nonsuit on all theories of liability as to defendants Mattson and Connelly. ³ With respect to defendants Garner and Encinal Park, Inc. a partial nonsuit was granted as to negligence and strict liability claims, the court refusing to allow economic damages and limiting recovery to physical damage only. A complete nonsuit was granted as to the breach of warranty theory against Garner and Encinal Park, Inc., the court determining that the absence of privity between plaintiff and defendants precluded such action.

The judgment of nonsuit was entered by the court on July 3, 1980. Notice of entry of judgment was mailed on July 7, 1980.

Following the verdict, defendants Garner and Encinal Park, Inc. moved for judgment notwithstanding the verdict and for a new trial, which motion was denied by order of the court on August 15, 1980. On September 2, 1980, those defendants filed their notice of appeal from the jury verdict. Also on September 2, 1980, plaintiffs filed their notice of appeal from the judgment granting nonsuit to defendants Connelly and Mattson. On September 8, 1980, plaintiffs filed a notice of cross-appeal against that part of the court's ruling denying them economic damages and limiting damages against Garner and Encinal Park, Inc. to purely physical damages.

FACTS ⁴

The subject real property, known as the Caroline Apartments, was constructed in 1965 on land owned by defendant Garner. The project was constructed by his wholly owned construction company, Encinal Park, Inc. Garner hired building designer Mattson to prepare plans for the project. Mattson retained the services of civil engineer Connelly to do the structural engineering. The apartments were constructed in 1965, the final inspection taking place in December 1965. Evidence was presented by the plaintiffs to the effect that the plans and specifications for the building were defective in several ways, including insufficient fire retardation walls, insufficient shear walls and inadequate structure, many of these claimed defects alleged to be in violation of the 1961 Uniform Building Code. Additional evidence indicated that deviation from the building plans during construction also contributed to faulty construction.

Garner continued to own the building until December 1970, at which time he sold it to Robert and Deanna Bartels. Bartels then sold the property to the Piper Banning Group which, in turn, sold to plaintiffs Florence and Sheila Huang in 1974. Upon purchase of the property the Huangs hired engineer Charles Philips to conduct an engineering study to determine what actions would need to be taken prior to converting the apartments to condominiums. Philips discovered extensive structural damage in the garage area of the apartments. This led to the discovery of other purported structural and design defects in the property. During the trial extensive testimony was presented regarding the nature and extent of the damages by plaintiffs' expert witness Philips, who also testified as to the projected costs to repair the building and to bring it up to code requirements.

DISCUSSION

I. Whether it was error for the trial court to grant the motion for nonsuit as to defendants Mattson and Connelly.

Plaintiffs contend that it was error for the trial court to grant a nonsuit as to defendants Mattson and Connelly, arguing that there was competent expert testimony before the trial court as to the issue of standard of care; that the evidence supported a finding of negligence per se due to the several violations of the 1961 Uniform Building Code; that there was sufficient evidence to warrant application of the doctrine of res ipsa loquitur; and that the trial court erred in refusing to allow plaintiffs to reopen their case following its grant of nonsuit. Careful review of the record persuades us that the evidence regarding violations of the Uniform Building Code was sufficient to allow the case to go to the jury upon an instruction as to negligence per se. It was also error for the court to deny plaintiffs' request to reopen their case to provide testimony on the standard of care in the community.

The California Supreme Court has recently reiterated the standards applicable to review of a motion for nonsuit under Code of Civil Procedure section 581c. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 184 Cal.Rptr. 891, 649 P.2d 224.) "A motion for nonsuit is a procedural Plaintiffs argue that there was sufficient competent evidence on the issues of negligence and negligence per se to render erroneous the court's dismissal of the action as to Mattson and Connelly. ⁵

device which allows a defendant to challenge the sufficiency of plaintiff's evidence to submit the case to the jury. [Citation.] Because a grant of the motion serves to take a case from the jury's consideration, courts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant's motion for nonsuit if plaintiff's evidence would support a jury verdict in plaintiff's favor. [Citations.] [p] In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give 'to the plaintiff['s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor ....' (Elmore v. American Motors Corp. [ (1969) ] 70 Cal.2d 578 at p. 583 [75 Cal.Rptr. 652, 451 P.2d 84].)" (Campbell v. General Motors Corp., supra, 32 Cal.3d at pp. 117-118, 184 Cal.Rptr. 891, 649 P.2d 224.)

Initially, we agree with the trial court that as a general proposition proof of professional negligence requires testimony of experts as to the standard of care in the relevant community. (Allied Properties v. John A. Blume & Assoc., supra, at pp. 857-858, 102 Cal.Rptr. 259; Swett v. Gribaldo, Jones & Assoc., supra, at p. 576, 115 Cal.Rptr. 99; see BAJI No. 6.37.) Despite lengthy testimony by plaintiffs' expert Charles Philips regarding the respects in which the design and engineering of the building did not comply with the Uniform Building Code and the asserted "defects" in design and engineering, no testimony was presented as to the standard of care in the relevant community. ⁶ The testimony from defense witness Anderson that failure to include engineering calculations on the plans would be a departure from common practice does not constitute such expert testimony. Nor do we believe that the alleged negligence in the design of the building and the structural engineering calculations were such that they were within the common knowledge of laymen. (Allied Properties v. John A. Blume & Assoc., supra, 25 Cal.App.3d at p. 858, 102 Cal.Rptr. 259.) "The voluminous record indicates that the standard of care and the complex calculations required were exclusively within the knowledge of experts ...." (Ibid.; Lysick v. Walcom (1968) 258 Cal.App.2d 136, 156, 258 Cal.App.2d 136, 65 Cal.Rptr. 406.)

Nevertheless, we believe that the trial court erred in granting the nonsuit as to plaintiffs' claim of negligence against Connelly and Mattson. Plaintiffs presented evidence that the building design of Mattson and the structural engineering of Connelly did not satisfy the requirements of the Uniform Business Code. Under Evidence Code section 669 proof of a statutory violation entitles the plaintiff to an instruction on the presumption of negligence In the instant case the court must have determined that the Uniform Building Code was intended to protect the class of persons of which plaintiffs were members and that it was designed to prevent the...