Norman v. Rancho Del Lago

(D.Ariz. Aug. 4, 2021, No. 19-CV-00486-TUC-JAS-LCK)
2021 U.S.Dist.LEXIS 146518.

United States District Court, D. Arizona.

September 21, 2021

No. CV 19-486-TUC-JAS (LCK)

Summary by Jillian M Wright, Esq.:

An owner alleged violations of the Federal Fair Housing Act, claiming the association discriminated when it did not allow the owner to install a second driveway to accommodate the owner’s unstable gait. However, the owner’s medical expert opined that a walkway half the size of the driveway, which the association would have allowed, would have sufficed for purposes of an accommodation. The owner’s request to keep the driveway instead of a walkway was because other owners had a second driveway and the owners needed one for their daughter’s vehicle. The court found that the association’s policy did not interfere with the owner’s use and enjoyment of the property and granted association’s motion for summary judgment.
TAKEAWAY: This case reinforces the idea that when an association receives a request for reasonable accommodation it can narrow the inquiry to whether the requested modification or accommodation is necessary to accommodate a disability or just preferred by the requesting party.

***End Summary***

Brenda C. Norman, et al., Plaintiffs,
v.
Rancho del Lago Community Association, Defendant.
No. CV 19-486-TUC-JAS (LCK).

ORDER

JAMES A. SOTO, District Judge.

DISCUSSION

Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge Kimmins. The Report and Recommendation recommends granting Defendant’s partial motion for summary judgment. Plaintiffs filed objections to the Report and Recommendation.[1]

As a threshold matter, as to any new evidence, arguments, and issues that were not timely and properly raised before United States Magistrate Judge Kimmins, the Court exercises its discretion to not consider those matters and considers them waived. United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation. . . [I]n making a decision on whether to consider newly offered evidence, the district court must. . . exercise its discretion. . . [I]n providing for a de novo determination rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate judge’s proposed findings and recommendations. . . The magistrate judge system was designed to alleviate the workload of district courts. . . To require a district court to consider evidence not previously presented to the magistrate judge would effectively nullify the magistrate judge’s consideration of the matter and would not help to relieve the workload of the district court. Systemic efficiencies would be frustrated and the magistrate judge’s role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round. .. Equally important, requiring the district court to hear evidence not previously presented to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and—having received an unfavorable recommendation—shift gears before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal Magistrates Act is to improve the effective administration of justice.”).

Assuming that there has been no waiver, the Court has conducted a de novo review as to Plaintiffs’ objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with [the Report and Recommendation], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.”).

In addition to reviewing the Report and Recommendation and any objections and responsive briefing thereto, the Court’s de novo review of the record includes review of the record and authority before United States Magistrate Judge Kimmins which led to the Report and Recommendation in this case.

Upon de novo review of the record and authority herein, the Court finds Plaintiffs’ objections to be without merit, rejects those objections, and adopts United States Magistrate Judge Kimmins’ Report and Recommendation. See, e.g., United States v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on the record compiled by the magistrate. Rodriguez treats adoption of the magistrate’s report as a sign that he has not received his due. Yet we see no reason to infer abdication from adoption. On occasion this court affirms a judgment on the basis of the district court’s opinion. Affirming by adoption does not imply that we have neglected our duties; it means, rather, that after independent review we came to the same conclusions as the district judge for the reasons that judge gave, rendering further explanation otiose. When the district judge, after reviewing the record in the light of the objections to the report, reaches the magistrate’s conclusions for the magistrate’s reasons, it makes sense to adopt the report, sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review is statutorily and constitutionally required when written objections to a magistrate’s report are timely filed with the district court. . . The district court’s duty in this regard is satisfied only by considering the actual testimony [or other relevant evidence in the record], and not by merely reviewing the magistrate’s report and recommendations. . . On the other hand, we presume the district court knew of these requirements, so the express references to de novo review in its order must be taken to mean it properly considered the pertinent portions of the record, absent some clear indication otherwise. . . Plaintiff contends. . . the district court’s [terse] order indicates the exercise of less than de novo review. . . [However,] brevity does not warrant look[ing] behind a district court’s express statement that it engaged in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 F.3d 719, 722 (2nd Cir. 1994) (“We. . . reject Murphy’s procedural challenges to the granting of summary judgment. . . Murphy’s contention that the district judge did not properly consider her objections to the magistrate judge’s report. . . lacks merit. The judge’s brief order mentioned that objections had been made and overruled. We do not construe the brevity of the order as an indication that the objections were not given due consideration, especially in light of the correctness of that report and the evident lack of merit in Murphy’s objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) (“When a party timely objects to a magistrate judge’s report and recommendation, the district court is required to make a de novo review of the record related to the objections, which requires more than merely reviewing the report and recommendation. . . This court presumes that the district court properly performs its review and will affirm the district court’s approval of the magistrate’s recommendation absent evidence to the contrary. . . The burden is on the challenger to make a prima facie case that de novo review was not had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the district court judge did not review the magistrate’s report de novo. . . There is no evidence that the district court did not conduct a de novo review. Without any evidence to the contrary. . . we will not assume that the district court did not conduct the proper review.”).[2]

CONCLUSION

Accordingly, IT IS HEREBY ORDERED as follows:

(1) United States Magistrate Judge Kimmins’ Report and Recommendation (Doc. 67) is accepted and adopted in its entirety.
(2) Plaintiffs’ objections are rejected.
(3) Defendant’s partial motion for summary judgment (Doc. 58) is granted.
(4) This case is referred back to United States Magistrate Judge Kimmins for remaining proceedings.

[1] Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order.

[2] See also Pinkston v. Madry, 440 F.3d 879, 893-894 (7th Cir. 2006) (the district court’s assurance, in a written order, that the court has complied with the de novo review requirements of the statute in reviewing the magistrate judge’s proposed findings and recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on appeal; emphasizing that “[i]t is clear that Pinkston’s argument in this regard is nothing more than a collateral attack on the magistrate’s reasoning, masquerading as an assault on the district court’s entirely acceptable decision to adopt the magistrate’s opinion. . .”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The district court’s order is terse. . . However, neither 28 U.S.C. § 636(b)(1) nor Fed.R.Civ.P. 72(b) requires the district court to make any specific findings; the district court must merely conduct a de novo review of the record. . . It is common practice among district judges. . . to [issue a terse order stating that it conducted a de novo review as to objections]. . . and adopt the magistrate judges’ recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court’s [terse] statement as establishing that it failed to perform the required de novo review. . . We hold that although the district court’s decision is terse, this is insufficient to demonstrate that the court failed to review the magistrate’s recommendation de novo.”); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“The district court is required to conduct a de novo determination of those portions of the magistrate judge’s report and recommendations to which objections have been filed. But this de novo determination is not the same as a de novo hearing. . . [I]f following a review of the record the district court is satisfied with the magistrate judge’s findings and recommendations it may in its discretion treat those findings and recommendations as its own.”).

Gonzalez v. Mathis

(2021) 12 Cal.5th 29.

Supreme Court of California

August 19, 2021

No. S247677

Summary by Jillian M. Wright Esq.:

Landowners owe no duty to independent contractors or contractors’ workers, and landowners are not legally responsible to protect them against known hazards on premises unless the landowner directed the contractor to perform the job in a way that caused the injury.
TAKEAWAY: Associations can tell an independent contractor what to do, but should stay away from instructing them how to do it. Additionally, requiring a contractor to use an association’s equipment, promising and then failing to fix a known safety hazard, and refusing to allow the contractor to take safety precautions could subject the association to liability if injury results.

***End Summary***

Second Appellate District, Division Seven, B272344.

Review Granted (published) XX 20 Cal.App.5th.

Evan D. Marshall; Law Offices of Wayne McClean, Wayne McClean; Panish Shea & Boyle, Brian J. Panish and Spencer R. Lucas for Plaintiff and Appellant.

Arbogast Law, David M. Arbogast; The Bronson Firm and Steven M. Bronson for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Latham & Watkins, Marvin S. Putnam, Jessica Stebbins, Robert J. Ellison and Michael E. Bern for Defendants and Respondents.

Fred J. Hiestand for the Civil Justice Association of California as Amicus Curiae on behalf of Defendants and Respondents.

June Babiracki Barlow and Neil Kalin for California Association of Realtors as Amicus Curiae on behalf of Defendants and Respondents.

Newmeyer & Dillion, Alan H. Packer and Jack R. Rubin for California Building Industry Association as Amicus Curiae on behalf of Defendants and Respondents.

Greines, Martin, Stein & Richland, Edward L. Xanders and Eleanor S. Ruth for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Defendants and Respondents.

LeClairRyan and William A. Bogdan for Associated General Contractors of California as Amicus Curiae on behalf of Defendants and Respondents.

Horvitz & Levy, Stephen E. Norris and Joshua C. McDaniel for American Property Casualty Insurance Association and Chamber of Commerce of the United States of America as Amici Curiae on behalf of Defendants and Respondents.

37*37 OPINION
GROBAN, J.—

There is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. (See generally Privette v. Superior Court (1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72, 854 P.2d 721] (Privette); SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590 [129 Cal.Rptr.3d 601, 258 P.3d 737] (SeaBright).) This means that a hirer is typically not liable for injuries 38*38 sustained by an independent contractor or its workers while on the job. Commonly referred to as the Privette doctrine, the presumption originally stemmed from the following rationales: First, hirers usually have no right to control an independent contractor’s work. (Privette, at p. 693.) Second, contractors can factor in “the cost of safety precautions and insurance coverage in the contract price.” (Ibid.) Third, contractors are able to obtain workers’ compensation to cover any on-the-job injuries. (Id. at pp. 698-700.) Finally, contractors are typically hired for their expertise, which enables them to perform the contracted-for work safely and successfully. (See id. at p. 700; Rest.3d Torts, Liability for Physical and Emotional Harm, § 57, com. c, p. 402.)

We have nevertheless identified two limited circumstances in which the presumption is overcome. First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 [115 Cal.Rptr.2d 853, 38 P.3d 1081] (Hooker), we held that a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s injury. (Id. at p. 202.) Second, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 [36 Cal.Rptr.3d 495, 123 P.3d 931] (Kinsman), we held that a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard. (Id. at p. 664.)

We granted review in this case to decide whether a landowner may also be liable for injuries to an independent contractor or its workers that result from a known hazard on the premises where there were no reasonable safety precautions it could have adopted to avoid or minimize the hazard. We conclude that permitting liability under such circumstances, thereby creating a broad third exception to the Privette doctrine, would be fundamentally inconsistent with the doctrine. When a landowner hires an independent contractor to perform a task on the landowner’s property, the landowner presumptively delegates to the contractor a duty to ensure the safety of its workers. This encompasses a duty to determine whether the work can be performed safely despite a known hazard on the worksite. As between a landowner and an independent contractor, the law assumes that the independent contractor is typically better positioned to determine whether and how open and obvious safety hazards on the worksite might be addressed in performing the work. Our case law makes clear that, where the hirer has effectively delegated its duties, there is no affirmative obligation on the hirer’s part to independently assess workplace safety. Thus, unless a landowner retains control over any part of the contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury (Hooker, supra, 27 Cal.4th at p. 202), it will not be liable to an 39*39 independent contractor or its workers for an injury resulting from a known hazard on the premises. Because the Court of Appeal held otherwise, we reverse the judgment.

I. BACKGROUND
This case comes before us after the trial court granted a motion for summary judgment. We therefore “take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] `”We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”‘ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32 Cal.Rptr.3d 436, 116 P.3d 1123].)

Defendant John R. Mathis lives in a one-story house with a flat, sand-and-gravel roof. The roof contains a large skylight covering an indoor pool. Plaintiff Luis Gonzalez is a professional window washer who first started cleaning Mathis’s skylight in the 1990s as an employee of Beverly Hills Window Cleaning. In the mid-2000s, Gonzalez started his own professional window washing company. Gonzalez advertised his business as specializing in hard to reach windows and skylights. His marketing materials stated that he “trains his employees to take extra care … with their own safety when cleaning windows.”

In or around 2007, Mathis began regularly hiring Gonzalez’s company to clean the skylight. Gonzalez would climb a ladder affixed to the house to access the roof. Directly to the right of the top of the ladder, a three-foot-high parapet wall runs parallel to the skylight. Mathis constructed the parapet wall for the aesthetic purpose of obscuring air conditioning ducts and pipes from view. The path between the edge of the roof and the parapet wall is approximately 20 inches wide. Gonzalez would walk between the parapet wall and the edge of the roof and use a long, water-fed pole to clean the skylight. Gonzalez testified that he did not walk on the other side of the parapet wall—i.e., between the parapet wall and the skylight—because air conditioning ducts, pipes, and other permanent fixtures made the space too tight for him to navigate.

On August 1, 2012, at the direction of Mathis’s housekeeper, Gonzalez went up on to the roof to tell his employees to use less water while cleaning the skylight because water was leaking into the house. While Gonzalez was walking between the parapet wall and the edge of the roof on his way back to the ladder, he slipped and fell to the ground, sustaining serious injuries. Gonzalez did not have workers’ compensation insurance.

40*40 Gonzalez contends that his accident was caused by the following dangerous conditions on Mathis’s roof: (1) Mathis’s lack of maintenance caused the roof to have a very slippery surface made up of “loose rocks, pebbles, and sand”; (2) the roof contained no tie-off points from which to attach a safety harness; (3) the roof’s edge did not contain a guardrail or safety wall; and (4) the path between the parapet wall and the roof’s edge was unreasonably narrow and Gonzalez could not fit between the parapet wall and the skylight due to obstructing fixtures. Gonzalez testified that he knew of these conditions since he first started cleaning Mathis’s skylight, although the roof’s condition became progressively worse and more slippery over time. Gonzalez also testified that he told Mathis’s housekeeper and accountant “months before the accident” that the roof was in a dangerous condition and needed to be repaired, though Gonzalez did not indicate that his work of cleaning the skylight could not be performed safely absent the roof’s repair.

The trial court granted Mathis’s motion for summary judgment, finding that Mathis owed no duty to Gonzalez pursuant to the Privette doctrine. The Court of Appeal reversed. It held that a landowner may be liable to an independent contractor or its workers for injuries resulting from known hazards in certain circumstances. (Gonzalez v. Mathis (2018) 20 Cal.App.5th 257, 272-273 [228 Cal.Rptr.3d 832] (Gonzalez).) More specifically, the Court of Appeal relied on dicta in Kinsman providing that, “`when there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, … the hirer generally delegates the responsibility to take such precautions to the contractor'” (Gonzalez, at p. 268) to hold that, “[a]s a corollary, the hirer can be held liable when he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions” (id. at pp. 272-273). The Court of Appeal additionally held that disputed issues of material fact existed as to whether Gonzalez could have taken reasonable safety precautions to avoid the danger, precluding summary judgment. (Id. at pp. 273-274.)

We granted review.

II. DISCUSSION
The Privette doctrine holds that a hirer generally delegates to an independent contractor all responsibility for workplace safety and is not liable for injuries sustained by the contractor or its workers while on the job. We are asked to determine whether, despite the Privette doctrine, a landowner may be liable for injuries stemming from a known hazard on the premises that neither the contractor nor its workers could have avoided through the adoption of reasonable safety precautions. To resolve this, it is helpful to 41*41 provide an overview of the principles underlying Privette and its progeny. We then discuss the general premises liability rules that apply to known hazards on the landowner’s property. Finally, we discuss whether, under Privette, a landowner delegates to an independent contractor any duty it might otherwise owe under the usual premises liability rules to protect the contractor or its workers from known hazards on the property.

A. The Privette Doctrine
In Privette, we considered whether a landowner could be liable for injuries sustained when an independent contractor’s employee fell off a ladder while carrying hot tar up to a roof during a roof installation. (Privette, supra, 5 Cal.4th at pp. 691-692.) We held that the doctrine of peculiar risk—which provides that landowners are vicariously liable for injuries to third parties resulting from the negligence of independent contractors in performing inherently dangerous work on the landowners’ property—does not apply to injuries sustained by the contractor’s own employees. (Ibid.) We explained that the doctrine was meant to ensure that third parties received compensation from the person who benefitted from the work (i.e., the landowner) in the event the contractor was insolvent. (Id. at p. 701.) The availability of workers’ compensation, however, eliminates this concern as to the contractor’s own employees by ensuring that the employees will receive some compensation for their injuries. (Id. at pp. 701-702.) We also noted that allowing a contractor’s employees to sue the hirer would lead to the anomalous result where the “nonnegligent person’s liability for an injury is greater than that of the person whose negligence actually caused the injury” because the contractor’s exposure would be limited to workers’ compensation while the hirer would be subject to tort damages. (Id. at p. 698.) We further observed that imposing tort liability on hirers “would penalize those individuals who hire experts to perform dangerous work rather than assigning such activity to their own inexperienced employees.” (Id. at p. 700.)

Over the nearly three decades since we decided Privette, we have repeatedly reaffirmed the basic rule that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job. Our more recent cases emphasize delegation as the key principle underlying this rule: Because the hirer presumptively delegates to the independent contractor the authority to determine the manner in which the work is to be performed, the contractor also assumes the responsibility to ensure that the worksite is safe, and the work is performed safely. (SeaBright, supra, 52 Cal.4th at p. 600.) This rule applies even where the hirer was at least partially to blame due to its negligent hiring (Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1238 [108 Cal.Rptr.2d 617, 25 P.3d 1096]) or its failure to comply with preexisting statutory or regulatory workplace safety 42*42 requirements (SeaBright, at p. 594). It also applies to a solo independent contractor who has no employees and who has declined to obtain workers’ compensation insurance, such that the contractor will receive no coverage for his or her injuries. (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 521 [110 Cal.Rptr.3d 665, 232 P.3d 656] (Tverberg).)

