PRESTON v. GOLDMAN (1985)

Plaintiff Clinton Preston, a minor, through his guardian ad litem Stephen Preston, appeals from the judgment adverse to him and in favor of defendants Allan Goldman, Jon and Marion Kubichan and Susan and Richard Reid.¹  That judgment on special verdict provided that plaintiff recover nothing by reason of his complaint against defendants.

CONTENTIONS

Plaintiff raises the following contentions on appeal:

1. “The Kubichans are not insulated from liability for their negligence in the design and construction of the subject foundation pond by virtue of their sale of the subject property prior to Preston's injury.

2. “The trial court's refusal to give an instruction limiting the scope of the [Copfer v. Golden (1955) 135 Cal.App.2d 623, 288 P.2d 90] instruction to the Kubichans constitutes reversible error.

3. “The trial court erred in refusing to admit into evidence pertinent provisions of the Los Angeles County Building Code, the testimony of Preston's expert, and in refusing to instruct the jury on Preston's theory of ‘negligence per se.’

4. “The misconduct of Goldman's attorney during closing argument deprived Preston of a fair trial.   Therefore, the trial court's denial of Preston's motion for mistrial and for a new trial constitutes reversible error.

5. “The trial court improperly refused Preston leave to amend, refused to give a proper jury instruction, and improperly excluded the plaintiff from the courtroom.”

The Kubichans contend that “[t]he court erred in denying the motion for nonsuit based on the statute of limitations, CCP § 337.1.”

FACTS

Defendants Jon and Marion Kubichan owned and occupied the subject parcel of residential real property from 1968 through October 1973.   In approximately January 1972, they designed and built a pond on that property in which they installed a fountain.   In October 1973, the Kubichans sold the subject property to defendant Goldman who made several improvements on the property including the building of a fence and gate but made no changes in the fountain or the fountain pond.

In September 1974, Mr. Goldman entered into a lease-option agreement with defendants Richard Reid and Susan Reid.   Under the terms of that agreement Mr. Goldman remained the legal owner of the property while the Reids occupied the premises and paid him money both for rent and toward a downpayment on their purchase of the property.

While the Reids were occupying the property pursuant to that agreement, they made changes in the fountain and in the fountain pond.   These changes included the addition of a course of brick around the lip of the pond.   They made no changes, however, to the interior of the pond.

On May 7, 1976, while the Reids were still occupying the property, plaintiff Clinton Preston, then age 22 months, was on the property with his parents, Stephen Preston and Cynthea Preston, and his siblings visiting his aunt and uncle, the Reids.

During a period when plaintiff was left unattended for a few minutes he either fell into or entered the fountain pond.   Mrs. Preston found him floating unconscious in the pond.   A medical expert testified at trial that it was his opinion that plaintiff was in the water from two to four minutes.   Due to this accident, plaintiff is alleged to have suffered permanent severe brain damage and quadraplegia.

On April 23, 1978, plaintiff filed suit for negligence against Mr. Goldman, the Reids and Does I through V.   On September 26, 1980, plaintiff filed a first amended complaint naming the Kubichans as additional defendants.   Thereafter, all defendants answered the first amended complaint.   Additionally, the Reids cross-complained for indemnity against Mr. Goldman alleging that he negligently maintained and supervised the property and against Mr. and Mrs. Preston alleging that they negligently supervised and controlled plaintiff's activities.   Mr. Goldman cross-complained against the Reids and the Prestons.   The Kubichans cross-complained against Stephen Preston, Mr. Goldman and the Reids.

Prior to trial, Mr. Goldman moved the court to separately try the issues of liability and damages, which motion the court granted over plaintiff's objection.   On March 14, 1983, the date originally scheduled for trial, the Kubichans, Mr. Goldman and the Reids obtained leave of court to dismiss their respective cross-complaints against the Prestons.   Thereafter, plaintiff, through his counsel, entered into a stipulation with his mother and father, the Prestons, to file an amended complaint naming them as defendants and deeming the allegations of the proposed amended complaint denied.   The court, however, denied plaintiff's motion for leave to file that amended pleading.

The matter was tried before a jury which returned special verdicts in favor of all defendants and against plaintiff.   In particular, the jury determined that Mr. Goldman was not negligent, the Kubichans were not negligent and that the Reids were negligent but that their negligence was not a legal cause (i.e., a substantial factor) in causing injury to plaintiff.   Plaintiff appeals from the judgment entered on that verdict.

DISCUSSION

I

Plaintiff's first contention is that “[t]he Kubichans are not insulated from liability for their negligence in the design and construction of the subject fountain pond by virtue of their sale of the subject property prior to [plaintiff's] injury.”

