Lorenzen-Hughes v. MacElhenny, Levy & Co.

• Decision Date: 17 May 1994
• Docket Number: P,LORENZEN-HUGHE,No. B069936,B069936
• Citation: 24 Cal.App.4th 1684,30 Cal.Rptr.2d 210
• Court: California Court of Appeals Court of Appeals
• Parties: Lindalaintiff and Appellant, v. MacELHENNY, LEVY & CO., Defendant and Respondent. Civ.

Page 210

30 Cal.Rptr.2d 210

24 Cal.App.4th 1684

Linda LORENZEN-HUGHES, Plaintiff and Appellant, v. MacELHENNY, LEVY & CO., Defendant and Respondent.

Civ. No. B069936.

Court of Appeal, Second District, Division 6, California.

May 17, 1994.

As Modified on Denial of Rehearing June 14, 1994.

Diane M. Matsinger and Kristofer Kallman, Santa Barbara, for plaintiff and appellant.

Borton, Petrini & Conron and Barton C. Merrill, Bakersfield, for defendant and respondent.

GILBERT, Associate Justice.

Here we hold that the transferor of an interest in real property is not liable for latent defects in the property which the transferor did not know about, and had no reason to believe existed.

Plaintiff Linda Lorenzen-Hughes appeals from the summary judgment granted defendant-respondent, MacElhenny, Levy & Co. We affirm.

FACTS

On April 19, 1990, Lorenzen-Hughes suffered injuries at work when a cabinet fell from the wall near her desk. The cabinet had been installed in 1979 by a contractor who did a minor remodeling project for the previous tenant, MacElhenny. MacElhenny transferred its assets and lease to Lorenzen-Hughes' current employer on January 16, 1981. Since that date MacElhenny has not had any possessory interest or control over the premises.

Lorenzen-Hughes filed an unverified complaint against MacElhenny and the contractor for negligence and premises liability, alleging that the cabinet "suddenly and unexpectedly came loose...." ¹

MacElhenny moved for summary judgment. Citing Preston v. Goldman (1986) 42 Cal.3d 108, 227 Cal.Rptr. 817, 720 P.2d 476, it asserted that it could not be held liable because it relinquished possession and control Lorenzen-Hughes opposed the motion by contending that the Preston case is inapplicable because it concerned injuries resulting from a patent defect created by a "do-it-yourself" homeowner. Here the defect was latent, not patent.

of the premises over nine years before this accident occurred.

The trial court found the facts to be undisputed because Lorenzen-Hughes filed no statement refuting MacElhenny's statement of undisputed facts. It granted summary judgment pursuant to the Preston case, stating that the Preston court made no distinction between patent and latent defects of property. This appeal ensued.

DISCUSSION

"Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no triable issue of fact and that the moving party is entitled to a judgment as a matter of law. [Citations.] The court must strictly construe the affidavits of the moving party and liberally construe those of his opponent. [Citation.]" (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.) "Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

Lorenzen-Hughes argues that the trial court improvidently granted summary judgment because there are triable issues of material fact regarding whether MacElhenny may be held liable for latent defects in the construction or mounting of the cabinet, under Preston v. Goldman, supra, 42 Cal.3d 108, 227 Cal.Rptr. 817, 720 P.2d 476.

In the Preston case, defendants built a pond in their backyard. After they sold the property, a small child visiting tenants of the new owner fell into the pool and became severely injured. A jury rendered verdicts in favor of defendants after being instructed that a seller of property is not subject to liability for injuries caused by a dangerous condition on the land, subject to certain exceptions. (Id., 42 Cal.3d at p. 111, 227 Cal.Rptr. 817, 720 P.2d 476.)

The Court of Appeal reversed, holding that a vendor of land who negligently creates an unreasonably dangerous condition on his land is liable because he created the condition, even though he no longer owns the land. (Id. at p. 112, 227 Cal.Rptr. 817, 720 P.2d 476.)

Our Supreme Court reversed the Court of Appeal and framed the issue by asking a question similar to the one before us today: "Should former owners, allegedly negligent in constructing an improvement on their property, be subject to liability for injuries sustained on that property long after they have relinquished all ownership and control?" (Id. at p. 110, 227 Cal.Rptr. 817, 720 P.2d 476.)

The Preston court surveyed the disparate approaches courts have taken on this issue over the years, and summed up those approaches as follows: 1. the buyer must beware (caveat emptor) because a predecessor owner is not liable after transfer; 2. caveat emptor applies except where the vendor of land knows or should have known of hidden defects which present an unreasonable risk of harm that the vendee would not discover; and 3. liability should depend upon the likelihood of harm instead of on the condition of title to the land. (Id. at p. 115, 227 Cal.Rptr. 817, 720 P.2d 476.)

Almost all states follow the first approach, caveat emptor. "[T]he general rule of nonliability has been applied to conditions on the land created by the predecessor landowner, with the landowner's role as 'creator' taking a secondary place." (Preston v. Goldman, supra, 42 Cal.3d at p. 117, 227 Cal.Rptr. 817, 720 P.2d 476; fn. omitted.) An exception to this rule exists "where the prior landowner is the contractor or builder of the entire property. Generally, different rules have applied in this context to professional developer/owners. [Citations.]" (Id. at p. 117, fn. 3, 227 Cal.Rptr. 817, 720 P.2d 476; emphasis added.) This exception does not apply to the instant case. The moving and responsive papers establish that MacElhenny did not develop the entire subject property it had a cabinet installed in a minor remodeling job.

Our high court emphasized that "we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land," instead of whether one's negligence was active or passive. (Id. at p. 119, 227 Cal.Rptr. 817, 720 P.2d 476; citing Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121.)

The Supreme Court in Preston quoted the following language in Copfer v. Golden (1955) 135 Cal.App.2d 623, 288 P.2d 90, " ' " 'The wrongdoer has not at the time [of the injury] any control over the subject-matter, or any power or right to remedy the evil. The damage in all such cases arises in fact from the continued use of the defective subject, and with that the builder, who has parted with the title, possession, and control of it, has not and cannot have anything to do.' " ' [Citations.] Thus, the 'active or passive' role of the former owners vis-a-vis creation of the injury-causing condition was irrelevant to the question of liability. [Citation.]" (Preston v. Goldman, supra, 42 Cal.3d at p. 114, 227 Cal.Rptr. 817, 720 P.2d 476; emphasis added.)

The Preston court held that " '[a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. [Citations.]' " (Id. at p. 119, 227 Cal.Rptr. 817, 720 P.2d 476.) According to the Preston court, "ownership and control [is] a fundamental requirement for ascribing liability." (Ibid.; emphasis added.) Preston therefore views possession and control as an...