We have nonetheless identified two situations in which a hirer has failed to effectively delegate all responsibility for workplace safety to the independent contractor. First, in Hooker, we held that a hirer will be liable where it exercises retained control over any part of the contractor’s work in a manner that affirmatively contributes to the worker’s injuries. (Hooker, supra, 27 Cal.4th at p. 202.) The hirer in Hooker had contractually retained the right to correct certain dangerous conditions on the worksite that were created by the contractor’s work. (Ibid.) We nevertheless rejected the plaintiff’s argument that such retained control over the safety conditions of the worksite, in and of itself, was sufficient to establish liability. (Id. at pp. 210-211.) We reasoned “it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite” since “the person primarily responsible for the worker’s on-the-job injuries[] is limited to providing workers’ compensation coverage.” (Id. at p. 210.) But if the hirer negligently exercises its retained control “in a manner that affirmatively contributes to an employee’s injuries, it is only fair to impose liability on the hirer.” (Id. at p. 213.) We also made clear in Hooker that this exception to Privette is not met solely because a hirer is aware that there is an unsafe condition on the worksite or knows that the contractor is engaging in an unsafe work practice. (See id. at pp. 214-215.) Something more is required, such as “`inducing injurious action or inaction through actual direction'” (id. at p. 211); directing “`the contracted work be done by use of a certain mode'” (id. at p. 215); or interfering with “`the means and methods by which the work is to be accomplished'” (ibid.). Thus, we found that the hirer in Hooker did not exercise its retained control in a manner that affirmatively contributed to the injury where it merely permitted vehicles to use the overpass and knew that, in order to allow vehicles to pass through, the contractor’s crane operator was required to engage in the unsafe practice of retracting the crane’s stabilizing outriggers. (Id. at pp. 214-215.) But we did find that the hirer in Hooker’s companion case, McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 [115 Cal.Rptr.2d 868, 38 P.3d 1094] (McKown), exercised its retained control in a manner that affirmatively contributed to the injury where it requested the independent contractor to use the hirer’s own defective equipment in performing the work. (Id. at p. 225.)

Second, in Kinsman, we addressed whether a landowner may be liable for injuries sustained by an independent contractor’s employee that were caused by a concealed hazard; specifically, hidden asbestos dust and 43*43 debris at a worksite. We held that the landowner could be liable if “the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” (Kinsman, supra, 37 Cal.4th at p. 664, fn. omitted.) We based our holding on the premises liability rule that a landowner has a duty to warn a visitor of a dangerous condition on the property “`so that [the visitor], like the host, will be in a position to take special precautions when [the visitor] comes in contact with it.'” (Kinsman, at p. 673, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561]; see also Rest.2d Torts, § 343.) Our holding was also grounded in Privette’s strong presumption in favor of delegation. We explained that, while a landowner delegates to an independent contractor the duty to protect its workers against hazards on the worksite, such delegation “is ineffective when the hirer, as landowner, fails to provide the contractor with the information—the existence of a latent hazard—necessary to fulfill that responsibility.” (Kinsman, at p. 679; see also id. at p. 673.)

B. Premises Liability Rules Applicable to Known Hazards
As described above, Kinsman involved a concealed hazard, which is not at issue here. Nonetheless, we discussed in Kinsman the usual landowner liability rule regarding an obvious hazard that applies to persons who visit the premises. (Kinsman, supra, 37 Cal.4th at pp. 672-674.) We explained that, typically, “`if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.'” (Id. at p. 673.) Still, we observed that landowners may be liable for injuries to persons resulting from an obvious hazard where “`”the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger.”‘” (Ibid., quoting Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 391, 394 [9 Cal.Rptr.2d 124] [owner of a construction yard could be liable to an employee of the yard’s lessor for injuries resulting from an obvious hazardous power line].) This rule is consistent with the Restatement Second and Restatement Third of Torts. (Rest.2d Torts, § 343A [a landowner is generally not liable for injuries resulting from a “known or obvious” hazard, “unless the [landowner] should anticipate the harm despite such knowledge or obviousness”]; Rest.3d Torts, Liability for Physical and Emotional Harm, § 51, com. k, p. 251 [same].)

We did not determine in Kinsman whether or under what circumstances the above rule—which is set forth in section 343A of the Restatement Second of Torts (titled “Known or Obvious Dangers”)—might apply to 44*44 independent contractors. Instead, our rule in Kinsman applies only to situations in which an independent contractor could not be reasonably expected to ascertain or discover a hidden danger, a circumstance not at issue here. (Kinsman, supra, 37 Cal.4th at p. 673.) We did, however, squarely address the related section 343 of the Restatement Second of Torts (titled “Dangerous Conditions Known to or Discoverable by Possessor”). We observed that this section “must be modified, after Privette” as applied “to a hirer’s duty to the employees of independent contractors.” (Kinsman, at p. 674.) Section 343 provides that a landowner is liable for a hazard on the premises when it “`(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and [¶] (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it.'” (Kinsman, at p. 674, quoting Rest.2d Torts, § 343, italics added by Kinsman.) We explained that the italicized phrase does not apply to independent contractors because, once the contractor becomes aware of a concealed hazard’s existence, it becomes the contractor’s responsibility to take whatever precautions are necessary to protect itself and its workers from the hazard. (Kinsman, at p. 674.)

Despite the above reasoning, we speculated in dicta in Kinsman that, even as to independent contractors, “[t]here may be situations … in which an obvious hazard, for which no warning is necessary, nonetheless gives rise to a duty on a landowner’s part to remedy the hazard because knowledge of the hazard is inadequate to prevent injury.” (Kinsman, supra, 37 Cal.4th at p. 673.) We further observed that, “when there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor….” (Kinsman, at p. 673.) The Court of Appeal relied on this discussion to create a third exception to the Privette doctrine: Where there were no reasonable safety precautions the independent contractor could have taken to avoid or protect against a known hazard, the landowner may be liable. (Gonzalez, supra, 20 Cal.App.5th at pp. 272-273.) But, as the Court of Appeal acknowledged, we did not set out to resolve in Kinsman whether or under what circumstances a landowner may be liable to an independent contractor or its workers for injuries resulting from known hazards on a premises; instead, we resolved only whether a landowner may be liable for concealed hazards on a premises. (Kinsman, supra, 37 Cal.4th at p. 664; see also Gonzalez, at p. 272, fn. 1.) And, we had no need to determine whether a landowner could be liable where no reasonable safety precautions exist that would protect an independent contractor or its workers from a known hazard on the premises, since the plaintiff in Kinsman acknowledged that “reasonable safety precautions against the hazard … were readily available….” (Kinsman, at p. 673; see also B.B. v. County of Los 45*45 Angeles (2020) 10 Cal.5th 1, 11 [267 Cal.Rptr.3d 203, 471 P.3d 329] [“`”[C]ases are not authority for propositions not considered”‘”].) We resolve this question below.

C. Delegation of a Landowner’s Duties Regarding Known Hazards Under Privette
This case compels us to answer a simple but important question: If there is a known hazard on a property that the independent contractor cannot remedy or protect against through the adoption of reasonable safety precautions, and the contractor or one of its workers is injured after proceeding to do the work anyway, is the landowner liable to the contractor in tort? We conclude that, pursuant to Privette’s strong presumption that a hirer delegates to an independent contractor all responsibility for workplace safety, a landowner owes no duty to the contractor or its workers to remedy a known hazard on the premises or take other measures that might provide protection against the hazard. Privette’s “no duty” rule applies even where the contractor is unable to minimize or avoid the danger through the adoption of reasonable safety precautions. A landowner does not fail to delegate responsibility to the contractor for workplace safety simply because there exists a known hazard on the premises that cannot be readily addressed by the contractor. Were we to hold otherwise, we would vastly expand hirer liability and create considerable tension with decades of case law establishing that a hirer is not liable where it is merely aware of a hazardous condition or practice on the worksite.

Further analysis of our reasoning in Kinsman, Hooker, and SeaBright make this conclusion clear. As we recognized in Kinsman, applying to independent contractors the Restatement’s rule that a landowner may be liable where it “`should expect'” that a visitor “`will fail to protect themselves against'” a known hazard on the premises would be inconsistent with Privette’s presumption of delegation. (Kinsman, supra, 37 Cal.4th at p. 674, italics omitted quoting Rest.2d Torts, § 343.) Once an independent contractor becomes aware of a hazard on the premises, “the landowner/hirer delegates the responsibility of employee safety to the contractor” and “a hirer has no duty to act to protect the employee when the contractor fails in that task….” (Kinsman, at p. 674.) A rule establishing landowner liability for a known hazard where there were no reasonable safety precautions the contractor could have adopted to protect against the hazard would turn Privette’s presumption of delegation on its head by requiring the landowner to affirmatively assess workplace safety. The landowner would need to determine whether the contractor is able to adopt reasonable safety precautions to protect against the known hazard and, if not, to remedy the hazard. This makes little sense given that a landowner typically hires an independent 46*46 contractor precisely because of the contractor’s expertise in the contracted-for work and the hirer usually has no right to interfere with the contractor’s decisions regarding safety or otherwise control the contractor’s work. (Privette, supra, 5 Cal.4th at pp. 693, 700; see also Torres v. Reardon (1992) 3 Cal.App.4th 831, 840 [5 Cal.Rptr.2d 52] [As between the hirer and the contractor, “the contractor better understands the nature of the work and is better able to recognize risks peculiar to it”]; Rest.3d Torts, Physical and Emotional Harm, § 57, com. c, p. 402 [“[H]irers of independent contractors have less knowledge than employers about the safety-related details and methods of the work”].) Our conclusion in Kinsman that a landowner delegates all responsibility to independent contractors to “`protect themselves against'” a known hazard (Kinsman, at p. 674, italics omitted), coupled with the principles underlying Privette’s straightforward rule that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety (see Privette, at p. 693; SeaBright, supra, 52 Cal.4th at p. 597), leads us to reject a rule that would allow a contractor to recover in tort so long as it proves it was unable to adopt reasonable safety precautions in the face of a known hazard.

In addition, a rule that would expose a landowner to tort liability whenever an independent contractor is unable to adopt reasonable safety precautions to protect against a known danger would create tension with our holding in Hooker by providing an avenue for liability premised upon a hirer’s failure to correct an unsafe work condition. In Hooker, we held that a hirer is not liable under Privette where it merely permits a dangerous work condition or practice to exist. (Hooker, supra, 27 Cal.4th at p. 215.) This is true even where the hirer knows of the danger and has the authority and ability to remedy it. The facts of Hooker make this clear: The hirer in Hooker had the authority to prevent traffic on an overpass the independent contractor was constructing. (Id. at p. 214.) The hirer also knew that, to allow traffic to pass through, the contractor’s crane operator was required to (i.e., had no other option other than to) engage in the unsafe practice of retracting the crane’s stabilizing outriggers. (Ibid.) Despite the hirer’s knowledge of the unsafe practice, we held that the hirer was not liable for failing to take affirmative steps within its authority to remedy it. (Id. at pp. 214-215.)

In the nearly two decades following our opinion in Hooker, courts have consistently reaffirmed that “[a] hirer’s failure to correct an unsafe condition” is insufficient, by itself, to establish liability under Hooker’s exception to the Privette doctrine. (Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712, 718 [208 Cal.Rptr.3d 699]; see also Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 [136 Cal.Rptr.3d 521] (Tverberg II) [“[P]assively permitting an unsafe condition to occur … does not constitute affirmative contribution”].) To be liable, a hirer must instead exercise its retained control over any part of the contracted-for 47*47 work—such as by directing the manner or methods in which the contractor performs the work; interfering with the contractor’s decisions regarding the appropriate safety measures to adopt; requesting the contractor to use the hirer’s own defective equipment in performing the work; contractually prohibiting the contractor from implementing a necessary safety precaution; or reneging on a promise to remedy a known hazard—in a manner that affirmatively contributes to the injury. (See Hooker, at pp. 212, fn. 3, 215; McKown, supra, 27 Cal.4th at p. 225; Tverberg II, at pp. 1446-1448; Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52, 65-66 [29 Cal.Rptr.3d 641]; Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1132-1134 [120 Cal.Rptr.2d 251] (Ray).)

We recognize that Hooker was based upon a retained control theory of liability (which applies to all hirers), whereas this action is based upon a premises liability theory (which would apply to only landowner hirers). Nevertheless, a rule that exposes a landowner to liability whenever there are no safety precautions available to protect an independent contractor or its workers against a known hazard would, in practice, swallow the rule we set forth in Hooker, at least as applied to landowners, because it would expose the landowner to liability even in situations in which it did not interfere with or exert control over any part of the contractor’s work, such as the contractor’s decisions regarding workplace safety. Indeed, it would give rise to a “Catch-22” situation: A landowner could avoid liability under Hooker by declining to interfere with the contractor’s decisions regarding whether or how it might safely perform the work in view of a hazard on the worksite, only to be potentially liable under the Court of Appeal’s rule for not exercising control over the contractor’s work by attempting to remedy or provide protections against that hazard.

Finally, our conclusion is consistent with our holding in SeaBright. In SeaBright, we addressed whether a hirer could be liable where an employee of an independent contractor hired to maintain and repair a luggage conveyor belt was injured because the conveyor belt lacked the safety guards required by Cal-OSHA regulations. (SeaBright, supra, 52 Cal.4th at pp. 594-595.) In answering “no” to this question, we explained that even though the hirer’s regulatory duty to install the safety guards preexisted the contract, the hirer delegated to the independent contractor “any tort law duty it owe[d] to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” (Id. at p. 594, italics omitted; see also id. at pp. 601, 603.) The Court of Appeal’s proposed third exception to Privette would subject a landowner to liability for failing to remedy a known hazard on the premises, even though a hirer who fails to comply with clearly defined statutory and regulatory workplace safety requirements—and thereby creates an unsafe condition on the worksite—is not liable for such injuries under SeaBright.

48*48 Following our holdings in Hooker and SeaBright, several Court of Appeal decisions have found no hirer liability in circumstances strikingly similar to those presented here. In Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078 [229 Cal.Rptr.3d 594], an employee of an independent contractor fell to his death while he was washing a commercial building’s windows when his descent apparatus detached from the roof. (Id. at p. 1081.) The plaintiffs submitted evidence that (1) the building’s owners had a statutory and regulatory duty to provide approved anchor points on the roof to support window washers; (2) the building contained no such anchor points; and (3) without the anchor points, there was no safe way to clean the windows. (Id. at pp. 1083-1084.) The court nevertheless determined that the landowners owed no duty because, under our holding in SeaBright, they delegated to the contractor the duty to comply with all statutory and regulatory requirements necessary to provide a safe workplace. (Delgadillo, at p. 1091.) The court also found that the owners did not exercise retained control over the contractor’s work in a manner that affirmatively contributed to the injury because, while the building had inadequate anchor points, the owners did not “suggest or request” that the contractor use them in cleaning the windows. (Id. at p. 1093.) Like SeaBright, Delgadillo illustrates that even where an unsafe condition exists on the premises due to the landowner’s failure to comply with specific statutory and regulatory duties, the landowner is not liable because it is the contractor who is responsible for its own workers’ safety.

Similarly, in Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 [81 Cal.Rptr.3d 601], the court applied our holding in Hooker to find that the hirer (a general contractor) was not liable for injuries suffered by an employee of an independent contractor who fell from a raised patio during construction of a residential home. (Madden, at pp. 1271, 1276-1278.) The plaintiff claimed the hirer was negligent for failing to install protective railing along the open side of the patio. (Id. at pp. 1270-1271.) The court held that this was insufficient to amount to affirmative contribution. (Id. at pp. 1276-1278.) The court explained that, while the plaintiff alleged that its employer (the independent contractor) had no authority to install protective railing, there was no evidence that the hirer “participated in any discussion about placing a safety railing along the patio, became aware of any safety concern due to the lack of such a railing, or intervened in any way to prevent such a railing from being erected.” (Id. at p. 1277.) In other words, there was no evidence that the hirer “directed that no guardrailing or other protection against falls be placed along the raised patio, or that it acted in any way to prevent such a railing from being installed.” (Id. at pp. 1276-1277.)

Finally, in Brannan v. Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170 [142 Cal.Rptr.3d 336] (Brannan), an employee of an independent contractor fell off a wet plastic scaffold that he believed was the 49*49 only means of access to the area in which he was working. (Id. at p. 1174.) The contractor had the authority to stop the work due to a safety concern but did not have any authority to remove the scaffold. (Id. at pp. 1174, 1178.) The court held that the hirer was not liable for the employee’s injuries because there was no indication that it exercised any retained control over the contractor’s work in a manner that affirmatively contributed to the injury. (Id. at pp. 1179-1180.) The court reasoned that even if the presence of the scaffold required the plaintiff to climb over it to perform his work, the hirer never directed the plaintiff to climb over the scaffold. (Id. at pp. 1178-1179.) The court further noted that the contractor did not ask the hirer to remove the scaffolding for safety reasons, nor did the hirer promise to do so. (Id. at p. 1180.)

The above cases illustrate how the Court of Appeal’s rule would subject landowners, but not general contractors or other hirers, to potential tort liability under an identical set of factual circumstances. All of our Privette line of cases, aside from Kinsman, considered “whether an employee of an independent contractor may sue the hirer of the contractor under tort theories covered in chapter 15 of the Restatement Second of Torts.” (Hooker, supra, 27 Cal.4th at p. 200.) That chapter covers the circumstances under which any hirer (whether a landowner or other hirer) may be liable for injuries sustained to third persons due to the work of an independent contractor. Kinsman, on the other hand, considered whether a landowner (but not a general contractor or subcontractor) may be liable for injuries sustained by an independent contractor’s workers under the premises liability tort theories covered by chapter 13 of the Restatement Second of Torts. (See Kinsman, supra, 37 Cal.4th at p. 673.) Thus, the Kinsman rule applied only to landowners (which we clarified in Kinsman also includes land possessors), and not to nonlandowner hirers.

If we were to adopt the Court of Appeal’s rule regarding known hazards, which is based on the premises liability rules discussed in Kinsman and thus applies exclusively to landowner hirers, we would be holding landowners liable for known dangerous conditions on the worksite even though nonlandowner hirers would not be liable under the same circumstances. To illustrate this discord, the landowners in Delgadillo would be liable because they owned a building that had an unsafe but known condition on the roof (i.e., the lack of statutorily required anchor points) and there were no reasonable safety precautions the window washers could have implemented in order to avoid the hazard and clean the windows safely. This liability would attach even though the landowner did not exercise any retained control over the contracted-for work in a manner that affirmatively contributed to the injury. But the general contractors in Brannan and Madden would not be liable 50*50 because they did not own the premises and also did not exercise any retained control over the contracted-for work in a manner that affirmatively contributed to the injury.

Tort law sometimes imposes heightened duties on landowners, including a duty to remedy obvious hazards on their property in certain circumstances. Nonetheless, we can think of no compelling reason for making the Privette doctrine largely inapplicable to landowner hirers such that they are unable to delegate the duty to maintain a safe workplace to an independent contractor. Indeed, it would be contrary to Privette’s strong presumption that all hirers delegate responsibility for workplace safety to independent contractors if we created two disparate rules under which landowners would be liable for known hazards on the worksite in certain circumstances while other nonlandowner hirers would not be liable for such hazards under the same circumstances. If anything, a landowner—perhaps especially a residential homeowner—will normally be less likely than a general contractor to have knowledge regarding the “methods used and requirements of the work being performed” by an independent contractor (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 268 [74 Cal.Rptr.2d 878, 955 P.2d 504] (Toland)) and is, therefore, less likely to understand whether and what safety precautions are available to protect the contractor’s workers from a known hazard on the premises. It made sense for us to adopt a rule in Kinsman that holds landowners accountable for concealed hazards on their property of which they should reasonably be aware and the independent contractor is unlikely to discover because the landowner is the only party with knowledge of the danger and cannot effectively delegate responsibility for workplace safety without alerting the contractor to the danger. (Kinsman, supra, 37 Cal.4th at p. 677; see also id. at p. 679.) This rationale does not apply where the hazard is open and obvious, as in this case. Moreover, we stopped short in Kinsman of imposing a duty on the landowner to remedy the concealed hazard or to provide the contractor with safety precautions that would protect it against the hazard, recognizing that it is the contractor’s duty to implement whatever precautions are necessary to protect its workers against the hazard once warned of it. (See id. at pp. 673-674.) Stated differently, once the hazard is known to the contractor, the contractor has at its disposal all of the information necessary to determine whether or how the work can be performed safely. We therefore decline to adopt a rule that subjects landowners to greater liability than other hirers for injuries stemming from known hazards.

