Epsten, APC

Armstrong v. Cty. of Placer
(E.D.Cal. May 3, 2021, No. 2:21-cv-00779-KJM-KJN) 2021 U.S.Dist.LEXIS 84526.

Summary by Jillian M. Wright Esq.:

An association failed to keep members apprised of development and installation of a cell phone tower but member’s temporary restraining order was denied because member waited three weeks to file. The local rules of court required the court to consider a plaintiff’s delay in seeking relief. The court held that the delay also undercuts a plaintiff’s argument that they will suffer irreparable harm.

TAKEAWAY: While this case concerned installation of a cell phone tower, it is a good reminder as to improper actions by owners. Respond to owners’ unapproved construction in a timely fashion. Unreasonable delay may impact an association’s ability for injunctive relief.

***End Summary***

Tylor Armstrong, et al., Plaintiffs,
v.
County of Placer, et al., Defendants.

ORDER

KIMBERLY J. MUELLER, Chief District Judge.

Plaintiffs Tylor Armstrong and Kimberly Armstrong move for a temporary restraining order barring defendants AT&T Mobility (AT&T) and any persons acting in concert with it from beginning construction of a cellphone tower close to their second home in Lake Tahoe. See generally Mot. TRO, ECF No. 4; Mem. P&A (Mem.), ECF No. 4-1; Compl., ECF No. 1. Construction is scheduled to commence May 3, 2021. Mem. at 1. The motion is denied.

I. BACKGROUND

In 2011, plaintiffs purchased vacant land in Martis Camp, a private “luxury community” in the Lake Tahoe area. Mem. at 2, 7; Compl.  17. Martis Camp is managed by defendants Martis Camp Club and Martis Camp Community Association, “non-profit” corporations that manage parcels of real property and facilities for its members. TRO Opp’n at 2 (Opp’n), ECF No. 8. The Armstrongs chose to build their second home in Martis Camp because it offers “premier amenities and incredibly breathtaking views.” Aff. Tylor Armstrong  1 (Armstrong Aff.), Mot. TRO, ECF No. 4-2.

The Armstrongs built the Residence, an approximately $10.75 million dollar property with “unobstructed” and “stunning views of the nearby golf course and Northstar’s Lookout Mountain.” Id.  3; Mem. at 2. On average, the Armstrongs spend ten weeks a year in this second home. Armstrong Aff.  3.

In 2015, while they both were on the golf course, Martis Camp Club’s Chief Operating Officer, Mark Johnson, spoke with Tylor Armstrong and shared that Martis Camp was considering contracting with Verizon for construction of a cell tower near the Residence. Armstrong Aff.  4. At the time, details of the plan were sparse. See id. In October 2016, Mr. Armstrong reached out about the cell tower construction project and was told he would be kept informed of future developments. Id.  5.

At some point, Martis Camp ceased working with Verizon and began discussions with a new service provider, AT&T. See Armstrong Aff.  6, 15; Opp’n at 3. Martis Camp ultimately gave permission to AT&T to build a 110 foot “5G” cellphone tower at 7951 Fleur Du Lac Drive, Truckee, California 96161, within “a few hundred feet” from the Residence. Armstrong Aff. 6; see also Mem. 1-2 (referencing “the contract for the construction of the tower between AT&T and defendant the Martis Camp community”). The new cell tower, once constructed, will be visible from every window of the Residence except the master bedroom and will “entirely destroy the overwhelmingly pristine, charming and breathtaking views from [the Armstrongs’] property.” comply with the court’s directive to notify certain defendants of the May 1 deadline and if they did not provide notice as directed their reasons for not doing so. Armstrong Aff.  6. Plaintiffs, through Mr. Armstrong, aver they were never informed of the new plans to proceed with AT&T by either the Martis Camp leadership or defendant Placer County. Id.  9, 22-25.

The Armstrongs recently decided they wanted to have a home closer to their children and decided to sell their Martis Camp home. Id.  32; see Mem. at 2. In March 2021, the Armstrongs entered into a contract for the sale of the Residence for $10.75 million. Armstrong Aff.  10. The prospective buyer put down a deposit of $322,500 dollars and agreed to a rapid closing schedule: 14 days for contingency inspections and 17 days for closing. Compl.  72. The Armstrongs did not disclose the prospect of a cell tower being constructed nearby. Id. 74.

On March 29, 2021, the Armstrongs’ real estate agent learned of the plan for a cell tower. Id.  75. She informed the Armstrongs they needed to disclose the existence of the construction plans to the buyer. Armstrong Aff.  14. The Armstrongs still chose not to inform the buyer as they “did not know if AT&T had a valid contract with Martis Camp or secured its necessary permits. . . . [nor] how . . . the project would [] impact[] the Residence.” Id.  15.

Ultimately, after pressure from their real estate agent, plaintiffs agreed to allow Martis Camp to disclose some of the cell tower details to the buyer. Compl.  79. The buyer requested a few additional days to explore the implications of the cell tower construction site in close proximity to the home; the Armstrongs did not grant the request for more time. Armstrong Aff. 18-19. On April 1, 2021, the buyer withdrew his offer and cancelled his contract with the Armstrongs. Id.  20. Plaintiffs now believe the cell tower will cause “significant adverse aesthetic impacts to our property,” id.  9, and potentially reduce the property value by approximately 2 million dollars, Compl.  65.

Defendants Martis Camp Club and Martis Camp Community Association have opposed the request for a temporary restraining order and paint a different picture than that suggested by plaintiffs. In their opposition, the Martis Camp defendants state that plans for the cell tower were discussed in June 2019 at one of Martis Camp’s regularly scheduled Board meetings. Opp’n at 3; see also June 15, 2019 Martis Camp Club Board of Directors Meeting at 4, Ex. B, Opp’n, ECF No. 8-1. Defendants aver that public notices “were mailed by the County to property owners of record within 300 feet of the site proposed for the cell tower.” Decl. of Chief Operating Officer of Martis Camp Club Mark Johnson (Johnson Decl.)  12, ECF No. 8-1. Plaintiffs’ complaint alleges the cell tower will be “roughly a few hundred feet” from the Residence. Compl.  23; Armstrong Aff.  12 (noting “prospect of a 5G cell tower in very close proximity to the Residence”). Defendants also say Mr. Armstrong sent an email to Martis Camp executive staff and Board Members on April 7, 2021, slightly less than a month ago, that he would file suit before May 3, 2021. Johnson Decl. 13-14.

