Del Pino v. Gualtieri

• Decision Date: 24 September 1968
• Citation: 71 Cal.Rptr. 716,265 Cal.App.2d 912
• Court: California Court of Appeals Court of Appeals
• Parties: Rose M. DEL PINO, Plaintiff and Appellant, v. Anthony C. GUALTIERI, Defendant and Respondent. Civ. 24034.

Page 716

71 Cal.Rptr. 716

265 Cal.App.2d 912

Rose M. DEL PINO, Plaintiff and Appellant, v. Anthony C. GUALTIERI, Defendant and Respondent.

Civ. 24034.

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

Sept. 24, 1968.

Di Leonardo, Blake, Kelly, Aguilar & Leal, by Robert L. Blake, Sunnyvale, for appellant.

Campbell, Custer, Warburton, & Britton, by Alfred B. Britton, Jr., San Jose, for respondent.

TAYLOR, Associate Justice.

This is an appeal from a judgment of nonsuit entered in appellant's action for damages for personal injuries sustained in a fall on the basement stairs of a one-family home she had leased from respondent. Appellant contends that she was entitled to amend her complaint to state an additional cause of action for breach of warranty of personalty, and that she had presented sufficient evidence of respondent's violation of the State Housing Law and county building ordinances to let the matter of liability go to the jury.

Viewing the evidence in the light most favorable to appellant, as we must on appeal from a nonsuit (Aguirre v. City of Los Angeles, 46 Cal.2d 841, 844, 299 P.2d 862), the following facts appear. Respondent was the owner of a single family home at 14 Cecil Avenue in the City of San Jose in the unincorporated territory of the County of Santa Clara. A few days after Christmas 1962, he rented the home to appellant on a month-to-month basis.

The home consisted of three bedrooms, living room, dining room, kitchen, bath and a half, service porch and basement. The service porch behind the kitchen was connected by a Dutch door to a landing from which an interior stairway led 9 steps down to the basement. The landing was about 22 26 inches square and was covered by a piece of linoleum which was slightly smaller than the landing. The linoleum was not attached to the landing in any way and with one finger could be moved about 1/2 inch. The basement stairs were 9 1/2 inches deep and 30 inches wide. For the first 3 or 4 steps of the steep stairway, there was no railing, just a vertical wall on each side of the stairs. The handrail started about half way down to the bottom.

On March 11, 1963, after appellant had lived in the house for about 2 1/2 months, she went to the basement stairs to get her cat. She stepped onto the landing and then as she turned to go down the basement stairs, slipped and fell. The piece of linoleum from the landing went down the stairs with her and was found at the bottom of the stairs.

Prior to the accident, appellant had used the stairs at least 2 or 3 times. On one occasion, about one month before the accident, she went down the stairs with respondent, whom she had asked to come about some water in the basement. At this time, she told him that the stairs were bad. Before the accident, appellant had never noticed the loose linoleum and thus had never complained to respondent about this matter or any other specific details concerning the basement stairs. Other requests that she made to respondent concerning repairs were fulfilled. At the trial, appellant indicated that the steepness of the stairs had no relation to her fall which was caused by the loose linoleum and the absence of a handrail at the top of the stairs.

In March 1964, appellant filed her first amended complaint in this action, alleging that respondent had so carelessly and negligently owned and maintained the stairs and landing that they were dangerous and contained a defective condition that should have been known to respondent.

The pretrial conference order filed October 1, 1965, indicated that the issues were respondent's negligent maintenance and failure to repair the basement stairs, as well as the size of the landing, steepness of the stairs and absence of a handrail, in violation of the Uniform Building Code, recently adopted by the county. Three days before trial, the pretrial conference order was amended to reflect appellant's additional contention of liability based on respondent's alleged breach of an implied warranty of fitness for a particular use.

On the first day of trial, the trial court denied appellant's motion to further amend the pretrial conference order to include a cause of action for breach of implied warranty of fitness of personalty (i.e., the linoleum). Appellant first contends that the denial of her motion on grounds of the statute of limitations was error. Citing Landis v. Superior Court, 232 Cal.App.2d 548, 42 Cal.Rptr. 893, she argues that the cause of action for breach of warranty of personalty arose out of the same general set of facts, did not change the basic cause of action and merely added an additional theory of recovery that related back to the original complaint.