Furthermore, it would be difficult, if not impossible, for a landowner to ever obtain summary judgment were we to adopt a rule that subjects landowners to potential liability where there are no reasonable safety precautions available to protect against a known danger. (Cf. Toland, supra, 18 Cal.4th at p. 268 [rejecting a rule that would impose liability based on a 51*51 hirer’s “`superior knowledge'” of the “`risk[s]'” of the work because the rule would not be amenable to summary judgment]; see also id. at pp. 275-276 (conc. & dis. opn. of Werdegar, J.).) The question of whether the independent contractor, in hindsight, could have adopted reasonable safety precautions to protect against a known hazard will almost always encompass disputed issues of material fact. (See Gonzalez, supra, 20 Cal.App.5th at pp. 273-274 [recognizing that the reasonableness of a party’s actions in confronting a known hazard or taking precautions to protect against the hazard “is generally a question of fact for the jury to decide”].) If a plaintiff were able to survive summary judgment merely by alleging there were no reasonable safety precautions available, Privette’s presumption of delegation would be rebuttable in nearly all instances, which would effectively amount to no presumption at all.

We acknowledge that there will sometimes be financial and other real world factors that might make it difficult for an independent contractor to raise safety concerns with the hirer or to simply walk away from a job it has deemed to be unsafe. But independent contractors can typically factor the cost of added safety precautions or any increased safety risks into the contract price. (Privette, supra, 5 Cal.4th at p. 693.) They can also purchase workers’ compensation to cover any injuries sustained while on the job. (Id. at pp. 698-700.)[1] Furthermore, our holding avoids the unfair “tort damages windfall” that would result from adopting a rule that allows independent contractors and their workers to obtain tort damages from the landowner while the landowner’s own employees are limited to workers’ compensation. (SeaBright, supra, 52 Cal.4th at p. 599; see also Privette, at p. 700.) Were we to adopt the Court of Appeal’s rule—which applies only to injuries suffered by independent contractors and their employees—we would allow contractors and their employees to obtain tort damages from the landowner when injured as a result of a known hazard on the premises. Conversely, those persons who were directly employed by the landowner would be limited to workers’ compensation for any injuries sustained while on the premises. To impose tort liability “on a person who hires an independent contractor for specialized work would penalize those individuals who hire experts to perform dangerous work rather than assigning such activity to their own inexperienced employees.” (Privette, at p. 700.)

Gonzalez argues that the Privette doctrine applies only where the independent contractor is specifically tasked with repairing the hazard or 52*52 where the hazard was created by the work for which the contractor was retained. Only then, in Gonzalez’s view, is the risk inherent to the work the contractor was hired to perform. Gonzalez’s argument goes well beyond the rule adopted by the Court of Appeal and fails on its merits for at least two reasons. First, Gonzalez’s view of the risk inherent to his work is overly narrow: It cannot be seriously disputed that cleaning a skylight will always entail at least some risk of falling off a roof. Second, Gonzalez’s position is contrary to our holdings in Tverberg and Kinsman. We recognized in Tverberg that the bollard holes that caused the independent contractor’s injury were wholly unrelated to his task of constructing a metal canopy. (Tverberg, supra, 49 Cal.4th at p. 523 [“The bollards had no connection to the building of the metal canopy, and [the independent contractor] had never before seen bollard holes at a canopy installation”].) The contractor also did not create the hazard; the holes were dug by a different subcontractor for a different purpose. (Id. at p. 522.) Nevertheless, we determined that the doctrine of peculiar risk does not apply when an independent contractor “seeks to hold the general contractor vicariously liable for injuries arising from risks inherent in the nature or the location of the hired work over which the independent contractor has, through the chain of delegation, been granted control.” (Id. at pp. 528-529, italics added.) Since the proximity of the bollard holes to the location where the canopy was to be constructed made “the possibility of falling into one of those holes … an inherent risk of” the contractor’s work, the contractor—and not the hirer—was responsible for protecting himself against that risk. (Id. at p. 529.) Similarly, in Kinsman, the independent contractor was hired to install scaffolding and not to remove or remediate the asbestos hazard. (Kinsman, supra, 37 Cal.4th at p. 664.) The plaintiff’s exposure to asbestos was also not caused by his work; instead, the work of other contractors generated asbestos dust and debris to which the plaintiff was exposed. (Ibid.) We did not hold that the landowner in Kinsman could be liable because the hazard was not inherent to the contractor’s work. Instead, we held that the landowner could be liable if the asbestos hazard was unknown to and undiscoverable by the contractor and the landowner failed to warn of it, irrespective of the fact that the contractor did not create the hazard and was not hired to remediate the hazard. (Id. at pp. 675, 683.) As these and our other Privette cases make clear, a hirer presumptively delegates to an independent contractor all responsibility for workplace safety, such that the hirer is not responsible for any injury resulting from a known unsafe condition at the worksite—regardless of whether the contractor was specifically tasked with repairing the unsafe condition and regardless of whether the danger was created by the work for which the contractor was retained.

Gonzalez additionally argues that delegation under Privette “is essentially a form of primary assumption of risk” and that, pursuant to the principles governing the primary assumption of risk doctrine, Mathis had “an 53*53 affirmative duty to not increase the risk above the level inherent in the activity.” Relying on primary assumption of risk cases, Gonzalez argues that since Mathis increased the risk that he would fall off the roof, Mathis must be held liable. Gonzalez is mistaken; the primary assumption of risk and Privette doctrines “are distinct.” (Gordon v. ARC Manufacturing, Inc. (2019) 43 Cal.App.5th 705, 717 [256 Cal.Rptr.3d 820].) The Privette doctrine is concerned with who owes a duty of care to ensure workplace safety—the hirer or the independent contractor—under principles of delegation. (See SeaBright, supra, 52 Cal.4th at pp. 599-600.) The assumption of risk doctrine asks whether a defendant owes a duty of care where the plaintiff voluntarily assumes the risks of a dangerous activity or occupation. (See Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1005 [4 Cal.Rptr.3d 103, 75 P.3d 30].)

If the risks are inherent to the activity or occupation and cannot be mitigated without fundamentally altering the nature of the activity or occupation, primary assumption of risk applies and the defendant owes no duty of care. (See, e.g., Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 163 [41 Cal.Rptr.3d 299, 131 P.3d 383] [defendant owed no duty because being hit by a pitch, whether intentionally or not, is an inherent risk of baseball]; Priebe v. Nelson (2006) 39 Cal.4th 1112, 1132 [47 Cal.Rptr.3d 553, 140 P.3d 848] [defendant owed no duty because kennel worker “assumed the risk of being bitten or otherwise injured by the dogs under her care and control”].) Secondary assumption of risk is essentially a form of comparative negligence under which a defendant owes a duty of care to the plaintiff, but the plaintiff bears some fault for voluntarily encountering a known risk. (Gregory v. Cott (2014) 59 Cal.4th 996, 1001 [176 Cal.Rptr.3d 1, 331 P.3d 179].) If the strong presumption of delegation under Privette is overcome, assumption of risk and comparative fault principles may become relevant. (See McKown, supra, 27 Cal.4th at pp. 223, 226 [although the hirer was liable for affirmatively contributing to the injury, the jury allocated 55 percent of the fault to the independent contractor under comparative negligence principles].) But these principles have no bearing on whether, in the first instance, Mathis delegated to Gonzalez a duty to ensure workplace safety under Privette. If Gonzalez’s view were correct, then there would have been no need for us to articulate in Hooker that a hirer is liable only where it exercises retained control over any part of the independent contractor’s work in a manner that affirmatively contributes to the injury. Instead, we would have simply held that a hirer is liable whenever it increases the risk of injury.

For these reasons, we conclude that a landowner will generally not be liable for an injury to an independent contractor or its workers resulting from a known hazard on the property. Of course, if there is evidence that the landowner exercised any retained control over any part of the contractor’s work in a manner that affirmatively contributed to the injury, the landowner’s 54*54 actions would fall within the established Hooker exception to the Privette doctrine. But we decline to find a broad third exception to the Privette doctrine that would expose a landowner to liability for known hazards on the worksite where the independent contractor is unable to adopt reasonable safety precautions to protect against the hazard. Such a rule would be inconsistent with the strong presumption under Privette that a landowner delegates all responsibility for workplace safety to the independent contractor.

D. Application to the Present Case
We now apply our holding to the facts of this case. Gonzalez contends that Mathis’s roof was hazardous because the skylight could only be cleaned while walking along an unreasonably narrow path between the parapet wall and the roof’s exposed edge and, due to Mathis’s years-long failure to maintain the roof, this path was slippery and covered in loose sand, gravel, and rocks. Gonzalez additionally argues that he was not hired to and lacked the expertise necessary to repair the roof or change the permanent fixtures on the roof such that he and his workers could clean the skylight safely. Thus, Gonzalez concludes, Mathis’s duty to maintain the roof in a reasonably safe condition was never delegated to him. But while Mathis may not have delegated any duty to repair the roof or make other structural changes to it, Mathis did delegate to Gonzalez a duty to provide a safe workplace to his workers and to perform the work for which he was retained in a safe manner. This encompassed a duty on Gonzalez’s part to assess whether he and his workers could clean the skylight safely despite the existence of the known hazardous conditions on the roof. It would be contrary to the principles underlying Privette to hold that Mathis also had a duty to determine whether the work could be performed safely absent remediation of a known hazard. Landowners, like Mathis, hire independent contractors precisely because of their expertise in the contracted-for work. This expertise puts contractors in a better position to determine whether they can protect their workers against a known hazard on the worksite and whether the work can be performed safely despite the hazard.

We emphasize that our holding applies only to hazards on the premises of which the independent contractor is aware or should reasonably detect. (See Kinsman, supra, 37 Cal.4th at p. 675.) Although we recognized in Kinsman that the delegation of responsibility for workplace safety to independent contractors may include a limited duty to inspect the premises (id. at p. 677), it would not be reasonable to expect Gonzalez to identify every conceivable dangerous condition on the roof given that he is not a licensed roofer and was not hired to repair the roof (see id. at pp. 677-678). Here, however, it is undisputed that Gonzalez was aware of the roof’s dangerous conditions. 55*55 Consequently, Gonzalez had a duty to determine whether he and his workers would be able to clean the skylight safely despite the known dangerous conditions.

We also do not address whether and under what circumstances a landowner might be liable to an independent contractor or its workers who are injured as a result of a known hazard on the premises that is not located on or near the worksite. (See Kinsman, supra, 37 Cal.4th at p. 674, fn. 2.) Gonzalez argues that the path between the parapet wall and the edge of the roof was just a means to access the worksite, as opposed to being a part of the worksite, but this is belied by the undisputed evidence in the record. The path ran parallel to the skylight and Gonzalez testified that he utilized it while cleaning the skylight. Moreover, even if it were true that Gonzalez was required to traverse the path just to get to the skylight, it still would have constituted an inherent risk in the job for which he was hired. (See Tverberg, supra, 49 Cal.4th at p. 529 [“Because the bollard holes were located next to the area where Tverberg was to erect the metal canopy, the possibility of falling into one of those holes constituted an inherent risk of the canopy work”].) We do not resolve whether Mathis might have been liable under circumstances not presented on these facts, such as if the hazard had been located nowhere near the skylight and had been wholly unconnected to Gonzalez’s work in cleaning the skylight.

Gonzalez alternatively argues that, even if we decline to adopt the Court of Appeal’s rule, Mathis should still be held liable under the well-established Hooker exception to Privette. First, he claims that Mathis retained sole authority to hire a professional roofer to repair the roof and exercised that authority in a manner that affirmatively contributed to his injury by failing to do so. We made clear in Hooker, however, that a hirer does not exercise any retained control over the contractor’s work in a manner that affirmatively contributes to the contractor’s injury by merely permitting or failing to correct an unsafe work condition. (Hooker, supra, 27 Cal.4th at pp. 214-215; see also Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 667, 671 [82 Cal.Rptr.3d 869] [hirer’s sole ability to depressurize the pipes that caused the plaintiff’s injury did not amount to an exercise of retained control in a manner that affirmatively contributed to the injury].) Although Gonzalez testified that he informed Mathis’s housekeeper and accountant that the roof was in poor condition and should be repaired, neither Mathis nor any of his staff promised, expressly or implicitly, to repair the roof. (See Hooker, at p. 212, fn. 3 [“[I]f the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury”]; Tverberg II, supra, 202 Cal.App.4th at p. 1448 [triable issue as to whether hirer’s statement that it did not currently have the materials needed to cover the bollard holes amounted to an implicit promise to cover the bollard holes once such materials were 56*56 obtained]; Brannan, supra, 206 Cal.App.4th at p. 1180 [case would have been decided differently had the hirer promised to remove the wet scaffolding].) They also did not prohibit or dissuade Gonzalez from implementing any particular safety measure or from requesting repairs as a condition of continuing the work. (See Ray, supra, 98 Cal.App.4th at pp. 1134, 1137 [hirer contractually prohibited independent contractor from implementing the one safety precaution that would have saved the worker’s life].)

We do not decide whether there may be situations, not presented here, in which a hirer’s response to a contractor’s notification that the work cannot be performed safely due to hazardous conditions on the worksite might give rise to liability. For example, we do not decide whether a hirer’s conduct that unduly coerces or pressures a contractor to continue the work even after being notified that the work could not be performed safely due to a premises hazard would fall under the Hooker exception to Privette. We decide only that neither Mathis nor any member of his staff exercised any retained control over Gonzalez’s work in a manner that affirmatively contributed to Gonzalez’s injury simply by being made aware that the roof was slippery and needed repair.

Second, Gonzalez argues that Mathis exercised his retained control over the work in a manner that affirmatively contributed to Gonzalez’s injury when Mathis’s housekeeper directed Gonzalez to go on to the roof on the day of the accident to tell his workers to use less water in cleaning the skylight. However, the general direction to “go on to the roof” did not interfere with or otherwise impact Gonzalez’s decisions regarding how to safely perform the work or provide a safe workplace for his employees. Mathis’s housekeeper did not, for example, direct Gonzalez to walk between the parapet wall and the roof’s edge or otherwise influence his decisions regarding whether and how he might safely cross over the roof in order to reach his workers. And, although Mathis’s housekeeper did exert some control over how Gonzalez conducted his work by directing him to “use less water,” Gonzalez does not contend that the use of less water was in any way causally connected to his injury. Gonzalez instead contends that he was injured because the configuration of the roof required him to walk between the parapet wall and the roof’s exposed edge, and the roof’s dilapidated condition made its surface very slippery. Thus, the housekeeper’s instruction did not amount to an exercise of retained control over any part of the work in a manner that affirmatively contributed to Gonzalez’s injury.

In sum, pursuant to Privette, Mathis delegated all responsibility for workplace safety to Gonzalez. This delegation included a responsibility on Gonzalez’s part to ensure that he and his workers would be able to clean the skylight safely despite the known dangerous conditions on the roof which 57*57 increased the risk of falling. Mathis is not liable under our well-established precedent because he did not exercise any retained control over any part of Gonzalez’s work in a manner that affirmatively contributed to Gonzalez’s injury.

III. DISPOSITION
We conclude that, under Privette, a landowner presumptively delegates to an independent contractor all responsibility for workplace safety, including the responsibility to ensure that the work can be performed safely despite a known hazard on the worksite. For this reason, a landowner will generally owe no duty to an independent contractor or its workers to remedy or adopt other measures to protect them against known hazards on the premises. Though a landowner may, nevertheless, be liable for a known hazard on the premises if it exercises its retained control over any part of the independent contractor’s work in a manner that affirmatively contributes to the injury, Gonzalez failed to present any evidence tending to show that such circumstances existed in this case. We therefore reverse the judgment of the Court of Appeal and remand to the Court of Appeal with instructions to affirm the trial court’s judgment.

Cantil-Sakauye, C. J., Corrigan, J., Liu, J., Cuéllar, J., Kruger, J., and Jenkins, J., concurred.

[1] That Gonzalez himself did not have workers’ compensation insurance does not change our analysis. Gonzalez was legally required to obtain workers’ compensation coverage for his employees (Lab. Code, § 3700) and he had the option of obtaining coverage for himself (Ins. Code, § 11846). Moreover, the “presence or absence of workers’ compensation coverage” is not key to determining whether Privette should apply. (Tverberg, supra, 49 Cal.4th at p. 522.)

Winchester Community Association v. Perrotta

(July 20, 2021, No. C085295)___Cal.App.5th___ [2021 Cal. App. Unpub. LEXIS 4684].

Court of Appeals of California, Third District, Placer

Filed July 20, 2021

No. C085295

Summary by Jillian M. Wright, Esq.:

After a dispute over approval of a landscape plan was litigated, the parties disagreed over which party had won, and which party was therefore entitled to attorney fees. The court determined the association was the prevailing party under Civil Code section 5975 because the owner failed to establish that the settlement agreement they disputed was invalid.

TAKEAWAY: In suits to enforce the governing documents, the prevailing party is entitled to attorney fees. However, which party prevails is not always clear, and the court must make that determination. This case holds that a court has not abused its discretion in awarding attorney’s fees if its determination regarding the prevailing party does not exceed the bounds of reason.

***End Summary***

WINCHESTER COMMUNITY ASSOCIATION, Plaintiff, Cross-defendant and Respondent,
v.
CHARLES FRANK PERROTTA et al., Defendants, Cross-complainants and Appellants.

Appeal from the Super. Ct. No. SCV0029936.

NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

BLEASE, Acting P. J.

A dispute between the appellants, husband and wife Charles Frank Perrotta and Charlotte Van Warmerdam Perrotta (collectively the Perrottas), and respondent Winchester Community Association (Association) over the landscaping of appellants’ home that they purchased in respondent’s development is before us for a second time. In the first appeal, we held a settlement agreement between the Perrottas and the Association was enforceable, it required the Perrottas to submit both a landscape plan and a site plan to the Association for approval before beginning work on their property, the Perrottas submitted the necessary plans within the time required under the agreement, and the Association prevented the Perrottas from performing the work under the settlement agreement. We accordingly reversed the judgment entered in favor of the Association and the postjudgment order awarding the Association attorney fees and costs and remanded with directions.