On April 30, 2021, three days prior to the start date for construction of the cell tower, on a Friday afternoon, plaintiffs filed their complaint, making eleven claims. See generally Compl. The first four claims are brought against Placer County and allege the County deprived plaintiffs of their property without due process and deprived them of their First Amendment rights to protest the cell tower’s approval. Compl. 88-112. Plaintiffs bring six claims against Martis Camp Community Association and Martis Camp Club alleging breach of contract, breach of fiduciary duty, breach of implied covenant of good faith and fair dealing, negligence, intentional interference with prospective economic advantage, intentional interference with a contractual relationship, and negligent interference with prospective economic advantage. Id. 113-164. Plaintiffs’ motion for a temporary restraining order and preliminary injunction seeks to enjoin AT&T and others acting in concert with it from commencing construction of the cell tower on May 3, 2021.

II. LEGAL STANDARD

A temporary restraining order or “TRO” may be issued only upon a showing “that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). A TRO is an extraordinary remedy, and a plaintiff who requests a TRO must prove that remedy is proper by a clear showing. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).

In determining whether to issue a temporary restraining order, a court applies the factors that guide the evaluation of a request for preliminary injunctive relief: whether the moving party “is likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . . the balance of equities tips in [its] favor, and . . . an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int’l. Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary restraining orders and preliminary injunctions is “substantially identical”).

Alternatively, courts may analyze a TRO request using a sliding scale approach through which the elements of the “test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). This test requires plaintiffs to demonstrate the requisite likelihood of irreparable harm, show that an injunction is in the public interest, raise “serious questions” going to the merits, and show a balance of hardships that “tips sharply” in plaintiffs’ favor. Id. at 1131-36 (concluding that the “serious questions” version of the sliding scale test for preliminary injunctions remains viable after Winter).

III. ANALYSIS

A. Irreparable Injury

“Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis in original). “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.” Mclean v. Aurora Loan Servicing, No. 11-0455, 2011 WL 4635027, at *1 (S.D. Cal. Oct. 5, 2011) (emphasis in original, quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). “Economic injury alone does not support a finding of irreparable harm, because such injury can be remedied by a damage award.” Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991). “Monetary injury is not normally considered irreparable.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).

1. AT&T and Martis Camp Defendants

Plaintiffs have not shown why the injury they allege they will suffer is not addressable by monetary damages. While in one portion of their motion plaintiffs argue that “no award of damages can compensate Plaintiffs for the destruction of their pristine” view, Mem. at 8, the complaint identifies an approximate $2 million dollar reduction in the value of their property if the cell tower construction proceeds. Compl. 65. The complaint itself invokes nonmonetary values, alleging the “tower will destroy the unique property view . . . and Plaintiffs’ peaceful and beneficial possession of their property.” Id.  2. But plaintiffs themselves had not planned to continue using the Residence, which they “enjoy” and typically visit for ten weeks per year, Armstrong Aff. 3, once the sale they thought would close by March 30, 2021 was effected. Id.  20. It is only because the planned sale went awry that plaintiffs must now remain in the house until June 2022, while their “primary residence in Victoria (Canada) is scheduled for a major renovation starting July 1st.” See id.  32. While plaintiffs complain that their own “beautiful, unobstructed view of the golf course and mountains in the background,” will be destroyed, id., at least until they depart in slightly over a year, they do not provide authority supporting a grant of temporary injunctive relief to prevent this kind of short-term injury. In their discussion of public interest factors, they do not identify protection of a uniquely pristine viewshed as a broader public consideration. Mem. at 10. Given their plans to relocate, plaintiffs do not explain how recovering any reduction in their property value from AT&T or the Martis Camp defendants, who have contracted for the impending cell tower installation, is not a sufficient legal remedy. “The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Qualcomm Inc. v. Compal Elecs., Inc., 283 F. Supp. 3d 905, 914-15 (S.D. Cal. 2017) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)) (addressing irreparable harm in context of stay).

Even if plaintiffs identified a type of harm that could justify immediate injunctive relief, it appears some time remains before the cell tower itself is erected. Opp’n at 7-8; Johnson Decl. 15. In that time the court could hear a properly noticed and briefed motion for preliminary injunction.

2. Placer County

Plaintiffs also say they will experience irreparable injury if a temporary restraining order does not issue, given the deprivation of their constitutional rights by Placer County. Specifically, plaintiffs argue construction of the cell tower will permanently deprive them of their First Amendment right to petition the government. Mem. at 6; Armstrong Aff. 28-29. Plaintiffs represent that Placer County’s administrative review process, which has been completed, did not afford them notice or an opportunity to oppose the cell tower construction. Mem. at 6. Plaintiffs cite no legal authority to support their position given the factual allegations of this case. Constitutional violations may be the basis of irreparable injury, but the cases plaintiffs cite involve parties seeking injunctive relief before the threatened constitutional violation has occurred. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (at time injunctive relief was sought, public employees were being threatened with discharge for their political beliefs). “It is not enough that the claimed harm be irreparable; it must be imminent as well.” Vico v. U.S. Bank, No. 1208440, 2012 WL 12888826, at *6 (C.D. Cal. Oct. 29, 2012); Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“[A] plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.” (emphasis in original)). In this case, plaintiffs’ alleged constitutional violations based on the First Amendment are not imminent or prospective. If the County did commit constitutional violations, those violations occurred in the past. Compl. 49-65 (describing County’s administrative review permit process, which “does not require an applicant to provide notice and present its application at a public hearing” if upon initial review of an application the cell tower antennae is not “visually obtrusive”); id. 70 (because persons in plaintiffs’ shoes “are not notified and are unaware of pending cell tower projects, they cannot file a timely appeal with the County”). Plaintiffs cite no legal authority or probative evidence to support any argument that construction of the cell tower will deprive them of an ongoing constitutional right. See Am. Passage Media Corp. v. Cass Commc’ns, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985) (reversing entry of preliminary injunction because movant’s evidence was insufficient to demonstrate irreparable harm).

3. Conclusion

The Armstrongs have not satisfied their burden of showing they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. The court therefore need not review the additional factors relevant to determining whether a temporary restraining order should issue. See Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011).

B. Delay

Plaintiffs’ delay also counsels against granting the temporary restraining order they request. This district’s Local Rules impose specific requirements on any party that requests temporary injunctive relief. See L.R. 231. In evaluating the merits of a temporary restraining order, the applicable rule provides as follows:

In considering a motion for a temporary restraining order, the Court will consider whether the applicant could have sought relief by motion for preliminary injunction at an earlier date without the necessity for seeking last-minute relief by motion for temporary restraining order. Should the Court find that the applicant unduly delayed in seeking injunctive relief, the Court may conclude that the delay constitutes laches or contradicts the applicant’s allegations of irreparable injury and may deny the motion solely on either ground.