After all parties had rested, the Kubichans made a “Motion to Dismiss” plaintiff's action as to them.²  They urged that, because they had neither an ownership nor a possessory interest in the subject property at the time of the accident, they owed plaintiff no duty.   The trial court heard argument and granted the motion.   Thereafter, the parties entered into a stipulation which the court approved, allowing the question of the Kubichans' liability to go to the jury, without informing the jury that the court had granted the nonsuit motion.³  No judgment of nonsuit was entered.

In connection with this contention, plaintiff attacks both the propriety of the court's granting the Kubichans' motion for nonsuit and the instruction the court gave to the jury respecting the Kubichans' potential liability as prior owners of the subject property.

 The record on appeal does not contain a written order signed by the court granting the Kubichans' motion for (a judgment of) nonsuit.   Such an order (judgment) is necessary before we may properly review the granting of a motion for a judgment of nonsuit.  (See Code Civ.Proc., § 581d;  4 Witkin, Cal.Procedure (2d ed. 1971) Trial, § 365, pp. 3161–3162.)   We, therefore, review the merits of plaintiff's contention solely upon the basis of the propriety of the jury instruction regarding the Kubichans' potential liability.

That instruction provided:  “The general rule of law is that once a seller of land has sold that land he is not subject to liability for injuries, sustained by a third person while on the land after the buyer has taken possession, which were caused by any dangerous condition, whether natural or artificial, which existed at the time the buyer took possession.  [¶] This general rule has an exception where the seller conceals or fails to disclose to his buyer such dangerous condition and this exception is as follows:  [¶] (a) The buyer does not know of the condition or the risk involved therein, and (b) the seller knows of the condition and the risk involved therein and has reason to believe that the buyer will not discover the condition or realize the risk.”   This instruction was based upon Restatement Second of Torts sections 352 and 353.⁴

In support of the propriety of this instruction, the Kubichans rely primarily upon Copfer v. Golden, supra, 135 Cal.App.2d 623, 288 P.2d 90.   In Copfer, Vaughn Golden, his wife Gertrude Golden, and his father and mother, Earl and Goldie Golden owned a parcel of real property as joint tenants.   Vaughn and Gertrude separated.   Pursuant to a property settlement agreement with Gertrude and an agreement between all of the property owners, Vaughn obtained full ownership of the subject lot.   During the period the lot was jointly owned, Vaughn, in the course of his business, moved various pieces of machinery and equipment onto the subject property.   Neither Earl nor Goldie had an interest in Vaughn's business during any of the pertinent times.   Gertrude ceased to have any interest in the business as a result of those two agreements.   After Vaughn obtained all of the interest in the subject lot, the minor plaintiff was injured while playing on a trailer Vaughn had placed on that property.

Plaintiff sued Gertrude, Goldie, Earl and Vaughn.   The court rendered a judgment for plaintiff and against all defendants.

The appellate court affirmed the judgment as to Vaughn Golden but reversed it as to the three former owners.   The court reasoned that “[a]fter the owner of property has disposed of it he is no longer liable for what may happen thereon for the reason that he is in no position to control the use thereof and his duty to children of tender years who come thereon is at an end.   After defendants [Gertrude], [Earl] and [Goldie] conveyed the property they had no control over the use of it and were under no duty to children of tender years who went thereon.   After the conveyances they could not go on the property even to do whatever may have been reasonably necessary to protect such children from the danger of playing on the trailer.   They could not control the grantee, could not dictate who should be permitted on or kept off the property, and could not have done anything about the trailer if they had been so disposed.   It is fundamental that the first requisite in establishing negligence is to show the existence of a duty which it is claimed has not been performed.   There can be no negligence unless there is a duty which has been violated.  [Citation.]  By the conveyances, defendants [Gertrude], [Earl] and [Goldie] divested themselves of title and all right to possession and of reentry for any purpose;  all duties of ownership as to them were at an end.   They owed no duty to trespassing children thereafter.”  (Copfer v. Golden, supra, 135 Cal.App.2d at pp. 633–634, 288 P.2d 90.)

Plaintiff urges that Copfer is not applicable to the case at bench because he seeks to impose liability on the Kubichans, not because of the Kubichans' status as vendors of the property upon which that pond was located, but because of their active negligence in the design and construction of the fountain pond.   We agree.

