Smith v. Laguna Sur Villas Community Ass’n.

Smith v. Laguna Sur Villas Community Association

94 Cal.Rptr.2d 321 (2000)

Summary by Mary M. Howell, Esq.:

Facts

Association had filed a construction defects suit. Homeowners, unhappy with the fees being charged for the suit after a special assessment was imposed to pay for it, demanded copies of billings to the association by its construction defects attorney. Association refused to provide copies of the billings, asserting they were subject to the attorney-client privilege, and that the board, not the homeowner, was the holder of the privilege.

Held

For association. A corporation is entitled to claim attorney-client privilege for communications between the corporation and its attorneys. The shareholders of the corporation are not the holders the privilege; rather, the board of directors of the corporation is the holder of the privilege. And while it can be said that the homeowners are, indeed, the persons for whose benefit the litigation is instituted, that does not mean they hold the privilege. Finally, there are sound policy reasons why the privilege is held by the board (which has a fiduciary duty to all homeowners), rather than individual owners, who have no such broad duty and could well be expected to disclose confidential information improperly.

*** End Summary ***

Smith v. Laguna Sur Villas Community Ass’n.

94 Cal.Rptr.2d 321 (2000)

322*322 Lee H. Durst and Nancy M. Padberg for Plaintiffs and Appellants.

Richard A. Tinnelly, Bruce R. Kermott, Aliso Viejo, and Deborah Cameron Vian for Defendant and Respondent.

OPINION

CROSBY, J.

Condominium associations may bring construction defect lawsuits against developers without fear of having to disclose privileged information to individual homeowners. Like closely-held corporations and private trusts, the client is the entity that retained the attorney to act on its behalf.

I

This litigation has its genesis in a construction defect action involving a 253-unit condominium project in the Laguna Sur development of the City of Laguna Niguel. The project was governed by the Laguna Sur Villas Community Association (Villas). Another group, the Laguna Sur Community Association (the Master Association), owned the development’s open space.[1]

In June 1990, both associations jointly retained the law firm of Duke, Gerstel, Shearer & Bregante to sue the developer. They split the legal fees and shared expenses for soils and structural experts.

The litigation proved to be more costly than anticipated and by August 1991 the fees exceeded $450,000. That fall the Villas’ board of directors adopted an emergency assessment of $2,000 per unit. The assessment was imposed without polling the members.

A dissident group of Villas residents was upset by the “runaway budget for expenditures” and demanded to review Duke, Gerstel’s work product and legal bills “within 15 days from their receipt by the Association or its representatives.” Villasobjected on the grounds of attorney-client and work product privileges.

Plaintiff Leslie Smith also made the same demand to Villas in his capacity as a board member. However, Smith served as a director of the Master Association, not Villas. He voluntarily resigned from the Master Association in June 1992.[2]

The dissidents sought to recall the Villas board members for fiscal mismanagement, but lost the recall vote. The Villas board thereafter recommended an additional special assessment of $4,000 per unit. This 323*323 new assessment was ratified by a membership vote in 1993.

The dissidents responded with individual small claims actions against the Villas’ directors to recover the amount of the 1991 and 1992 assessments. They separately sued Villas in superior court for declaratory and injunctive relief. Villas in turn sued them for abuse of process and declaratory relief. The actions were consolidated.

After trial, the court found the 1991 special assessment was valid; Villas held the attorney-client privilege; and Smith’s inspection rights as a director were moot.Villas dismissed its damage claim for abuse of process. The court awarded attorney fees and costs to Villas as the prevailing party pursuant to Code of Civil Procedure section 1033.5 and Civil Code sections 1717 and 1354.

II

The court correctly held Villas was the holder of the attorney-client privilege and that individual homeowners could not demand the production of privileged documents, except as allowed by the Villas board.

Villas brought the construction defect litigation on its own behalf. California law expressly permits a mutual benefit non-profit corporation to “institute, defend, settle, or intervene in litigation … in its own name as the real party in interest and without joining with it the individual owners” in actions for damage to the common areas or for separate areas which it must repair or maintain. (Code Civ. Proc., § 383.) This represents a substantive change in previous case law which only accorded individual owners standing to sue. (Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal. App.3d 783, 792, 171 Cal.Rptr. 334.)[3]

Corporations have a separate legal identity and enjoy the benefit of the attorney-client privilege. (Hoiles v. Superior Court (1984) 157 Cal.App.3d 1192, 1198, 204 Cal.Rptr. 111.) Evidence Code section 951 defines a “client” as the “person” who “directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer….” The term “person” includes a corporation (Evid.Code, § 175); indeed, it may extend to an unincorporated organization “when the organization (rather than its individual members) is the client.” (Cal. Law Revision Com. com, 29B Pt. 3 West’s Ann. Evid.Code (1995 ed.) foll., § 951, p. 207.) There is no statutory exception for shareholders, even for closely held entities, and courts are powerless to elaborate upon the legislative scheme. (Dickerson v. Superior Court (1982) 135 Cal.App.3d 93, 99, 185 Cal.Rptr. 97.)

Although appellants, as condominium owners, were members of Villas, they were not individually named as plaintiffs in the construction defect litigation. Because they did not consult with or retain the Duke, Gerstel law firm, they do not fit within the joint-client exception of Evidence Code section 962. (Hoiles v. Superior Court, supra, 157 Cal.App.3d at p. 1199, fn. 4, 204 Cal.Rptr. 111; see also Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 212, 91 Cal.Rptr.2d 324*324 716, 990 P.2d 591[“no such [joint client] relationship is implied in law”].)