The case before us now involves the trial court’s award on remand of attorney fees to the Association as the prevailing party in the litigation. The Perrottas contend on appeal they were entitled to recover fees under the Davis-Stirling Act (Act) as the prevailing party, they are entitled to costs as a matter of law even if they are not entitled to fees, and the award of fees and costs to the Association was excessive.

We conclude it was within the trial court’s discretion to find the Association as the prevailing party, the Perrottas are not entitled to costs under Code of Civil Procedure section 1032 as the trial court had discretion to determine the Association was the prevailing party, and the amount of fees and costs awarded by the trial court was not affected by a prior award of fees stemming from the Association’s successful anti-SLAPP motion against the Perrottas. We shall affirm.

BACKGROUND
The relevant facts and procedure are taken largely from our opinion in the prior appeal,[1] supplemented where necessary by the records in this and the prior appeal.

Winchester is a common interest development governed by the Act, which is set forth in Civil Code[2] section 4000 et seq. and provides general rules for the governance of planned developments. The community is comprised of upscale, single-family homes in the Sierra Foothills and is managed and maintained by the Association, which is governed by a board of directors (Board) and subject to a recorded declaration of conditions, covenants, and restrictions (CC&R’s), the Bylaws of the Association, and the Design Guidelines and Regulations (Design Guidelines). All lot owners in the community are members of the Association.

The Perrottas own lot 85, located at 1101 Holly Leaf Lane. As such, they are members of the Association and subject to the CC&R’s, Bylaws of the Association, and Design Guidelines. They purchased the lot, which had been in foreclosure, on September 30, 2009. At that time, the lot contained a residence that was nearly complete and a driveway, but was devoid of any landscaping. The original owner/builder had submitted a site plan that had been approved by the Winchester Design Review Committee (Committee), but he had not submitted a landscape plan. It was a common practice, and completely acceptable, for owners to defer submission of a landscape plan.

Pursuant to section 5.01(a) of the CC&R’s, subject to certain exceptions not applicable here, “prior to submittal to the County for building permits and before commencement of construction or installation of any Improvement within Winchester, the Owner planning such Improvement must submit to the Design Committee a written request for approval. The Owner’s request shall include structural plans, specifications and plot plans satisfying the minimum requirements set forth in the Design Guidelines . . . .” “The term `Improvement’ . . . includes, without limitation, the construction, installation, alteration or remodeling of any Residence structures, garages, out buildings, walls, fences, swimming pools, landscaping, landscape structures, skylights, patios . . . or any other structure of any kind. Any clearing or grading of a Homesite or alteration of natural drainage courses shall be considered a work of `Improvement’ requiring approval hereunder.”

The Design Guidelines set forth a “design review process,” which must be followed for all major site and/or landscaping improvements. Improvement plans are reviewed by the Committee, which evaluates such plans on the basis of the Design Guidelines.

On December 22, 2009, about three months after the Perrottas purchased their lot, Kyle Bodyfelt, the Association’s property manager, directed the Perrottas to provide him with a copy of their “landscape plan” by January 8, 2010. The Perrottas responded that they were “focusing on completing the inside” of their residence and had yet to decide what they wanted outside or “locate and hire a competent landscape designer.” Accordingly, they advised Bodyfelt that May 30, 2010, would be a “more realistic” date on which to submit the landscape plan.

On February 17, 2010, the Committee advised the Perrottas that their request for an extension to May 30 was denied and directed them to submit a landscape plan by March 19, 2010. The Committee explained that the Perrottas’ occupancy of the residence “on a fairly regular basis without having submitted the required landscaping plans,” constituted a clear violation of section 5.14(b) of the CC&R’s, which requires that “[a]ll approved landscaping” be completed by the time the county issues a certificate of occupancy.

In February or March 2010, the Perrottas retained Jeff Ambrosia, a licensed landscape architect employed by Yamasaki Landscape Architecture, to develop landscape construction documents for their property. At all relevant times herein, Ambrosia also served as a consultant to the Committee, and as such, reviewed landscaping documents of new homeowners. As a result, he was familiar with the CC&R’s and Design Guidelines. The Perrottas instructed Ambrosia to prepare a landscape plan that would be accepted by the Association.

On March 25, 2010, Ambrosia sent the Committee a diagram showing a secondary driveway across the front of the residence that was intended to provide access to the front door. The Committee denied the Perrottas’ request to install the proposed driveway.

On April 16, 2010, Bodyfelt and members of the Committee met with Charles Perrotta and Ambrosia on the Perrottas’ property to discuss the proposed secondary driveway. A week later, the Committee wrote to the Perrottas and proposed three alternatives to the Perrottas’ proposed secondary driveway. Ambrosia responded to the letter, noting that the options provided by the Committee “would require a tremendous expense” and result in an unnecessary hardship.

On May 26, 2010, the Committee notified the Perrottas that it was standing by its denial of their request for a “second driveway” and requested that the Perrottas meet with members of the Board and the Committee on June 15, 2010, “to discuss . . . a time frame for submittal and completion of landscape plans . . . .” The Perrottas advised the Committee that they had business out of the area on June 15, 2010, and would be on vacation in early July, and suggested a meeting in late July.

On July 16, 2010, the Board sent the Perrottas written notice of a hearing on August 3, 2010, to address various alleged violations of the Association’s governing documents, including the lack of landscaping and failure to submit “plans and fee[s].” The Perrottas advised the Board that they were unavailable on August 3, 2010, and on July 30, 2010, submitted a landscape plan for the property. According to Nancy Jakse, the Board president, the landscape plan contained “a number of elements . . . that were inconsistent with the site plan of the already approved plans” submitted by the prior owner. Accordingly, the landscape plans were not approved.

The hearing went forward on August 3, 2010, without the Perrottas. The Board determined that it needed more information and continued the hearing to October 6, 2010. Meanwhile, on August 4, 2010, the Committee wrote to the Perrottas and requested clarification as to whether they intended to use the previously approved site plan or submit a modified plan of their own.

At the October 6, 2010, hearing, the Perrottas indicated that they intended to complete the project according to the previously approved site plans, and Jakse informed them that there were many elements on the previously rejected landscape plan for which the Board had no “architectural information.” The Perrottas agreed to submit a new landscape plan by the end of October 2010, and complete landscaping their property by the end of January 2011. The deadline for submitting the revised landscape plan was later extended to November 2010. Following the hearing, the parties continued to discuss the Perrottas’ desire for a secondary driveway but were unable to resolve the issue. The Perrottas did not submit a revised landscape plan by the end of November 2010, and in January 2011, the parties agreed to mediate the dispute.

The mediation took place on April 1, 2011, before retired superior court judge Darrel Lewis. Board president Jakse and Committee chair Richard Breaux represented the Association at the mediation and were accompanied by the Association’s counsel. The Perrottas and their counsel were also present. The mediation continued all day and ended with the formulation of a “Settlement Agreement.” The document is seven pages in length, with one attachment. The mediator provided a three-page printed document with general terms as a courtesy to the parties to expedite the formulation of the agreement. Some of the provisions set forth therein are crossed out, while others have been edited by hand. Specific terms negotiated by the parties and their attorneys are set forth in four handwritten pages. The document was executed by the parties and their attorneys.

The first three printed pages provided in pertinent part: “The parties hereby agree to settle this dispute in its entirety on the terms set forth below.” “[E]ach party waives . . . the right to any known claims” against the other.”It is the intent of the parties that this agreement is binding and enforceable.” “This Agreement represents the complete understanding between the parties.”

The remainder of the agreement was handwritten. It provided in its entirety:

“This agreement pertains to driveway and landscape issues only. All other issues are dropped at this time.
“Both parties agree that the goal of this agreement is to complete the landscaping and driveway of the residence in question and to obtain a certificate of occupancy from Placer County at the earliest practicable date.
“Perrotta agrees to obtain [a] signed final inspection from Placer County on all permits relating to the subject property not later than September 15, 2011.[3]
“The above deadline of September 15, 2011 shall be extended by the number of calendar days that elapse between the simultaneous submission date of landscape plans and separate site plans to Winchester and the date Perrotta is notified of approval of both said plans.
“The above deadline of September 15, 2011 shall be extended additionally by the number of calendar days that elapse between the submission date of any necessary plans to Placer County and the date Perrotta is notified of approval of said plan.
“Perrotta will submit payment of $300 simultaneously with submission of the landscape plans to Winchester.
“Perrotta will submit payment of $5,000 as a compliance deposit to Winchester simultaneously upon receiving the stamped site plans and landscape plans. Said deposit shall be placed in escrow and returned to Perrotta upon completion of the site plans and landscaping plans referred to above. See Section 5.3 of Winchester design guidelines and regulations. Final inspection of the property will be to determine that the Perrottas are in compliance with the plans.
“Perrotta agrees to obtain a $75,000 completion bond, prior to starting construction, wherein Winchester is solely named as beneficiary of the bond, to be paid to Winchester in the event Perrotta fails to complete their obligations as specified in this agreement. The parties agree that each party will pay 50% of the fees for obtaining this bond.
“Winchester agrees to drop the April 6, 2011 compliance and fine meeting.
“The parties agree that in the event that Perrotta submits a landscape and/or site plan which envisions construction of a second driveway/turnaround within the shaded portion of the setback area as depicted in Attachment A & said plans are otherwise in compliance with the Association[‘s] governing documents & Design Review Guidelines, the Association agrees to issue Perrottas a variance to permit construction of said driveway [within] the shaded portion of the setback in Attachment A. The parties further agree and understand that the Association’s issuance of a variance does not otherwise supersede or replace any additional requirements that may be required by the County for approval of said plan(s) &/or issue of a variance for construction [within] the setback.
“The Association further represents that as of the date of this agreement, the Association is of the opinion that that Perrotta building structure is in compliance with the Association’s governing documents and Design Review Committee Guidelines.”
On May 19, 2011, the Perrottas submitted a seven-page set of “Landscape Development Plans” and a $300 landscape review fee to the Committee. The plans were prepared by the Perrottas’ landscape architect Ambrosia. In addition to a “Cover Sheet,” the plans consist of the following pages: “Amenities Plan”; “Hardscape Plan”; “Planting Plan”; “Irrigation Plan”; “Lighting Plan”; “Planting Details”; and “Irrigation Details.” Among other things, the plans showed property lines, site envelope, building envelope, building footprint, proposed secondary driveway, fencing, retaining and seating walls, flagstone and asphalt paving, hot tub and concrete pad, pizza oven, stepping stones, metal gate, existing rock shale, and existing drainage canal.

Jakse and Breaux reviewed the plans and found them deficient. In a letter dated May 25, 2011, Breaux informed the Perrottas that “per page 4 of the mediation settlement agreement, you were required to simultaneously submit landscape plans and separate siteplans for approval. Since you failed to submit site plans for architectural review to replace or modify the currently approved . . . site plan sheets . . ., no approval action can be taken by the [Committee] relative to the landscape plans. As has been communicated many times before, landscape plans must conform to approved architectural plans.” Breaux continued, “There are numerous elements depicted on your landscape plans that are beyond the scope of landscape review and must go through architectural approval; e.g., the driveways, parking pad, spa, expanded deck, retaining walls, fencing, and gate. Any element shown on sheets 1 and 2 of your currently-approved plans that you don’t intend to install needs to be removed from your site plan. Similarly, any new or modified elements must be shown with supporting engineering/architectural detail, if required. The proposed site plan must also reflect the grading and drainage modifications that go along with your new or modified elements.” Breaux further advised that the landscape elements of the plans (planting, irrigation, & lighting) had been reviewed by the Committee’s outside landscape review consultant, who saw no issues, but explained that “approval of the landscape plans can only occur when site plans have been approved first or simultaneously.” Finally, Breaux indicated that the “second driveway/turnaround” depicted in the plans extended beyond the shaded area of the setback as agreed to in attachment A to the settlement agreement and noted that “this issue will have to be corrected” in order for “your site plan to be approved when you submit it.”

Shortly thereafter, Jakse, Breaux, Bodyfelt, and Ambrosia met on the Perrottas’ property to discuss the proposed secondary driveway. During the meeting, Ambrosia acknowledged that the proposed driveway depicted in the plans extended beyond the area provided for in attachment A to the settlement agreement and provided a revised layout, which he “put on the ground so that [Jakse and Breaux] could see that it truly did fit within the shaded area.” The Association was concerned that the county might not approve the variance agreed to at the mediation, and Jakse suggested that the Perrottas obtain approval from the county for the proposed driveway before submitting revised plans to the Committee to avoid wasting money on engineering expenses.

Sometime prior to June 30, 2011, Ambrosia, on behalf of the Perrottas, submitted “an exhibit [to the county’s planning division] that showed what [they] were trying to do” in terms of the driveway. On June 30, 2011, the Perrottas met with the county’s senior planner, and on August 22, 2011, were advised that the agency’s director had approved their “request to construct the driveway as shown on the draft Yamasaki plan,” contingent upon the submission of “a new grading plan for review and approval by the Placer County Engineering and Surveying Division prior to initiating work on the driveway and/or landscaping.” On September 19, 2011, the county advised the Perrottas that a grading permit was not required.

Meanwhile, on August 30, 2011, the Association wrote to the Perrottas, reminding them that the settlement agreement “requires you to `obtain a signed final inspection from Placer County on all permits relating to the subject property not later than September 15, 2011,'” and noted that “[w]ith less than a month to complete your project, you have yet to obtain landscape and site plans stamped by Winchester, and to pay the $5,000 compliance deposit, both of which are prerequisites to obtaining final County approvals.”

The Perrottas did not respond to the Association’s August 30, 2011, letter, and on September 23, 2011, the Association sued the Perrottas for breach of the settlement agreement and specific performance.

On October 10, 2011, Ambrosia, on behalf of the Perrottas, submitted a revised 10-page set of “Landscape Development Plans” to the Association. In addition to a “Cover Sheet,” the plans consist of the following pages: “Amenities Plan”; “Grading & Drainage Plan”; “Grading Profile”; “Hardscape Plan”; “Construction Details”; “Planting Plan”; “Irrigation Plan”; “Lighting Plan”; “Planting Details”; and “Irrigation Details.” The proposed secondary driveway depicted in the revised plans falls within the area set forth in attachment A to the settlement agreement. As compared to the May 2011 plans, the revised plans “added a tremendous amount of detail in terms of grading, drainage, [and] driveway layout,” and included elevations as requested by the Association.

On October 20, 2011, the Association advised the Perrottas that “[t]he tendered landscape development plans will be held by the Association with the review of those plans by the Association’s Design Review Committee being held in abeyance until such time as a site plan is also furnished to the Association.”

On February 14, 2012, the Perrottas filed a cross-complaint against the Association for cancelation and rescission of the settlement agreement and declaratory relief. Among other things, the Perrottas sought a declaration that the Association violated and continues to violate its own CC&R’s and Design Guidelines in the landscape approval process.

The cross-complaint also alleged defamation, intentional infliction of emotional distress, elder abuse, and breach of contract. Pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16, the Association filed a successful special motion to strike the defamation, intentional infliction of emotional distress, elder abuse, and breach of contract claims. The trial court awarded the Association $5,000 attorney fees for the anti-SLAPP motion.

Following a five-day bench trial in May 2013, the trial court entered judgment in favor of the Association and against the Perrottas. The trial court found that the Perrottas breached the settlement agreement and ordered them to perform their obligations there under the same. In particular, the trial court determined that the settlement agreement constituted a valid and enforceable agreement and rejected the Perrottas’ claim that the agreement was ambiguous as to whether they were required to submit both a landscaping and a site plan to the Association for approval. The court found that “[u]nder a plain meaning interpretation, the Settlement Agreement required [Perrotta] to submit both landscape plans and site plans,” and determined that “no site plan [had] ever been submitted.” The trial court rejected the Perrottas’ claim that the September 15, 2011, deadline had been extended and ordered the Perrottas “to file a separate site plan . . . as defined in the Appendix to the Design Guidelines, within 60 days from the date this Judgment is entered.” The trial court found against the Perrottas on their cross-complaint. In particular, the trial court found that the Perrottas’ claim that the Association violated the CC&R’s and Design Guidelines in failing to approve the Perrottas’ plans was superseded by the settlement agreement and therefore declined to address it.

Following the trial, the court determined that the Association was the prevailing party and entered a postjudgment order awarding the Association $159,269.61 in attorney fees and costs.

The Perrottas appealed, contending (1) the settlement agreement was unenforceable because it was never consummated, (2) even if it was enforceable, it did not require them to submit a separate site plan in addition to a landscape plan, (3) the September 15, 2011 deadline was extended approximately three months, and (4) even if they were required to submit a separate site plan, the revised plans submitted on October 10, 2011, included such a plan. The Perrottas also assert that the trial court erred in declining to address their claim that the Association violated its own policies and procedures, and awarding the Association attorney fees and costs.

We concluded the settlement agreement was enforceable and required that the Perrottas submit both a landscape plan and a site plan to the Association for approval before beginning work on their property, the September 15, 2011 deadline was extended 81 days, the trial court’s implied finding that the revised plans submitted in October 2011 did not include a site plan is not supported by substantial evidence, and the Association prevented the Perrottas from performing under the settlement agreement by refusing to review those plans. Accordingly, we reversed the judgment entered in favor of the Association, as well as the postjudgment order awarding the Association attorney fees and costs, which was based on the judgment.

On remand, the Association filed a motion to strike or tax costs and renewed its motion for attorney fees totaling an adjusted amount of $157,146.44 as the prevailing party, while the Perrottas filed a bill of costs and a motion for $275,932.90 in attorney fees.

The trial court found “the Association ultimately met its objective to force the Perrottas to comply with the settlement agreement, and by extension, the CC&Rs.” While the Perrottas achieved some positive net effects, “they were unsuccessful in obtaining a finding of invalidity of the settlement agreement, or a violation by the Association of the CC&Rs and Design under the Guidelines,” leading the court to conclude the Association was the prevailing party. The court also found the amount requested by the Association was reasonable and accordingly awarded it the full $157,146.44, and granted its motion to strike or tax costs. The trial court denied the Perrottas’ motion to tax or strike costs and for fees pursuant to the Act and section 1717, finding the Association was the prevailing party. The court also modified its prior judgment to include these orders and to conform to our ruling in the prior appeal.

DISCUSSION
I
Prevailing Party
The Perrottas contend the trial court erred in finding the Association rather than they were the prevailing party under the Act, and they were therefore entitled to fees and costs under it, or in the alternative, the attorney fee provision in section 1717.

