Thompson v. Guyer-Hays
| Decision Date | 31 August 1962 |
| Docket Number | GUYER-HAYS and E |
| Citation | 24 Cal.Rptr. 461,207 Cal.App.2d 366 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Clifford E. THOMPSON and Mathel B. Thompson, Plaintiffs and Appellants, v. EdnaG. Hiatt, Defendants and Respondents. Civ. 6817. |
Martell Thompson, Orange, for respondent Hiatt, and Frank L. Bowman, Santa Ana, for respondent Guyer-Hays.
This is an appeal by plaintiffs from order granting defendants' motions for a new trial after judgment for plaintiffs for rescission and damages.
In reading the facts it must be kept in mind that the trial court, by its order, restricted its order to the sole ground of 'against law.' Without reviewing the various conflicts, and stating the evidence as it supports the judgment, the essential facts shown by the record are as follows: On August 15, 1957, plaintiffs purchased four mountain residence lots in the Silverado Canyon of eastern Orange County from defendant Guyer-Hays, on the representation by defendant Hiatt, who was then acting as broker for defendant Guyer-Hays, that the two dwellings located on said lots were built in compliance with applicable codes and ordinances of Orange County and were ready for occupation and habitation rescind and on June 23, 1959, brought this and installation of a cesspool and plumbing and the connecting of electricity to said dwellings.
At the time of marking said representations, Hiatt knew said dwellings had not been constructed in accordance with said ordinances and codes and did not inform plaintiffs thereof. Plaintiffs relied on said representations and would not have purchased except for such reliance. Said representations were false in that the dwellings had been completed after cancellation of the building permit from the County and the foundations and framework did not comply with the county ordinance. Plaintiffs did not learn of the defects until notified thereof by Orange County officers in March or April 1959. Plaintiffs thereupon gave to Guyer-Hays notice of election to rescind and on June i3, 1959, brought this action for rescission and damages.
Plaintiffs' complaint in substance alleged the foregoing matters, together with monetary details, but did not attempt, by either content or title and date of passage, to plead the ordinances which were not complied with in said construction. No demurrer was interposed. Defendants answered denying said alleged representations, denied plaintiffs' alleged representations, denied opportunity for and actual inspection by plaintiffs, denied ordinance violation and set up laches.
In their pretrial statement plaintiffs followed in abbreviated form their pleading allegations and, in essence, represented the issues to be: (1) whether defendants made material misrepresentations as to the property; (2) whether plaintiffs relied on such representations; (3) damages. Hiatt's statement briefly reviews the allegations and denials of the pleadings and states the issues to be: (1) Hiatt's denial of said representations; (2) plaintiffs' reliance on the alleged representations; (3) knowledge by Hiatt of building code violations; (4) notice to Hiatt of rescission; (5), (6) & (7) damages. Guyer-Hays, after briefly reviewing the factual background, simply stated the claims by plaintiffs that defendants represented the dwelling was in compliance with applicable ordinances, falsity of representation, reliance and damages and that defendants deny any misrepresentation.
The pretrial order with extreme brevity, recited the rudiments of the factual background; that plaintiffs contend the property was misrepresented to them, notice from Orange County that the property was unsafe for habitation; that plaintiffs seek to rescind and recover money paid and damages; that plaintiffs contend there was an implied warranty that the dwellings were suitable for habitation and that there was express misrepresentation by Hiatt known by her to be false; that defendants deny misrepresentation, contend the property was open and visible to plaintiffs and assert laches on the part of plaintiffs. It stated the issues to be: (1) Was there any misrepresentation? (2) Was there any breach
of implied warranty? (3) Laches; (4) Damages.