Appellants argue they were the “true clients” of Duke, Gerstel rather than Villas, a “faceless” association which could only act in a “representative” capacity of the general membership. They contend Villas owed them a fiduciary duty to act in their best interests as “the rightful owners who are paying with their assessments for the legal services being rendered on their behalf.” They characterize as the “crux” of the matter the question: “For whose benefit is the lawsuit being brought?”

We have squarely rejected this equation between beneficiaries and allegedly true clients. In Holies v. Superior Court, supra, 157 Cal.App.3d 1192, 204 Cal.Rptr. 111,we held that only closely-held corporations, not minority shareholders, were the client of the corporation’s attorney even though the corporate board members owed fiduciary duties to the complaining shareholders. In Shannon v. Superior Court(1990) 217 Cal.App.3d 986, 266 Cal. Rptr. 242, another court held a receiver could assert an absolute attorney-client privilege as to communications with his counsel even as to a disclosure request by the corporation which was placed into receivership and to which he owed fiduciary responsibilities.

Most recently, in Wells Fargo Bank v. Superior Court, supra, 22 Cal.4th 201, 209, 91 Cal.Rptr.2d 716, 990 P.2d 591, the Supreme Court refused to create a so-called “fiduciary” exception to the attorney-client privilege because courts “do not enjoy the freedom to restrict California’s statutory attorney-client privilege based on notions of policy or ad hoc justification.” In Wells Fargo the beneficiaries of a trust sought to discover confidential communications between the trustee (a bank) and outside trust counsel. Like appellants, the beneficiaries contended the trustees owed independent duties to provide them with complete and accurate information regarding the trust administration and to allow them to inspect books and documents. All to no avail, for the court declined to allow such responsibilities to trump the statutorily-created attorney-client privilege: “Certainly a trustee can keep beneficiaries `reasonably informed’ [citation] and provide `a report of information’ [citation] without necessarily having to disclose privileged communications…. If the Legislature had intended to restrict a privilege of this importance, it would likely have declared that intention unmistakably, rather than leaving it to courts to find the restriction by inference and guesswork….” (Id. at p. 207, 91 Cal.Rptr.2d 716, 990 P.2d 591.) Wells Fargo held that the attorneys only represented the trustees, not the beneficiaries.

The Supreme Court was not persuaded to the contrary because the beneficiaries were indirectly paying attorney fees which came out of the trust. That is because “[p]ayment of fees does not determine ownership of the attorney-client privilege…. In any event, the assumption that payment of legal fees by the trust is equivalent to direct payments by beneficiaries is of dubious validity…. [T]his question of cost allocation does not affect ownership of the attorney-client privilege.” (Wells Fargo Bank v. Superior Court, supra, 22 Cal.4th at p. 213, 91 Cal.Rptr.2d 716, 990 P.2d 591.)

Here, too, appellants did not individually arrange to pay their proportionate fees of the Duke, Gerstel legal fees; instead, the fees were billed to and paid by Villas, which drew its funds from the member assessments. As in Wells Fargo, such indirect payments do not suffice to create an attorney-client relationship.

It is no secret that crowds cannot keep them. Unlike directors, the residents owed no fiduciary duties to one another and may have been willing to waive or breach the attorney-client privilege for reasons unrelated to the best interests of the association. Some residents may have had no defects in their units or may have had familial, personal or professional relationships with the defendants. Indeed, it 325*325 is likely that the developer in the underlying litigation itself may have owned one or more unsold units within the complex. As Villas points out, “[o]ne can only imagine the sleepless nights an attorney and the Board of Directors may incur if privileged information is placed in the hands of hundreds of homeowners who may not all have the same goals in mind.” With the privilege restricted to an association’s board of directors, this is one worry, at least, that their lawyers can put to rest.

III

As an alternative to their rights as homeowners, appellants argue that Smith and another individual, Hunter Wilson, were entitled to copies of the billing documents in the construction defect litigation in their separate capacity as directors and that their written demands to view the “attorney bills, reports and documents” were ignored.

We provided a “short answer” to a similar claim in Hoiles v. Superior Court., supra,157 Cal.App.3d at p. 1201, 204 Cal. Rptr. 111. We do so again. No such claim is contained in the complaint. Appellants’ contention is meritorious in the abstract since directors do have the right to request privileged information in their capacity as fiduciaries. However, it is specious in the particular. Neither Smith nor Wilson was a director of the association they sued. They were directors of the Master Association, not Villas. As counsel pointed out to the court: “Mr. Smith is trying to seek … rights of inspection by suing Laguna Sur Villas. It is a separate and distinct corporation which he never sat on as a director….”[4]

Appellants make a meritless argument that the two associations “operated as one in the … construction defect litigation” and shared legal expenses. That is a nonsequitur. There was no attempt to establish that the two associations were alter egos of one another, and each maintained a separate legal existence.

Moreover, as the trial court observed, Smith’s rights (if any) as a director of either association ceased when his term expired in 1992. In Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 920, 45 Cal. Rptr.2d 1, we acknowledged the rule that “`the right of a director [of a nonprofit corporation] to inspect the books and records of the corporation ceases on his removal as a director, by whatever lawful means[.]'” This issue was thus moot even before the time of trial, and Smith had no reason to pursue it here.