L.R. 231(b). Here, plaintiffs were aware of the impending construction of the cell tower since at least as early as late March 2021. On April 7, 2021, plaintiffs emailed the Martis Camp Club Executive staff and informed them they planned to litigate the issue before May 3. Johnson Decl. 13. Plaintiffs then waited more than three weeks to file suit, moving for a temporary restraining order on the Friday afternoon before the Monday morning when they say construction is due to begin. This delay supports denial of the motion for a temporary restraining order. Mammoth Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, No. 10-0864, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010) (two-week delay in filing temporary restraining order and doing so three days before foreclosure sale sufficient to deny motion). The delay also undercuts plaintiffs’ arguments that they will suffer irreparable harm. See Oakland Trib., Inc. v. Chron. Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985); see also Cocina Cultura LLC v. Oregon, No. 20-02022, 2020 WL 7181584, at *4 (D. Or. Dec. 7, 2020) (plaintiff’s three-month delay in seeking injunctive relief signaled “a lack of urgency and irreparable harm”).

IV. CONCLUSION

The court denies plaintiffs’ motion for a temporary restraining order. The Armstrongs may calendar their motion for a preliminary injunction motion on the court’s regular calendar to allow for full briefing by all affected parties.

This order resolves ECF No. 4.

IT IS SO ORDERED.

[1] Plaintiffs filed this motion for a temporary restraining order and preliminary injunction on April 30, 2021 at 2:57 p.m. See generally Mot. TRO. Just over an hour later, this court issued a minute order directing plaintiffs to inform defendants AT&T, Martis Camp Club, and Martis Camp Community that if they wished to file an opposition to the TRO they must do so by May 1, 2021 at 5:00 p.m. Minute Order, ECF No. 7. Plaintiffs’ counsel promptly called the court to confirm the May 1 deadline was on the Saturday and the courtroom deputy confirmed it was. Plaintiffs have not filed any notice confirming that they complied with the court’s directive. Martis Camp Club and Martis Camp Community represent they received no communication from plaintiffs regarding their filing deadline, Opp’n at 2 n.1, although these defendants obviously learned of plaintiffs’ motion somehow. Plaintiffs are ordered to file a notice of their efforts to

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***

Appeal from the Superior Court of Los Angeles County, Super. Ct. BC542498. Gerald Rosenberg, Judge.

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.)

Vazquez v. Jan-Pro Franchising

(2021) 10 Cal.5th 944.

Supreme Court of California

January 14, 2021

No. S258191

Summary by Jillian M. Wright Esq.:

The standard to determine whether workers should be classified as employees or independent contractors for purposes of obligations imposed by California’s wage orders, as set forth in the landmark California Supreme Court case Dynamex Operations West, Inc. v. Superior Court, applies retroactively. In Dynamex, the Supreme Court held that the “ABC Test” applies under California law in determining whether workers should be classified as employees or independent contractors for purposes of obligations imposed by California’s wage orders.
TAKEAWAY: Associations need to be aware of the “ABC Test” to ensure their independent contractors are not considered employees for purposes of wage-order claims. Under the “ABC Test”, a worker is presumed to be an employee unless the employer can show three conditions are satisfied: (1) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, (2) the worker performs work outside the usual course of the hiring entity’s business, and (3) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

***End Summary***

Appeal from the Northern District of California, 3:16-cv-05961-WHA.

Original Proceeding on request pursuant to rule 8.548, Cal. Rules of Court.

Appeal from the Ninth Circuit, 17-16096.

947*947 Lichten & Liss-Riordan and Shannon Liss-Riordan for Plaintiffs and Appellants.

Nayantara Mehta; Cynthia L. Rice, Verónica Meléndez; Jennifer Reisch; Carol Vigne; Ellyn Moscowitz; Rocio Alejandra Avila; and Jora Trang for National Employment Law Project, California Rural Legal Assistance Foundation, Equal Rights Advocates, Legal Aid at Work, Legal Aid of Marin, National Domestic Workers Alliance and Worksafe, Inc., as Amici Curiae on behalf of Plaintiffs and Appellants.

Olivier Schreiber & Chao, Monique Olivier; and Reynaldo Fuentes for California Employment Lawyers Association and Partnership for Working Families as Amici Curiae on behalf of Plaintiffs and Appellants.

O’Hagan Meyer, Jeffrey M. Rosin; Willenken, Jason H. Wilson, Eileen M. Ahern and Amelia L.B. Sargent for Defendant and Respondent.

Marron Lawyers, Paul Marron, Steven C. Rice and Paul B. Arenas for Taxicab Paratransit Association of California as Amicus Curiae on behalf of Defendant and Respondent.

Arnold & Porter Kaye Scholer, James F. Speyer and Vanessa C. Adriance for California Chamber of Commerce and the International Franchise Association as Amici Curiae on behalf of Defendant and Respondent.

Horvitz & Levy, Jeremy B. Rosen, Peder K. Batalden and Felix Shafir for Chamber of Commerce of the United States of America as Amicus Curiae on behalf of Defendant and Respondent.

Paul Hastings, Paul Grossman and Paul W. Cane, Jr., for California Employment Law Council and Employers Group as Amici Curiae on behalf of Defendant and Respondent.

948*948 OPINION
CANTIL-SAKAUYE, C. J.—

At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide the following question of California law (see Cal. Rules of Court, rule 8.548): Does this court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 [232 Cal.Rptr.3d 1, 416 P.3d 1] (Dynamex) apply retroactively?

For the reasons set forth below, we conclude that Dynamex does apply retroactively. In Dynamex, this court was faced with a question of first impression: What standard applies under California law in determining whether workers should be classified as employees or independent contractors for purposes of the obligations imposed by California’s wage orders? In addressing that question, we concluded that under one of the definitions of “employ” set forth in all California wage orders—namely, to “suffer or permit to work”—any worker who performs work for a business is presumed to be an employee who falls within the protections afforded by a wage order. (Dynamex, supra, 4 Cal.5th at p. 916.) We further held that such a worker can properly be found to be “an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” (Id. at pp. 916-917.) This standard, also used in other jurisdictions to distinguish employees from independent contractors, is commonly referred to as the “ABC test.” (Id. at p. 916.)

In concluding that the standard set forth in Dynamex applies retroactively —that is, to all cases not yet final as of the date our decision in Dynamex became final—we rely primarily on the fact that Dynamex addressed an issue of first impression. It did not change a settled rule on which the parties below had relied. No decision of this court prior to Dynamex had determined how the “suffer or permit to work” definition in California’s wage orders should be applied in distinguishing employees from independent contractors. Particularly because we had not previously issued a definitive ruling on the issue addressed in Dynamex, we see no reason to depart from the general rule that judicial decisions are given retroactive effect.

