Rafeiro v. American Employers' Ins. Co.
Citation | 5 Cal.App.3d 799,85 Cal.Rptr. 701 |
Court | California Court of Appeals |
Decision Date | 24 March 1970 |
Parties | Mary L. RAFEIRO, Plaintiff and Appellant, v. AMERICAN EMPLOYERS' INSURANCE COMPANY, a corporation, Defendant and Respondent. Civ. 25730. |
Danaher, Fletcher, Gunn & Ware, Leonard Ware, Philip S. DeCaro, Palo Alto, for plaintiff and appellant.
Frederick Mahan, San Francisco, for defendant and respondent.
Plaintiff property owner has appealed from a summary judgment in favor of her contractor's insurer in an action entitled 'Complaint for Indemnity' in which she sought to recover from the insurer the amount of a judgment together with costs and interest she had previously secured against the insured contractor. (See Ins.Code, § 11580.) The facts, with one exception hereinafter noted, are not disputed. Each party made a motion for a summary judgment. The resolution of the controversy turns upon the proper interpretation of the terms of the policy of comprehensive liability insurance issued to the contractor by the insurer, and the determination of whether the loss suffered by the plaintiff for which she recovered the prior judgment represents a liability of the contractor for which the insurer undertook to furnish indemnity. It is concluded, for the reasons set forth below, that the trial court properly resolved this controversy in favor of the defendant and that the judgment must be affirmed.
A pretrial conference was held after the insurer had filed its answer to plaintiff's complaint 1, and the case was regularly set for trial. Twenty days before the day set for trial the plaintiff filed her notice of motion for summary judgment. No declaration was filed in support of this motion, but the plaintiff filed points and authorities in support of her position that once the prior judgment was admitted the insurer was liable.
The defendant insurer immediately countered with its notice of motion for summary judgment. It was supported by the declaration of the insurer's attorney which summarized, and requested the trial court to consider, certain depositions on file in the prior action which had been conducted in the same superior court. It was further supported by points and authorities to which were appended copies of the judgment, the court's memorandum decision, the findings of fact and conclusions of law, the pretrial conference order, the plaintiff's trial brief, and the trial brief of the contractor, all as filed in the prior action, and a copy of the insurance policy. Subsequently the defendant filed the declaration of the president of the contracting corporation with relation to the nature of the damages involved in the prior action.
The plaintiff filed a declaration and further points and authorities, and after the defendant replied, the court rendered the judgment from which plaintiff has appealed.
No objection was made to the records of the prior action which were produced by the defendant. The trial court could, and this court may, properly take judicial notice of those proceedings. (See, Evid.Code, § 452, subd. (d), and § 453; and Escobedo v. Travelers Ins. Co. (1961) 197 Cal.App.2d 118, 121--122, 17 Cal.Rptr. 219.) Plaintiff's objections to the sufficiency of the declaration of the contractor's president, and the question of the sufficiency of her declaration to raise a question of fact are discussed below. From this record the following facts appear:
The pretrial order in the prior action states: 'The contentions of the plaintiff are as follows: 'That on August 23, 1962, the plaintiff contracted with defendant Wentz Construction Company under which the defendant was obligated to build the plaintiff two separate apartment buildings consisting of approximately 40 units on her land in Palo Alto for the price of $355,000.00; that during the years 1963--1964 the plaintiff discovered there were certain conditions on the property which consisted of either a claim of unsuitable materials or unworkmanlike construction. * * *' Following a recital of specific complaints, the order states, 'With regard to all the matters above, the plaintiff seeks damages for the cost of repairs and replacement and/or diminution in the market value of the two apartment buildings.'
In her trial brief the plaintiff asserted, After reviewing the defects in the electrical heaters, the roofs, the hot water heaters, and the flooring of the brief continues as follows:
'5. Diminution of Market Value.
Defendant took the position that the plaintiff could not recover for diminution in value because an award sufficient to correct the alleged defects would make her whole, and because the witness' testimony did not in fact establish any such damages.
The court's memorandum decision awarded specific sums for specific defects without any allowance for diminution in value, and directed the plaintiff to prepare findings and judgment. The findings recite: The particulars are set forth in the margin. 2 A paragraph numbered '3' and reading, 'As a direct and proximate result of the negligent and careless construction of the two apartment buildings by defendant herein plaintiff suffered diminution in the market value of said buildings in the aggregate sum of $13,400.00' was stricken out by the judge, and the following paragraphs were renumbered. Further paragraphs '3' and '4' authorize recovery of the total sum, $13,400, on the respective theories of implied and express warranty. Judgment followed for that sum.
Plaintiff insists that within the foregoing principles it was error to deny her a summary judgment on the basis of her declaration in which she stated, 'That as a direct result of the defects in the construction of the Newell Apartments, as more particularly described in the Judgment rendered by the Superior Court of the State of California for the County of Santa Clara in Action No. P 8547, the Newell Apartments suffered a diminution of market value in an amount equal to, if not more than, but certainly not less than, the proved reasonable cost of repairs as evidenced by the prior Judgment.'
She points out that as an owner of real property she was competent to testify concerning the value of her property. (See Holmes v. Southern Cal. Edison Co. (1947) 78 Cal.App.2d 43, 53, 177 P.2d 32; Watterson v. Knapp (1939) 35 Cal.App.2d 283, 289, 95 P.2d 154; and Witkin, Cal. Evidence (2d ed.1966) § 403, p. 361.) 3 Statements of contrary purport in the declaration of the contractor's president which was filed in this action, were not effective to controvert plaintiff's declaration because he did not allege that he could so testify (see House v. Lala (1960) 180 Cal.App.2d 412, 416, 4 Cal.Rptr. 366), nor does his declaration set forth his qualifications to appraise the respective market value of the apartments with and without the defects. (See Sooy v. Kunde (1947) 80 Cal.App.2d 347, 355, 181 P.2d 758; Witkin, op. cit., § 423, p. 381.)
Plaintiff's approach misses the mark. The issue in this case...
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