“`The Davis-Stirling Act, enacted in 1985 [citation], consolidated the statutory law governing condominiums and other common interest developments.’ [Citation.] `The Davis-Stirling Act includes provisions addressing alternative dispute resolution (ADR), including the initiation of such nonjudicial procedures, the timeline for completing ADR, and the relationship between ADR and any subsequent litigation.’ [Citation.] [¶] Among other things, the legislation provides that `[a]n association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.’ [Citation.]” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 258 (Rancho Mirage).)

The Act contains the following provision: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (§ 5975, subd. (c).) This has been extended to include costs and fees expended in ADR under the Act. (Grossman v. Park Fort Washington Assn. (2012) 212 Cal.App.4th 1128, 1134.)

In determining who is the prevailing party, a trial court is not bound by any “rigid interpretation” of that term, but instead must determine “on a practical level” which side prevailed. (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.) The trial court’s determination of the prevailing party is reviewed for abuse of discretion. (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94.) “`”The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced [from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”‘ [Citations.]” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339.)

The Perrottas claim they were the prevailing party by accomplishing their primary objective, to show that they did not breach the settlement agreement and were entitled to have the Association accept their October 2011 plans. They assert the cross-complaint was essentially defensive in nature, and that a defendant who alleges an essentially defensive cross-complaint may be the prevailing party notwithstanding an adverse result on the cross-complaint. The Perrottas additionally note that their answer to the Association’s complaint included affirmative defenses such as failure of performance by the Association, waived claims by the Association, and the Association’s breach excused the Perrottas’ performance, which would help achieve their primary objective. In addition, the Perrottas observe the Association refused their request to admit they received the revised plans in October 2011, and refused to admit that it never responded to this submission of completed plans.

The trial court was guided by two cases, Rancho Mirage and Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761 (Almanor). We are likewise persuaded by these cases.

Rancho Mirage involved a dispute between a condominium owner and the homeowner’s association regarding changes the owner made to the patio area of the condominium unit. (Rancho Mirage, supra, 2 Cal.App.5th at pp. 255-256.) Pursuant to mediation under the Act, the parties agreed for the owners to make certain modifications within 60 days. (Rancho Mirage, at p. 256.) When the modifications were not made in the allotted time, the association sued, seeking specific performance and declaratory relief; subsequently the parties reached agreement on modifications slightly different from those set forth in the mediation agreement. (Id. at p. 257.) The parties could not agree on who should bear the litigation expenses, and the trial court ultimately awarded attorney fees and costs to the homeowner’s association. (Id. at pp. 257-258.)

The award was affirmed on appeal. (Rancho Mirage, supra, 2 Cal.App.5th at p. 256.) It found the trial court’s determination that the homeowner’s association was the prevailing party on a practical level was “not beyond the bounds of reason.” (Id. at p. 261.) While the owners focused on the differences between the modifications made and those in the settlement agreement, the Court of Appeal noted that “[t]he `action’ at issue in the section 5975 analysis includes not only the litigation in the trial court, but also the prelitigation ADR process. [Citation.]” (Ibid.) The Court of Appeal found “[t]he Association wanted defendants to make alterations to their property to bring it in compliance with the applicable CC&Rs, specifically, by installing openings in the side wall of the patio, and altering the drapery on the patio. The Association achieved that goal, with defendants completing the modifications to the patio in September 2014.” (Ibid.)

Almanor involved a dispute in which the homeowners association sought to impose fines and related fees for the property owners’ alleged rules violations related to the owners’ leasing of their properties as short-term vacation rentals. (Almanor, supra, 246 Cal.App.4th at p. 765.) The defendant property owners disputed both the fines and the association’s authority to enforce restrictions on their properties. (Id. at pp. 766-767.) They filed a cross-complaint “for damages and equitable relief based on breach of contract, private nuisance, and intentional interference with prospective economic advantage,” as well as establishing the imposition of fines was unlawful, arbitrary, and unfair. (Id. at p. 767.) The trial court ruled against the defendants on the cross-complaint, but also rejected many of the fines, upholding only $6,000 of the $54,000 in fines assessed by the homeowner’s association. (Id. at pp. 767-768, 769.) It found the homeowner’s association to be the prevailing party and awarded it costs and fees under the Act. (Id. at pp. 768-769.)

The Court of Appeal affirmed the award of costs and fees. (Almanor, supra, 246 Cal.App.4th at p. 765.) It found the pivotal issue in the litigation was whether the fines were enforceable under California law and the CC&Rs. (Id. at pp. 774-775.) While the defendants’ partial success on the fines imposed substantially reduced their liability for damages and supported their position that the rules could not impose an unreasonable burden on their property, “by upholding a subset of the fines, the court ruled more broadly that Almanor could impose reasonable use restrictions on the Carsons’ properties, despite their authorized commercial use. That ruling echoed Almanor’s stated objective at trial that the association sought to counter the Carsons’ position that `because their lot is zoned “Commercial,” they are not bound by the CC&R’s or the Rules.'” (Id. at p. 775.) Finding Almanor was the prevailing party was not an abuse of discretion. (Id. at p. 776.)

We likewise find no abuse of discretion in finding the Association to be the prevailing party. Both in the events leading up to the mediation and those after, the Association sought to get the Perrottas to submit acceptable landscaping plans and then landscape their home in accordance with the CC&R’s and the settlement agreement. While the Perrottas sought to submit the necessary plans following the agreement, a dispute over their timely compliance led to the instant litigation. In response to the Association’s suit, the Perrottas claimed, at trial and on appeal, that they did not breach the agreement and that the agreement was invalid and unenforceable. While they ultimately succeeded in establishing that they had not breached the agreement and that the Association prevented them from completing one of their obligations, the Perrottas nonetheless failed to establish that the settlement agreement was invalid or that they were excused from their duty of performance.[4]

We are unpersuaded by the Perrottas’ claim that their failure to prevail on the cross-complaint should be overlooked as the claims therein were essentially defensive in nature. This argument is based on Hsu v. Abbara (1995) 9 Cal.4th 863, where the Supreme Court held a trial court may not find there was no prevailing party under section 1717 “when the court renders a simple, unqualified decision in favor of the defendant on the only contract claim in the action.” (Hsu, at pp. 865-866.) The Perrottas rely on footnote 10 of the Hsu opinion, which states in full, “When there are cross-actions on a contract containing an attorney fees provision, and no relief is awarded in either action, a trial court is not obligated to find that there is no party prevailing on the contract for purposes of section 1717. If the court concludes that the defendant’s cross-action against the plaintiff was essentially defensive in nature, it may properly find the defendant to be the party prevailing on the contract.” (Id. at p. 875, fn. 10.) This does no more than state a court has the discretion to determine a cross-complaint was defensive rather than a focus of the litigation when determining the prevailing party. It was within the trial court’s discretion to conclude the cross-complaints were more than merely defensive when determining who prevailed in this litigation.[5]

In applying the abuse of discretion standard to the trial court’s determination of the prevailing party under the Act, we are mindful that we cannot substitute our decision for that of the trial court. Whether or not we agree with the court’s decision is immaterial. Since the determination that the Association is the prevailing party does not exceed the bounds of reason, it must be upheld on appeal.[6]

II
Costs Were Properly Awarded to the Association
The Perrottas claim they are entitled to costs pursuant to Code of Civil Procedure section 1032.

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “`Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the `prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Id., subd. (a)(4).)

The Perrottas assert they are statutorily entitled to costs because the Association was denied relief on its complaint and the Perrottas were denied relief on their complaint, making them, as defendant to the action, the prevailing party. The Association obtained other than monetary relief here, a judgment that the Perrottas were bound to comply with the settlement agreement and must complete the landscaping of their property and obtain a final inspection within 56 days of the issuance of our remittitur. It was therefore within the trial court’s discretion to determine the prevailing party. As with the award of attorney fees, the implied finding that the Association was the prevailing party for the purposes of awarding costs was within the trial court’s sound discretion.

III
The Fees and Costs were Proper
The Perrottas’ final contention is the fees and costs should be lowered by $14,222.50. According to the Perrottas, pursuant to the anti-SLAPP motion, the association sought $19,222.50 in fees but was awarded only $5,000 by the trial court. This amount was not included in the awards of costs and fees reversed by this court in the first appeal. The Association did not seek the $5,000 it received for the anti-SLAPP motion in its motion for fees on remand, but on remand, sought an additional $14,222.50 in fees related to its work on the motion, which the trial court awarded. They contend the trial court was bound by the original award as the Association did not timely move for reconsideration of the original award pursuant to Code of Civil Procedure section 1008.

The Association asked for only $11,615 in fees associated with the anti-SLAPP motion in the original proceedings. The $14.222,50 amount asserted by the Perrottas on appeal is supported by a citation to the opposition to the Association’s motion for attorney fees they filed in the trial court on remand. That amount is determined by the Perrottas’ counsel by identifying entries in the billing records submitted by the Association that counsel believed were attributable to the anti-SLAPP motion.

Even assuming the Perrottas cite sufficient facts to support their claim, it was within the trial court’s authority to reconsider its earlier ruling on its own motion. A trial court retains jurisdiction to reconsider any final order. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1103-1104.) A court may reconsider a prior ruling so long as it notifies the parties and allows briefing and argument on the issue. (Id. at p. 1008.) Whether and how much the Association’s fees should be reduced because of the $5,000 awarded for the anti-SLAPP litigation was before the trial court, the matter was briefed, and the court held a hearing on the issue of costs and fees. It was within the trial court’s discretion to conclude the Association was entitled to additional fees related to the anti-SLAPP motion, or that the fees disallowed in the original were fairly attributable to the remaining litigation.[7]

DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

HULL, J. and MURRAY, J., concurs.

[1] Winchester Community Assn. v. Perrotta et al. (C075562, July 21, 2016) [nonpub. opn.].

[2] Undesignated statutory references are to the Civil Code.

[3] The trial court assumed, and the parties did not dispute, that the Perrottas were required to complete all construction, including landscaping, in order to obtain a “signed final inspection” from the county.

[4] Among the affirmative defenses raised by the Perrottas was that performance of their landscaping obligations was excused by the Association’s failure of performance and the Association’s actions also excused their duty to perform.

[5] At oral argument, there was a dispute between the parties as to whether the Perrottas breached the settlement agreement by failing to pay the $5,000 deposit. We do not address the dispute, as it is unnecessary to resolve this appeal.

[6] Since there is a separate statutory ground for fees and costs, it is unnecessary to consider the attorney fee provision for contract claims in section 1717. (Rancho Mirage, supra, 2 Cal.App.5th at p. 260.)

[7] This inference is supported by the fact that the anti-SLAPP motion obtained the dismissal of only four of the Perrottas’ seven cross-claims. It was within the court’s discretion that the $5,000 originally awarded was attributed to work associated with the dismissed claims, and the Association sought on remand fees related to work relevant to the claims not dismissed in the anti-SLAPP motion, but upon which the Association ultimately prevailed.

Mezger v. Bick

(2021) 66 Cal.App.5th 76.

 Court of Appeals of California, Second District, Division Eight

 July 1, 2021

 No. B305745

Summary by Jillian M. Wright, Esq.:

An owner sued their next-door neighbor over invasion of privacy and violation of Penal Code section 632 when security camera installation recorded owner’s backyard conversations. The court held that any privacy intrusion was insubstantial and granted summary adjudication in favor of defendants. The court held that the neighbor had legitimate safety concerns, that no privacy invasion occurred, and there was no violation of Penal Code section 632, especially where the captured speech was at an elevated volume.
TAKEAWAY: Invasion of privacy must be significant and serious. A conversation is confidential if the speaker “has an objectively reasonable expectation that the conversation is not being overheard or recorded,” which is not present when someone is shouting profanities.

***End Summary***

66 Cal.App.5th 76 (2021)
SANDRA MEZGER et al., Plaintiffs and Appellants,
v.
RANDY RALPH BICK, JR., et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC714748, Holly J. Fujie, Judge. Affirmed.

Glaser Weil Fink Howard Avchen & Shapiro, Craig H. Marcus and Cynthia E. Organ for Plaintiffs and Appellants.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Wendy S. Dowse, Dana S. Fox and Michael S. Moss for Defendants and Respondents.

78*78 OPINION

GRIMES, Acting P. J.—

This is a dispute between neighbors. Plaintiffs Sandra and Jeffrey Mezger allege their neighbors, comedian Kathleen Griffin and her boyfriend Randy Ralph Bick, Jr., invaded their right to privacy by recording images of plaintiffs’ backyard and audio of their private conversations with their iPhones and Nest security cameras. Defendants moved for summary adjudication of plaintiffs’ privacy claims. The trial court concluded that any privacy intrusion was insubstantial and granted summary adjudication in defendants’ favor. We affirm.

BACKGROUND

Plaintiffs sued defendants in July 2018, alleging causes of action for nuisance, violation of Penal Code section 632, invasion of the common law 79*79 right of privacy, invasion of the California constitutional right of privacy, invasion of privacy, false light, and nuisance in violation of the municipal code. Plaintiffs alleged defendants moved next door in July 2016 and immediately began making noise complaints about plaintiffs to their homeowners association (HOA) and to the Los Angeles Police Department.

Plaintiffs alleged defendants initially made iPhone video recordings of their backyard, and later installed a Nest “audio-video surveillance system, point[ed] … directly into [plaintiffs’] back yard in order to spy on and record them.” Plaintiffs alleged the goal of the camera system was to gather evidence so defendants could make further complaints to the HOA.

Plaintiffs first learned of the recordings in September 2017, after police came to their home in response to a noise complaint and told plaintiffs defendants had recorded them. A few days later, defendants released one of the recordings to the Huffington Post. The recording included an expletive-laden rant by Mr. Mezger, who was apparently angry after defendants called police complaining about a backyard pool party for his grandchildren. Recordings from other occasions were given to other media outlets. Ms. Griffin also used some of the recordings during her stage performances.

Plaintiffs alleged the recordings also captured private conversations occurring within their home, based on the position of one of the cameras. Plaintiffs alleged the recording was constant and continuous, and prevented them from using their backyard or opening their windows.

Plaintiffs alleged there was no legitimate security interest in operating the surveillance system because the parties live in a gated community with guarded access and constant patrols. And, given the timing of the installation of the camera (immediately after the HOA found plaintiffs had not violated any rules), plaintiffs believed the true purpose of the system was to spy on plaintiffs.

Ms. Griffin moved for summary adjudication of the causes of action for violation of Penal Code section 632, common law invasion of privacy, and constitutional invasion of privacy, and Mr. Bick joined Ms. Griffin’s motion, with his own separate statement and compendium of evidence (which was nearly identical to that submitted by Ms. Griffin).

In support of the motion, Ms. Griffin testified she is a public figure, and has received death threats and been stalked in the past. To ensure her personal safety, she had a Nest security system installed on her property. The security system is entirely on her own property. The cameras were “positioned in such a way … to maximize [her] security.” “To the extent that any of [her] 80*80 security cameras ever detected any portion of the Mezger property, that was an unintended, collateral consequence due to the maximization of the security system, given the topography of [her] property.”

Ms. Griffin’s second floor bedroom is accessible by a staircase from her backyard. To capture the entire staircase and the balcony outside her bedroom, the camera incidentally captured a portion of plaintiffs’ yard. A screenshot from the camera outside Ms. Griffin’s second story bedroom shows the camera’s vantage point. The screenshot consists mostly of the balcony outside Ms. Griffin’s bedroom and the stairs leading from the balcony to the backyard. A portion of plaintiffs’ backyard, including their pool, can be seen in the screenshot.

According to Ms. Griffin, the Mezgers have frequently hosted loud parties and events at their home, causing Ms. Griffin to make noise complaints to the HOA and the police. She made brief videos on her phone to substantiate her noise complaints. She was on her property at all times while making the videos. Mr. Bick also testified that he “never placed any part of [his] body, or any recording device (including [his] iPhone and the Nest), over the Mezgers’ property line.” Any recorded sounds “were so loud that they emanated onto Kathy’s property from the Mezgers’ property.”

According to Ms. Griffin, she never knowingly recorded any conversations or activities occurring within plaintiffs’ home. The camera plaintiffs claim is near one of their windows is a nonoperational camera installed by the previous owners.

In their discovery responses, plaintiffs admitted that Ms. Griffin had a right to install cameras on her property, and that they had security cameras at their properties in Arizona and Goleta, California.

In opposition to defendants’ motion, plaintiffs submitted evidence the security cameras were installed nine months after defendants had moved into the home, on the same day the HOA determined there was no merit to the noise complaints lodged by defendants. The HOA had told Mr. Bick he and Ms. Griffin needed to “document” plaintiffs’ conduct to substantiate their claims, and defendants admitted the security system was installed to document the extent of the noise disturbances affecting their property. Ms. Griffin instructed her personal assistant to review the recordings daily for audio of plaintiffs.

Plaintiffs’ and defendants’ properties were separated by a six-foot tall concrete wall, with two feet of wrought iron on top. Defendants’ second floor balcony was visible from some parts of plaintiffs’ backyard, and defendants 81*81 had a view of plaintiffs’ backyard from their balcony. Defendants’ balcony was approximately 60 feet away from plaintiffs’ house.

Plaintiffs testified the recordings were made without their knowledge or consent. They “expected that [their] communications and activities on [their] own property would not be recorded.” Plaintiffs first became aware of the recordings in September 2017, when the police informed them defendants had made recordings of them.

Mr. Bick personally installed one of the Nest security cameras and knew the camera captured portions of plaintiffs’ backyard. He tried to “tweak down the camera to not focus on the property. If it was incidentally looking at it that was not [his] focus. That’s why [he] had to readjust it and focus on the staircase landing.”

Defendants’ Nest surveillance camera included a single microphone that was capable of recording a normal conversation 60 feet away. When Mr. Bick installed the Nest surveillance camera on April 21, 2017, he understood the camera could record loud audible sounds coming from plaintiffs’ property. Defendants eventually replaced their single surveillance camera with three new cameras, and each new surveillance camera included three microphones that captured sound at the same distance as the other single microphone camera.

Also included with plaintiffs’ opposition evidence was a flash drive, labeled exhibit 12, which contained recordings from the Nest system, and an iPhone recording made by defendants. The recordings purport to show the extent of the privacy invasion. In his declaration, Mr. Mezger testified that in the videos, he and his guests were speaking at “normal conversational tones” and did not know they were being recorded.

We quote below the trial court’s thorough description of the files contained in exhibit 12.