IV

Appellants question the 1991 emergency assessment because “there was no emergency….” The court, however, ruled that appellants had failed to prove this contention “without the actual documentation” that Villas had adequate cash reserves to pay for consultants and repairs to the damaged common property.

That failure of proof manifests itself here as well. If there is a legal argument disguised somewhere in appellants’ briefs, it is too well hidden for us. Appellants have not affirmatively established error to overcome the presumption in favor of the ruling below. (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal. App.4th 966, 971, 33 Cal.Rptr.2d 812.)

The judgment, including the fee award to respondent as prevailing party, is affirmed. Costs on appeal, including reasonable attorney fees to be assessed by the superior court, are awarded to respondent.

SILLS, P.J., and RYLAARSDAM, J., concur.

[1] The two boards had two or three common members and occasionally met collectively for informal workshops, but otherwise maintained a separate legal existence.

[2] Smith erroneously pleaded that he was a Villas director in 1991 and 1992. He never sued the Master Association.

[3] Smith raises for the first time in his reply brief the purported impact of recent legislation (Civ.Code, § 1375, subd. (g)) requiring associations to provide notice to individual owners of rejected settlement offers by builders or of proposed civil actions by the association and to allow for a special meeting of the members to discuss the matter. Aside from the impropriety of raising issues for the first time by reply brief (City of Costa Mesa v. Connell (1999) 74 Cal.App.4th 188, 197, 87 Cal.Rptr.2d 612), we fail to see the statute’s relevance. Under the statute, for example, the notice requirements do not come into play when an association’s board of directors accepts a developer’s written settlement offer, or where it agrees to submit to alternative dispute resolution after meeting and conferring with the developer. (Civ.Code, § 1375, subds. (e)(3), (g) [“If the board of directors of the association rejects a settlement offer presented at the meeting …”].)

[4] Appellants also tell us that “Abel Armas” was a board member of the Villas Association and that he, too, futilely made inspection requests of his fellow Villas board members. But Armas is not a party to the instant lawsuit, and there is no record he made any requests for documents.

 

Keywords: Attorney-Client Privilege

Beehan v. Lido Isle Community Assn.

Beehan v. Lido Isle Community Association

(1977) 70 Cal.App.3d 858

Summary by Mary M. Howell, Esq.:

Facts

Homeowners alleged their neighbors’ construction violated a setback provision in the governing documents. The board researched the alleged setback, and concluded its enforceability was questionable. The board declined to file suit for enforcement, and the neighbors sued the neighbors to enjoin construction, and the association for refusing to file an enforcement action.

Held

For association. The board’s decision whether or not to file an action to enforce the CC&Rs is governed by the business judgment rule. The evidence showed the board conducted an extensive review of corporate records to determine whether or not the setback provision had been validly adopted, concluded after debate it was questionable, and accordingly declined to file. This decision was not a violation of the board’s discretion.

*** End Summary ***

Beehan v. Lido Isle Community Assn.
70 Cal.App.3d 858 (1977)

861*861 COUNSEL

Joslyn, Roeth, Angerhofer, Olds & Condon and Daniel B. Condon for Plaintiffs and Appellants.

Rutan & Tucker and Robert C. Braun for Defendant and Respondent.

OPINION

KAUFMAN, J

T. Edward Beehan and Claire E. Beehan (hereinafter plaintiffs) appeal from a judgment in favor of defendant Lido Isle Community Association (hereinafter Association) denying plaintiffs’ claim for reimbursement for attorney fees and costs incurred in obtaining a stipulated judgment against Robert P. and Loring P. Warmington (hereinafter Warmingtons).

(1) Findings of fact and conclusions of law were waived by plaintiffs’ failure to request them. (Code Civ. Proc., § 632.) Accordingly, we presume in support of the judgment each favorable finding of fact supported by the evidence. (Stewart v.Langer, 9 Cal. App.2d 60, 61 [48 P.2d 758].)

Plaintiffs and the Warmingtons own property situated diagonally across a street from each other on Lido Isle in Newport Beach. The property on Lido Isle is subject to a declaration of protective restrictions executed and recorded in 1928. Association is a nonprofit corporation which was also organized in 1928. The activities in which it is permitted to engage are set forth in the “Purposes Clause” of its articles of incorporation. One of the enumerated purposes is the enforcement of the declaration of protective restrictions.

862*862 In November 1973, the Warmingtons submitted architectural plans to Association for approval. Association’s architectural committee reviewed the plans to determine whether there were any setback restrictions and in so doing relied on a booklet entitled “The Declaration of Restrictions” which contained the original restrictions and modifications thereto. The booklet indicated a four-foot setback requirement. Warmingtons’ plans complied. Association therefore approved the plans as submitted. The same plans were approved by the City of Newport Beach and a building permit was issued in December 1973.

Construction of the Warmingtons’ house commenced in January 1974. In February, plaintiffs contacted Mr. William Sprague, Association’s administrator, for the purpose of ascertaining whether the Warmingtons’ structure violated a setback provision in the declaration of restrictions. Mr. Sprague inspected the building site but could not determine whether the construction violated setback requirements. He requested the City of Newport Beach to inspect the premises; the city did so and found that the construction did not breach the restrictions.