Restatement section 353 does not refer to the liability of a vendor who also actually creates the unreasonably dangerous condition which causes an injury on the property.   Restatement section 373 which deals with the liability of a vendor for an unreasonably dangerous condition which causes an injury off the property provides for the liability of a vendor who also created the condition.   That section provides that:  “(1) A vendor of land who has created or negligently permitted to remain on the land a structure or other artificial condition which involves an unreasonable risk of harm to others outside of the land, because of its plan, construction, location, disrepair, or otherwise, is subject to liability to such persons for physical harm caused by the condition after his vendee has taken possession of the land.  [¶] (2) If the vendor has created the condition, or has actively concealed it from the vendee, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it.   Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

Comment C to section 373 of Restatement explains:  “Where the vendor has himself created the unreasonably dangerous condition, his liability to persons outside of the land stands upon the same footing as if he were not a vendor but a third person who had created the condition, such as a trespasser or a contractor.   The failure of the vendee to discover the condition and the danger, even though it is negligent, does not relieve the vendor from liability for a danger for whose existence he is responsible.  [¶] If the vendor actively conceals the condition, the failure of the vendee to discover it, although it may be negligence, again does not relieve the vendor of responsibility, since it is his fault that the vendee has not discovered it.  [¶] In either case, however, once the vendee has in fact discovered the danger, and has had reasonable opportunity to take precautions against it, his responsibility supersedes that of the vendor, and the liability of the vendor is terminated.”

Several other jurisdictions to which this issue has been presented have refused to treat the potential liability of a vendor who has created an unreasonably dangerous condition which causes injury on the property differently than they do the potential liability of a vendor who did not create that condition.  (See Sarnicandro v. Lake Developers, Inc. (1959) 55 N.J.Super. 475, 151 A.2d 48, 50–51;  Brock v. Rogers & Babler, Inc. (Alaska Sup.Ct.1975) 536 P.2d 778, 781–784;  but see Merrick v. Murphy (N.Y.Sup.Ct.1975) 83 Misc.2d 39, 371 N.Y.S.2d 97, 100–101 (the liability of a builder and vendor is dependent on plaintiff proving the alleged defect was latent);  Fisher v. Simon (1961) 15 Wis.2d 207, 112 N.W.2d 705, 709–710 (builder-vendor continues to be liable for latent defects after transfer).)

In Sweeney v. Stone (1968) 265 Cal.App.2d 693, 71 Cal.Rptr. 497, plaintiffs brought an action to recover damages caused by their house being built on unstable ground.   Defendants Mr. and Mrs. Stone had owned the tract of land which included the subject lot.   They hired a contractor to build houses on that tract.   Thereafter, they sold the subject lot and house to plaintiffs.   With regard to Mr. Stone the court determined that the Restatement rule applied in Copfer did not shield him from liability because his liability was “that of a contractor who has built a house on unstable ground and who later sold the house to an innocent third party who has sustained damage because of the defective condition of the property.”  (265 Cal.App.2d at pp. 695–696, 71 Cal.Rptr. 497.)   The Kubichans would have us limit the applicability of Sweeney to only those suits against the original developers of property who have created a latent defect on that property.

While in the case at bench the Kubichans were not the original developers of the subject property, we conclude that that distinction is not dispositive of this issue.   Regardless of the fact that the Kubichans were not contractors as was Mr. Stone, they actually created the alleged unreasonably dangerous condition which was a substantial factor in causing plaintiff's injuries.   This, in our opinion, is a sufficient basis upon which to premise liability.

 Whether the alleged defects in the fountain pond were latent is generally a factual question to be resolved by the trier of fact.   Even assuming that the defects are patent does not foreclose the Kubichans' potential liability for negligence.   It is, instead, only one of several factors to be considered in determining whether the Kubichans' negligence was superseded by that of another.  (Cf. Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 473, 85 Cal.Rptr. 629, 467 P.2d 229, wherein the court concluded that the question of whether the manufacturer's negligent design of a piece of machinery created a patent defect was relevant to the manufacturer's defenses and not to the issue of duty.   This analysis employed in a negligence products liability action is applicable to an action based upon the negligent creation of an improvement upon real property.  (See Dow v. Holly Manufacturing Co. (1958) 49 Cal.2d 720, 726–727, 321 P.2d 736.).)

Harper and James, in their treatise on torts, find “no sound basis” for treating the potential liability of a vendor who creates an unreasonably dangerous condition which causes an injury on the property differently from when that condition causes an injury off the property.  (2 Harper and James, The Law of Torts (1956) § 27.18, p. 1520.)   With regard to a vendor who creates an unreasonably dangerous condition on the premises which causes an injury off the premises they explain that “[i]f one negligently creates a condition on land which is unreasonably dangerous to outsiders, there is no particularly good reason why his potential liability should stop either when he transfers possession of that land or when his successor in occupancy becomes liable either because of his possession or because of his fault in negligently omitting to repair the danger.   In such a case, the vendor's wrong is not the breach of a duty imposed upon him by reason of possession, as such—if he had created the same condition as a trespasser on the land he would be just as liable.   The gist of the wrong is simply affirmative unreasonably dangerous conduct and his liability should have no limits except those which are generally imposed in such cases.   And these limits do not include either the parting with the possession or the negligent omission of another to avert the threatened harm.   If there is such omission, he who is guilty of it becomes concurrently liable with the one who created the danger.”  (2 Harper and James, The Law of Torts (1956) § 27.21, pp. 1531–1532;  fns. omitted.)   We agree with the Harper and James criticism and see no sound basis to make such distinctions.

In Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, the California Supreme Court discussed the common law rule of immunity of a possessor of land for harm caused by a natural condition of his land to persons outside the premises.   The court determined that the adherence to that immunity would create an anomalous result.   The court reasoned that “[a] possessor of land would owe a duty of care to protect trespassers, invitees and licensees, but not his neighbor, from harms threatened by a natural condition of the land.   It has long been established in California that a possessor of land is subject to liability for harm caused a person upon the land by a natural condition.  [Citation.]  It is difficult to see why this court should support a rule which would allow a trespasser to bring an action in negligence that would be denied a neighbor, where both were standing on either side of the possessor's boundary line and were both struck by a dead limb from his tree.”  (Id., at p. 370, 178 Cal.Rptr. 783, 636 P.2d 1121.)

 A plaintiff's ability to recover from the creator of an unreasonably dangerous condition of property should not depend on which side of the property line he or she was on when at the time he or she was injured or upon the status of the creator of that condition.   It makes little sense to shield the Kubichans from liability for their alleged negligent planning and construction of the fountain pond merely because they were also former owners of the subject property, or because the alleged negligent condition of that fountain pond caused an injury on the property as distinguished from an injury occurring off of it.   Their potential liability should be unaffected by their status as vendors of that property where there is an independent basis for such liability.

The Kubichans urge that our recognition of liability of vendors for their creation of an unreasonably dangerous condition which causes an injury on the property would be tantamount to the adoption of an implied warranty of fitness in the sale of a used home.   California currently does not recognize such an implied warranty (see Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 375, 115 Cal.Rptr. 648, 525 P.2d 88;  East Hilton Drive Homeowners' Assn. v. Western Real Estate Exchange, Inc. (1982) 136 Cal.App.3d 630, 186 Cal.Rptr. 267), and we are not adopting one.

 We, instead, treat a vendor who actually negligently creates an unreasonably dangerous condition on the premises in the same manner as we do a non-vendor who does the same thing.   This liability does not arise from the defendant's status as a vendor, but instead arises only from the defendant's status as the creator of an unreasonably dangerous condition.

 We therefore conclude that the Kubichans' potential liability as the creator of an allegedly unreasonably dangerous condition did not cease at any fixed point after they transferred the subject property but continued until their alleged negligence was superseded by that of another or was barred by the applicable statute of limitations.⁵  The trial court therefore erred in giving the complained of instruction.

While the jury was instructed on superseding causes it is apparent from its special verdict that it never reached the issue of whether the Kubichans' alleged negligence was superseded by that of another, because it determined that the Kubichans were not negligent.   It is reasonably probable that the erroneous instruction regarding the duty the Kubichans owed to plaintiff lead to this determination.   That error therefore compels reversal of that portion of the judgment that is favorable to the Kubichans.  (Spahn v. Guild Industries (1979) 94 Cal.App.3d 143, 160, 156 Cal.Rptr. 375.)

II

Plaintiff next contends that “[t]he trial court's refusal to give an instruction limiting the scope of the Copfer instruction to the Kubichans' constituted reversible error.”   Because we reverse upon the grounds above stated, we need not, and therefore do not, address the merits of this contention.

III

Plaintiff next contends that “[t]he trial court erred in refusing to admit into evidence pertinent provisions of the Los Angeles County Building Code, the testimony of [his] expert and in refusing to instruct the jury on his theory of ‘negligence per se.’ ”  (Emphasis in original.)

In his first amended complaint, plaintiff pleaded that “Defendant [sic ] KUBICHANS did not comply with the Municipal Code of Los Angeles as described in the Second Cause of Action above.   Said ordinance provided an affirmative duty of care which Defendants KUBICHANS, and one or more DOES breached in constructing the fountain pond in violation of the ordinance's requirements.   Said breach of the ordinance constituted negligence per se.   In addition, Plaintiffs are informed and believe and thereon allege, that said construction was performed without Defendants having obtained, as required by law, a building permit.”

Evidence Code section 669, provides in part:

“(a) The failure of a person to exercise due care is presumed if:

“(1) He violated a statute, ordinance, or regulation of a public entity;

“(2) The violation proximately caused death or injury to person or property;

“(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent;  and

“(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

“(b) This presumption may be rebutted by proof that:

“(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law;  ․”

 The first two elements of this standard are factual issues to be determined by the trier of fact, while the second two elements are matters of law to be determined by the trial court.  (Cade v. Mid-City Hosp. Corp. (1975) 45 Cal.App.3d 589, 597, 119 Cal.Rptr. 571.)   The determination of whether the defendant was excused or justified in his conduct is generally a factual question.  (Fuentes v. Panella (1953) 120 Cal.App.2d 175, 183, 260 P.2d 853.)

