Preston v. Goldman

• Decision Date: 22 February 1985
• Citation: 210 Cal.Rptr. 913,164 Cal.App.3d 1135
• Court: California Court of Appeals Court of Appeals
• Parties: Clinton PRESTON, etc., Plaintiff and Appellant, v. Allan GOLDMAN, et al., Defendants and Respondents. Civ. B002806.

Page 913

210 Cal.Rptr. 913

164 Cal.App.3d 1135

Clinton PRESTON, etc., Plaintiff and Appellant, v. Allan GOLDMAN, et al., Defendants and Respondents.

Civ. B002806.

Court of Appeal, Second District, Division 4, California.

Feb. 22, 1985.

As Modified March 4, 1985.

Review Granted May 16, 1985.

Panther, Pines, McCann & Goldstein, Michael T. Pines, Michael Goldstein and C. Daniel Carroll, Oceanside, for plaintiff and appellant.

Simon, Buckner, Haile & Migdal, Scott Simon and Stuart L. Brody, Marina Del Rey, for defendants and respondents Jon Kubichan and Marion Kubichan.

Demler & Armstrong, Edison J. Demler, Long Beach, and Emmet Thornton, Long Beach, for defendant and respondent Allan Goldman.

Finn, Alsop, Silva & Clasen and Tracy L. Gildemeister, Los Angeles, for defendants and respondents Susan Reid and Richard Reid.

McCLOSKY, Associate Justice.

Plaintiff Clinton Preston, a minor, through his guardian ad litem Stephen Preston, appeals from the judgment adverse to him and in favor of defendants Allan Goldman, Jon and Marion Kubichan and Susan and Richard Reid. ¹ That judgment on special verdict provided that plaintiff recover nothing by reason of his complaint against defendants.

CONTENTIONS

Plaintiff raises the following contentions on appeal:

1. "The Kubichans are not insulated from liability for their negligence in the design and construction of the subject foundation pond by virtue of their sale of the subject property prior to Preston's injury.

2. "The trial court's refusal to give an instruction limiting the scope of the [Copfer v. Golden (1955) 135 Cal.App.2d 623, 288 P.2d 90] instruction to the Kubichans constitutes reversible error.

3. "The trial court erred in refusing to admit into evidence pertinent provisions of the Los Angeles County Building Code, the testimony of Preston's expert, and in refusing to instruct the jury on Preston's theory of 'negligence per se.'

4. "The misconduct of Goldman's attorney during closing argument deprived Preston of a fair trial. Therefore, the trial court's denial of Preston's motion for mistrial and for a new trial constitutes reversible error.

5. "The trial court improperly refused Preston leave to amend, refused to give a proper jury instruction, and improperly excluded the plaintiff from the courtroom."

The Kubichans contend that "[t]he court erred in denying the motion for nonsuit based on the statute of limitations, CCP § 337.1."

FACTS

Defendants Jon and Marion Kubichan owned and occupied the subject parcel of residential real property from 1968 through October 1973. In approximately January 1972, they designed and built a pond on that property in which they installed a fountain. In October 1973, the Kubichans sold the subject property to defendant Goldman who made several improvements on the property including the building of a fence and gate but made no changes in the fountain or the fountain pond.

In September 1974, Mr. Goldman entered into a lease-option agreement with defendants Richard Reid and Susan Reid. Under the terms of that agreement Mr. Goldman remained the legal owner of the property while the Reids occupied the premises and paid him money both for rent and toward a downpayment on their purchase of the property.

While the Reids were occupying the property pursuant to that agreement, they made changes in the fountain and in the fountain pond. These changes included the addition of a course of brick around the lip of the pond. They made no changes, however, to the interior of the pond.

On May 7, 1976, while the Reids were still occupying the property, plaintiff Clinton Preston, then age 22 months, was on the property with his parents, Stephen Preston and Cynthea Preston, and his siblings visiting his aunt and uncle, the Reids.

During a period when plaintiff was left unattended for a few minutes he either fell into or entered the fountain pond. Mrs. Preston found him floating unconscious in the pond. A medical expert testified at trial that it was his opinion that plaintiff was in the water from two to four minutes. Due to this accident, plaintiff is alleged to have suffered permanent severe brain damage and quadraplegia.

On April 23, 1978, plaintiff filed suit for negligence against Mr. Goldman, the Reids and Does I through V. On September 26, 1980, plaintiff filed a first amended complaint naming the Kubichans as additional defendants. Thereafter, all defendants answered the first amended complaint. Additionally, the Reids cross-complained for indemnity against Mr. Goldman alleging that he negligently maintained and supervised the property and against Mr. and Mrs. Preston alleging that they negligently supervised and controlled plaintiff's activities. Mr. Goldman cross-complained against the Reids and the Prestons. The Kubichans cross-complained against Stephen Preston, Mr. Goldman and the Reids.