On February 25, plaintiffs visited Association’s offices to review the declaration of restrictions and Association’s minute book. The declaration indicated only a four-foot setback requirement on the Warmingtons’ property. From the minute book, however, plaintiffs found copies of minutes from meetings held in 1953 and 1954 which indicated that Association’s board of directors adopted a resolution amending the setback requirement on the Warmingtons’ property and some surrounding property from four feet to six feet. A copy of the amendment had been recorded February 25, 1954. Plaintiffs informed Mr. Sprague of their discovery.

In a continuation of his investigation, Mr. Sprague reviewed the minutes and also reviewed the 1928 declaration of restrictions. This declaration specifies certain procedures that must be followed in order to adopt a valid modification of the restrictions. First, there must be a public hearing. After such hearing, written consent of Association must be given. Finally, written consent must be obtained from more than one-half of the owners of the property within 500 feet of the outer boundaries of the lot or lots on which the restrictions are to be changed.

Mr. Sprague reviewed the minutes and other records of Association to determine the validity of the 1953 modification. The March 11, 1953, minutes state that a public hearing was held on March 14, 1953, three 863*863 days after the minutes were dated and one month after approval was given by Association’s board of directors. Since the declaration required the public hearing to be held before Association’s approval, this procedure was in conflict with the modification requirements. Moreover, Mr. Sprague could find no evidence that written consent had been obtained from the necessary property owners. He therefore notified members of Association’s board of directors that his examination cast substantial doubt upon the validity of the 1953 amendment.

Prior to the next board meeting, Mr. Sprague photocopied minutes of the 1953 meetings, the resolution adopted at that time, minutes of the 1954 meeting that referred to the purported modification and copies of his memorandum detailing the lack of proof that such modification was validly adopted. He included these in an agenda packet which was distributed to all board members before the meeting. Several board members also visited the construction site before the meeting.

On March 13, the board, on the first of several occasions, considered the problem. Plaintiffs and their attorney appeared and made a presentation supporting their position that a six-foot setback was applicable. The Warmingtons also appeared and presented evidence supporting their contention that a four-foot setback was proper. The meeting was open to all members of Association. An attorney and former members of the board of directors, Mr. Mel Richly, after reviewing the adoption procedure of the alleged 1953 modification, expressed his opinion to the board that the modification was invalid and unenforceable.

A special meeting of the board of directors was held on March 16 for the sole purpose of reviewing the setback matter. In attendance were members of Association’s architectural committee, members of the board, plaintiffs, plaintiffs’ attorney, the Warmingtons and Mr. Sprague. Each side reiterated its respective position. Another discussion ensued regarding the validity and enforceability of the purported amendment. Nevertheless, the problem was not resolved.

On April 17, the next regularly scheduled board meeting was held. After an extensive discussion, the board decided to forgo seeking an injunction against the Warmingtons for violating the alleged 1953 modification of the declaration of restrictions. On April 18, Mr. Sprague informed plaintiffs’ attorney of Association’s decision not to proceed against the Warmingtons.

864*864 Having filed suit on or about April 1, on May 7 plaintiffs obtained a preliminary injunction restraining the Warmingtons from proceeding further with the construction of their house. Association’s board of directors held a meeting the following day to again discuss this dispute. Both plaintiffs and the Warmingtons stated their respective positions. After a lengthy period of deliberation, the chairman of the board suggested a compromise whereby the setback on the Warmingtons’ property would be changed to five feet. This proposal was acceptable to the Warmingtons but not to plaintiffs.

Plaintiffs filed their first amended complaint on May 28, 1974. The first count was directed against the Warmingtons and sought a mandatory injunction requiring them to modify the home they were constructing to conform to the alleged six-foot setback requirement. The second count was directed against Association and sought reimbursement for plaintiffs’ fees and costs incurred in the action against the Warmingtons.

In March 1975, plaintiffs and Warmingtons entered into a stipulation for judgment whereby the Warmingtons agreed to modify their house so that it was set back six feet. Association was not a party to this stipulation. Plaintiffs then proceeded to trial against Association. (2a) The case was tried on the second count of plaintiffs’ first amended complaint only and the sole problem confronting the trial court was whether plaintiffs were entitled to reimbursement for costs[1] and attorneys’ fees incurred in obtaining judgment against the Warmingtons.[2]

Plaintiffs are vague as to their theory of recovery. Although they speak in terms of negligence and implied indemnity, these theories would not support an award of attorney fees and costs against Association. In the absence of an express or implied agreement (Code Civ. Proc., § 1021), the only theory of which we are aware under which plaintiffs might recover attorney fees and costs from Association is the substantial benefit rule, a variant of the common fund doctrine under which attorney fees are frequently allowed in shareholder derivative actions. (See Fletcher v. A.J. Industries, Inc., 266 Cal. App.2d 313, 320 [72 Cal. Rptr. 146], and authorities there cited.) Perhaps this was the theory plaintiffs had in mind, for they attempted to prove each of the conditions necessary to 865*865 recovery on that theory, to wit: (1) defendant Association is a corporation; (2) plaintiffs are shareholders or members; (3) Association refused to act after a proper demand upon it; (4) such refusal constituted an abuse of managerial discretion; (5) plaintiffs successfully proceeded with the suit; and (6) by doing so plaintiffs rendered a substantial benefit to Association. (Cf. Corp. Code, § 800; Fletcher v. A.J. Industries, Inc., supra, 266 Cal. App.2d at pp. 318-319.)