We agree with this contention but it does not lead to the result urged by appellant. The record indicates that while the statute of limitations was one of the grounds for the trial court's ruling, it was not the only ground. The cause of action for breach of implied warranty of fitness of personalty could relate only to the unattached piece of linoleum on the landing above the basement stairs. Appellant neither alleged nor proved any particular defect or condition in the linoleum that could have been the proximate cause of the accident. Rather, her entire theory was that she slipped because the linoleum was not properly attached, which is a matter of negligent maintenance and thus identical to her first cause of action. Furthermore, as the landing and basement stairs are clearly a part of the real property, the purported cause of action for breach of an implied warranty of personalty finds no support of any kind in the allegations or the evidence. Accordingly, appellant's amendment was properly denied for failure to state a cause of action for breach of implied warranty of personalty.

We also note that rules 215 and 216 of the California Rules of Court indicate that an amendment for correction of the pretrial order should be filed within 5 days after service thereof. Even assuming that appellant had set forth a valid cause of action, the allowance or disallowance of amendments to the pleadings during the course of trial rests largely in the discretion of the trial court and its rulings will not be disturbed unless an abuse of discretion clearly appears. The trial court has wide discretion in such matters where the purpose of the amendment is to raise new issues after the pleadings have been settled and the trial has commenced (Feykert v. Hardy, 213 Cal.App.2d 67, 28 Cal.Rptr. 510).

The same principles that govern the exercise of a court's discretion in allowing amendments to the pleadings under section 473 of the Code of Civil Procedure apply with respect to motions to modify or amend pretrial orders (Universal Underwriters Ins. Co. v. Superior Court, 250 Cal.App.2d 722, 727, 58 Cal.Rptr. 870). In the instant case, no abuse of discretion appears either in the denial of appellant's belated motion to amend the pretrial order or her motion to amend the pleadings, as no facts relating to an implied warranty of personalty were alleged.

Appellant next argues that the trial court erred in granting the nonsuit as the small size of the landing and absence of a full railing, in violation of the applicable State Housing Law and county building ordinances established an independent cause of action based on respondent's violation of statutory duties. As more fully discussed below, we think the trial court correctly concluded that, as a matter of law, neither the State Housing Law nor the county building code applied to the basement staircase here involved.

So far as here pertinent, the State Housing Law, sections 17910 etc. of the Health and Safety Code, enacted in 1961 (Stats.1961, ch. 1844) ¹ provided for the creation of a Division of Housing to adopt the rules and regulations for the protection of the public health, safety and general welfare of the occupant and public governing all aspects of the construction and maintenance of a variety of structures, including dwellings. ² (Health & Saf.Code, § 17921, as added by Stats.1961, ch. 1844, § 8).

The State Housing Law and the regulations were expressly made applicable 'in all parts of the state' (Health & Saf.Code, § 17950). (Cal.Adm.Code, Title 8, art. 7, § 16650.) ³ In issuing its regulations, the administrative agency issued two kinds of regulations: those applicable only to buildings and structures as to which construction commenced after the effective date of the regulation and those relating to use, maintenance and change of occupancy which were made retroactive to apply to all structures approved for construction or constructed before or after the effective date of such regulations (see Cal.Adm.Code, Title 8, art. 7, § 16650, Register No. 63, No. 12, 7--13--63). ⁴ In 1965, this administrative classification of regulations was made a part of the State Housing Law by the addition of section 17912, set forth below. ⁵ To clarify the distinction between retroactive and prospective regulations, all retroactive regulations were designated by an asterisk.

The regulation on which appellant here relies, California Administrative Code, Title 8, article 7, section 16792.6, set forth in the footnote below ⁶ (adopted Register 61, No. 26, 12--30--61, subsequently readopted in identical form, Register No. 63, No. 12, 7--13--63) was never so marked with an asterisk to indicate a retroactive effect. Appellant, however, argues that the regulation was intended to so apply to the maintenance of respondent's basement stairway. We cannot agree.

Although administrative practices and construction of regulations are not binding on this court (Marble Mortgage Co. v. Franchise Tax Bd., 241 Cal.App.2d 26, 45, 50 Cal.Rptr. 345), we think the approach here adopted by the administrative agency was inherently reasonable. The retroactive interpretation urged by appellan would no doubt create undue burdens on the owners of all buildings already in...