During the trial, testimony was given supporting the allegations of misrepresentation. A building inspector of Orange County testified that building permits were issued in 1953 for original construction of the said dwellings; that on May 11, 1954 the permit had expired; that he then inspected the buildings and found that approved plans were not on the job; that trenches (for foundations) were not in solid soil; that on June 19, 1954 he again inspected the premises, met the then owner, reminded him of the invalidity of his permit and received his promise to renew the permit; that no such renewal was obtained and that he later posted notice of suspension of the premises; that on March 12, 1956 he again inspected the premises, found that no renewal of the permit had been obtained and posted notice of cancellation thereof; that in 1955 he talked to Hiatt, who made derogatory statements of witness' department's treatment of said owner, indicating knowledge by her of said department's refusal to approve said buildings; that in 1959 he again inspected an found that in spite of the lack of a permit, construction work was done; that the ceiling was lower than the minimum 7 feet 6 inches clearance required by the ordinance; that the foundation was insufficient to give the required 18 inches clearance beneath the floor; that there was no access hole under the floor and insufficient ventilation; that the electric wiring had been covered by panelling without inspection; that the 2 X 3 inch framework did not comply with the building code; that there was a 2 1/2- to 4-inch sag in the ceiling, indicating insufficient strength or too long a span for the ceiling joists. Other evidence supported the conclusion that the excavation of the hill in the rear of the building had been done in violation of the ordinance, that it had been insufficiently done; that slides had occurred, bringing the soil line above the foundations, contrary to ordinance requirements; that Hiatt had represented the dwellings to be ready for human occupancy as soon as plumbing and cesspool work had been done and electricity connected and that this representation was false and then known by Hiatt to be false; that the county in 1959 gave notice that the building was not fit for human occupancy and, on certain conditions not being met, would be destroyed. Details of monetary damage were received in evidence. No objection was ever made to the receipt in evidence of any of the foregoing testimony.
No suggestion was ever made by any counsel or the court that the witness not be permitted to directly testify to the ordinance violations or that the witness' statements were conclusions or that the ordinance involved be examined to discover if the witness had correctly interpreted them or correctly applied them to the facts.
The notice of condemnation served by the County in 1959 was put in evidence without objection. It specifies, in essence, as the reasons for condemnation: (1) Construction after cancellation of permits; (2) Lack of department inspection clearance; (3) Non-compliance of foundations with Code section 2805a; (4) Covering framework in violation of Section 304(a); (5) Framework substandard, rotting; (6) Excavation in violation of Section 2801, creating hazard to life and property; and (7) Structures nonconforming to Building Code, damage from earth slides, elements and neglect. A copy of Section 203(a) was annexed to the notice and likewise went into evidence without objection. Section 203(a) provides in substance that buildings which constitute a fire hazard or are dangerous to human life, safety or health are unsafe and a public nuisance. Section 203(6) provides procedure for abatement. After completion of trial and argument of counsel the trial judge stated,
'The matter will be taken under advisement. I will advise counsel the case will be tried on the Complaint and Answer thereto and not by any issues in the pretrial order, which sets forth The trial judge found the facts to be substantially as claimed by plaintiffs and entered judgment for rescission and damages. Thereafter the defendants both moved for a new trial on only two grounds: (1) Insufficiency of the evidence to justify the decision of the court, and (2) that the decision of the court is against the law. The trial court granted the motions on the sole ground 'that the decision of the court is against law in that the County Ordinance was neither pleaded or proved at the time of trial.' Plaintiffs appeal.
implied warranty, which, as far as I know, has nothing to do with real property.'
First, it must be noted that Rule 216 of California Rules of Court provides that the pretrial conference order controls the subsequent course of the case unless modified at or before trial. This is as much a part of our law as any of our other procedural rules. If any party or the court deems it insufficient or incorrect, it may be modified at any time before trial under the ample provisions made in the rules therefor. It may not be ignored. It limits the trial issues. (Baird v. Hodson, 161 Cal.App.2d 687, 327 P.2d 215; Dell'Orto v. Dell'Orto, 166 Cal.App.2d 825, 829, 334 P.2d 97; Cal-Neva Lodge, Inc. v. Marx, 178 Cal.App.2d 186, 187, 2 Cal.Rptr. 889; Fitzsimmons v. Jones, 179 Cal.App.2d 5, 8-9[1-2], 3 Cal.Rptr. 373; County of Kings v. Scott, 190 Cal.App.2d 218, 225, 11 Cal.Rptr. 893.)
The mere fact that the term warranty appeared to be inappropriate in the light of the pleadings and evidence produced furnishes no excuse for ignoring the balance of the...
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Appendix II Evidence Code
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