Kent v. Bartlett

• Citation: 122 Cal.Rptr. 615,49 Cal.App.3d 724
• Court: California Court of Appeals
• Decision Date: 03 July 1975
• Parties: Robert W. KENT and Theresa M. Kent, Plaintiffs and Appellants, v. William A. BARTLETT, Defendant and Respondent. Civ. 34141.

Page 615

122 Cal.Rptr. 615

49 Cal.App.3d 724

Robert W. KENT and Theresa M. Kent, Plaintiffs and Appellants, v. William A. BARTLETT, Defendant and Respondent.

Civ. 34141.

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

July 3, 1975.

George F. Jansen, San Francisco, for plaintiffs-appellants.

Robert O. Wilhelm, Redwood City, for defendant-respondent.

ROUSE, Associate Justice.

Plaintiffs Robert and Theresa Kent brought this action against defendant William Bartlett to recover damages allegedly occasioned by his negligence in making a survey of certain real property.

Defendant, by way of answer, denied the charging allegations of the complaint and asserted that plaintiffs had failed to state a cause of action because it was not alleged that there was any privity of contract between plaintiffs and defendant. Defendant also raised the affirmative defenses of contributory negligence and assumption of the risk.

When the case came on for trial, defendant moved to exclude all evidence pertaining to the terms of the contract under which defendant has made the survey. Defendant took the position that plaintiffs had pleaded a cause of action based solely upon negligence and that since there was no privity of contract between plaintiffs and defendant, plaintiffs were not entitled to prove their case by showing that defendant had performed the survey in such a manner as to breach a contract with the party who had hired him to make the survey. Defendant argued that evidence of the terms of said contract was totally irrelevant and that plaintiffs were required to prove their case by establishing defendant's negligence independent of the terms of any contract which existed between defendant and a third party.

The trial court reserved its ruling on the motion, and the parties proceeded to select a jury. Plaintiffs' counsel then gave an opening statement in which he indicated that he intended to prove the following facts: In 1970, an individual named Wisehart hired defendant Bartlett to make a survey of certain real property and divide the property into two separate parcels. A house, retaining wall and driveway had already been constructed on the northerly portion of the property. When Mr. Wisehart hired defendant to make the survey, he told him that he wanted the property divided in such a manner that the house, retaining wall and driveway would be contained on one parcel (Parcel 12--A) and the other parcel (Parcel 12--B) would consist of a vacant lot. Mr. Wisehart died while the survey was being made. Defendant completed the survey for the executor of Wisehart's estate, and defendant filed and recorded a survey map dividing the property into two parcels. However, defendant had made an error in his survey and had not divided the property so that all the improvements were located on Parcel 12--A. Defendant's division of the property resulted in part of the retaining wall and driveway being located on Parcel 12--B.

In January 1971, plaintiffs purchased the entire piece of property from Wisehart's estate. Plaintiffs, who had been informed that the property had been divided into two separate parcels, moved into the house located on Parcel 12--A. In October 1971, plaintiffs entered into a contract to sell Parcel 12--A to an individual named Hunter, and in November 1971, plaintiffs entered into a contract to sell Parcel 12--B to an individual named Hayashi.

After the two contracts of sale had been executed, Hayashi's contractor began preparations for the construction of a house which had been designed for location on Parcel 12--B. He discovered that there had been an error in the survey and that due to the encroachment of the retaining wall and driveway on Hayashi's parcel, it was not possible to construct the house that had been designed for Parcel 12--B.

Plaintiffs then entered into negotiations with Hayashi in an attempt to solve the problem. Plaintiffs explored the possibility of moving the encroaching portion of the retaining wall and driveway, but it developed that this solution would entail an expenditure of $10,000. It was ultimately agreed by Hayashi that if plaintiffs would pay him $5,000, he would allow the retaining wall and driveway to remain where they were and would grant Hunter an easement covering the encroachment. Plaintiffs paid the $5,000 to Hayashi, paid the attorney's fees necessary for the creation of the easement and also paid for the removal of a fence which encroached on the Hayashi property. In addition, plaintiff Robert Kent lost considerable time from his employment while negotiating this agreement with Hayashi. Plaintiffs sought to recover all these items as damages proximately caused by defendant Bartlett's negligent survey.

At the conclusion of plaintiffs' opening statement, defendant moved for judgment, contending that proof of all the facts stated by plaintiffs' counsel still would not create a cause of action against defendant. The matter was argued outside the presence of the jury, and the trial court initially ruled that it would grant defendant's prior motion to exclude all evidence of the terms of the contract between defendant Bartlett and Mr. Wisehart, but that it would not grant judgment for defendant based upon plaintiffs' opening statement. Further argument then took place, and it became apparent that plaintiffs' entire case rested upon defendant's negligent failure to perform the survey in accordance with the terms of his contract with Wisehart. Defendant then renewed his motion for judgment based upon plaintiffs' opening statement and the trial court granted the motion, expressing the view that since there was no privity of contract between plaintiffs and defendant, defendant's negligent performance of his contract with Wisehart did not render him liable to plaintiffs.

Judgment was entered that plaintiffs take nothing by their complaint. Plaintiffs filed notice of appeal therefrom.

The leading California case dealing with the right of a plaintiff to recover damages for the defendant's negligent performance of a contract with a third party is Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16. In that case, the plaintiff's brother had employed the defendant to prepare a will bequeathing all his property to the plaintiff. The defendant negligently failed to have the will properly attested, and after the death of the brother, the will was declared invalid and denied probate. The trial court awarded the plaintiff damages against the defendant, and our Supreme Court affirmed the judgment, holding that the absence of privity of contract between the plaintiff and the defendant did not defeat the action. The court expressly disapproved Buckley v. Gray (1895) 110 Cal. 339, 42 P. 900 and Mickel v. Murphy (1957) 147 Cal.App.2d 718, 305 P.2d 993, insofar as those cases held that the absence of privity barred an action for the negligent performance of a contract.

The court in the Biakanja case laid down the following guidelines to be followed in future cases: 'The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.' (49 Cal.2d p. 650, 320 P.2d p. 19.)

Neither of the parties has cited any California case directly holding that the negligent performance of a contract to make a survey does or does not create a cause of action in favor of a third party under the rule laid down in the Biakanja ca...