Defendant Jan-Pro Franchising International, Inc., asserts that an exception to the general rule of retroactivity should be recognized here. Defendant maintains that, prior to the issuance of our decision in Dynamex, it reasonably believed that the question of whether a worker should be classified as an 949*949 employee or independent contractor would be resolved under the standard set forth in this court’s decision in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 [256 Cal.Rptr. 543, 769 P.2d 399] (Borello). Borello addressed whether farmworkers hired by a grower under a written “sharefarmer agreement” were independent contractors or employees for purposes of the workers’ compensation statutes. (Id. at p. 345.) The Borello decision, however, did not address whether a worker should be considered an employee or an independent contractor for purposes of the obligations imposed by a wage order. Indeed, twice in the last decade, we signaled that the test for determining whether a worker should be classified as an employee or independent contractor in the wage order context remained an open question. (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522 [173 Cal.Rptr.3d 332, 327 P.3d 165] (Ayala); Martinez v. Combs (2010) 49 Cal.4th 35, 57-58 [109 Cal.Rptr.3d 514, 231 P.3d 259] (Martinez).)

Defendant additionally contends that it could not have anticipated that the distinction between employees and independent contractors for purposes of the obligations imposed by a wage order would be governed by the ABC test that we adopted in Dynamex. But defendant’s argument carries little weight when, as here, the underlying decision changes no settled rule. Moreover, public policy and fairness concerns, such as protecting workers and benefitting businesses that comply with the wage order obligations, favor retroactive application of Dynamex. Thus, we do not view the retroactive application of the ABC test to cases pending at the time Dynamex became final as improper or unfair.

Accordingly, in response to the question posed by the Ninth Circuit, we answer that this court’s decision in Dynamex applies retroactively.

I. DYNAMEX’S INTERPRETATION OF THE SUFFER OR PERMIT TO WORK DEFINITION IN WAGE ORDERS APPLIES RETROACTIVELY TO ALL NONFINAL CASES GOVERNED BY SIMILARLY WORDED WAGE ORDERS
As noted, the sole issue before this court is whether our decision in Dynamex, supra, 4 Cal.5th 903, applies retroactively.[1]

We begin with a brief summary of the Dynamex decision. In Dynamex, we faced the question regarding what standard applies in determining 950*950 whether, for purposes of the obligations imposed by California’s wage orders, a worker should be considered an employee who is covered and protected by the applicable wage order or, instead, an independent contractor to whom the wage order’s obligations and protections do not apply.[2] As we explained in Dynamex, all currently applicable California wage orders, in defining the terms as used in the wage orders, define the term “`employ'” in part to mean “`suffer, or permit to work'” and define the term “`”employee”‘” to mean “`any person employed by an employer.'” (Dynamex, supra, 4 Cal.5th at p. 926; see id. at p. 926, fn. 9.) At the same time, we noted that the wage orders do not contain a definition of the term “`independent contractor'” nor any “other provision that otherwise specifically addresses the potential distinction between workers who are employees covered by the terms of the wage order and workers who are independent contractors who are not entitled to the protections afforded by the wage order.” (Id. at p. 926.)

After a lengthy review of prior relevant California decisions (Dynamex, supra, 4 Cal.5th at pp. 927-942), we described the variety of standards that “have been adopted in legislative enactments, administrative regulations, and court decisions as the means for distinguishing between those workers who should be considered employees and those who should be considered independent contractors.” (Id. at p. 950 & fn. 20.) We explained that as early as 1937, the suffer or permit to work standard embodied in California’s wage orders had been described “as `the broadest definition’ that has been devised for extending the coverage of a statute or regulation to the widest class of workers that reasonably fall within the reach of a social welfare statute.” (Id. at p. 951.) We took note of a number of criticisms that had been advanced regarding several tests that rely upon a “multifactor, `all the circumstances’ standard” for distinguishing between employees and independent contractors. (Id. at p. 954; see id. at pp. 954-956.) Thus, in part to avoid these criticisms, we concluded in Dynamex that it is “most consistent with the history and purpose of the suffer or permit to work standard in California’s wage orders … to interpret that standard as: (1) placing the burden on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the wage order’s coverage; and (2) requiring the hiring entity, in order to meet this burden, to establish each of the three factors embodied in the ABC test—namely (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the 951*951 performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.” (Id. at pp. 956-957, fn. omitted.)

Accordingly, this court’s decision in Dynamex was based upon a determination concerning how the term “suffer or permit to work” in California wage orders should be interpreted for purposes of distinguishing between employees who are covered by the wage orders and independent contractors who are not protected by such orders.

The Dynamex decision constitutes an authoritative judicial interpretation of language—suffer or permit to work—that has long been included in California’s wage orders to define the scope of the employment relationships governed by the wage orders. Thus, under well-established jurisprudential principles, our interpretation of that language in Dynamex applies retroactively to all cases not yet final that were governed by wage orders containing that definition. (See Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978 [258 Cal.Rptr. 592, 772 P.2d 1059] (Newman) [“The general rule that judicial decisions are given retroactive effect is basic in our legal tradition”]; Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24 [44 Cal.Rptr.2d 370, 900 P.2d 619] (Waller) [“[T]he general rule [is] that judicial decisions are to be applied retroactively”].) As the United States Supreme Court observed in Rivers v. Roadway Express, Inc. (1994) 511 U.S. 298, 312-313 [128 L.Ed.2d 274, 114 S.Ct. 1510]: “A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” In McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 474 [20 Cal.Rptr.3d 428, 99 P.3d 1015], this court, after quoting the foregoing passage from Rivers v. Roadway Express, Inc., observed: “This is why a judicial decision [interpreting a legislative measure] generally applies retroactively.” (See Woosley v. State of California (1992) 3 Cal.4th 758, 794 [13 Cal.Rptr.2d 30, 838 P. 2d 758] (Woosley) [“`Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim'”].)

As past cases have explained, the rule affirming the retroactive effect of an authoritative judicial decision interpreting a legislative measure generally applies even when the statutory language in question previously had been given a different interpretation by a lower appellate court decision. Indeed, the United States Supreme Court’s decision in Rivers v. Roadway Express, Inc., supra, 511 U.S. 298, quoted above, involved just such a circumstance. In that case, the high court held that its interpretation of a statutory term 952*952 contained in the Civil Rights Act of 1866 (14 Stat. 27) applied retroactively, notwithstanding the fact that a line of prior federal appellate court decisions had set forth a contrary interpretation.