 The “[r]efusal to give an instruction adequately covering a party's theory which is supported by substantial evidence is inherently prejudicial error.  [Citations.]  In deciding whether a trial court erred in refusing a requested instruction, the evidence should be viewed in a light most favorable to the appellant.”  (Ng v. Hudson (1977) 75 Cal.App.3d 250, 254, 142 Cal.Rptr. 69.)

At trial, plaintiff presented to the court a certified copy of the City of Los Angeles Department of Building and Safety Rule of General Application RGA 14–67 (hereafter RGA).   That rule is a compilation of the various requirements for pool design and construction for the City of Los Angeles.   The RGA defines pool as “any constructed pool used for swimming, bathing, or wading or as a fish pond or similar use.”   The rule further provides that “a building permit shall be required for any pool exceeding twenty-four inches (24″) in depth or having a surface area exceeding two hundred and fifty square feet (250 sq. ft.)․”   Among the prerequisites to obtaining a permit is the signing of the “plans and calculations ․ by a Registered Engineer or Architect licensed by the State of California.”   Additionally, there was a requirement for a fence surrounding the pool.   A permit is not necessary, however, “[w]here the work regulated by this Code is valued at $200.00 or less, unless it affects the structural stability of a building, or public safety, or is done to make a building conform to the requirements of this Code for a change in occupancy.”   (L.A.Mun.Code, § 91.0201, exception 1.)

The Kubichans urge that the trial court properly refused to admit the above rules into evidence and to give the jury a negligence per se instruction based on those rules because (1) there is insufficient evidence that the pond as built by the Kubichans exceeded 24 inches, (2) the pond was valued at less than $200, and (3) that there was no evidence that their failure to get a permit was the proximate cause of plaintiff's injuries.⁶

 With respect to the original depth of the pond, while there was conflicting evidence on this issue, there was substantial evidence from which the jury could have concluded that the depth of the pond was greater than 24 inches at the time of plaintiff's accident and it was therefore prejudicial error not to have given the requested instruction.   Robert Lane, an architect, testifying on behalf of plaintiff, calculated that the pond could contain a maximum of approximately 24 7/878–25 inches as originally built.   Charles Turnbow, a safety engineer who testified on behalf of plaintiff, calculated that if the pond had been filled to the top it would have a capacity of 24–25 inches.   Dennis Dallugge, who helped the Kubichans install the fountain, testified that when he measured the pond after the accident it was 26–27 inches deep.   He recalled, however, that the pond as it was originally built was only 10 inches deep.   Ms. Kubichan testified that at its deepest point the pond was 18 inches.   The evidence with respect to whether there was a change in the depth of the pool after the accident was either inconsistent or inconclusive.   Accordingly, there was substantial evidence from which the jury could have found that there had been no change in the depth of the pond and that the pond, as built by the Kubichans, was over 24 inches deep.

 Even assuming the pond cost less than $200 to construct does not bring it within the exception for work valued at $200 or less for that exception does not apply to work which affects public safety.   Clearly, the building of a pond, such as the one in the case at bench, falls within that provision and makes the $200 exception inapplicable.

 Finally, the Kubichans urge that the trial court did not err in refusing to give the subject instruction because their failure to get a permit was not the proximate cause of plaintiff's injuries.   The failure to obtain a permit or license can properly be the basis of negligence per se only if that failure was the proximate cause of plaintiff's injuries.  (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 546, pp. 2813–2814;  McDonald v. Foster Memorial Hospital (1959) 170 Cal.App.2d 85, 93, 338 P.2d 607;  disapproved on other grounds in Siverson v. Weber (1962) 57 Cal.2d 834, 839, 22 Cal.Rptr. 337, 372 P.2d 97.)

In the case at bench plaintiff urged two bases for finding that the fountain pond was violative of the subject regulations.   First was the Kubichans' failure to have the pond enclosed by a fence.   At the time of the accident, however, the pond had been enclosed by a fence.   Accordingly, this could not have been the proximate or legal cause of plaintiff's injuries.   Secondly, the Kubichans failed to get the plans signed by either a registered engineer or architect licensed by the State of California.   Mr. Lane testified that he would not have approved the plans for the pond had they been submitted to him because of the design of the pond.

Mr. Lane, Mr. Turnbrow, Burnis Preston, plaintiff's grandfather, Stephen Preston and Cynthia Preston all testified that the pond appeared much shallower than it was.   The pond, according to that testimony, was deceptive because the walls surrounding it rose approximately only 12 inches above the patio while most of the depth of the pond was below the patio surface.   Mr. Lane and Mr. Turnbrow also criticized the lack of incorporation of any safety features into the pond.