The trial court impliedly found that in refusing to take action against the Warmingtons, Association’s board of directors did not abuse their managerial discretion.[3] This finding of the trial court is supported by substantial evidence and is, therefore, decisive. (Cf. Fletcher v. A.J. Industries, Inc., supra, 266 Cal. App.2d at p. 325.)

Preliminarily, Association asserts that it was under no obligation to take action against the Warmingtons. Plaintiffs point to the express enumeration in Association’s articles of incorporation that one of its purposes is the enforcement of the declaration of protective restrictions. Association asserts that the enumeration of purposes in its articles of incorporation empowers it to act but does not oblige it to do so. We need not resolve this question. For purposes of this decision we shall assume Association was obligated in appropriate circumstances to take action to enforce the declaration of restrictions.

(3) Nevertheless, neither a court nor minority shareholders can substitute their business judgment for that of a corporation where its board of directors has acted in good faith and with a view to the best interests of the corporation and all its shareholders. (Marsili v. Pacific Gas & Elec. Co., 51 Cal. App.3d 313, 324 [124 Cal. Rptr. 313]; Fairchild v. Bank of America, 192 Cal. App.2d 252, 256-257 [13 Cal. Rptr. 491]; Findley v. Garrett, 109 Cal. App.2d 166, 174-175 [240 P.2d 421].) “The power to manage the affairs of a corporation is vested in the board of directors. [Citation omitted.] Where a board of directors, in refusing to commence an action to redress an alleged wrong against a corporation, acts in good faith within the scope of its discretionary power and reasonably believes its refusal to commence the action is good business judgment in the best interest of the corporation, a stockholder is not authorized to interfere with such discretion by commencing the action…. `Every presumption is in favor of the good faith of the directors. Interference with such discretion is not warranted in doubtful cases.'” 866*866 (Findley v. Garrett, supra, 109 Cal. App.2d at p. 174; accord: Fornaseri v. Cosmosart Realty & Bldg. Corp., 96 Cal. App. 549, 557 [274 P. 597].)

(2b) The refusal of Association’s board of directors to seek injunctive relief against the Warmingtons must be judged in light of the facts at the time the board considered the matter. There would be difficulty in proving the 1953 setback amendment was validly enacted. The minutes indicated public hearing was held after Association’s approval rather than before, and it could not be established that written consent had been obtained from the required number of property owners. Eighteen of the twenty one homes in the area affected by the alleged 1953 amendment were in violation of the six-foot setback requirement, thus making it doubtful whether Association could prevail in an injunctive action against the Warmingtons. Association’s funds were committed, in large part, to pay for services which benefited the entire community, such as beach and clubhouse maintenance, lifeguards, gardeners and administrative staff. Apparently, the board believed that the utility of incurring substantial attorney fees in prosecuting a lawsuit of questionable merit was outweighed by the possible curtailment of normal services.

The fact that the board refused to bring suit even after a preliminary injunction was issued is not decisive. (4) It has been said that a court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits. (Continental Baking Co. v. Katz, 68 Cal.2d 512, 528 [67 Cal. Rptr. 761, 439 P.2d 889].) The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits. (Id.) (5) Moreover, “[t]he mere fact that a recovery for the corporation would probably result from litigation does not require that an action be commenced to enforce the claim. Even if it appeared to the directors … that at the end of protracted litigation substantial sums could be recovered from some or all of the defendants, that fact alone would not have made it the duty of the directors to authorize the commencement of an action. It would have made it their duty to weigh the advantages of a probable recovery against the cost in money, time and disruption of the business of the company which litigation would entail…. (6) A mistake of judgment on the part of a board of directors does not justify taking the control of corporate affairs from the board of directors and placing it with the stockholders. The board of directors may make incorrect decisions, as well as correct ones, so long as it is faithful to the 867*867corporation and uses its best business judgment.” (Findley v. Garrett, supra, 109 Cal. App.2d at pp. 177-178.)

(2c) From the foregoing discussion, it is manifest that the court’s finding that Association’s board of directors did not abuse its managerial discretion is supported by substantial evidence. That determination makes unnecessary our consideration of Association’s further claim that plaintiffs’ suit conferred no substantial benefit on the Association.

Association contends that plaintiffs’ appeal is frivolous and that we should therefore impose sanctions against them. Although we have not found the appeal meritorious, we cannot say it was wholly insubstantial or not taken in good faith. Accordingly, we do not classify the appeal as frivolous.

The judgment is affirmed. In the interest of justice, neither party shall recover costs.

Tamura, Acting P.J., and Morris, J., concurred.

[1] Plaintiffs did not recover costs against the Warmingtons because the stipulation for judgment provided that the parties were to bear their own costs.

[2] The procedure followed by plaintiffs was not challenged. By recounting it, we do not express our approval of it.

[3] Not only is this finding presumed, in its notice of intended decision, the court expressly so found.

 

Keywords: Business Judgement Rule, Judicial Deference Rule, Lamden Rule

Ironwood Owners Assn. IX v. Solomon

Ironwood Owners Association IX v. Solomon

178 Cal.App.3d 766 (1986)

Summary by Mary M. Howell, Esq.:

Facts

The CC&Rs required an owner to submit an architectural application and receive approval before installing new trees. Without receiving such permission, homeowner planted eight tall palm trees. Association thereafter sued requesting an order directing homeowner to remove the trees.