“1. A file named `1—Exhibit No. 11—Mezger Backyard Yelling V1 3.16.17.m4a’ [is an audio recording] which is 35 seconds in length and consists of little comprehensible audio. The Court can ascertain a male voice using an expletive at approximately four seconds stating that: (1) someone called his cellphone; (2) he told them to come up here; [and] (3) using an expletive a second time. This recording also consists of a female voice using an expletive and voices speaking at the same time from the 19 second mark until the end of the recording.

“2. A file named `2—Exhibit No. 12—Mezger Backyard Yelling V2 3.16.17.m4a’ [is an audio recording] which is 22 seconds in length and 82*82 consists of numerous parties speaking with expletives being used throughout the conversation. The sound is barely audible. A male voice is heard saying `[inaudible] 10:30 … you can do whatever you want at 10:30 [inaudible] … everyone’s got attorneys [inaudible].’

“3. A file named `3—Exhibit No. 38—Jeff Mezger Threat FULL 9.16. 17 at 909 PM.’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. You can see Griffin’s patio, steps leading down to her backyard, and trees in her backyard from this video recording. This specific video recording shows very little of Plaintiffs’ backyard as the recording was taken at night. In this recording, Mr. Mezger is saying `Hey, Randy, go f**k yourself, seriously you called on my grandkids at 9 o’clock? You’re not even the f***king owner. You’re stuck with a f*****g bald d**e who, uh, Donald Trump kinda put the heat on. Now you’re calling the cops? F**k You, and f**k Kathy. You’re not our f*****g neighbor, you’re a f*****g a*****e.’ At 34 seconds a female voice states `What’s going on?’ Mr. Mezger then says `let’s declare war.’ Mr. Mezger then proceeds to continue speaking in a loud voice and using expletives toward Griffin and Bick. Mr. Mezger’s voice is clearly heard on this recording and his voice is the first voice heard on this particular recording. Mrs. Mezger’s voice can also be heard on this recording. This recording is 1 minute and 44 seconds in length.

“4. A file named `6—Kathy Intimidation With Kids 5.4.18.’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is on Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can only see a small part of Plaintiffs’ property on this recording. The audio on this recording consists of numerous people speaking and the audio is not clearly comprehensible as it has a lot of static.

“5. A file named `7—Mezger Pool Party 9.16.17.’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. It was recorded in the daylight hours. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can only see a relatively small portion of Plaintiffs’ backyard and the corner of what appears to be Plaintiffs’ pool, and this view appears to be incidental to the focus of the video on Griffin’s property. At no point do you see any people in the recording. The recording consists of very little comprehensible audio.

“6. A file named `9—Clip (May 25[,] 2017 at 1059 PM).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is 83*83 Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can see a small portion of Plaintiffs’ patio, which is lighted; however, the rest of their property cannot be seen as the video was taken during the nighttime hours. The audio on this recording consists of numerous people speaking and most of the audio is not clearly comprehensible as it has a lot of static. This recording is 25 seconds in length.

“7. A file named `9—IMG_4360.’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. It was recorded in the daylight hours. The primary focus of the video is Griffin’s patio railing and a portion of Griffin’s backyard. The video also shows a portion of Plaintiffs’ backyard with a gathering of about 16 people moving in Plaintiffs’ backyard during the 6 second recording. The audio on this video recording consists only of loud music.

“8. A file named `10—Clip (May 25[,] 2017 at 1100 PM(1)).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can see only a small portion of Plaintiffs’ patio, which is lighted, and you cannot see any people in this recording as it was taken during the nighttime hours. The audio on this recording consists of numerous people speaking loudly and most of the audio is not clearly audible as it has a lot of static and music playing. This recording is 29 seconds in length; however, the audio cuts off at 25 seconds.

“9. A file named `11—Clip (May 25[,] 2017 at 1100 PM).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard from this video recording. You can see into a small portion of Plaintiffs’ backyard, however, you cannot see any people in this recording as it was taken during the nighttime hours. The audio on this recording consists of numerous people speaking loudly and most of the sound is not clearly audible as it has a lot of static and music playing.

“10. A file named `12—Clip (May 25[,] 2017 at 1102 PM(1)).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can see a small part of Plaintiffs’ patio, which is lighted; however, you cannot see any people in this recording as it was taken during the nighttime hours. The audio on this recording consists of numerous people speaking 84*84 loudly and most of the audio is not clearly audible as it has a lot of static. From what is audible the Court can hear a few expletives along with a few phrases.

“11. A file named `13—Clip (May 25[,] 2017 at 1102 PM).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can see a small part of Plaintiffs’ lighted patio; however, you cannot see any people in this recording as it was taken during the nighttime hours. The audio on this recording consists of numerous people speaking loudly and most of the audio is not clearly audible as it has a lot of static. From what is audible the Court can ascertain a few expletives along with a few phrases[, like `my hair is wet,’ `where’s Becky’s camera,’ and `oh my God’].

“12. A file named `14—Clip (May 25[,] 2017 at 1104 PM((1)).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can see a small part of Plaintiffs’ lighted patio; however, you cannot see any people in this recording as it was taken during the nighttime hours. The audio on this recording consists of numerous people speaking loudly and most of the audio is not clearly audible as it has a lot of static. From what is audible the Court can ascertain a few phrases.

“13. A file named `15—Clip (May 25[,] 2017 at 1104 PM).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can see a small part of Plaintiffs’ lighted patio; however, you cannot see any people in this recording as it was taken during the nighttime hours. The audio on this recording consists of numerous people speaking loudly and most of the audio is not clearly audible as it has a lot of static. From what is audible the Court can ascertain a few phrases.

“14. A file named `16—Clip (May 25[,] 2017 at 1105 PM).’ This file is from the Nest security system that is placed on Griffin’s second floor patio. It is a video recording that contains audio. The primary focus of the video is Griffin’s patio, steps leading down to her backyard, and trees in her backyard. You can see a small portion of Plaintiffs’ lighted patio; however, you cannot see any people in this recording as it was taken during the nighttime hours. The audio on this recording consists of numerous people speaking loudly and most of the audio is not clearly audible as it has a lot of static. From what is audible the Court can ascertain a few comprehensible phrases.

85*85 “15. A file named `SOUTHHAMPTION (1) (INC XXXXXXXXXXXX)_Red.’ This file is Bick reporting a disturbance at Plaintiffs’ residence. Bick stated that it was a loud party that sounded like adults shouting at one another as well as kids screaming in the pool.”

For the February 19, 2020 hearing on the motion, the court issued a lengthy tentative ruling proposing to grant the motion. Following oral argument, the court took the matter under submission. On March 2, 2020, the court issued its ruling granting the motion.

Thereafter, plaintiffs filed an ex parte application asking the court to vacate its order granting the motion, and to allow further evidence in support of their opposition, such as expert testimony regarding the sensitivity of the cameras’ microphones. The trial court granted the motion in part.

Plaintiffs filed a supplemental opposition, supported by additional evidence, including additional declarations by each plaintiff, further testifying to the characteristics of their backyard, use of their backyard, desire for privacy, and how they have ceased using their backyard due to defendants’ invasion of privacy. Plaintiffs testified they “believed that [their] activities and communications within [their] backyard were entirely private and would not be overheard or recorded. [They] expected that [their] conduct and communications in [their] private backyard would remain private.” They also provided declarations from two experts purporting to analyze the videos plaintiffs had submitted in support of their original opposition to the motion.

Certified Audio/Video Forensic Analyst Jim Hoerricks provided a declaration in which he opined that “the sound of the voices on the recordings is amplified and sounds louder than the actual volume of the voices when they were recorded.”

Certified Protection Professional Jeffrey Zwirn submitted a declaration testifying he has been “involved in the security survey, needs analysis, recommendations, design, installation, inspection, testing, maintenance, and monitoring of over 5,000 security systems.” He opined defendants’ Nest “cameras contain one or more amplified and highly sensitive microphones. These microphones are designed to pick up audio from all directions, which includes sounds happening off camera. Nest software automatically processes audio from each of the microphones and utilizes echo cancellation and noise suppression to enhance the clarity of the recorded sounds” and the cameras have the “ability to record sounds that in many instances would not be heard by the human ear.” He also testified that “[n]ationally recognized industry standards and best practices require that outdoor security cameras do not surveil an adjacent property due to privacy concerns,” and that the cameras could have been positioned so that they did not capture plaintiffs’ property.

86*86 On March 16, 2020, the trial court granted the motion, finding the additional evidence did not create a material dispute and defendants’ conduct had an “insubstantial impact on Plaintiffs’ privacy interests.” Plaintiffs dismissed their remaining claims, and this timely appeal followed.

DISCUSSION

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to [that] cause of action….” (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, at p. 850.) The party opposing summary judgment “shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists….” (§ 437c, subd. (p)(2).) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.)

Our Supreme Court has made clear that the purpose of the 1992 and 1993 amendments to the summary judgment statute was “`to liberalize the granting of [summary judgment] motions.'” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542 [213 Cal.Rptr.3d 764, 389 P.3d 1]; see Aguilar, supra, 25 Cal.4th at p. 854.) It is no longer called a “disfavored” remedy. (Perry, at p. 542.) “Summary judgment is now seen as `a particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.) On appeal, “we take the facts from the record that was before the trial court…. `”We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”‘” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32 Cal.Rptr.3d 436, 116 P.3d 1123], citation omitted.)

1. Common Law Invasion of Privacy

The elements of a common law invasion of privacy claim are intrusion into a private place, conversation, or matter, in a manner highly offensive to a reasonable person. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259 [29 Cal.Rptr.3d 521].) In determining the existence of “offensiveness,” one must consider: “(1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder’s motives and objectives; 87*87 (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded.” (Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 377 [103 Cal.Rptr.2d 410].)

“Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37 [26 Cal.Rptr.2d 834, 865 P. 2d 633] (Hill).) The impact on the plaintiff’s privacy rights must be more than “slight or trivial.” (Ibid.)

“Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court…. Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant’s conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.” (Hill, supra, 7 Cal.4th at p. 40, citations omitted.)

Here, defendants provided evidence they had legitimate safety concerns because of Ms. Griffin’s status as a public figure and past death threats and stalking. They also presented evidence their recordings were made exclusively from Ms. Griffin’s property, only captured sounds that could be heard from their property, and any video of plaintiffs’ property was incidental to their interest in securing defendants’ second story bedroom.

Plaintiffs argue this case presents an issue of first impression: “Do residents have a reasonable expectation of privacy concerning constant audio/video surveillance of their private, walled backyard?”[1] This is hyperbole. Defendants do not dispute residents have a right to privacy in their home and backyard. The question here is, did plaintiffs create a material factual dispute whether defendants’ cameras intruded on their right to privacy in a highly offensive or serious manner?

Plaintiffs argue defendants’ claimed security interests are mere pretext, and their real purpose was to surveille plaintiffs, arguing that defendants did not install cameras until after the HOA declined to take action against plaintiffs, admitted they intended to record plaintiffs, and reviewed the footage daily to 88*88 find recordings of plaintiffs. Plaintiffs also argued there were less intrusive means for defendants to protect their security interests, such as tilting or moving the cameras.

We conclude there is no material dispute regarding the offensiveness or seriousness of the intrusion. There was no evidence repositioning the cameras would adequately safeguard defendants’ security interests, or that those interests were pretext. Defendants never testified they intended to surveille plaintiffs; instead, they testified that they sought to document the impact of plaintiffs’ loud parties on their property. Only a small portion of plaintiffs’ backyard could be seen in the videos, plaintiffs and their guests could barely be seen, if at all, and the content of their conversations could not be discerned. What few words and phrases could be understood were clearly spoken at elevated volumes, which plaintiffs could not reasonably expect to remain private in an outdoor residential setting, with neighbors nearby. Plaintiffs’ declarations testifying to their expectation of privacy do not create a material dispute by contradicting what can be plainly observed from the recordings. (See, e.g., Scott v. Harris (2007) 550 U.S. 372, 380 [167 L.Ed.2d 686, 127 S.Ct. 1769].)

Even if the Nest cameras enhanced the clarity of the recorded sounds, and were more sensitive than the human ear, the content of plaintiffs’ conversations was still barely audible. Any impact on plaintiffs’ privacy interests was therefore insubstantial as a matter of law.

2. Constitutional Invasion of Privacy

“The right to privacy in the California Constitution sets standards similar to the common law tort of intrusion.” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287 [97 Cal.Rptr.3d 274, 211 P.3d 1063].) Both causes of action require consideration of the nature of any intrusion upon reasonable expectations of privacy, and the offensiveness or seriousness of the intrusion, including any justification and other relevant interests. (Id. at p. 288.) As discussed ante, no serious privacy invasion occurred here.

3. Penal Code Section 632

Penal Code section 632, subdivision (a), provides: “A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device” shall be subject to certain penalties. Section 637.2 authorizes a private right of action for any violation of section 89*89 632. Section 632 defines a confidential communication as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Id., subd. (c).) “A conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768 [117 Cal.Rptr.2d 574, 41 P.3d 575].)

The few discernable words and phrases recorded by defendants were spoken at elevated volumes, which plaintiffs could not reasonably expect to remain private in an outdoor residential setting, with neighbors nearby.

4. Request for Judicial Notice

Defendants request this court take judicial notice that Ms. Griffin sold her home in December 2020. Because the grant deed was not part of the record below, and is irrelevant to resolution of this appeal, the request is denied.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

Stratton, J., and Wiley, J., concurred.

[1] Plaintiffs rely on many cases interpreting privacy in the context of government searches and seizures. These authorities are not useful in deciding the issues presented in this case. Those cases involve government surveillance, whereas this case involves a private security system that no party disputes defendants were entitled to have.

Champir LLC v. Fairbanks Ranch Association
No. D077384, 2021 Cal. App. LEXIS 576 (Ct. App. June 22, 2021).

Court of Appeals of California, Fourth District, Division One

Filed June 22, 2021

No. D077384

Summary by Jillian M. Wright, Esq.:

Plaintiff owners sued an association over a dispute arising from the association’s plan to install traffic signals. The court issued a temporary restraining order and then a preliminary injunction blocking the project. The association then obtained consent from a majority of its members to proceed with the project, so the court dissolved the preliminary injunction. Both parties claimed they were the prevailing party in the lawsuit and sought their respective attorneys fees from the other. The court found the plaintiff owners to be the prevailing party and awarded the owners their fees and costs because their litigation was initiated to compel the association to comply with the CC&Rs, not to block the project.

TAKEAWAY: Determination of who is prevailing party requires ascertaining the parties litigation objective.

***End Summary***

CHAMPIR, LLC, et al., Plaintiffs and Respondents,
v.
FAIRBANKS RANCH ASSOCIATION, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2018-00028289-CU-NP-NC, Jacqueline M. Stern, Judge. Affirmed.

Gordon & Rees Scully Mansukhani, Thomas J. Stoddard and Casey Shaw for Defendant and Appellant.

Nicholas & Tomasevic, Craig M. Nicholas and Ethan T. Litney for Plaintiffs and Respondents.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

DO, J.

INTRODUCTION
Champir, LLC (Champir), Daniel Javaheri, and Shiva Dehghani (collectively, Plaintiffs) sued the Fairbanks Ranch Association (the Association) to enforce the recorded covenants, conditions, and restrictions (CC&Rs) of their planned development community. Upon resolution of the litigation, both parties sought an award of attorney fees and costs as the “prevailing party” under Civil Code section 5975, subdivision (c).[1] The court determined Plaintiffs were the prevailing party and entered judgment for Plaintiffs with an award of $112,340 in attorney fees, plus costs of suit. The Association appeals, asserting the court should have determined that it was the prevailing party in the litigation. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
I.
Plaintiffs’ Lawsuit
Champir owns a home in Fairbanks Ranch, a planned development community in Rancho Santa Fe, California, where Javaheri and his wife, Dehghani, reside. Javaheri is the manager and a member of Champir. The Association is a non-profit homeowners’ association that governs and oversees the common areas of Fairbanks Ranch pursuant to recorded CC&Rs. Champir is a member of the Association with voting rights under the CC&Rs.

In June 2018, Plaintiffs sued the Association over a dispute arising from the Association’s plan to install traffic signals at the entrance gates of Fairbanks Ranch, one of which would be directly outside Plaintiffs’ home.

Plaintiffs alleged that in May 2008 the Association obtained majority approval from its voting members to spend a little over $5.3 million for improvements to the common areas, including installation of traffic signals at two entrance gates to Fairbanks Ranch, Gates 1 and 6 (Gates Project). The Gates Project was to be funded with money received from the Association’s settlement of an unrelated lawsuit in 2000, totaling $3.2 million, and a special assessment against the properties in Fairbanks Ranch for the balance. In June 2017, the Association moved $390,470 of the funds approved for the Gates Project into another fund called the San Dieguito Road Safety Fund. The Association believed that amount represented funds from the 2000 settlement that may have been improperly designated for “`purposes outside the scope of the settlement fund.'”

In October 2017, the Association informed its members that it had obtained approval from the County Board of Supervisors for installation of traffic signals at Gates 2 and 6, rather than Gates 1 and 6, as originally approved by the members. Plaintiffs’ home is at the intersection of Gate 2, “directly next to the proposed traffic signal.” Plaintiffs claimed that this was the first time they learned of the Association’s intention to install a traffic signal at Gate 2. In a written notice, the Association told members that “`[t]he Board worked through the administrative process quietly to avoid the political hurdles [their] community encountered in past attempts to get speed control on San Dieguito Road. That is the reason [homeowner members] may not have been aware of this effort until now.’ “A month later, the Association informed its members that it was in the process of collecting bids and the traffic signals would be completed within six months.

Plaintiffs alleged the Association breached the CC&Rs and exceeded its authority in several ways. First, the Association failed to request a vote and obtain approval from its members before entering into a contract to install the traffic signals at Gates 2 and 6. Such a vote, according to Plaintiffs, was required by the CC&Rs for any capital expenditure that exceeded five percent of the Association’s annual budget for the year allocated, or $200,000 for the relevant time period. Here, the contracted price for the project was estimated to cost $430,000. Second, the Association improperly proposed to pay for the traffic signals at Gates 2 and 6 with money previously approved by members in 2008 for the Gates Project involving Gate 1, without a new vote authorizing a different use of previously allocated funds. Third, the Association planned to transfer operation and maintenance of the traffic signals after construction to the County of San Diego, which Plaintiffs alleged would be an improper transfer of Association funds to a third party, without a prior vote or majority approval.

Plaintiffs asserted five causes of action, including claims for breach of governing documents, trespass, nuisance, declaratory relief, and injunctive relief. Plaintiffs claimed the proposed traffic light at Gate 2 would encroach on their property and cause a nuisance as a result of “increased noise, traffic, pollution, and light.” In addition to monetary damages, Plaintiffs sought to enjoin the Association from construction of the traffic lights until a judicial determination of the rights and responsibilities of the parties.

