Shurpin v. Elmhirst
| Decision Date | 19 October 1983 |
| Citation | 148 Cal.App.3d 94,195 Cal.Rptr. 737 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Leslie S. SHURPIN, Plaintiff and Appellant, v. Susanna Isaacs ELMHIRST et al., Defendants and Respondents. Civ. 66754. |
Lawrence Silver and Nancy C. Brown, Beverly Hills, for plaintiff and appellant.
Carl J. Lane, Encino, for defendant and respondent, Geosoils, Inc.
No appearance for defendant and respondent, Susanna Isaacs Elmhirst.
Appellant, Leslie Shurpin, appeals from a judgment of dismissal entered after a demurrer was sustained to his first amended complaint without leave to amend.
Shurpin's amended complaint is comprised of eight causes of action from which we are able to discern the following operative facts. On or about February 16, 1980, a landslide occurred in which mud and debris from defendant Susanna Elmhirst's property entered onto Shurpin's property. The debris destroyed the rear wall of Shurpin's guest house and caused substantial structural damage to the remaining portions of the house, its contents, fixtures and personal property contained therein.
In or about March 1980, defendant Elmhirst retained codefendant/respondent, Geosoils, for the purpose of submitting recommendations for the reconstruction of the slope. Geosoils prepared a report in which three alternative remedial means for rebuilding the failed slope were proposed. The slope was eventually reconstructed by another contractor.
On January 7, 1981, Shurpin filed a six count complaint for damages arising from real and personal property trespass, negligence and nuisance. Named as defendants were Elmhirst and 50 Does. Injunctive relief was also sought for the purpose of abating the alleged nuisance that remained as a result of Elmhirst's maintenance of the property.
On January 21, 1981, Elmhirst answered, generally denying the allegations. As affirmative defenses, it was alleged that the complaint failed to state facts sufficient to constitute a cause of action, and that Shurpin was barred from recovery by waiver, laches, estoppel and unclean hands.
On August 10, 1981, Shurpin filed his first amended complaint adding as defendants Lillian and Frank Melograno, (the prior owners), Lil Melograno Associates, Inc., Vincent and Mary Bradley, the City of Los On December 7, 1981, Geosoils demurred to the first amended complaint. Specifically, Geosoils demurred to the third cause of action for negligence, the fourth cause of action for nuisance, the fifth cause of action for fraud, and the sixth cause of action for breach of contract.
Angeles, and Geosoils, Inc. Along with the complaint for injunctive relief and damages [148 Cal.App.3d 98] for trespass, negligence and nuisance, additional causes of action for fraud, breach of contract and declaratory relief were added.
On December 16, 1981, Shurpin filed his memorandum in opposition. On December 22, 1981, the court sustained Geosoils' demurrer without leave to amend on the ground that Shurpin's complaint failed to state a cause of action.
On January 20, 1982, the court dismissed the action pursuant to Code of Civil Procedure section 581. Shurpin filed this appeal on January 29, 1982.
The scope of our review is limited to a determination of whether Geosoils' demurrer was erroneously sustained without leave to amend and whether such a determination was an abuse of discretion. (Pollack v. Lytle (1981) 120 Cal.App.3d 931, 939, 175 Cal.Rptr. 81.) All material facts pleaded in the complaint and those which arise by reasonable implication are thus deemed true. (Rodriquez v. Fireman's Fund Ins. Companies Inc. (1983) 142 Cal.App.3d 46, 49, fn. 1, 190 Cal.Rptr. 705.) For the following reasons, we affirm in part and reverse in part the decision of the trial court.