Held

For homeowner. In order to obtain an order forcing a homeowner to undo a violation (such as remove trees), the association must demonstrate that it has followed its own procedures before filing the action, and that the decision it made was in good faith, and neither arbitrary nor capricious. In this case, the record did not show that the architectural committee or the board had met to consider whether the trees violated the guidelines of the association. Without those facts, and because obtaining a “mandatory” injunction (that is, an order to have the homeowner take affirmative action) required such proof, the association’s application had to be denied.

*** End Summary ***

Ironwood Owners Assn. IX v. Solomon

178 Cal.App.3d 766 (1986)

768*768 COUNSEL

Erwin & Anderholt and Michael J. Andelson for Defendants and Appellants.

Guralnick, McClanahan & Zundel, Wayne S. Guralnick and Judith L. Pilson for Plaintiff and Respondent.

OPINION

KAUFMAN, J.

Defendants Bernard and Perlee Solomon (Solomons) appeal from a summary judgment in favor of plaintiff Ironwood Owners Association IX (Association). The judgment granted the Association a mandatory injunction compelling the removal of eight date palm trees from the Solomons’ property. The Association was also granted declaratory relief, the court finding the Solomons in violation of the Association’s declaration 769*769 of covenants, conditions and restrictions (CCRs) for having planted the date palm trees without previously filing a plan with and obtaining the written approval of the Association’s architectural control committee.

Facts[1]

The Solomons purchased a residential lot in the Ironwood Country Club, a planned unit development, in March 1979. They do not dispute that they bought the property with full notice of the CCRs, which were duly recorded in Riverside County in December 1978.

The date palm trees in question were planted sometime during July 1983 and have remained there since. The Solomons have admitted and it is therefore undisputed that they did not file a plan regarding the palm trees with the Association’s architectural control committee and accordingly never received a permit or approval for the landscaping addition.

The Association is, pursuant to section 1.02 of the CCRs, “a non-profit California corporation, the members of which [are] all of the several Owners of the Real Property.” The Association’s members elect a board of directors to conduct the Association’s business affairs. Under section 2.04[2] the board has the power to “enforce all of the applicable provisions” of the Association’s bylaws, its articles of incorporation, and the CCRs (subd. (a)), to “delegate any of the powers or duties imposed upon it herein to such committees, officers or employees as the Board shall deem appropriate” (subd. (e)), and to “take such other action and incur such other obligations … as shall be reasonably necessary to perform the Association’s obligations hereunder or to comply with the provisions or objections [sic] of [the CCRs]” (subd. (i)).

The architectural control committee is a body of three persons first appointed by Silver Spur Associates, the original owner and conveyor of the property; committee vacancies are now filled by the board of directors. The following provisions from the CCRs describe the powers and duties of and procedures to be followed by the architectural control committee:

“4.02. Duties of architectural control committee. All plans and specifications for any structure or improvement whatsoever to be erected on or moved upon or to any Residential Lot, and the proposed location thereof on any such Residential Lot, and construction material, the roofs and exterior 770*770 color schemes, any later changes or additions after initial approval thereof, and any remodeling, reconstruction, alterations or additions thereto on any such Residential Lot shall be subject to and shall require the approval in writing, before any such work is commenced, of the Architectural Control Committee.

“4.03. Submission of Plans. There shall be submitted to the Architectural Control Committee two complete sets of plans and specifications for any and all proposed Improvements to be constructed on any Residential Lot, and no structures or improvements of any kind shall be erected, altered, placed or maintained upon any Residential Lot unless and until the final plans, elevations and specifications therefor have received such written approval as herein provided. Such plans shall include plot plans showing the location on the Residential Lot of the building, wall, fence or other structure proposed to be constructed, altered, placed or maintained thereon, together with the proposed construction material, color schemes for roofs, and exteriors thereof, and proposed landscape planting.

“4.04. Approval of Plans. The Architectural Control Committee shall approve or disapprove plans, specifications and details within thirty days from the receipt thereof or shall notify the Owner submitting them that an additional period of time, not to exceed thirty days, is required for such approval or disapproval. Plans, specifications and details not approved or disapproved, or for which time is not extended within the time limits provided herein, shall be deemed approved as submitted. One set of said plans and specifications and details with the approval or disapproval of the Architectural Control Committee endorsed thereon shall be returned to the Owner submitting them and the other copy thereof shall be retained by the Architectural Control Committee for its permanent files. Applicants for Architectural Control Committee action may, but need not, be given the opportunity to be heard in support of their application.

“4.05. Standards for Disapproval. The Architectural Control Committee shall have the right to disapprove any plans, specifications or details submitted to it if: (i) said plans do not comply with all of the provisions of [the CCRs]; (ii) the design or color scheme of the proposed building or other structure is not in harmony with the general surroundings of the Real Property or with the adjacent buildings or structures; (iii) the plans and specifications submitted are incomplete; or (iv) the Architectural Control Committee deems the plans, specifications or details, or any part thereof, to be contrary to the best interest, welfare or rights of all or any of the other Owners.”

