Lee v. Takao Bldg. Development Co.

• Decision Date: 12 December 1985
• Docket Number: No. B012845,B012845
• Citation: 175 Cal.App.3d 565,220 Cal.Rptr. 782
• Court: California Court of Appeals Court of Appeals
• Parties: Vin Jang T. LEE et al., Plaintiffs and Appellants, v. TAKAO BUILDING DEVELOPMENT CO., LTD., Defendant and Respondent. Civ.

Page 782

220 Cal.Rptr. 782

175 Cal.App.3d 565

Vin Jang T. LEE et al., Plaintiffs and Appellants, v. TAKAO BUILDING DEVELOPMENT CO., LTD., Defendant and Respondent.

Civ. No. B012845.

Court of Appeal, Second District, Division 5, California.

Dec. 12, 1985.

Review Denied Feb. 27, 1986.

Floyd H. Norris, Los Angeles, for plaintiffs and appellants.

James S. Armstrong, Jr., and Arlene A. Colman, Los Angeles, for defendant and respondent.

ASHBY, Associate Justice.

Appellants Vin Jang T. Lee and Yeu Tsu N. Lee contest the award of a summary judgment in favor of respondent Takao Building Development Company Limited (Takao). Appellants sued Takao and others in negligence and trespass for damages incurred due to the loss of lateral support of appellants' building. The trial court found that appellants' action against Takao had no merit and that there were no triable issues of fact.

Summary judgment may properly be granted only where no triable issue of material fact exists and where the moving party's affidavits set forth sufficient facts to sustain a judgment in its favor. (Code Civ.Proc., § 437c; Bank of Beverly Hills v. Catain (1982) 128 Cal.App.3d 28, 33, 180 Cal.Rptr. 67). On appeal from a summary judgment in favor of defendant, it is only necessary to determine whether there is any possibility that plaintiffs may be able to establish their case. (Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 850, 200 Cal.Rptr. 674.)

The facts of this case are not in dispute. Appellants' property is adjacent to a lot presently owned by Takao. Takao purchased the property in April 1982. At the time of the purchase, the property consisted of a concrete basement floor within an area of approximately 5,800 square feet. Prior to April 1982 a building stood on the lot. The building was seriously damaged by fire in October 1981 and was ordered demolished by the Los Angeles Building and Safety Department. G.G. Bauman, a remaining defendant in the underlying suit, ¹ contracted with another defendant, Quality Wrecking, and the building was demolished between November 4, 1981, and February 9, 1982. Takao became the owner of the property nearly two months after the completion of the demolition. In May 1982 appellants were advised that the demolition of the building removed the lateral support of the soil supporting the foundations of their building. Eventually, upon demand of the Building and Safety Department, appellants had the foundation reinforced at a cost of $87,000. They brought the underlying suit in this case to recover the expenditure and other consequential losses.

Appellants contend that Takao's liability in this case stems from the principle stated in the Restatement Second of Torts section 366. ² Under that section, one who is in possession of land upon which there is a structure or other artificial condition which is unreasonably dangerous to persons or property outside the land can be subject to liability for harm caused by the conditions. Relying on this principle, appellants argue that Takao's failure to take steps to repair the dangerous condition caused by the removal of the lateral support was an act of negligence. Appellants have not established that a structure or other artificial condition which was unreasonably dangerous to appellants existed on Takao's property during the time of its possession of the property. Even if such condition existed on Takao's property, that fact could not establish Takao's liability in this case. Appellants are suing for damage caused by the negligent removal of the foundation wall of the demolished building, which allegedly caused appellants' building to lose its lateral support. Thus, section 366 of the Restatement has no application in this case. ³ Likewise the cases cited by appellants which apply the principle stated in section 366 are not controlling. What must be determined here is whether a subsequent owner is liable for the loss of an adjoining owner's lateral support when the loss was caused by the acts of a previous owner.

One who negligently withdraws lateral support of another's land or the buildings on that land is subject to liability for harm resulting to the land or the buildings. (Rest.2d Torts, § 819; see Holtz v. Superior Court (1970) 3 Cal.3d 296, 301, fn. 3, 90 Cal.Rptr. 345, 475 P.2d 441.) Whoever negligently deprives a landowner of the support for his land performs an unlawful act, and " '[t]he general rule is that all who unite in such acts are wrongdoers, and are responsible in damages....' " (Peak v. Richmond Elementary Sch. Dist. (1958) 161 Cal.App.2d 366, 368-369, 326 P.2d 860, citing Green v. Berge (1894) 105 Cal. 52, 58, 38 P. 539.) Conversely, a landowner who took title and possession after the occurrence of the act causing the removal of the lateral support, and uncontrovertedly did not participate in the act that resulted in the removal of the support, is not responsible in damages.

The parties cite no California case deciding the issue of whether a subsequent purchaser of land is liable for the removal of lateral support caused by the previous owner, and we find no California case so deciding. The court in Sager v. O'Connell (1944) 67 Cal.App.2d 27, 33, 153 P.2d 569, in determining the liability for the decay of a bulkhead erected to provide lateral support, stated that to recover a judgment against an owner it is essential to show that he or she is guilty of some act of negligence in connection with the lateral support of the adjoining property. Other jurisdictions are in accord in finding liability only where the party has acted to remove the support. The court in Fir. Nat. Bank & Trust Co. v. Univ. Mort. & R. Trust (1976) 38 Ill.App.3d 345, 347 N.E.2d...