Rubin v. Toberman

• Decision Date: 14 April 1964
• Citation: 226 Cal.App.2d 319,38 Cal.Rptr. 32
• Court: California Court of Appeals Court of Appeals
• Parties: Harry RUBIN and Sophie Rubin, Plaintiffs and Respondents, v. C. E. TOBERMAN and Josephine W. Toberman, Defendant and Appellants. Civ. 27693.

Page 32

38 Cal.Rptr. 32

226 Cal.App.2d 319

Harry RUBIN and Sophie Rubin, Plaintiffs and Respondents, v. C. E. TOBERMAN and Josephine W. Toberman, Defendant and Appellants.

Civ. 27693.

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

April 14, 1964.

R. D. Sweeney, Cameron W. Cecil, and Henry F. Walker, Los Angeles, for defendants and appellants.

Julius A. Leetham, Los Angeles, for plaintiffs and respondents.

KINGSLEY, Justice.

This is an appeal by defendants, C. E. Toberman and Josephine W. Toberman, from a judgment granting declaratory relief to plaintiffs, Harry and Sophie Rubin. ¹

A resume of the facts necessary for a disposition of the issues on appeal may be summarized as follows: In September of 1961, plaintiffs purchased from defendants a vacant hillside lot in the Hollywood Hills section of the City of Los Angeles. Plaintiffs were first shown this particular lot sometime in August of 1961, by a Mr. Kummer who was a real estate salesman for the C. E. Toberman Co. After this initial meeting with Mr. Kummer, plaintiffs met with Mr. Toberman at the lot site. At this time, discussion was had with regard to the fill condition of the lot. Plaintiffs, upon being informed by Mr. Toberman that the lot contained fill, indicated that they would not purchase the lot unless they would receive some assurance in writing from Mr. Toberman with regard to the cost of constructing a foundation upon the property that would support a house. At this time plaintiffs told Mr. Toberman that their financial condition did not allow them to expend more than $1,000 for such purposes. Mr. Toberman, at this time, refused to obligate himself with any such assurances. Plaintiffs then declined to proceed any further with negotiations for the purchase of the lot. However, several days later plaintiffs were contacted by Mr. Kummer relative to the sale of the lot in question. On August 20, 1961, plaintiffs went to the real estate office where they saw Mr. Kummer. Plaintiffs told him they had talked to Mr. Toberman about pilings and costs of caissons. Mr. Kummer informed plaintiffs that he knew nothing about it, and requested plaintiffs to write on a piece of paper exactly what they had agreed to. Mr. Kummer then telephoned Mr. Toberman at home and read the language of the agreement formulated by plaintiffs. Mr. Toberman indicated that he would agree to assurance on his part. Plaintiffs then deposited $500 and signed a deposit receipt which incorporated the agreement read by Mr. Kummer to Mr. Toberman. The agreement provided:

'3. It is agreed that any costs in excess of $1000 required by the building authorities for piers, retaining walls, or special drainage, or retention features other than that required to normally drain and retain the flat surface and building area to Chelan Way will be paid by the seller on presentation of a bill at the time the work is completed.'

The subsequent escrow instructions incorporated the above quoted portion of the deposit receipt, and provided for a letter from the sellers containing such an agreement. Eventually plaintiffs received a letter from Mr. Toberman, dated September 11, 1961, containing such agreement. ²

In due course the plaintiffs engaged the services of Mr. Kappe, a licensed architect, to design a house for them. Mr. Kappe prepared a scale model of the house proposed to be built by the plaintiffs together with the floor plans for such house. The plaintiffs then took the scale model and floor plans for the house to Mr. Toberman's office. Mr. Toberman indicated that the model house and floor plans were very nice, and plaintiffs could proceed. Plans and specifications were then submitted to the Department of Building and Safety of the City of Los Angeles for purposes of obtaining a permit for the construction of this proposed house. An investigation of the property was made by the department; and the investigation disclosed that there was cracking which evidenced soil instability. The department informed plaintiffs of this fact, and advised them that, before any permit would be issued, a soil check had to be obtained. Plaintiffs proceeded to engage the services of Western Laboratories to run a soil check on the lot. A check of the property was made by Western Laboratories and a report of its findings was sent to the Department. The Department then sent the following letter, dated May 31, 1962, to plaintiffs:

'Mr. Harry Rubin

'3823 Don Tomaso Drive

'Los Angeles 8, California

'RE: 7220 Chelan Way (Tract 20606, Lots 17 & 16)

'The existence of cracking in the earth on your lot revealed in our recent meeting, has caused the Department to reach the following conclusions as regards the construction of your proposed dwelling:

'1. The soil report submitted by Western Laboratories adequately covers the design of the residence.