California decisions apply this same rule. In In re Retirement Cases (2003) 110 Cal.App.4th 426, 441-454 [1 Cal.Rptr.3d 790], for example, the Court of Appeal held that the California Supreme Court’s interpretation of a term in a pension statute in Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483 [66 Cal.Rptr.2d 304, 940 P.2d 891] applied retroactively, even though the Ventura County decision explicitly rejected an earlier contrary interpretation of the same statutory term by another appellate decision in Guelfi v. Marin County Employees’ Retirement Assn. (1983) 145 Cal.App.3d 297 [193 Cal.Rptr. 343]. In Woosley, supra, 3 Cal.4th 758, 794, we reaffirmed the principle that “[t]he circumstance that our decision overrules prior decisions of the Courts of Appeal does not in itself justify prospective application.” We elaborated: “An example of a decision which does not establish a new rule of law is one in which we give effect `to a statutory rule that courts had theretofore misconstrued [citation].'” (Ibid.) Such a decision applies retroactively, we concluded, because there is no material change in the law. (Ibid.)

Dynamex presented a question of first impression concerning how a wage order’s suffer or permit to work standard should apply in the employee or independent contractor context. In resolving that issue, our decision in Dynamex did not overrule any prior California Supreme Court decision or disapprove any prior California Court of Appeal decision. Thus, the well-established general principle affirming the retroactive application of judicial decisions interpreting legislative measures supports the retroactive application of Dynamex.

II. NO EXCEPTION TO THE RETROACTIVITY OF DYNAMEX IS JUSTIFIED
Defendant argues that an exception to the general retroactivity principle should be applied here because, prior to Dynamex, businesses could not reasonably have anticipated that the ABC test would govern at the time when they classified workers as independent contractors rather than employees. Defendant relies on past cases noting that “narrow exceptions to the general rule of retroactivity [have been recognized] when considerations of fairness and public policy are so compelling in a particular case that, on balance, they outweigh the considerations that underlie the basic rule.” (Newman, supra, 48 Cal.3d at p. 983; see, e.g., Williams & Fickett v. County of Fresno (2017) 2 Cal.5th 1258, 1282 [218 Cal.Rptr.3d 362, 395 P.3d 247]; Claxton v. Waters (2004) 34 Cal.4th 367, 378-379 [18 Cal.Rptr.3d 246, 96 P.3d 496].) This 953*953 recognized exception arises “`when a judicial decision changes a settled rule on which the parties below have relied.'” (Claxton, at p. 378; see also Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 572 [229 Cal.Rptr.3d 347, 411 P.3d 528] (Alvarado) [same]; Williams & Fickett, at p. 1282 [same]; Waller, supra, 11 Cal.4th at p. 25 [judicial decision “clarif[ying]” the law applies retroactively].)

In support of its position, defendant initially contends that prior to Dynamex, it—assertedly like other California businesses—reasonably believed that the question of whether a worker should be considered an employee or an independent contractor would be determined by application of the standard set forth and applied in this court’s decision in Borello, supra, 48 Cal.3d 341. Under these circumstances, defendant maintains that it would be unfair to apply the ABC standard adopted in the Dynamex decision, rather than the Borello standard, to nonfinal cases that predate the Dynamex decision. For the reasons discussed below, we disagree that an exception to the general rule of retroactivity is warranted on this theory.

To begin with, it is important to understand that California’s wage orders have included the suffer or permit to work standard as one basis for defining who should be treated as an employee for purposes of the wage order for more than a century. (Martinez, supra, 49 Cal.4th at pp. 57-58.) Additionally, at least since the 1930s, the suffer or permit to work standard has been understood as embodying “`the broadest definition'” of employment for extending coverage of a social welfare statute. (Dynamex, supra, 4 Cal.5th at p. 951; see id. at pp. 950-951 [citing United States v. Rosenwasser (1945) 323 U.S. 360, 363, fn. 3 [89 L.Ed. 301, 65 S.Ct. 295], quoting language of then-Senator (later United States Supreme Court justice) Hugo L. Black in describing the incorporation of the suffer or permit to work standard in the federal Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) as adopted in 1937].)

Defendant contends that prior to Dynamex, a putative employer would have reasonably anticipated that the question whether a worker should properly be classified as an employee or independent contractor for purposes of the obligations imposed by an applicable wage order would be governed by the Borello decision. But, as noted above, Borello was not a wage order case and that decision did not purport to determine who should be interpreted to be an employee for purposes of a wage order. We resolved this question for the first time in Dynamex. “Because the relevant portion of [the opinion] did not address an area in which this court had previously issued a definitive decision, from the outset any reliance on the previous state of the law could not and should not have been viewed as firmly fixed as would have been the case had we previously spoken.” (Newman, supra, 48 Cal.3d at pp. 986-987; 954*954 see also Alvarado, supra, 4 Cal.5th at p. 573 [declining to limit holding to prospective application when “defendant cannot claim reasonable reliance on settled law”].) In Newman, we concluded that our decision applied retroactively “even if one views [it] as breaking new and unexpected ground, … [because] it did so in an indisputably unsettled area.” (Newman, at p. 987.) Moreover, in two decisions following Borello, we expressly declined to decide the question of what standard applies in determining whether workers should be classified as employees or independent contractors in the wage order context. In Martinez, decided eight years prior to Dynamex, this court addressed the question regarding what standard should be utilized in deciding whether an employment relationship existed between the plaintiff workers and defendant business entities for purposes of a potentially applicable wage order. Explaining that no prior case had directly addressed the proper interpretation of the relevant provisions of the wage order relating to the terms “`employ'” and “`employer,'” we explicitly held that the suffer or permit to work definition was one of three alternative bases upon which an employment relationship could be established for purposes of the obligations imposed by an applicable wage order. (Martinez, supra, 49 Cal.4th at pp. 50, 64.)

In Martinez itself, the controversy turned on whether, for purposes of the obligations imposed by the wage order, the plaintiff workers could properly be considered employees of business entities other than the workers’ most direct or immediate employer. Thus, Martinez did not present the question of whether the workers were properly considered employees or, instead, independent contractors for purposes of the wage order. Yet we expressly signaled that this was an open question, emphasizing that we were “not decid[ing]” in Martinez whether “the decision in [Borello] has any relevance to wage claims.” (Martinez, supra, 49 Cal.4th at p. 73.)

In Ayala, supra, 59 Cal.4th 522, a case decided four years prior to Dynamex, we explicitly noted that we had solicited supplemental briefing from the parties concerning the possible relevance of the tests for employee status set forth in the applicable wage order in determining whether a worker was an employee or an independent contractor for purposes of the wage order. (Id. at p. 531.) Ultimately, our decision in Ayala did not reach the issue upon which we had solicited supplemental briefing, relying instead on the ground that in the trial court the plaintiff employees in Ayala had relied solely on the Borello standard, and we could resolve that case on that basis without considering the wage order definitions of employment. (Ibid.) Nonetheless, at the same time, our decision in Ayala explicitly stated that “we leave for another day the question of what application, if any, the wage order tests for employee status might have to wage and hour claims such as these” (ibid.)—namely, claims raising the question of whether workers should 955*955 properly be considered employees or independent contractors for purposes of the obligations imposed by a wage order.