 From the evidence presented to them, the jury could have properly concluded that the deceptive nature of the pond coupled with the lack of safety features would have prevented the Kubichans from obtaining the signature of an engineer or architect.   The jury could have further concluded that the deceptive nature of the pond was a proximate cause of plaintiff's injuries, because plaintiff's parents did not recognize the potential danger of that pond.   It could additionally have concluded that the lack of safety features was a proximate or legal cause of plaintiff's injuries as they might have prevented his injuries altogether.

We, therefore, conclude that the trial court erred both in finding that the RGA was inapplicable and in refusing to give the proffered negligence per se instruction based on the RGA.

IV

The Kubichans urge that regardless of the merits of the foregoing contentions, the judgment should be affirmed as to them because “[t]he trial court erred in denying [their] motion for nonsuit based on the statute of limitations, CCP § 337.1.” ⁷

Code of Civil Procedure section 337.1 provides in pertinent part:

“(a) Except as otherwise provided in this section, no action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement for any of the following:

“(1) Any patent deficiency in the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to, or survey of, real property;

“(2) ․

“(3) Injury to the person or for wrongful death arising out of any such patent deficiency.

“(b) ․

“(c) ․

“(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.

“(e) As used in this section, ‘patent deficiency’ means a deficiency which is apparent by reasonable inspection.

“(f) Subdivisions (a) and (b) shall not apply to any owner-occupied single-unit residence.”

For purposes of reviewing the merits of this contention we assume, without deciding, that the alleged defects in the fountain pond were patent.⁸

In the case at bench, the pond was completed in approximately January 1972.   Plaintiff did not file his action until April 23, 1978.   Accordingly, unless the exclusion contained in section 337.1, subdivision (f) of the Code of Civil Procedure is applicable, plaintiff's action against the Kubichans due to the alleged deficiency in the design of the pond is barred by that section.

 The pertinent time for the commencement of the limitation period contained in section 337.1 of the Code of Civil Procedure is the time of the substantial completion of the improvement and not the time of the accrual of the cause of action.   We therefore conclude that the status of ownership of the subject property at the time of the substantial completion of the improvement determines the applicability of the exclusion contained in section 337.1, subdivision (f) of the Code of Civil Procedure.  (Cf. Barnhouse v. City of Pinole (1982) 133 Cal.App.3d 171, 184–185, fn. 4, 183 Cal.Rptr. 881, wherein the court reasoned that the exclusion contained in subdivision (f) was reasonable “since plaintiffs living in their own house are likely to notice patent deficiencies sooner” and therefore no greater burden was placed on contractors due to that exclusion.   This reasoning is valid only if the status of ownership at the time of the substantial completion of the improvement determines the applicability of subdivision (f).)

At the time the subject fountain pond was substantially completed the property was an “owner-occupied single-unit residence” within the meaning of section 337.1, subdivision (f) of the Code of Civil Procedure.   Accordingly, the trial court did not err in denying the Kubichans' motion for nonsuit based upon the limitation period contained in that section.   We, therefore, reject this contention of the Kubichans.

V

Plaintiff next contends that “[t]he trial court improperly refused [him] leave to amend, refused to give a proper jury instruction, and improperly excluded [him] from the courtroom.”

Just prior to the commencement of trial plaintiff made “a motion for leave to file an amended complaint.”   By that motion, plaintiff sought leave to add a cause of action for negligent supervision, instruction, guidance and control of plaintiff, against Mr. and Mrs. Preston, plaintiff's parents.

The Prestons stipulated to allow this amendment and further stipulated that they would be deemed to have denied the allegations of that cause of action.   In the sole declaration submitted in support of plaintiff's motion, plaintiff's attorney, Mr. Goldstein, declared that all defendants had filed cross-complaints for indemnity against the Prestons alleging that their negligence was a proximate cause of plaintiff's injuries.   He further declared that on the day originally set for trial, over a month before the actual commencement of the trial, the defendants orally moved for, and the court granted, a dismissal of those cross-complaints.

Plaintiff urged below and contends on appeal that the effect of the defendants' dismissal of the cross-complaints was to leave the Prestons unrepresented at trial while all of the defendants would allege that the Prestons' negligence was the proximate cause of plaintiff's injuries.

We find this contention without merit.

 Plaintiff sought leave to amend his complaint in order to allege a cause of action against his parents not for the purpose of proving their negligence but to give them an opportunity to disprove it.   Plaintiff's amendment of his complaint was not a proper method of accomplishing this.   Finally, even assuming that the trial court erred by denying plaintiff's motion, any prejudice plaintiff may have suffered due to that error was eliminated by the instructions as a whole and particularly by the following instructions:  “There may be more than one [legal] cause of an injury.   When negligent conduct of two or more persons contributes concurrently as [legal] causes of an injury, the conduct of each of said persons is a [legal] cause of injury regardless of the extent to which each contributes to the injury.   A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.  [It is no defense that the negligent conduct of a person not joined as a party was also a [legal] cause of the injury.]”  (BAJI No. 3.77 (6th ed. 1977.)