'2. The soil report does not specify an acceptable means of supporting the rear part of the lot which shows signs of instability as indicated by the surface cracks.

'It will be necessary to secure an additional report from a recognized soils laboratory. This report must include an acceptable method for supporting the rear portion of your property. Field inspection indicates that unless this work is done, it is highly probable that your yard will be subject to landslide at some future date.

'J. C. MONNING

'Superintendent of Building

'W. E. Milburn

'W. E. MILBURN

'Chief of Grading Division

'WEM: 1m

'cc: Western Laboratories.'

The plaintiffs, finding that expenses in the nature of architectural fees, soil reports, and structural engineering costs were beginning to mount up, felt it their duty to apprise the defendants of this fact because of the defendants' written guaranty. By a reply letter, dated June 14, 1962, Mr. Toberman stated: 'This will acknowledge receipt of your letter dated June 13, wherein you list certain items of expense that you have incurred to date, which, in many respects have been needless, and to a great extent have no relationship to the deal we made with you regarding the foundation to support your dwelling.' Plaintiffs now being confused over rights, duties and obligations of the parties under the written contract they had with defendants, brought suit in the Superior Court of Los Angeles County asking in the first count for declaratory relief, and in a second and alternative count for rescission of the sale transaction. Judgment was in plaintiffs' favor, and they eleceted to take declaratory relief.

The court was of the opinion that the contract here involved was one for the support of the lot as well as the house itself. Without reviewing the evidence in detail it will suffice to say that there is abundant evidence to support this interpretation of the contract. This being a reasonable interpretation of the contract, supported by sufficient evidence, this court is not at liberty to substitute its judgment for that of the trier of fact. ³ (3 Witkin, California Procedure, Appeal, § 89, p. 2253.)

I

While defendants did not interpose a demurrer to plaintiffs' complaint, in their answer, as a defense, they contended that the present action for declaratory relief is premature, in that it seeks an advisory opinion only. On appeal defendants once again urge the contention that plaintiffs' declaratory relief action is premature in that there is no justiciable controversy; and that which here was sought and granted constitutes but an 'advisory' determination which is not the proper function or province of declaratory relief. We find this argument, as did the trial court, completely unpersuasive.

'A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court.' (Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 728, 146 P.2d 673, 677, 151 A.L.R. 1062; Code of Civ.Proc. § 1060.)

In their complaint, plaintiffs have alleged the written agreement between themselves and defendants dated September 11, 1961, where defendants agreed to indemnify plaintiffs for certain costs incurred by them in building their house. The complaint also alleges plaintiffs' letter dated June 13, 1961, whereby plaintiffs notified defendants that they had incurred certain costs and defendants' reply letter whereby defendants '* * * apparently deny responsibility for a part or all of the obligations involved in the premises.' The complaint further alleges '[t]hat an actual controversy has now arisen in the premises and plaintiffs respectfully pray that a declaration of rights, duties, and obligations be made as to the undertakings of the parties given mutually to one another.'

As seen from the foregoing, plaintiffs have set forth the written instrument upon which they base their claim, and a denial by defendants of liability under plaintiffs' construction of the agreement. The complaint clearly shows that there is an actual controversy relating to the legal rights and duties of the respective parties, and as such was sufficient to state a cause of action for declaratory relief within the letter and spirit of section 1060 of the Code of Civil Procedure.

Plaintiffs' property is subject to certain conditions and restrictions, including one that no building shall be erected, placed, or altered until the building plans, specifications and plot plan showing the location of such building had been approved in writing by the Hollywood Commercial Buildings, Inc., its successors or assigns. It appears that defendants are the successors in interest to the above mentioned corporation. The purpose of this covenant was to guarantee that houses being built would be in harmony and conformity with other structures in the tract.

Defendants contend that there is no evidence that any plans and specifications or any plot plan have ever...