Salinero v. Pon

• Decision Date: 01 October 1981
• Citation: 177 Cal.Rptr. 204,124 Cal.App.3d 120
• Court: California Court of Appeals Court of Appeals
• Parties: Paul R. SALINERO, Plaintiff and Appellant, v. Harold L. PON and Anna R. Pon, et al., Defendants and Respondents. Civ. 46752.

Page 204

177 Cal.Rptr. 204

124 Cal.App.3d 120

Paul R. SALINERO, Plaintiff and Appellant, v. Harold L. PON and Anna R. Pon, et al., Defendants and Respondents.

Civ. 46752.

Court of Appeal, First District, Division 1, California.

Oct. 1, 1981.

Rehearing Denied Oct. 30, 1981.

Hearing Denied Dec. 9, 1981.

Keith & Duryea, Maxwell Keith, San Francisco, for plaintiff and appellant.

Robert E. Jensen, Robert B. Leuck, Boornazian, King, Jensen & Garthe, Oakland, for defendants and respondents Harold L. Pon and Anna R. Pon.

Stark, Stewart & Simon, Richard B. Beauchesne, R. Gordon Baker, Jr., Oakland, for defendant and respondent Lam.

NEWSOM, Associate Justice.

This is an appeal from a summary judgment dismissing appellant's personal injury action against respondent Gene W. Lam, and a judgment entered upon a subsequent motion for nonsuit in favor of respondents Harold L. and Anna R. Pon, owners of the building, in the same action. The pertinent facts are as follows.

The Pons are owners of a five-and six-story apartment building containing 21 rental units located at 269 Hanover Street, Oakland, purchased by them in 1971. The building was designed by respondent Lam, an architect, and completed in 1969.

In July 1975, Mrs. Pon requested bids for the cleaning of the apartment building windows. She received three bids for the job, and accepted that of Crosetti and Musante, appellant's employer. A formal written contract was subsequently executed.

Mrs. Pon discussed the job with Mr. Crosetti, and it was agreed between them that (1) the windows could not be washed from the inside, and (2) there were no bolts, hooks or other devices on the building from which the window washers could be suspended for the purpose of washing the windows from the outside. Consequently, it was agreed that the windows would be washed by means of a ladder extended over the edge of the building roof from which the workers would be suspended in a boatswain's chair secured to the roof by a weighted sand bag.

Appellant and his partner, Robert Goodrich both experienced window washers were assigned by Mr. Crosetti to wash the windows at the Pons' building on August 5, 1975. Prior to the commencement of work, Mrs. Pon discussed the job with appellant; according to appellant, she expressed some concern that "there was nothing to tie down (the window washers') rigs on the roof." ¹ However, Mrs. Pon was assured by both Mr. Crosetti and appellant that the job could be safely done.

The accident which is the subject of this litigation occurred while appellant was suspended in a boatswain's chair from a ladder-headpiece while washing windows on the fourth floor, approximately 35-40 feet above ground level. Goodrich, who had been working on another portion of the building, was on the roof for the purpose of moving his ladder-headpiece. He intended to remove the sand-filled bucket anchoring his ladder, but by mistake removed the weights from appellant's ladder instead of his own, causing appellant to fall to the ground.

Appellant's first argument challenges the trial court's order granting summary judgment in favor of architect Lam. It is appellant's position that section 337.1 of the Code of Civil Procedure, upon which the trial court relied in ruling that the action against Lam was barred by the four-year statute of limitations, is unconstitutional because it arbitrarily grants a special privilege to a class of persons architects and construction contractors by affording them immunity from suit based solely upon lapse of time from performance, unrelated to notice or date of injury. ² Appellant sees no rational basis for this special treatment.

Respondent Lam insists that appellant has no standing to assert the unconstitutionality of section 337.1, since he was made a party to this action not by appellant's complaint, but by the Pons' cross-complaint. Thus, respondent argues, appellant was not "aggrieved" by the summary judgment dismissing the cross-complaint against Lam as required by section 902 of the Code of Civil Procedure. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736, 97 Cal.Rptr. 385, 488 P.2d 953; Kunza v. Gaskell (1979) 91 Cal.App.3d 201, 206, 154 Cal.Rptr. 101.)