“If you find that Defendants Kubichan and/or Defendant Goldman were negligent, and that their negligence was a substantial factor in bringing about an injury to the plaintiff, but that the immediate cause of the injury was the negligent conduct of Defendants Reid and/or Mr. and Mrs. Preston, the Defendants Kubichan and/or Defendant Goldman are not relieved of liability for such injury if:

“1. At the time of their conduct, Defendants Kubichan and/or Defendant Goldman realized or reasonably should have realized that third persons, such as Defendants Reid and/or Mr. and Mrs. Preston might act as they did;  or

“2. A reasonable person knowling [sic ] the situation existing at the time of the conduct of Defendants Reid and/or Mr. and Mrs. Preston, would not have regarded it as highly extraordinary that Defendants Reid and/or Mr. and Mrs. Preston had so acted;  or

“3. The conduct of Defendants Reid and/or Mr. and Mrs. Preston was not extraordinarily negligent and was a normal consequence of the situation created by, or maintained by Defendants Kubichan and/or Defendant Goldman.”   We, therefore, reject this assertion of plaintiff.

VI

 Plaintiff next urges that the court erred by refusing to give his proffered instruction that “the negligence, if any, of the parents, or either of them, shall not affect the right of the minor plaintiff to recover.”   The topic of this instruction was adequately covered by those quoted above.   The court, therefore, did not prejudicially err by refusing to give it.  (See Keith v. S.S. Goldstone (1978) 81 Cal.App.3d 699, 710–711, 146 Cal.Rptr. 639.)

VII

Plaintiff next urges that the trial court erred by excluding his presence from the courtroom.   Prior to trial, the Kubichans made a motion to exclude plaintiff from the courtroom which motion the court tentatively granted.   The court explained:

“I think there are some obvious potential prejudices created by his being present during the liability phase.   I recognize that without—I think we are all aware of the potential problems, gainsmanship [sic ] notwithstanding.

“If you could give me a single reason, a single reason, a single indication of how he can help his case, I will be most inclined to permit him to be present.   But if he is not going to be able to do anything more than just to sit there and stare straight ahead or to the side or wherever with the jury being able to look at him, I don't see that his presence is going to outweigh the potential prejudice that that presence may very well engender.”

Mrs. Preston then testified that plaintiff was able to sit quietly during the trial as her other “normal” children were.

Thereafter plaintiff was brought into court, out of the presence of the jury for the purposes of having the court observe him.   After the court observed him for approximately 15 minutes, it made the following comments:

“Regarding the minor Clinton, the court will further comment that after reviewing Clinton this morning, it does not feel that the court would be—that the jury—the court does feel that the jury would be unduly distracted and even to the point of prejudiced by Clinton's presence in the courtroom.

“It was obvious to the court Clinton requires his mother's care, or at least someone's care.   I think that in itself is distracting.

“The fact that Clinton occasionally made sounds, basically unintelligible sounds, would be distracting.   The court could only conclude based on the few minutes that Clinton was in court, that this would be a continuing problem.

“And based thereupon, and particularly based upon the fact that the court has bifurcated this matter, the court does not feel it is appropriate for Clinton to be present in court except inasmuch as he is represented․

“․ Clinton does not appear as a normal child, at least not to this observer.

“Since I am the trial judge, I have to make these rulings.   Clinton has a far away look, which is certainly in the court's mind occasioned by this tragic accident.”  (V.1 RT 57–59)  The court then excluded plaintiff from the courtroom.

Evidence Code section 777, provides:  “(a) Subject to subdivisions (b) and (c), the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.  [¶] (b) A party to the action cannot be excluded under this section.  [¶] (c) If a person other than a natural person is a party to the action, an officer or employee designated by its attorney is entitled to be present.”

The Law Revision Commission comment to that section explains that it was declarative of existing law.  “Under the existing law, the judge may not exclude a party to an action.”  (Cal. Law Revision Com. com. to Evid.Code, § 777, 296 West's Ann.Evid.Code (1966 ed.) p. 271;  see Chester v. Bower (1880) 55 Cal. 46, 48;  Pedrow v. Federoff (1926) 77 Cal.App. 164, 174, 247 P. 212;  Witkin, Cal. Evidence (2d ed. 1966) Introduction of Evidence at Trial, § 1100, p. 1018.)