771*771 Discussion

1. CCRs Require Submission of Landscaping Plan

(1a) We have concluded the court ruled correctly that the CCRs require the submission of a plan to the architectural control committee for substantial landscaping changes such as the planting of eight tall date palm trees. Section 4.02 gives the committee power and duty to review “additions” to residential lots and we interpret this term broadly to include any substantial change in the structure and appearance of buildings and landscapes. We note that in drafting the CCRs, the original conveyor of the subdivision property included section 8.02(b) which provides for liberal construction of its provisions.[3] (See also Civ. Code, § 1370 [formerly Civ. Code, § 1359].) Furthermore, “proposed landscape planting” is specifically enumerated in section 4.03 as an item to be described in plans for such additions filed with the committee, which clearly shows the committee was to take landscaping into account when it weighed the esthetic aspects of plans it received.

(2) (See fn. 4.), (3) Because no extrinsic evidence bearing on the interpretation of these provisions of the CCRs was shown to exist,[4] this question was solely one of law (Estate of Dodge (1971) 6 Cal.3d 311, 318 [98 Cal. Rptr. 801, 491 P.2d 385]) and was therefore properly determined by the court on summary judgment. (See Milton v.Hudson Sales Corp. (1957) 152 Cal. App.2d 418, 433 [313 P.2d 936].) (1b) The court’s declaratory conclusion that the Solomons were and are required under the CCRs to submit a plan to the architectural control committee proposing the addition of the eight date palm trees will be affirmed.

2. Association’s Request for Injunction Does Pose Questions of Material Fact

The Association’s request for a mandatory injunction compelling the removal of the Solomons’ palm trees was in effect a request to enforce an administrative decision on its part disapproving the palm trees as not meeting the standards set forth in section 4.05 of the CCRs. That this is so is 772*772 demonstrated by the final letter sent by the Association’s counsel to the Solomons demanding removal of the palm trees: “Despite the provisions [of the CCRs] referenced above, you unilaterally installed the date palm trees on your property, substantially changing the uniform development, harmony and balance of the improvements within the Association. The fact that you did not obtain approval from the Architectural Control Committee is not even at issue.” (Italics added.)

(4a) Despite the Association’s being correct in its contention the Solomons violated the CCRs by failing to submit a plan, more was required to establish its right to enforce the CCRs by mandatory injunction.[5] (5) When a homeowners’ association seeks to enforce the provisions of its CCRs to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious. (Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App.3d 642, 650-651 [191 Cal. Rptr. 209], and cases there cited; Laguna Royale Owners Assn. v. Darger (1981) 119 Cal. App.3d 670, 683-684 [174 Cal. Rptr. 136]; cf. Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550 [116 Cal. Rptr. 245, 526 P.2d 253]; Lewin v. St. Joseph Hospital of Orange(1978) 82 Cal. App.3d 368, 388 [146 Cal. Rptr. 892]; also cf. Code Civ. Proc., § 1094.5.)

“The criteria for testing the reasonableness of an exercise of such a power by an owners’ association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner.” (Laguna Royale Owners Assn. v. Darger, supra, 119 Cal. App.3d 670, 683-684.)

(4b) Several questions of material fact therefore remained before the trial court when it granted summary judgment in this case. First is the question whether the Association followed its own procedures as set forth in the CCRs. According to the CCRs the Association is governed by a board of directors, but there is nothing in the record showing any decision in respect to this matter by the Association’s board of directors. Secondly, the record does not document and the parties do not indicate that the architectural 773*773 control committee ever met to consider whether or not the Solomons’ palm trees violated the standards set forth in section 4.05 of the CCRs. The record contains no indication that either the board or the architectural control committee made any findings, formal or informal, as to whether the palm trees met the standard in section 4.05 upon which the disapproval of the palm trees was apparently based.

There is some indication in the record that the Association attempted to assess the esthetic impact of the palm trees on the community. The matter was discussed at several meetings, members of the board communicated in writing and over the phone with Bernard Solomon, and at least two “polls” were conducted to elicit community opinion. As a matter of law, however, these acts on the part of the Association without appropriate decisions by the governing board or the proper committee did not constitute a reasonable application of the CCRs to the palm trees dispute. The CCRs carefully and thoroughly provide for the establishment of an Architectural Control Committee and impose upon it specifically defined duties, procedures and standards in the consideration of such matters. The record as it stands discloses a manifest disregard for these provisions: whatever decision was made does not appear to be that of the governing body or the committee designated to make the decision; no findings of any sort bridge the analytic gap between facts and the conclusions of the decisionmaker, whoever that was; and the record provides no means for ascertaining what standard was employed in the decisionmaking process.[6]

(6) To be successful on a motion for summary judgment, the moving party must show it is entitled to judgment as a matter of law. (Baldwin v. State of California(1972) 6 Cal.3d 424, 439 [99 Cal. Rptr. 145, 491 P.2d 1121]; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal. Rptr. 449, 398 P.2d 785].) (4c) Having failed to establish that its actions were regular, fair and reasonable as a matter of law, the Association was not entitled to a mandatory injunction on summary judgment and the trial court erred in granting that relief.

Disposition

That portion of the trial court’s judgment granting the Association declaratory relief and affirming its interpretation of the declaration of covenants, 774*774 conditions and restrictions (¶¶ 1 and 2) is affirmed. Otherwise the judgment is reversed. Each party shall bear its own costs on appeal.

Rickles, Acting P.J., and McDaniel, J., concurred.

[1] The facts as contained in the record are largely undisputed and are drawn from the complaint, the parties’ statements in motions, briefs and on deposition, and supporting declarations.

[2] All further citations will be to the CCRs unless otherwise noted.

[3] Section 8.02(b) provides: “The provisions of [the CCRs] shall be liberally construed to accomplish [their] purpose of creating a uniform plan for the operation of the project for the mutual benefit of allOwners.”