We conclude, contrary to Lam's claim, that appellant is entitled to argue the unconstitutionality of section 337.1 in this appeal. At least before summary judgment was granted, appellant retained the option of substituting Lam for a doe defendant by amendment of the complaint. The trial court's ruling thus adversely affected appellant's right to pursue his cause of action against Lam, given the application of res judicata or collateral estoppel principles to bar any subsequent action by appellant against Lam. As noted in Short v. State Compensation Ins. Fund (1975) 52 Cal.App.3d 104, at p. 107, 125 Cal.Rptr. 15, if "prohibited from proceeding further herein, appellant would suffer the inequity of being bound by the decision without any right of review." (See also Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 650, 151 Cal.Rptr. 399.)

Turning to the merits of appellant's argument, we note that section 337.1 is a mere "economic regulation" since it touches neither upon a suspect class nor a fundamental right. " 'In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.' " (Wagner v. State of California (1978) 86 Cal.App.3d 922, 929, 150 Cal.Rptr. 489.) (See Schwalbe v. Jones (1976) 16 Cal.3d 514, 517-518, 128 Cal.Rptr. 321, 546 P.2d 1033; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 410, 128 Cal.Rptr. 183, 546 P.2d 687; Ganschow v. Ganschow (1975) 14 Cal.3d 150, 158, 120 Cal.Rptr. 865, 534 P.2d 705.)

Appellant has cited decisions from outside this jurisdiction which have declared similar statutes unconstitutional on equal protection grounds. (Broome v. Truluck (1978) 270 S.C. 227, 241 S.E.2d 739.) However, California courts have found a legitimate purpose in the subject statutes. For example, in Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 167 Cal.Rptr. 292, the court noted: "In enacting Code of Civil Procedure sections 337.1 and 337.15 (a 10-year statute of limitations on latent defects), the Legislature intended to protect contractors against liability extending for a potentially limitless period of time. The California Supreme Court in Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 633, (147 Cal.Rptr. 486, 581 P.2d 197) at footnote 2 , explained: 'A contractor is in the business of constructing improvements and must devote his capital to that end; the need to provide reserves against an uncertain liability extending indefinitely into the future could seriously impinge upon the conduct of his enterprise.' " (Id., at p. 513, 147 Cal.Rptr. 486, 581 P.2d 197.)

In rejecting an equal protection challenge to section 337.1, based upon a contention that it discriminated in favor of those persons associated with construction and improvements to real property, while not conferring the same benefits on persons associated with personal property, the court in Wagner v. State of California, supra, 86 Cal.App.3d 922, 150 Cal.Rptr. 489, stated: "The statutory limitation of section 337.1 precluding liability for a patent defect after a period of four years from the date of substantial completion of an improvement to real property can be said to promote such construction, since it frees those associated with it from the specter of lawsuits in the distant future. Those who fear venturing into such activities will be less deterred when a ceiling is placed on the period for which they can be held liable. The concept of promoting construction tends to harmonize with the public policy favoring the full enjoyment and use of real property. (See Civ.Code, § 711; 5 Powell on Real Property (1977) Promises as to Use, § 673, p. 156.) We conclude that the classification complained of does not result in a denial of equal protection of the law. (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 410, 128 Cal.Rptr. 183, 546 P.2d 687; Stanley v. City and County of San Francisco (1975) 48 Cal.App.3d 575, 580-581, 121 Cal.Rptr. 842 )." (Id. at pp. 929-930, 150 Cal.Rptr. 489.)

We similarly conclude that the subject statute promotes a recognized legitimate state interest by protecting contractors from uncertain future liability, thereby encouraging construction, and that a rational basis therefore exists for the classifications created by section 337.1 of the Code of Civil Procedure. We affirm the constitutionality of the statute and the ruling of the trial court granting summary judgment in favor of respondent Lam.

Appellant makes several arguments relating to the judgment on the motion for nonsuit which dismissed the action against the Pons. Appellant first complains that the trial court erroneously excluded Labor Code violations embodied in sections 7325-7327 and 7330, which require safety devices on multi-story buildings to protect window washers which appellant attempted to introduce for the purpose of establishing respondents' breach of statutory duties of care. The trial court ruled that section 6304.5 of the Labor Code prohibited consideration of these provisions for the purpose of imposing a statutory duty of care upon a nonemployer.

Section 6304.5 provides: "It is the intent of the Legislature that the provisions of this division shall only be applicable to proceedings against employers brought pursuant to the provisions of chapter 3 (commencing with § 6500) and 4 (commencing with Section 6600) of Part I of this division for the exclusive purpose of maintaining and enforcing employee safety. (P) Neither this division nor any part of this...