 The fact that plaintiff was represented by a guardian ad litem does not deprive him of the protections afforded by that section.  “A guardian ad litem is not a party to an action, but merely the representative of record of a party.”  (Estate of Cochems (1952) 110 Cal.App.2d 27, 29, 242 P.2d 56;  emphasis in original.)   Accordingly, plaintiff as a party to the action had a right to be present in court during the trial.   If plaintiff's actions in the courtroom unduly prejudiced the defendants, then the trial court could have taken appropriate action at that time.⁹  (See Annot., Civil Trial-Emotional Manifestations (1960) 69 A.L.R.2d 954.)   The trial court therefore erred by improperly excluding plaintiff from the courtroom.   This error, however, was neither prejudicial nor cause for reversal in view of the fact that the minor plaintiff was unable, by reason of his tender years and grievous disability, to understand the nature of the proceedings, meaningfully observe them or cooperate with his attorney in the presentation of the liability portion of this bifurcated trial.  (Cf. People Ex Rel. Curtis v. Peters (1983) 143 Cal.App.3d 597, 601–604, 192 Cal.Rptr. 70.)

VIII

Plaintiff next contends that “[t]he misconduct of Goldman's attorney during closing argument deprived [him] of a fair trial.   Therefore, the trial court's denial of Preston's motion for mistrial and for a new trial constitutes reversible error.”

 In this contention, plaintiff urges that the Goldmans' attorney, twice committed prejudicial misconduct in his argument at the close of the liability phase of the bifurcated trial, by referring to this action as an $8 million case.   Plaintiff urges that this was misconduct especially because the Goldmans' attorney had earlier moved the court to bifurcate the liability and damage phases of the trial.   The aforesaid remarks by Goldman's attorney in argument did constitute misconduct and error, but from our review of the entire record and the nature of the evidence, we are convinced that that misconduct did not substantially affect the rights of the parties, did not result in a miscarriage of justice, and therefore does not warrant a reversal as to Goldman or the Reids.  (Cal. Const., art. VI, § 13;  Code Civ.Proc., § 475;  Paolini v. City and County of San Francisco (1946) 72 Cal.App.2d 579, 588, 164 P.2d 916.)

The judgment as to Allan Goldman, Susan Reid and Richard Reid is affirmed.   The judgment as to John Kubichan and Marion Kubichan is reversed.

FOOTNOTES

1.   The record on appeal reflects that the Reids entered into a settlement with plaintiff under the terms of which they would continue to appear as defendants during trial.   This fact was made known to the jury.   On appeal the Reids have joined in the briefs of the other defendants.

2.   The Kubichans later made clear that the motion was a motion for nonsuit pursuant to Code of Civil Procedure section 581c.

3.   While plaintiff designated that stipulation as part of the record on appeal, it was not made a part of the record.   We, therefore, do not consider that stipulation in reaching our decision.  (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 218, pp. 4208–4209.)

4.   All references to the Restatement are to Restatement Second of Torts.Restatement section 352 provides:  “Except as stated in § 353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.”Restatement section 353 provides:  “(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if [¶] (a) the vendee does not know or have reason to know of the condition or the risk involved, and [¶] (b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.  [¶] (2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it.   Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

5.   Of course the “extreme ․ passage of time may create such a high probability of superseding causation that a court will rule as a matter of law that [the subject] defect could not have been a proximate cause of an injury.”  (Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 644, 105 Cal.Rptr. 890;  Bradler v. Craig (1969) 274 Cal.App.2d 466, 477, 79 Cal.Rptr. 401.)

6.   The trial court apparently also relied on the fact that the pond as constructed was not intended as a fish pond.   While there is some evidence that both the Kubichans and the Goldmans unsuccessfully attempted to keep fish in the pond, this, in itself, is of no import.   The rule defines pool to include a fish pond or similar use.   Keeping in mind that the primary purpose behind these rules is public safety, we conclude that a fountain pond falls within the “similar use” portion of that definition.

7.   The Kubichans raise this issue pursuant to Code of Civil Procedure section 906, which provides in pertinent part:  “The respondent, or party in whose favor the judgment was given, may, without appealing from such judgment, request the reviewing court to and it may review any of the foregoing matters for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken.”

8.   In Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 510–511, 167 Cal.Rptr. 292, we concluded that the absence of a fence surrounding an apartment house swimming pool was a defect which was open and obvious to the common experience of the pool user and was therefore patent in nature.   In the case at bench, however, there was expert testimony that the defects here involved were not obvious to an ordinary person.   Accordingly, the determination of whether those defects were patent or latent was a factual question for the jury to determine.

9.   The record reflects that the trial court employed an Evidence Code section 352 analysis in determining whether plaintiff had a right to be present.   That section provides:“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”The mere presence of a party, without more, is not evidence and therefore the balancing test of that section is not applicable.

McCLOSKY, Associate Justice.

KINGSLEY, Acting P.J., and ARGUELLES, J., concur.