II.
The TRO and Preliminary Injunction
On June 14, 2018, the trial court granted Plaintiffs’ ex parte application for a temporary restraining order (TRO) and enjoined the Association from construction of a traffic signal at Gate 2, pending a hearing on Plaintiffs’ motion for a preliminary injunction.

The Association filed a request to modify the TRO to enjoin it from construction of “any part of the Gate 2 traffic signal on Plaintiff[s’] property” only. It presented evidence of a professional land survey to show construction of the traffic signal would not encroach on Plaintiffs’ property. On June 21, 2018, the trial court modified the TRO to allow the project to proceed on “non-plaintiff land” but enjoined the Association from construction of any part of the traffic signal on Plaintiffs’ property.

On September 7, 2018, Plaintiffs filed a motion for a preliminary injunction against the Association, seeking to enjoin it from construction of the traffic signal at Gate 2 and further expenditure of funds for the traffic signal at Gate 2. On October 5, the court granted Plaintiffs’ motion in part and issued a preliminary injunction enjoining the Association from proceeding with construction of the traffic signal at Gate 2 during the pendency of the lawsuit. The court specifically found that “Plaintiffs have established a reasonable probability of success on the merits of their claim for breach of the Association’s governing documents and that Plaintiffs will suffer irreparable injury if the injunction is not issued.”

On November 20, 2018, the Association requested the court dissolve the preliminary injunction due to a “material change in the facts.” After the preliminary injunction was issued, the Association had requested a vote and obtained written consent from a majority of its members to proceed with construction of the traffic signal at Gate 2, even if expenditures exceeded 5 percent of its budgeted expenses for the year. The Association argued it would, therefore, be acting within its authority under the CC&Rs to install the traffic signal at Gate 2. On December 14, the court ordered the preliminary injunction dissolved, finding a material change in facts based on the Association’s evidence showing that it “recently obtained the written consent of a majority of the Association’s members to proceed with the installation of a traffic signal at Gate 2.” Accordingly, the court concluded “the evidence no longer support[ed] restraining the Association” from constructing the traffic signal at Gate 2.

III.
Prevailing Party Fee Award
After the preliminary injunction was dissolved, Plaintiffs voluntarily dismissed their causes of action for trespass and nuisance on May 1, 2019 and the remaining causes of action on September 17, 2019.[2] Plaintiffs and the Association then filed respective motions for attorney fees, each claiming to be the prevailing party under section 5975, subdivision (c). The Association also requested attorney fees pursuant to the CC&Rs, which provided that the Association would be entitled to reimbursement of its legal expenses if a member sued it and the Association was “`successful or sustained in its position in such suit.'”

On November 5, 2019, after a hearing, the trial court determined Plaintiffs, and not the Association, were the prevailing party. The court awarded Plaintiffs their attorney fees in the amount of $112,340 and denied the Association’s motion for attorney fees. On December 6, the court entered judgment for Plaintiffs. The Association appeals, asserting the trial court should have found that it was the prevailing party.

DISCUSSION
I.
“Prevailing Party” Under Section 5975
The Davis-Stirling Common Interest Development Act (Davis-Stirling Act or the Act) governs an action to enforce the recorded CC&Rs of a common interest development. (§§ 4000-6150 [formerly sections 1350-1376].) Section 5975 provides that CC&Rs may be enforced as equitable servitudes, unless unreasonable, and “[i]n an action to enforce the governing documents [of a common interest development], the prevailing party shall be awarded reasonable attorney[ ] fees and costs.” (§ 5975, subds. (a), (c).) The prevailing party is entitled to attorney fees “`as a matter of right'” and the trial court is “`obligated to award attorney fees[ ] whenever the statutory conditions have been satisfied.'” (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1152 (Salehi) [construing former section 1354], quoting Hsu v. Abarra (1995) 9 Cal.4th 863, 872 (Hsu).)

The Act does not define “prevailing party.” However, it is well established that “[t]he analysis of who is a prevailing party under the fee-shifting provisions of the Act focuses on who prevailed `on a practical level’ by achieving its main litigation objectives[.]” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260 (Rancho Mirage), citing Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574 (Heather Farms); Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94 (Villa De Las Palmas) [affirming trial court’s determination that an association was the prevailing party because “[o]n a `practical level’ [citation], [it] `achieved its main litigation objective'”]; Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 773 (Almanor) [“[T]he test for prevailing party is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.”].)

II.
Standard of Review
On appeal, the Association’s sole contention is that the trial court “incorrectly concluded that the [Plaintiffs] were the prevailing parties in this action, and that [the Association] was not the prevailing party.”[3] It does not challenge the reasonableness of the fee amount.

We review the trial court’s determination of the prevailing party under the Davis-Stirling Act for abuse of discretion. (Villa De Las Palmas, supra, 33 Cal.4th at p. 94; Rancho Mirage, supra, 2 Cal.App.5th at p. 260; Almanor, supra, 246 Cal.App.4th at p. 774; Heather Farms, supra, 21 Cal.App.4th at p. 1574.) “`”`The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'”‘” (Rancho Mirage, supra, at pp. 260-261.)

The Association argues we should apply de novo review because the “determination of the legal basis for an attorney fee award is a question of law, reviewed de novo.”[4] We disagree. There is no dispute as to the “legal basis” for the court’s attorney fee award. Both parties sought an award of attorney fees as the prevailing party under section 5975, subdivision (c). On appeal, both parties agree section 5975, subdivision (c) provides the statutory basis for the prevailing party to recover attorney fees. The Association’s dispute is not with the legal basis for the trial court’s attorney fee award, but with the “factual underpinnings” of the court’s determination that Plaintiffs prevailed in this action.

III.
No Abuse of Discretion in Trial Court’s Determination of Prevailing Party
In determining the prevailing party under the Davis-Stirling Act, “the trial court should `compare the relief awarded on the [ ] claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made . . . by “a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.”‘” (Almanor, supra, 246 Cal.App.4th at p. 774, citing Hsu, supra, 9 Cal.4th at p. 876.)

The trial court engaged in that comparative analysis and determined that “Plaintiffs’ main objective in filing suit was to require the Association to comply with . . . [the CC&Rs] before proceeding with the installation of the traffic signal.” The court further found that Plaintiffs succeeded in their objective. By obtaining a TRO and a preliminary injunction, Plaintiffs compelled the Association to “immediately . . . obtain the written consent of its members” and were therefore “successful in their attempt to have the Association comply with the CC&Rs before installing the traffic signal.” Accordingly, the court determined Plaintiffs were the prevailing parties entitled to their reasonable attorney fees.

We will not disturb the trial court’s determination absent a clear showing of an abuse of discretion. (Villa De Las Palmas, supra, 33 Cal.4th at p. 94; Rancho Mirage, supra, 2 Cal.App.5th at p. 260; Almanor, supra, 246 Cal.App.4th at p. 774; Heather Farms, supra, 21 Cal.App.4th at p. 1574.) It is the Association’s burden to demonstrate the trial court abused its discretion by “`”`exceed[ing] the bounds of reason.'”‘” (Rancho Mirage, supra, at p. 260.) However, rather than presenting their appeal under the applicable standard of review, the Association continues to press their “respectful disagreement with the factual foundation” for the trial court’s conclusion “that the [P]laintiffs’ primary objective was met in this case.”

It argues the record does not support the trial court’s finding that Plaintiffs’ litigation objective was to obtain membership approval before installation of the traffic lights. It contends that “Plaintiffs’ own pleadings and motions in this case reveal that their singular goal in this litigation was to try to prevent the construction of a traffic signal next to their home.” It further contends “[t]he only remedy which Plaintiffs sought for Breach of Governing Documents was money.” Thus, the Association argues that since Plaintiffs failed to stop the construction of the traffic signal and failed to obtain any monetary relief, Plaintiffs were not the prevailing parties “as a matter of law.” We disagree.

First, the Association’s arguments ignore the governing standard of review. In deciding whether the trial court abused its discretion, we are bound by the substantial evidence rule. (Salehi, supra, 200 Cal.App.4th at p. 1154.) We presume the trial court’s judgment is correct, with “`”all intendments and presumptions . . . indulged to support the judgment[.]”‘” (Ibid.) “`”[T]he trial court’s resolution of any factual disputes arising from the evidence is conclusive.”‘” (Ibid.) “[W]e do not substitute our judgment for that of the trial court when more than one inference can be reasonably deduced from the facts.” (Almanor, supra, 246 Cal.App.4th at p. 776.)

Second, the record simply belies the Association’s contentions and demonstrates the trial court’s determination that Plaintiffs prevailed on a practical level was well within the bounds of reason. As set forth in the complaint, Plaintiffs’ primary cause of action was for breach of the governing documents, wherein they alleged the Association breached the CC&Rs and exceeded its authority in failing to request a vote and obtain majority approval from its members before taking actions to install the traffic lights, including the expenditure of Association funds. In seeking a TRO, Plaintiffs argued the Association had “completely ignored” and “disregarded” the CC&Rs and its actions should be enjoined until the rights and responsibilities of the parties under the CC&Rs could be judicially determined.

In seeking a preliminary injunction, Plaintiffs again made clear their objective: “[T]he Association approved . . . the construction of traffic signals at Gates 2 and 6 improperly because the Association did not seek a vote of the Members of the Association. [Plaintiffs’] ultimate goal in this Action is not to prevent the construction of the [traffic lights]. It is to compel the Association to submit this project to a vote of the Members and to let them decide. This authorizing procedure is required by the CC&Rs, Civil Code section 5605, . . . . If the Members decided to approve the project, Plaintiffs, as part of the Association, must live with that decision. Plaintiffs in this Motion [for a preliminary injunction] seek only to preserve the Status Quo until that vote can be had.” (Italics added.)

Further still, Plaintiffs asserted the burden of an injunction on the Association was “miniscule” because “it can simply hold a vote of the Members for the [installation of the traffic lights], vitiating an injunction.” (Italics added.) Promptly after the issuance of the preliminary injunction, the Association did just that. It put the matter to a vote and obtained majority approval from its members for the traffic lights and, on the basis of that material change in facts, the court granted the Association’s motion to dissolve the preliminary injunction. Only after the Association came into compliance with the CC&Rs did Plaintiffs voluntarily dismiss their entire action for mootness.

The Association argues, however, that Plaintiffs’ voluntary dismissal of the action, without any finding of liability against it, compels the conclusion that it is the prevailing party, as a matter of law. In support of this argument, the Association relies on the statutory definition of “prevailing party” under the general cost statute of Code of Civil Procedure section 1032, subdivision (a)(4), which provides that a “`[p]revailing party'” includes “a defendant in whose favor a dismissal is entered[.]” (Code. Civ. Proc. § 1032, subd. (a)(4).) But “the premise for this argument, that a litigant who prevails under the cost statute is necessarily the prevailing party for purposes of attorney fees, has been uniformly rejected by the courts of this state.” (Heather Farms, supra, 21 Cal.App.4th at p. 1572.) And as noted by the Heather Farms court, “Code of Civil Procedure section 1032, subdivision (a) only defines `”[p]revailing party”‘ as the term is used `in [that] section.’ It does not purport to define the term for purposes of other statutes.” (Ibid.) Moreover, elsewhere in its opening brief,[5] citing Heather Farms, the Association agrees the prevailing party under section 5975, subdivision (c), is determined by the pragmatic test of identifying “which party has prevailed on a `practical level.'”

The Association also relies on Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 (Coltrain) to argue Plaintiffs’ voluntary dismissal of the action makes it the prevailing party. But Coltrain does not help advance the Association’s argument. There, the trial court awarded attorney fees to defendants as “a prevailing defendant” under Code of Civil Procedure, section 425.16, subdivision (c), the fee-shifting provision of the anti-SLAPP statute. (Coltrain, supra, at p. 100.) Although concluding the trial court erroneously applied the standard under Code of Civil Procedure section 1032, subdivision (a)(4), the Court of Appeal affirmed the fee award. (Id. at p. 107.) In doing so, the Court of Appeal held that “where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney[ ] fees under Code of Civil Procedure section 425.16, subdivision (c). In making that determination, the critical issue is which party realized its objectives in the litigation.” (Ibid., italics added.)

The Coltrain court rejected “defendants’ contention that a voluntary dismissal while a special motion to strike is pending should automatically entitle a defendant to attorney’s fees.” (Coltrain, supra, 66 Cal.App.4th at p. 107.) Rather, the court noted that “regardless of whether the action is a SLAPP suit or not, the plaintiff may have good faith reasons for the dismissal that have nothing to do with oppressing the defendant or avoiding liability for attorney’s fees.” (Ibid.) The Coltrain court also reiterated what the California Supreme Court has previously said on this subject: “`In particular, it seems inaccurate to characterize the defendant as the “prevailing party” if the plaintiff dismissed the action only after obtaining, by means of settlement or otherwise, all or most of the requested relief, or if the plaintiff dismissed for reasons, such as the defendant’s insolvency, that have nothing to do with the probability of success on the merits.'” (Coltrain, supra, 66 Cal.App.4th at p. 103, quoting Santisas v. Goodin (1998) 17 Cal.4th 599, 621-622.)

Here, the trial court acknowledged that “Plaintiffs eventually dismissed their claims without prejudice” and concluded “such conduct does not deprive them of prevailing party status.” It is a reasonable conclusion, from the litigation history, that Plaintiffs voluntarily dismissed the action because the Association’s capitulation after issuance of the preliminary injunction had mooted their action. The court did not find and nothing in the record suggests, as the Association argues, that “[r]ather than face trial, Plaintiffs dismissed” their claims.

The Association’s reliance on Salehi, supra, 200 Cal.App.4th 1146 is similarly unhelpful. In Salehi, the plaintiff dismissed without prejudice eight of ten causes of action against her condominium association on the eve of trial because her construction expert suddenly became unavailable. (Id. at pp. 1151-1152.) The plaintiff obtained a continuance of trial on the remaining two causes of action for negligent misrepresentation and fraud, believing she would not need the expert to prove those claims. (Ibid.) Before the trial date, the association moved for attorney fees as the prevailing party on the eight dismissed causes of action. (Id. at pp. 1152-1153.) The Court of Appeal reversed the trial court’s order denying the fee award. (Id. at pp. 1155, 1162.) In doing so, the Court of Appeal concluded that “[t]he record does not suggest that [plaintiff] would have prevailed on the merits. It does not appear that she was ready to go forward procedurally and prove the case substantively.” (Id. at p. 1155.) Here, unlike Salehi, the trial court specifically found “Plaintiffs have established a reasonable probability of success on the merits of their claim for breach of the Association’s governing documents” when it issued the preliminary injunction enjoining the Association from proceeding with construction of the traffic signal at Gate 2 during the pendency of the lawsuit.

Third, the Association’s focus on Plaintiffs’ prayer for relief to argue the true intent of Plaintiffs’ action was to prevent a traffic light from being installed, not enforcement of the governing documents, is misplaced. In determining litigation success, the court respects substance rather than form. (Rancho Mirage, supra, 2 Cal.App.5th at p. 260 [“We see nothing in the Davis-Stirling Act that suggests we should give more weight to the form of a complaint . . . than to the substance of the claims asserted and relief sought, in determining whether an action is one `to enforce the governing documents’ in the meaning of section 5975.”].) A prayer is not part of a cause of action. (Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 815 [“It is elementary that the prayer is no part of the statement of the cause of action [citations] and that the issues involved are determinable from the facts alleged rather than from the prayer.”].)

Moreover, while preventing the installation of the traffic light “might have been a litigation `dream'” for Plaintiffs (Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 127), it does not undercut their main litigation objective of requiring the Association to comply with the CC&Rs and obtain majority approval from its members before installing the traffic light. (See ibid. [Plaintiff homeowners were determined to be prevailing party despite not achieving “litigation `dream'” of obtaining correction of building defect where they succeeded in compelling membership vote. “The fact that the membership did not vote to correct this defect in the building does not mean that the [plaintiffs] failed on their main litigation objective.”].)

In sum, we conclude the trial court’s determination that Plaintiffs prevailed on a practical level was supported by substantial evidence and well within the bounds of reason. The Association has failed to demonstrate any abuse of discretion in the court’s award of attorney fees to Plaintiffs and denial of attorney fees to it under section 5975, subdivision (c).

IV.
Association’s Remaining Arguments
A. Any Claim of Error as to Inclusion of Javaheri and Dehghani in the Fee Award Is Forfeited
The Association argues the trial court erred in awarding attorney fees to Javaheri and Dehghani because they “are not the owners of the property” and therefore have “no right to enforce the CC&Rs.” As such, the Association argues, Javaheri and Dehghani “cannot be `prevailing parties’ in an action to enforce the governing documents of the Fairbanks Ranch Association.”

In support of this claim of error, the Association dedicates two short paragraphs in their opening brief, cites to no legal authorities whatsoever for their contentions, and provides unhelpful record citations. The record citations merely refer this court back to the Association’s Memorandum of Points and Authorities in Opposition to Plaintiffs’ Notice of Motion for Attorneys’ Fees and Costs, to pages which contain almost verbatim the same two short paragraphs as in their opening brief, and to a Notice of Lodgment which indicates the Fairbanks Ranch CC&Rs were at some point lodged as an exhibit with the trial court. Having not seen the CC&Rs, we do not know what the governing documents provide.

The Association also fails to provide any discussion of how the inclusion of Javaheri and Dehghani in the fee award resulted in prejudice.[6] Indeed, it does not even challenge the reasonableness of the fee amount.

“To prevail on appeal, an appellant must establish both error and prejudice from that error. [Citation.] In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. Rather than scour the record unguided, we may decide that the appellant has forfeited a point urged on appeal when it is not supported by accurate citations to the record. [Citations.] Similarly, we may disregard conclusory arguments that are not supported by pertinent legal authority.” (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 (WFG).)

Simply put, the reviewing court is not required to develop the Association’s arguments or search the record for supporting evidence. For these reasons, we conclude the Association has forfeited the claim of any prejudicial error as it relates to the inclusion of Javaheri and Dehghani in the fee award. (WFG, supra, 51 Cal.App.5th at p. 894.)

B. Section 1717 Does Not Provide the Association with Any Basis for Recovering Attorney Fees Pursuant to the CC&Rs
In addition to section 5975, subdivision (c), the Association also sought an award of attorney fees pursuant to the CC&Rs, which provides the Association would be entitled to reimbursement of its legal expenses if a member sued it and the Association was “`successful or sustained in its position in such suit.’ “Although not raised in the trial court or in its opening brief, the Association argues in its reply brief that its “claim in this case that it is the prevailing party is based upon a contractual right to attorneys’ fees pursuant to Civil Code section 1717[.]” Although we do not consider arguments raised for the first time in a reply brief absent good cause (see footnote 3 ante), we quickly dispose of the Association’s argument.

