Wynner v. Buxton
| Decision Date | 25 September 1979 |
| Citation | 97 Cal.App.3d 166,158 Cal.Rptr. 587 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Arnold W. WYNNER, Cross-Complainant and Appellant, v. Alfred C. BUXTON, Cross-Defendant and Respondent. Civ. 55474. |
Herbert Papenfuss, Los Angeles, for cross-complainant and appellant.
Rodd Kelsey, Beverly Hills, for cross-defendant and respondent.
Cross-complainant Arnold W. Wynner appeals from a summary judgment in favor of cross-defendant Alfred C. Buxton, dismissing Wynner's cross-complaint as to Buxton. The cross-complaint sought damages from several named participants in the construction of a self-service gas station on Van Nuys Boulevard in the City of Los Angeles. The project as commenced was owned by a partnership of which Wynner and one Martin Evans were partners. Subsequently, Wynner purchased all of Evans' interest and continued as a sole proprietor.
The station was constructed pursuant to an oral agreement between Wynner and cross-defendant West Pac Steel Contractors "which provided that WEST PAC would provide the engineering, obtain the building permits, erect . . . (and) provide supervision for the erection of the proposed gas station. . . ." According to the cross-complaint, Buxton prepared the "plans and calculations and specifications for the proposed work of improvement" and said plans and calculations and specifications "were so negligently prepared that the same violated building codes, fire codes, and were not prepared in a substantial and workmanlike manner so as to accomplish the work of improvement contemplated by the agreement between WYNNER and WEST PAC."
Various deficiencies in the project were specified. Only two of these deficiencies related to the buildings. The allegations in this respect were: "(B)uildings placed upon the job site leak; buildings placed upon the job site are smaller in interior dimension than called for by plans and specifications; . . ." The other deficiencies related to the fuel storage and delivery equipment (broken fuel lines from fuel storage tanks that shifted and moved), concrete and asphalt ground coverings failing by virtue of improperly compacted fill, and improper provision for drainage.
Buxton made two motions for summary judgment, the first of which was denied without prejudice, and the second of which was granted. Buxton's declaration in support of the first motion showed that his relationship to the project was limited to making certain design calculations "pertaining to the steel canopy, the steel cash booth and the steel store room . . . ." These services were rendered in his capacity as a registered professional engineer and as an independent contractor with West Pac Steel Contractors. The declaration specifically denied preparing "any plans, drawings or specifications" except the specifications inherent in the structural calculations. The declaration admitted that Buxton's seal as a registered engineer "appears on some of the drawings pertaining to the work of improvement as a whole" but explained that the reason he placed his seal on said drawings was "solely because of a formal requirement of the Building and Safety Department of the City of Los Angeles."
The opposition affidavit of Wynner specified four documents which bore Buxton's seal and were used to obtain building permits. These were plans entitled:
Buxton's second motion for summary judgment was supported by his declaration which virtually repeated the allegations of the original declaration to the effect that Buxton's sole involvement in the project was in making "structural calculations" for the structural steel for the canopy and the roofs of the cash booth and store room, and that he had not prepared any of the plans, drawings or specifications employed in the construction of the gas station. In addition, the documents described in Wynner's declaration as bearing Buxton's seal were described in detail. From this description it appears that the so-called "General Arrangement" is simply "a plot plan or layout of the project showing the Location of structures in relation to property lines and each other." Though the location of each of the three buildings, of the fuel tanks, and of the areas to be covered with paving is shown, this plot plan does not purport to show any details as to drainage, compaction of underlying soil or the piping or fuel lines. As to the latter details, the specific reference is made to the necessity for a separate permit.
Buxton's declaration also describes the two sheets of the framing plan for the canopy. The first page sets forth the roof plan and two elevations, side and end. Also depicted are the footing layouts for the supporting columns. It contains no details relating to ground elevation, drainage, fuel lines, storage tanks or other features in respect of which deficiencies were alleged. Sheet 2 shows connection details for the structural steel, and details for the sheet metal fascia, gutters, beam covers and metal roof decking.
The 6 X 10 equipment building plan is described as depicting only the concrete slab foundation and metal walls with an anchor bolt layout for attaching the walls to the slab.
The cash booth plan is described as showing "the metal building, windows, doors, concrete slab foundation" but "no piping, no grades, ground elevation or other details pertaining in any way" to the deficiencies asserted by Wynner.