Shurpin's third cause of action in the first amended complaint is against defendant Geosoils for negligence. It establishes that defendant Elmhirst retained Geosoils after the slope on her land failed for the purpose of proposing alternative rebuilding methods as well as for the purpose of repairing and rebuilding the failed area. 1 It is further alleged that the agreement between Elmhirst and Geosoils was directly intended to benefit him, thus making him an intended third-party beneficiary to the contract. Commensurate with this allegation, Shurpin's complaint continues by alleging that Geosoils owed a duty to him as a third-party beneficiary to competently and professionally inspect and test the slide area; to determine the source and cause of the initial failure; to submit recommendations that would adequately protect his property from future slide damage; and to competently and professionally rebuild the slope for his protection. The complaint goes on to allege that Geosoils breached its duty by negligently inspecting the property and failing to perform necessary tests to determine the condition of the slope; by failing to search the files and records of the Department of Building and Safety which would have revealed prior slope failures; by submitting recommendations that did not bring the slope into compliance with current building codes and that inadequately protected his property from future slide damage, and by repairing and rebuilding the slope in a manner which did not ensure its stability for his protection. As a direct and proximate cause of this negligence, Shurpin sought damages for the substantial diminution of the market value of his property as well as for the future risk of slide damage from the inadequately supported slope.
In sustaining Geosoils' demurrer on this cause of action, the trial court concluded that Shurpin had not established that Geosoils owed any duty to him since the repair work contracted for was work contracted with defendant Elmhirst and not plaintiff Shurpin. The court failed to draw the distinction between the engineering work which Geosoils did, and the physical ground work which it did not do.
In Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 73 Cal.Rptr. 127, relied upon principally by Shurpin, a lawsuit was initiated by plaintiff, a homeowner, against McCarthy Co., a real estate developer, Warren Co., the soil engineer, and Thompson Co., the company which actually performed soil compaction. Damage was sustained to Oakes' property as a result of improper soil compaction. Oakes brought one cause of action against Warren Co., the soil engineer, for the resulting negligence. The Court of Appeal held that although plaintiffs were not in privity of contract with Warren Co., the action was proper in negligence.
Geosoils' contention here is almost identical to the contentions made by Warren Co. in the Oakes case. Here, as in Oakes, a substantial portion of Geosoils' brief is devoted to the contention that no duty was owed to plaintiff upon which liability for negligence can be predicated. Identical arguments were also advanced that the work performed was in the nature of professional advice and opinion and the duty of due care for this type of service should be confined to those in contract privy with the soil engineer. We disagree, as did the Oakes court.
Geosoils correctly points out that there are many distinguishable features of the Oakes case. First, the property purchased by the Oakes was directly worked on by the soil engineer. In the present case, Geosoils did not perform any work on Shurpin's property. It provided only a recommendation for the reconstruction of codefendant Elmhirst's property. In spite of this distinguishing fact, we hold that Geosoils, acting in a professional capacity in designing corrective measures, owes a duty to those foreseeable plaintiffs. An adjacent downslope landowner is a foreseeable plaintiff.
The second distinguishing factor is that in Oakes, damage to plaintiff's property occurred after work was performed by the soil engineers. It is undisputed that here there has been no slope damage or physical damage to Shurpin's property since the execution of Geosoils' contractual obligation.
Shurpin's complaint adequately alleges that as a direct and proximate result of Geosoils' negligent action, his property is in immediate peril of future slide damage and that the property has a substantially diminished market value. Where confusion arises, however, is in the following. While the allegations of the complaint allege actual work performed by Geosoils, the record establishes what can be considered a stipulation that Geosoils prepared the design correction but did not perform the actual physical construction. It appears that the work performed may have been carried out only in accordance with the plan submitted by Geosoils. This fact remains unclear in the present existing complaint. Shurpin should be entitled to an opportunity to clearly plead and in doing so, in our opinion, could properly state a cause of action for negligence. For these reasons a duty is present and Shurpin may amend his action for negligence.
Shurpin's fourth cause of action in the first amended complaint is for nuisance. It is alleged that "The actions of ... Geosoils in repairing the property and the City in approving and permitting the repair of the property, in such a way that water, mud and debris was allowed to flow onto plaintiff's property constitutes a continuing nuisance as defined in Civil Code § 3479 as 'an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property....' " As a result, Shurpin's prayer for damages includes the diminution of the market value of this property pursuant to Code of Civil Procedure section 731, and damages for the injury caused by the nuisance.
The court in affirming the demurrer concluded that Geosoils was not responsible for the maintenance of a nuisance.
Civil Code section 3479 states that a nuisance is "Anything which is injurious...
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