Section 1717 provides that “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, . . . shall be entitled to reasonable attorney’s fees in addition to other costs.” (§ 1717, subd. (a).) Section 1717, subdivision (b)(2) creates an exception to the recovery of attorney fees under this statute, and states that “[w]here an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (§ 1717, subd. (b)(2).) That exception codifies the holding in International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, in which the Supreme Court “determined that a defendant could not recover attorney fees under section 1717 when the plaintiff voluntarily dismissed the action before trial.” (Hsu, supra, 9 Cal.4th at pp. 872-873.)

Thus, notwithstanding the trial court’s determination that the Association was not the prevailing party, and we find no abuse in that determination, the Association may not recover attorney fees under section 1717, subdivision (b)(2), since Plaintiffs voluntarily dismissed their lawsuit.

DISPOSITION
The judgment is affirmed. Plaintiffs are entitled to their costs on appeal.

McCONNELL, P. J. and DATO, J., concurs.

[1] All further undesignated statutory references are to the Civil Code, unless specified otherwise.

[2] Plaintiffs had previously moved on May 14, 2019 for an order dismissing the entire action “for mootness” and a determination that they were the “prevailing party” entitled to attorney fees. The court denied Plaintiffs’ motion because it was not persuaded the statute cited by Plaintiffs authorized dismissal and stated Plaintiffs may seek dismissal of their remaining claims under Code of Civil Procedure section 581, subdivision (b). The court also denied Plaintiffs’ request for a determination of prevailing party as premature because judgment had not been entered.

[3] The Association raises, for the first time in its reply brief, that the trial court abused its discretion by granting Plaintiffs’ motion for preliminary injunction. “Normally, a contention may not be raised for the first time in a reply brief.” (People v. Peevy (1998) 17 Cal.4th 1184, 1206; accord People v. Silveria and Travis (2020) 10 Cal.5th 195, 255 [“`”[i]t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party”‘”].) We do not consider arguments raised for the first time in the reply brief without a showing of good cause, which the Association did not make. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)

[4] The Association cites to Conservatorship of Whitley (2010) 50 Cal.4th 1206 (Whitley) and Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169 (Connerly) to argue for de novo review. These cases are inapposite because they involved “`”the determination of whether the criteria for an award of attorney fees and costs . . . have been satisfied amounts to statutory construction and a question of law.”‘” (Whitley, at pp. 1213-1214, italics added [addressing whether a litigant’s nonpecuniary interests can disqualify him from eligibility for attorney fees under Code of Civil Procedure section 1021.5], quoting Connerly, at p. 1175 [determining whether the California Business Council can be assessed attorney fees under section 1021.5 as an “`opposing part[y]’ within the meaning of that statute”].) There is no issue of statutory construction here.

[5] On March 16, 2021, the Association filed a Notice of Errata regarding its opening brief, indicating that it “inadvertently listed incorrect citations to the record” and filed with the notice, a “corrected copy of Appellant’s Opening Brief” which “corrects such citation errors and makes no other changes other than to the form of the citations to the record.” On March 18, 2021, we issued notice that the Association’s Notice of Errata will be treated as a motion for leave to file an amended appellant’s opening brief and will be considered concurrently with the appeal. We hereby grant the Association’s unopposed motion for leave to file an amended opening brief.

[6] When the Association raised this standing argument at the hearing on attorney fees, Plaintiffs’ counsel argued “all litigation efforts in this case are consolidated . . . there’s [no] reasonable way to chop up the plaintiffs in this case.” The trial judge asked the Association, the work for all plaintiffs are “all intertwined, though, aren’t they?” Despite these questions being raised below, the Association does not address them on appeal.

Kracke v. City of Santa Barbara (2021)

63 Cal.App.5th 1089

Summary by Jillian M. Wright, Esq.:

Plaintiff filed suit challenging the City’s new enforcement policy for short-term vacation rentals (STRs) because the City falls within the coastal zone. The court of appeal concluded the California Coastal Act of 1976 required the Coastal Commission’s approval of a coastal development permit, a Local Coast Program amendment, or amendment waiver before the STR ban could be imposed. Without such approval, a STR ban constitutes a “development” under the California Coastal Act of 1976. The court explained that the City cannot act unilaterally, particularly when it not only allowed the operation of STRs for years but also benefitted from the payment of transient occupancy taxes. By abruptly changing its policy, it changed the intensity of use of and access to the coastal zone. This regulatory reduction by the City was inconsistent with the Coastal Act’s goal of “improving the availability of lower cost accommodations along the coast, particularly for low-income and middle-income families.”

TAKEAWAY: This case reinforces the holding in Greenfield v. Mandalay Shores. Local coastal governments and associations cannot institute changes to public access to the coastal zone without first obtaining a coastal development permit or certified local coastal program amendment or waiver. Regulation of STRs in a coastal zone must first be decided by the City and the Coastal Commission.

*** End Summary ***

THEODORE P. KRACKE, Plaintiff and Respondent,
v.
CITY OF SANTA BARBARA, Defendant and Appellant.

Ariel Pierre Calonne, City Attorney, Robin Lewis, Assistant City Attorney; Best Best & Krieger, Christi Hogin and Amy Hoyt, for Defendant and Appellant.

Rutan & Tucker and Philip D. Kohn, for League of California Cities as Amicus Curiae on behalf of Defendant and Appellant.

Nossaman, Steven H. Kaufmann; Crescent Cheng; Rogers, Sheffield & Campbell, Travis C. Logue and Jason W. Wansor, for Plaintiff and Respondent.

Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General, Andrew M. Vogel and Norma N. Franklin, Deputy Attorneys General, for California Coastal Commission as Amicus Curiae on behalf of Plaintiff and Respondent.

1092*1092 OPINION

PERREN, J.—

Prior to 2015, the City of Santa Barbara (City) encouraged the operation of short-term vacation rentals (STVRs) along its coast by treating them as permissible residential uses. In June 2015, the City began regulating STVRs as “hotels” under its municipal code, which effectively banned STVRs in the coastal zone. The City did not seek a coastal development permit (CDP) or an amendment to its certified local coastal program (LCP) prior to instituting the ban.

Theodore P. Kracke, whose company manages STVRs, brought this action challenging the new enforcement policy. Following a bifurcated trial, the trial court granted Kracke’s petition for a writ of mandate enjoining the City’s enforcement of the STVR ban in the coastal zone unless it obtains a CDP or LCP amendment approved by the California Coastal Commission (Commission) or a waiver of such requirement. The City appeals.

The goals of the California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.; Coastal Act)[1] include “[m]aximiz[ing] public access” to the beach (§ 30001.5, subd. (c)) and protecting “[l]ower cost visitor and recreational facilities” (§ 30213; see § 31411, subd. (d) [“A lack of affordable accommodations remains a barrier to coastal access”]; Greenfield v. Mandalay Shores Community Assn. (2018) 21 Cal.App.5th 896, 899-900 [230 Cal.Rptr.3d 827] (Greenfield)). To ensure that these and other goals are met, 1093*1093 the Coastal Act requires a CDP for any “development” resulting in a change in the intensity of use of or access to land or water in a coastal zone. (§ 30600, subd. (a); see § 30106; Greenfield, at p. 898.)

The City contends the trial court erred by concluding the STVR ban constituted a “development” under the Coastal Act. But, as the court explained, “[t]he loss of [STVRs] impacted the `density or intensity of use of land’ and `the intensity of use of water, or of access thereto’ because STVRs provide a resource for individuals and families, especially low-income families, to visit the Santa Barbara coast. The unavailability of low-cost housing and tourist facilities was an impediment to coastal access.” Consequently, the Coastal Act required the Commission’s approval of a CDP, LCP amendment or amendment waiver before the ban could be imposed. (See Greenfield, supra, 21 Cal.App.5th at pp. 900-901.) There was no such approval. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The City’s LCP was certified in 1981 when STVRs were virtually nonexistent. The City maintains that STVRs are not legally permitted under either the LCP or its municipal code even though it allowed them to operate until 2015. The City only required the homeowner to register the STVR, to obtain a business license and to pay the 12 percent daily transient occupancy tax. The City’s enforcement efforts focused on nuisance complaints about a particular STVR. In 2010 and 2014, the City identified owners who had failed to pay the 12 percent daily tax and offered them “amnesty” if they voluntarily complied. The amnesty program was not intended to curb the number of STVRs but rather to increase the City’s tax revenue.

As of 2010, there were 52 registered STVRs paying daily occupancy taxes. By 2015, this number had increased to 349, including 114 STVRs in the coastal zone. In that fiscal year alone, the City collected $1.2 million in STVR occupancy taxes.

In June 2015, City staff issued a council agenda report advising that “[a]ll vacation rentals or home shares that are not zoned and permitted as hotels, motels, or bed and breakfasts are in violation of the Municipal Code.” The City found that the proliferation of STVRs was driving up housing costs, reducing housing stock and changing the character of residential zones.

Following a hearing, the City Council unanimously directed its staff to proactively enforce the City’s zoning regulations, “which prohibit[] hotel uses in most residential zoning districts.” This action effected an STVR ban in residential areas and strict regulation of STVRs as “hotels” in commercial 1094*1094 and R-4 zones. By August 2018, the 114 coastal STVRs had dwindled to just six. As one City Council member observed, “[T]he door is closing on vacation rentals.”

Kracke filed this action on November 30, 2016. Six days later, the Commission’s chair, Steve Kinsey, sent a guidance letter to local governments, including the City, outlining “the appropriate regulatory approach to vacation rentals in your coastal zone areas moving forward.” He explained: “[P]lease note that vacation rental regulation in the coastal zone must occur within the context of your local coastal program (LCP) and/or be authorized pursuant to a coastal development permit. The regulation of short-term/vacation rentals represents a change in the intensity and use and of access to the shoreline, and thus constitutes development to which the Coastal Act and LCPs must apply. We do not believe that regulation outside of that LCP/CDP context (e.g., outright vacation rental bans through other local processes) is legally enforceable in the coastal zone, and we strongly encourage your community to pursue vacation rental regulation through your LCP.”

In January 2017, Jacqueline Phelps, a Commission program analyst, followed up with the City Planner, Renee Brooke. Phelps explained that the Commission “disagree[s] with the City’s current approach to consider residences used as STVRs as `hotel’ uses (pursuant to the City’s interpretation of the definition of `hotel’ included in the [Municipal Code] for the purpose of prohibiting or limiting STVRs in residential zones.” She directed Brooke to the 2016 guidance letter and again urged the City “to process an LCP amendment to establish clear provisions and coastal development permit requirements that will allow for STVRs and regulate them in a manner consistent with the Coastal Act.” The Commission’s deputy director, Steve Hudson, sent a similar letter a few months later.

After considering the evidence, the trial court found that the City’s STVR enforcement policy constituted a “development” within the meaning of section 30106 of the Coastal Act. It issued a writ requiring the City to allow STVRs “in the coastal zone on the same basis as the City had allowed them to operate prior to June 23, 2015, until such time as the City obtains a coastal development permit or otherwise complies with the provisions of the Coastal Act….”[2]

1095*1095 DISCUSSION

Standard of Review

In reviewing a judgment granting a petition for writ of mandate under Code of Civil Procedure section 1085, we apply the substantial evidence standard to the trial court’s factual findings. (Cox v. Los Angeles Unified School Dist. (2013) 218 Cal.App.4th 1441, 1444-1445 [160 Cal.Rptr.3d 748].) On questions of law, including statutory interpretation, we apply the de novo standard. (Hayes v. Temecula Valley Unified School Dist. (2018) 21 Cal.App.5th 735, 746 [230 Cal.Rptr.3d 576].)

The City Lacked Authority To Unilaterally Ban STVRs in the Coastal Zone

The Coastal Act is designed to “[p]rotect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources.” (§ 30001.5, subd. (a); see Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193, 200 [243 Cal.Rptr.3d 547] (Fudge).) It also seeks to “[m]aximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners.” (§ 30001.5, subd. (c); see Fudge, at p. 200.) The Commission is charged with implementing the Coastal Act’s provisions and “is in many respects the heart of the Coastal Act.” (Fudge, at p. 201.)

The Coastal Act tasks local coastal governmental entities, such as the City, with developing their own LCPs to enforce the Act’s objectives. (Fudge, supra, 32 Cal.App.5th at p. 201.) The LCP’s content is determined by the entity but must be prepared in “`full consultation'” with the Commission. (Ibid.) Once completed, the LCP is submitted to the Commission for certification. (§§ 30512-30513; Fudge, at p. 201.)

Although the Coastal Act does not displace a local government’s ability to regulate land use in the coastal zone, it does preempt conflicting local regulations. (§ 30005, subd. (a); City of Dana Point v. California Coastal Com. (2013) 217 Cal.App.4th 170, 200 [158 Cal.Rptr.3d 409].) “`[A] fundamental purpose of the Coastal Act is to ensure that state policies prevail over the concerns of local government.’ [Citation.]” (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 794 [149 Cal.Rptr.3d 383, 288 P.3d 717] (Pacific Palisades); see Charles A. Pratt Construction Co., Inc. v. California Coastal Com. (2008) 162 Cal.App.4th 1096*1096 1068, 1075 [76 Cal.Rptr.3d 466] [“The Commission has the ultimate authority to ensure that coastal development conforms to the policies embodied in the state’s Coastal Act”].)

“The Coastal Act [also] requires that any person who seeks to undertake a `development’ in the coastal zone obtain a [CDP]. (§ 30600, subd. (a).) `Development’ is broadly defined to include, among other things, any `change in the density or intensity of use of land….’ Our courts have given the term `development’ `[a]n expansive interpretation … consistent with the mandate that the Coastal Act is to be “liberally construed to accomplish its purposes and objectives.”‘” (Greenfield, supra, 21 Cal.App.5th at p. 900, citation omitted.) Thus, “`development'” under the Coastal Act “is not restricted to activities that physically alter the land or water. [Citation.]” (Pacific Palisades, supra, 55 Cal.4th at p. 796; see Surfrider Foundation v. California Coastal Com. (1994) 26 Cal.App.4th 151, 158 [31 Cal.Rptr.2d 374] [“[T]he public access and recreational policies of the Coastal Act should be broadly construed to encompass all impediments to access, whether direct or indirect, physical or nonphysical”].)

Consequently, “[c]losing and locking a gate that is usually open to allow public access to a beach over private property is a `development’ under the Coastal Act. [Citation.] So is posting `no trespassing’ signs on a 23-acre parcel used to access a Malibu beach. [Citation.]” (Greenfield, supra, 21 Cal.App.5th at p. 900.) Fireworks displays also are considered developments even though not “commonly regarded” as such. (Gualala Festivals Committee v. California Coastal Com. (2010) 183 Cal.App.4th 60, 67 [106 Cal.Rptr.3d 908].)

In Greenfield, a homeowners association (HOA) adopted a resolution banning STVRs in the Oxnard Shores beach community. The resolution affected 1,400 single-family units and imposed fines for violations. (Greenfield, supra, 21 Cal.App.5th at p. 899.) The City of Oxnard’s LCP, which was certified in 1982, did not mention STVRs, but Oxnard historically treated them as residential activity and collected transient occupancy taxes. (Ibid.)

A homeowner sought a preliminary injunction enjoining the HOA’s STVR ban. In denying the request, the trial court rejected the Commission’s position that the ban constituted a “development” under the Coastal Act. (Greenfield, supra, 21 Cal.App.5th at p. 899.) We reversed the court’s order, noting “the [STVR] ban changes the intensity of use and access to single-family residences in the Oxnard Coastal Zone. [STVRs] were common in Oxnard Shores before the … ban; now they are prohibited.” (Id. at p. 901.) As we explained, “[t]he decision to ban or regulate [STVRs] must be made 1097*1097 by the City and Coastal Commission, not a homeowners association. [The] ban affects 1,400 units and cuts across a wide swath of beach properties that have historically been used as short-term rentals.” (Id. at pp. 901-902.)

The same is true here. Although the City, rather than a private entity, imposed the coastal STVR ban, it also was accomplished without the Commission’s input or approval. The LCPs in both cases were certified in the 1980s, decades before STVRs became popular due to the availability of Internet booking services. The City incorrectly contends that because STVRs are not expressly included in the LCP, they are therefore excluded, giving the City the right to regulate them without regard to the Coastal Act. As we clarified in Greenfield, regulation of STVRs in a coastal zone “must be decided by City and the Coastal Commission.” (Greenfield, supra, 21 Cal.App.5th at p. 901, italics added.) The City cannot act unilaterally, particularly when it not only allowed the operation of STVRs for years but also benefitted from the payment of transient occupancy taxes.

In other words, the City did not merely “turn a blind eye” to STVRs. It established procedures whereby an residential homeowner could operate an STVR by registering it with the City, obtaining a business license and paying the 12 percent daily transient occupancy tax. When the City abruptly changed this policy, it necessarily changed the intensity of use of and access to land and water in the coastal zone. (§§ 30600, subd. (a), 30106; Greenfield, supra, 21 Cal.App.5th at p. 901.) Instead of 114 coastal STVRs to choose from, City visitors are left with only six. This regulatory reduction is inconsistent with the Coastal Act’s goal of “improv[ing] the availability of lower cost accommodations along the coast, particularly for low-income and middle-income families.” (§ 31411, subd. (e).)

We agree with the trial court that “[t]he City cannot credibly contend that it did not produce a change because it deliberately acted to create a change” in coastal zone usage and access. This change constituted a “development” under the Coastal Act and, as such, required a CDP or, alternatively, an LCP amendment certified by the Commission or a waiver of such requirement.[3] (See Greenfield, supra, 21 Cal.App.5th at pp. 901-902.) Without the Commission’s input and approval, the court appropriately struck down the City’s STVR regulation in the coastal zone.

As for the City’s argument that the Coastal Act exempts abatement of nuisances allegedly caused by STVRs, the City waived that issue by informing the trial court it was not “making the nuisance argument.” (See Nellie Gail 1098*1098 Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 [209 Cal.Rptr.3d 658].) Nor are we persuaded that the political question and separation of powers doctrines apply. The decision whether to ban or regulate STVRs in the coastal zone is a matter for the City and the Commission to decide. (Greenfield, supra, 21 Cal.App.5th at pp. 901-902.) The trial court appropriately expressed no opinion on the issue and none should be inferred from either its ruling or our decision.

DISPOSITION

The judgment is affirmed. Kracke shall recover his costs on appeal.

Yegan, Acting P. J., and Tangeman, J., concurred.

[1] All statutory references are to the Public Resources Code unless otherwise stated.

[2] Consistent with its prior correspondence with City staff, the Commission has filed an amicus curiae brief supporting Kracke’s claims. The League of California Cities’ amicus curiae brief supports the City.

[3] The record reflects that the City submitted an LCP amendment in 2018. That amendment is pending before the Commission.