Prior to trial, Mr. Goldman moved the court to separately try the issues of liability and damages, which motion the court The matter was tried before a jury which returned special verdicts in favor of all defendants and against plaintiff. In particular, the jury determined that Mr. Goldman was not negligent, the Kubichans were not negligent and that the Reids were negligent but that their negligence was not a legal cause (i.e., a substantial factor) in causing injury to plaintiff. Plaintiff appeals from the judgment entered on that verdict.

granted over plaintiff's objection. On March 14, 1983, the date originally scheduled for trial, the Kubichans, Mr. Goldman and the Reids obtained leave of court to dismiss their respective cross-complaints against the Prestons. Thereafter, plaintiff, through his counsel, entered into a stipulation with his mother and father, the Prestons, to file an amended complaint naming them as defendants and deeming the allegations of the proposed amended complaint denied. The court, however, denied plaintiff's motion for leave to file that amended pleading.

DISCUSSION

I

Plaintiff's first contention is that "[t]he Kubichans are not insulated from liability for their negligence in the design and construction of the subject fountain pond by virtue of their sale of the subject property prior to [plaintiff's] injury."

After all parties had rested, the Kubichans made a "Motion to Dismiss" plaintiff's action as to them. ² They urged that, because they had neither an ownership nor a possessory interest in the subject property at the time of the accident, they owed plaintiff no duty. The trial court heard argument and granted the motion. Thereafter, the parties entered into a stipulation which the court approved, allowing the question of the Kubichans' liability to go to the jury, without informing the jury that the court had granted the nonsuit motion. ³ No judgment of nonsuit was entered.

In connection with this contention, plaintiff attacks both the propriety of the court's granting the Kubichans' motion for nonsuit and the instruction the court gave to the jury respecting the Kubichans' potential liability as prior owners of the subject property.

The record on appeal does not contain a written order signed by the court granting the Kubichans' motion for (a judgment of) nonsuit. Such an order (judgment) is necessary before we may properly review the granting of a motion for a judgment of nonsuit. (See Code Civ.Proc., § 581d; 4 Witkin, Cal.Procedure (2d ed. 1971) Trial, § 365, pp. 3161-3162.) We, therefore, review the merits of plaintiff's contention solely upon the basis of the propriety of the jury instruction regarding the Kubichans' potential liability.

That instruction provided: "The general rule of law is that once a seller of land has sold that land he is not subject to liability for injuries, sustained by a third person while on the land after the buyer has taken possession, which were caused by any dangerous condition, whether natural or artificial, which existed at the time the buyer took possession. [p] This general rule has an exception where the seller conceals or fails to disclose to his buyer such dangerous condition and this exception is as follows: [p] (a) The buyer does not know of the condition or the risk involved therein, and (b) the seller knows of the condition and the risk involved therein and has reason to believe that the buyer will not discover the condition or realize the risk." This instruction was based upon Restatement Second of Torts sections 352 and 353. ⁴

In support of the propriety of this instruction, the Kubichans rely primarily upon Copfer v. Golden, supra, 135 Cal.App.2d 623, 288 P.2d 90. In Copfer, Vaughn Golden, his wife Gertrude Golden, and his father and mother, Earl and Goldie Golden owned a parcel of real property as joint tenants. Vaughn and Gertrude separated. Pursuant to a property settlement agreement with Gertrude and an agreement between all of the property owners, Vaughn obtained full ownership of the subject lot. During the period the lot was jointly owned, Vaughn, in the course of his business, moved various pieces of machinery and equipment onto the subject property. Neither Earl nor Goldie had an interest in Vaughn's business during any of the pertinent times. Gertrude ceased to have any interest in the business as a result of those two agreements. After Vaughn obtained all of the interest in the subject lot, the minor plaintiff was injured while playing on a trailer Vaughn had placed on that property.

Plaintiff sued Gertrude, Goldie, Earl and Vaughn. The court rendered a judgment for plaintiff and against all defendants.

The appellate court affirmed the judgment as to Vaughn Golden but reversed it as to the three former owners. The court reasoned that "[a]fter the owner of property has disposed of it he is no longer liable for what may happen thereon for the reason that he is in no position to control the use thereof and his duty to children of tender years who come thereon is at an end. After defendants [Gertrude], [Earl] and [Goldie] conveyed...