In light of these passages in Martinez and Ayala, employers were clearly on notice well before the Dynamex decision that, for purposes of the obligations imposed by a wage order, a worker’s status as an employee or independent contractor might well depend on the suffer or permit to work prong of an applicable wage order—and that the law was not settled in this area. (See Newman, supra, 48 Cal.3d at pp. 986-987 [explicit statements in previous decisions that this court was expressly declining to decide an issue demonstrated that the matter was “in flux” and “any reliance on the previous state of the law could not and should not have been viewed as firmly fixed”].) By “expressly declin[ing] to decide the issue, thereby reserving our ultimate judgment on the question for some later date,” we “`highlighted the fact that this question remained to be decided by this court.'” (Id. at p. 988, italics omitted.) Thus, defendant’s reasonable reliance argument is unconvincing.

Further, although defendant maintains that in classifying its workers as independent contractors it reasonably relied on the Borello standard, as this court explained in Dynamex, one of the principal deficiencies of the Borello standard is its numerous factors that must be weighed and balanced—and such a standard effectively prevents employers and employees from determining in advance how that classification will be resolved. (Dynamex, supra, 4 Cal.5th at pp. 954-955.) Thus, as a practical matter, defendant overstates the degree to which declining to extend the Borello test to this context will impinge upon its reasonable expectations. It is worth noting in this regard that in Borello itself the agricultural workers were found to be employees rather than independent contractors even though the workers controlled the manner and details of their work, including the hours that they worked.[3] (Borello, supra, 48 Cal.3d at p. 346.)

Defendant further argues that even if it should have reasonably anticipated that a worker’s designation as an employee or independent contractor would depend upon the application of a wage order’s suffer or permit to work definition, it could not reasonably have anticipated that in Dynamex this court would adopt the ABC test as the appropriate standard. We reject the contention that litigants must have foresight of the exact rule that a court ultimately adopts in order for it to have retroactive effect. And indeed, the ABC test articulated in Dynamex was within the scope of what employers reasonably 956*956 could have foreseen. Prior decisions of this court had certainly provided putative employers notice concerning the potential breadth of the suffer or permit to work language. In Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 585 [94 Cal.Rptr.2d 3, 995 P.2d 139], this court noted that federal cases had interpreted that phrase to apply when a putative employer “`knows or should have known'” that work is being performed on its behalf. (See id. at pp. 584-585.) And in describing the scope of the suffer or permit to work definition in Martinez, we stated that “[a] proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.” (Martinez, supra, 49 Cal.4th at p. 69.) Moreover, the three elements of the ABC test are prominent factors already listed in Borello, supra, 48 Cal.3d at page 351. Last, because Dynamex did not change a previously settled rule, any reliance by the parties on the previous state of the law is not particularly persuasive in our retroactivity determination. (Newman, supra, 48 Cal.3d at p. 986.) “At a minimum, litigants necessarily were aware that” the employee/independent contractor distinction in the applicable wage orders “was uncertain and yet to be definitively established.” (Id. at p. 987.)

It also bears noting that in Dynamex, this court determined that “the suffer or permit to work definition is a term of art that cannot be interpreted literally in a manner that would encompass within the employee category the type of individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contractors who are working only in their own independent business.” (Dynamex, supra, 4 Cal.5th at p. 916.) This was so, we explained, because applying a broad “knows or should have known” that work was being performed formulation in the employee/independent contractor context would treat true independent contractors as employees for purposes of the wage order, when they could not reasonably have been intended to be so treated. (Id. at pp. 948-950.) Accordingly, this court harmonized the legislative intent to adopt the broadest standard for determining who should be treated as an employee for purposes of the wage order with the recognition that there was no intention to bring classic independent contractors within the reach of the wage orders. It was in this context that the court in Dynamex concluded that it was appropriate to adopt the ABC test as the standard for determining whether a worker should properly be considered an employee or independent contractor. (Id. at pp. 956-964.) We did not depart sharply from the basic approach of Borello, even though a literal reading of the suffer or permit to work definition would have swept far more broadly. Thus, even if we were to give weight to defendant’s reliance argument at this juncture, it bears repeating that the test 957*957 we ultimately adopted in Dynamex drew on the factors articulated in Borello and was not beyond the bounds of what employers could reasonably have expected.

It is true that “we have long recognized the potential for allowing narrow exceptions to the general rule of retroactivity when considerations of fairness and public policy are so compelling in a particular case that, on balance, they outweigh the considerations that underlie the basic rule.” (Newman, supra, 48 Cal.3d at p. 983.) In this case, however, fairness and policy considerations underlying our decision in Dynamex favor retroactive application. As we explained in Dynamex, the wage orders’ protections benefit workers by “enabl[ing] them to provide at least minimally for themselves and their families and to accord them a modicum of dignity and self-respect.” (Dynamex, supra, 4 Cal.5th at p. 952.) The wage orders also benefit “those law-abiding businesses that comply with the obligations imposed by the wage orders, ensuring that such responsible companies are not hurt by unfair competition from competitor businesses that utilize substandard employment practices.” (Ibid.) And, “the minimum employment standards imposed by wage orders are also for the benefit of the public at large, because if the wage orders’ obligations are not fulfilled the public will often be left to assume responsibility for the ill effects to workers and their families resulting from substandard wages or unhealthy and unsafe working conditions.” (Id. at p. 953.) Applying the interpretation of the suffer or permit to work definition adopted in Dynamex only prospectively would potentially deprive many workers of the intended protections of the wage orders to which they may have improperly been denied, as well as permit businesses to retain the unwarranted advantages of misclassification.[4] Last, because we have already applied our decision in Dynamex retroactively—to the Dynamex parties themselves—it would be unfair to withhold the benefit of that decision to other similarly situated litigants.