The declaration also states that any leakage in such sheet metal structures as shown on these plans "could happen only as a result of faulty workmanship."
Buxton's declaration also analyzes Wynner's complaints and shows that they "are totally unrelated to (his) calculations for the structural parts of the canopy, cash booth and store room."
The Buxton declaration then proceeds to explain the reference in his declaration in support of the original motion for summary judgment to the fact that his seal was placed on the drawings "solely because of a formal requirement of the Building and Safety Department of the City of Los Angeles" by referring to the provisions of section 91.0210 of the Los Angeles Building Code, a portion of paragraph (b) thereof being quoted. 1
Buxton's declaration further points out that none of the plans signed by him contain any "indication whatever of the direction in which the paving is to drain," and that they likewise contain "no specifications as to compaction of the underlying soil." The declaration summarizes by stating that there is nothing in any of the drawings bearing Buxton's signature "which is related directly or indirectly to any of Wynner's complaints, with the single exception of the standard sheet metal construction details on the drawing entitled '6' X 13', Cash Booth', and in that respect any complaint would have to be predicated upon faulty workmanship rather than design."
Wynner's opposition declaration repeats the prior declaration insofar as it describes the plans and the alleged defects in the construction of the project. Beyond that, the declaration merely collects: (1) unsworn statements in the form of letters from two civil engineering firms to plaintiff, stating details of the condition of the property and the causes of deficiencies, the steps to be taken to remedy same and, in one instance, a legal opinion by the civil engineer as to the effect of Buxton's signature on the general arrangement drawings without structural details, 2 and (2) Wynner's letter to Buxton enumerating his contentions respecting Buxton's alleged breach of duty.
The Wynner declaration also states that none of the plans "set forth notes or specifications which direct the persons performing the actual construction how their work was to be done so as to conform to code" and that they contained merely general references to the fact that various components were "to conform to 'City Code.' "
After oral argument the court granted Buxton's motion; this was followed by the judgment dismissing the cross-complaint as to Buxton.
Wynner contends that (1) Buxton's declarations are insufficient to establish the lack of causation between the engineering calculations made by him and the defects in the construction; (2) the plans signed by Buxton were his responsibility and they were defective in failing to show mechanical details pertaining to the product storage and delivery system, soil compaction and drainage; and (3) Buxton was chargeable with the duty of supervision of the entire project as a matter of law by virtue of his signing of plans.
Buxton controverts all of Wynner's contentions.
The Buxton declarations were sufficient to show lack of causal connection between any of the engineering calculations made by him and the project's defects of which Wynner complained. Buxton was responsible for the plans that were signed by him, but such plans were not defective in their omission of details concerning mechanical elements, soil compaction and drainage, with which they did not deal at all. The uncontradicted facts clearly showed that Buxton did not assume responsibility for supervision of the project. Consequently, the summary judgment was properly granted.
Wynner correctly points out that: (1) in reviewing the summary judgment, this court must resolve all doubts as to the propriety of granting the motion in his favor (Stationers Corp. v. Dun & Bradstreet, Inc. (1965)62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785), and (2) Buxton, as the moving party, had the burden to establish all elements necessary to sustain a judgment in his favor (Beech Aircraft Corp. v. Superior Court (1976) 61 Cal.App.3d 501, 520, 132 Cal.Rptr. 541),...
To continue reading
Request your trial
-
Riley v. Southwest Marine, Inc.
...a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. (Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172, 158 Cal.Rptr. 587.) The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact o......
-
Kallen v. Delug
...of a summary judgment, this court must resolve all doubts in favor of the party opposing the judgment. (Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172, 158 Cal.Rptr. 587.) As a consequence, the declarations of the moving party must be strictly construed, while those of the opponent are libe......
-
Starkman v. Mann Theatres Corp.
...knowledge, and those attested to by experts. (Code Civ.Proc., § 437c, subd (d); Evid.Code, § 801; see, e.g., Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172-173, 158 Cal.Rptr. 587.) In addition, the court may consider those facts and propositions of generalized knowledge which are so univers......
-
Gray v. State of California
...the affidavits of the moving party and resolve all disputed factual issues in favor of the opposing party. (Wynner v. Buxton (1979) 97 Cal.App.3d 166, 158 Cal.Rptr. 587.) However, we must also independently determine the construction and effect of the facts as a matter of law. (Zeilman v. C......