In sum, no “compelling and unusual circumstances justify[] departure from the general rule” of retroactivity. (Newman, supra, 48 Cal.3d at p. 983; see Waller, supra, 11 Cal.4th at p. 25 [rejecting argument against retroactivity because law in question was “but a logical extension” of well-established principles].) As we noted, Borello itself distinguished between an employee and an independent contractor “by focusing on the intended scope and purposes of the particular statutory provision or provisions at issue.” (Dynamex, supra, 4 Cal.5th at p. 934.) Given the longstanding definition of “employ” as to suffer or permit to work in California’s wage orders, and the 958*958 unsettled nature of its application in the employee/independent contractor context, we reject the contention that it is unfair to putative employers to apply the ABC standard to work settings that predate the Dynamex opinion. Indeed, we have routinely applied our decisions interpreting wage orders retroactively, even when the parties did not anticipate the precise interpretation of such orders. (See, e.g., Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038, 1057 [258 Cal.Rptr.3d 392, 457 P.3d 526]; Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 848, fn. 18 [182 Cal.Rptr.3d 124, 340 P.3d 355].)

Given the constraints imposed by the statute of limitations, the retroactive application of Dynamex will in practice affect a limited number of cases. Nonetheless, in light of the general rule of retroactivity of judicial decisions and the fundamental importance of the protections afforded by the wage orders, we find no compelling justification for denying workers included in such lawsuits the benefit of the standard set forth in Dynamex.

III. CONCLUSION
In answer to the question posed by the Ninth Circuit, we conclude that our decision in Dynamex applies retroactively to all nonfinal cases that predate the effective date of the Dynamex decision.

Corrigan, J., Liu, J., Cuéllar, J., Kruger, J., Groban, J., and Humes, J.,[*] concurred.

[1] Although the particular facts of the underlying federal litigation in this case arise from a franchising arrangement, the question of California law posed by the Ninth Circuit that we agreed to answer does not involve any inquiry into the general relationship or applicability of the Dynamex decision to franchise agreements or arrangements, and we do not address that subject.

[2] California’s wage orders were promulgated by the Industrial Welfare Commission (IWC), the state agency charged with fixing minimum wages, maximum hours of work, and conditions of labor for various industries. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026 [139 Cal.Rptr.3d 315, 273 P.3d 513].) Although the Legislature defunded the IWC in 2004, its wage orders remain in full force and effect. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102, fn. 4 [56 Cal.Rptr.3d 880, 155 P.3d 284].)

[3] Defendant also asserts that it relied on our decision in Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474 [177 Cal.Rptr.3d 539, 333 P.3d 723]. Patterson addressed the propriety of imposing vicarious liability on a franchisor for a franchisee’s wrongdoing, rather than the question of what standard applies in determining whether workers should be classified as employees or independent contractors for purposes of California’s wage orders.

[4] Having concluded that our decision in Dynamex applies retroactively, and having found no reliance or fairness considerations weighing against the general rule that judicial decisions apply retroactively, we likewise reject defendant’s related due process challenge to retroactive application.

[*] Administrative Presiding Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Dickson v. Century Park E. Homeowner’s Ass’n

(C.D.Cal. May 13, 2021, No. 2:20-cv-05152-JWH-MAAx) 2021 U.S.Dist.LEXIS 141845.

United States District Court, C.D. California.

April 19, 2021.

No. 2:20-cv-05152-JFW-MAA

Summary by Jillian M. Wright Esq.:

An owner sued an association alleging violation of the Rosenthal Act. The court determined that an association is not a debt collector under the Rosenthal Act because it does not collect “consumer debt,” as that term is defined by the Rosenthal Act; assessments are not “consumer credit transactions.”

TAKEAWAY: Even if an association is not a debt collector under the Rosenthal Act, its legal counsel and/or its management company could be considered debt collectors under the Federal Fair Debt Collection Practices Act as the definition of what constitutes debt is different under the two acts. Caution: cases may be brought against associations in either the state or federal court, so relief in a California court may not help in a case brought in federal court.

***End Summary***

BRENDA DICKSON, Plaintiff(s),
v.
CENTURY PARK EAST HOMEOWNERS ASSOCIATION, SWEDELSON & GOTTLIEB, BRIAN MORENO, and DOES 1-10, Defendant(s).

Case No. 2:20-cv-05152-JFW-MAA.

STIPULATED PROTECTIVE ORDER
MARIA A. AUDERO, Magistrate Judge.

1. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Stipulated Protective Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 13.3 below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the Court to file material under seal. Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

2. GOOD CAUSE STATEMENT
The court has ordered to the disclosure of confidential business or financial information, information regarding confidential business practices, or other confidential research, development, or commercial information (including information implicating privacy rights of third parties), information otherwise generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law.

Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and to serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.

3. DEFINITIONS
3.1. Action: Dickson v. Century Park East Homeowners Association, et al., Case no. 2:20-cv-05152-JFW-MAA
3.2. Challenging Party: A Party or Nonparty that challenges the designation of information or items under this Stipulated Protective Order.
3.3. “CONFIDENTIAL” Information or Items: Information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.
3.4. Counsel: Outside Counsel of Record and In-House Counsel (as well as their support staff).
3.5. Designating Party: A Party or Nonparty that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
3.6. Disclosure or Discovery Material: All items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that is produced or generated in disclosures or responses to discovery in this matter.
3.7. Expert: A person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this Action.
3.8. In-House Counsel: Attorneys who are employees of a party to this Action. In-House Counsel does not include Outside Counsel of Record or any other outside counsel.
3.9. Nonparty: Any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.
3.10. Outside Counsel of Record: Attorneys who are not employees of a party to this Action but are retained to represent or advise a party to this Action and have appeared in this Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party, and includes support staff.
3.11. Party: Any party to this Action, including all of its officers, directors, employees, consultants, retained experts, In-House Counsel, and Outside Counsel of Record (and their support staffs).
3.12. Producing Party: A Party or Nonparty that produces Disclosure or Discovery Material in this Action.
3.13. Professional Vendors: Persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.
3.14. Protected Material: Any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.”
3.15. Receiving Party: A Party that receives Disclosure or Discovery Material from a Producing Party.
4. SCOPE
The protections conferred by this Stipulated Protective Order cover not only Protected Material, but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

Any use of Protected Material at trial shall be governed by the orders of the trial judge. This Stipulated Protective Order does not govern the use of Protected Material at trial.

5. DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this Stipulated Protective Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.

6. DESIGNATING PROTECTED MATERIAL
6.1. Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Nonparty that designates information or items for protection under this Stipulated Protective Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Stipulated Protective Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber the case development process or to impose unnecessary expenses and burdens on other parties) may expose the Designating Party to sanctions.
6.2. Manner and Timing of Designations.

Except as otherwise provided in this Stipulated Protective Order (see, e.g., Section 6.2(a)), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Stipulated Protective Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Stipulated Protective Order requires the following:
(a) For information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).
A Party or Nonparty that makes original documents available for inspection need not designate them for protection until after the inspecting Party has indicated which documents it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Stipulated Protective Order. Then, before producing the specified documents, the Producing Party must affix the legend “CONFIDENTIAL” to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).
(b) For testimony given in depositions, that the Designating Party identify the Disclosure or Discovery Material on the record, before the close of the deposition, all protected testimony.
(c) For information produced in nondocumentary form, and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information is stored the legend “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, the Producing Party, to the extent practicable, shall identify the protected portion(s).
6.3. Inadvertent Failure to Designate.

If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party’s right to secure protection under this Stipulated Protective Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Stipulated Protective Order.
7. CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1. Timing of Challenges.

Any Party or Nonparty may challenge a designation of confidentiality at any time that is consistent with the Court’s Scheduling Order.
7.2. Meet and Confer.

The Challenging Party shall initiate the dispute resolution process, which shall comply with Local Rule 37.1 et seq., and with Section 4 of Judge Audero’s Procedures (“Mandatory Telephonic Conference for Discovery Disputes”).[1]
7.3. Burden of Persuasion.

The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party’s designation until the Court rules on the challenge.
8. ACCESS TO AND USE OF PROTECTED MATERIALS
8.1. Basic Principles.

A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Nonparty in connection with this Action only for prosecuting, defending, or attempting to settle this Action. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Stipulated Protective Order. When the Action reaches a final disposition, a Receiving Party must comply with the provisions of Section 14 below.
Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Stipulated Protective Order.
8.2. Disclosure of “CONFIDENTIAL” Information or Items.

Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to:
(a) The Receiving Party’s Outside Counsel of Record, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this Action;
(b) The officers, directors, and employees (including In-House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) The Court and its personnel;
(e) Court reporters and their staff;
(f) Professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary or this Action and who have signed the “Acknowledgment and Agreement to be Bound” (Exhibit A);
(g) The author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information;
(h) During their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary provided: (i) the deposing party requests that the witness sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and (ii) the witness will not be permitted to keep any confidential information unless they sign the “Acknowledgment and Agreement to Be Bound,” unless otherwise agreed by the Designating Party or ordered by the Court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; and
(i) Any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions.
9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party must:

(a) Promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order;
(b) Promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Stipulated Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) Cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” before a determination by the Court from which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential material and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive from another court.

10. A NONPARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION
10.1. Application.

The terms of this Stipulated Protective Order are applicable to information produced by a Nonparty in this Action and designated as “CONFIDENTIAL.” Such information produced by Nonparties in connection with this litigation is protected by the remedies and relief provided by this Stipulated Protective Order. Nothing in these provisions should be construed as prohibiting a Nonparty from seeking additional protections.
10.2. Notification.

In the event that a Party is required, by a valid discovery request, to produce a Nonparty’s confidential information in its possession, and the Party is subject to an agreement with the Nonparty not to produce the Nonparty’s confidential information, then the Party shall:
(a) Promptly notify in writing the Requesting Party and the Nonparty that some or all of the information requested is subject to a confidentiality agreement with a Nonparty;
(b) Promptly provide the Nonparty with a copy of the Stipulated Protective Order in this Action, the relevant discovery request(s), and a reasonably specific description of the information requested; and
(c) Make the information requested available for inspection by the Nonparty, if requested.
10.3. Conditions of Production.

If the Nonparty fails to seek a protective order from this Court within fourteen (14) days after receiving the notice and accompanying information, the Receiving Party may produce the Nonparty’s confidential information responsive to the discovery request. If the Nonparty timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Nonparty before a determination by the Court. Absent a court order to the contrary, the Nonparty shall bear the burden and expense of seeking protection in this Court of its Protected Material.
11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party immediately must (1) notify in writing the Designating Party of the unauthorized disclosures, (2) use its best efforts to retrieve all unauthorized copies of the Protected Material, (3) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Stipulated Protective Order, and (4) request such person or persons to execute the “Acknowledgment and Agreement to be Bound” (Exhibit A).

12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the parties may incorporate their agreement in the Stipulated Protective Order submitted to the Court.

13. MISCELLANEOUS
13.1. Right to Further Relief.

Nothing in this Stipulated Protective Order abridges the right of any person to seek its modification by the Court in the future.
13.2. Right to Assert Other Objections.

By stipulating to the entry of this Stipulated Protective Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Stipulated Protective Order.
13.3. Filing Protected Material.

A Party that seeks to file under seal any Protected Material must comply with Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a Party’s request to file Protected Material under seal is denied by the Court, then the Receiving Party may file the information in the public record unless otherwise instructed by the Court.
14. FINAL DISPOSITION
After the final disposition of this Action, within sixty (60) days of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel is entitled to retain an archival copy of all pleadings; motion papers; trial, deposition, and hearing transcripts; legal memoranda; correspondence; deposition and trial exhibits; expert reports; attorney work product; and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Stipulated Protective Order as set forth in Section 5.

15. VIOLATION
Any violation of this Stipulated Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: April 16, 2021 ____________________________ Attorney(s) for Plaintiff(s) Dated: ________________ ____________________________ Attorney(s) for Defendant(s) Dated: ________________ ____________________________ Attorney(s) for Defendant(s)
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

Dated: ___________________ _______________________________ Maria A. Audero United States Magistrate Judge
Any violation of this Stipulated Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: ____________________________ Attorney(s) for Plaintiff(s) Dated: April 19, 2021 ____________________________ Attorney(s) for Defendant(s) Dated: ________________ ____________________________ Attorney(s) for Defendant(s)
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

Dated:________________ ____________________________ Maria A. Audero United States Magistrate Judge
Any violation of this Stipulated Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: ___________________ ____________________________________ Attorney(s) for Plaintiff(s) MURCHISON & CUMMING, LLP Dated: April 19, 2021 ____________________________________ Attorney(s) for Defendant(s) Dated: ___________________ ____________________________________ Attorney(s) for Defendant(s)
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

Dated: ___________________ ____________________________________ Maria A. Audero United States Magistrate Judge MURCHISON & CUMMING, LLP Dated: April 19, 2021 Nancy N. Potter Attorney(s) for Defendants, SWEDELSONGOTTLIEB and BRIAN MORENO Dated: _______________ _________________________________________ Attorney(s) for Defendant(s)
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

Dated: 4/19/21 _______________________________________ Maria A. Audero United States Magistrate Judge
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, __________________ [full name], of __________________________________ ____________________ [address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Central District of California on ___________________ [date] in the case of ____________________________________________________________ [case name and number]. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Stipulated Protective Order.

I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint _______________ [full name] __________________ of ____________________ [address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.

Signature: _____________________________ Printed Name: _____________________________ Date: _____________________________ City and State Where Sworn and Signed: _____________________________
[1] Judge Audero’s Procedures are available at https://www.cacd.uscourts.gov/honorable-maria-audero.

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.

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***

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.