[4] At oral argument counsel for the Solomons indicated that in Mr. Solomon’s deposition he stated it was not his understanding that landscaping restrictions of this sort applied to the Solomons’ property or that the Solomons were required to submit plans for approval of the date palms. But evidence of Mr. Solomon’s subjective belief would have been irrelevant; the test is an objective one. (See 1 Witkin, Summary of Cal. Law (1973) Contracts, § 522, p. 445, and authorities there cited.)

[5] Even had the basis for the injunction been solely the failure to submit plans for approval, the record would still be deficient. There is nothing showing final board action on that basis either. Moreover, had that been the sole basis, the injunction should properly have been in the alternative, e.g., either to remove the trees or submit a plan. Here the order was unconditional and absolute.

[6] From comments made at oral argument it may appear that these things were in fact done and are simply not reflected in the record. That of course may be properly shown in subsequent proceedings.

 

Keywords: Architectural Review

Fountain Valley Chateau Blanc Homeowners Assn. v. Department of Veterans’ Affairs

Fountain Valley Chateau Blanc Homeowners Association. v. Department of Veterans’ Affairs

79 Cal.Rptr.2d 248 (1998)

Summary by Mary M. Howell, Esq.:

Facts

Association, threatening litigation, gained access to a homeowner’s unit and demanded, in particular terms, that the occupant (Cunningham) rid the unit of specified items which the association deemed to constitute a threat to health and safety. association later sued the titular owner (Department) and the occupant cross-complained for invasion of privacy, trespass and negligence.

Held

For homeowner. The case concerned what is commonly known as “hoarding.” The association had received complaints from adjacent neighbors, as well as a statement from a roofing vendor indicating he could not proceed with his work due to the accumulation of goods in and around the property. The association contacted the fire department, but it refused to issue a citation to the occupant. Undeterred, the association filed suit against the occupant. That suit was settled when the occupant agreed to get rid of some of the accumulation, but he pursued his cross-complaint for damages against the association. Ultimately the issue was tried to a jury, which decided some of the relevant facts. On appeal, the court affirmed judgment for the homeowner, indicating in passing that there was no way the association’s decision to pursue litigation after the city had found there was no fire danger could be characterized as “reasonable.” The court was particularly incensed that the association had dictated to the homeowner what could be kept, and what had to be discarded: “…[T]he CC&R’s cannot reasonably be read to allow an association to dictate the amount of clutter in which a person chooses to live; one man’s old piece of junk is another man’s objet d’art. The association’s rather high-handed attempt to micromanage Cunningham’s personal housekeeping–telling him how he could and could not use the interior rooms of his own house–clearly crossed the line and was beyond the purview of any legitimate interest it had in preventing undesirable external effects or maintaining property values.”

*** End Summary ***

Fountain Valley Chateau Blanc Homeowners Assn. v. Department of Veterans’ Affairs

79 Cal.Rptr.2d 248 (1998)

250*250 Fiore, Walker, Racobs and Powers and C. Mark Hopkins, Irvine, for Plaintiff and Appellant and Real Party in Interest.

Arnulfo Hernandez, Jr., Craig L. Stevenson, Elizabeth Carol Wied, Frank Perez Tays and Bruce A. Crane, Sacramento, for Defendant and Respondent Department of Veterans Affairs.

Cameron & Dreyfuss, Santa Ana, Lawrence J. Dreyfuss, Houston, TX, and Alexandria C. Phillips, Santa Ana, for Petitioner and as amici curiae on behalf of Defendant and Respondent Department of Veterans Affairs.

No appearance for Respondent.

OPINION

SILLS, Presiding Justice.

Like Shel Silverstein’s proverbial Sarah Cynthia Sylvia Stout, the petitioner in this case, Robert S. Cunningham, would not take the garbage out. So, reminiscent of Sarah’s daddy who, in the famous poem would scream and shout, Cunningham’s homeowner’s association did the modern equivalent. It instituted litigation. The association’s theory in essence was that Cunningham’s property constituted a fire hazard. Local fire authorities, however, determined that his property posed no fire hazard, either indoors or outdoors. Even so, the lawyers for the homeowner’s association wrote letters demanding that he clear his bed of all papers and books, discard “outdated” clothing, and remove the papers, cardboard boxes and books from the floor area around his bed and dresser. Books that were “considered standard reading material” could, however, remain in place.

Cunningham is a senior citizen who suffers from Hodgkins’ disease. The letter from the association’s lawyers was, in essence, a demand backed up by threat of litigation telling him to straighten up his own bedroom. So Cunningham found a lawyer and sued the association by filing a cross-complaint for invasion of the right to privacy and breach of the homeowner’s association’s covenants, conditions and restrictions (commonly referred to as “CC & R’s”).

251*251 The association’s original complaint against Cunningham was soon settled; Cunningham agreed to abide by the rules. His cross-complaint against the association, by contrast, went to trial, with the issue being the reasonableness of the association’s conduct after the litigation started. The trial was bifurcated between liability and damage phases, and the jury found in favor of Cunningham on the liability issue. However, before the damage phase could be heard, the trial judge granted the association’s new trial motion, stating he believed the association had acted reasonably. And he went on to say that he would keep on granting new trial motions as long as the jury returned liability verdicts for Cunningham. Cunningham then petitioned for a writ to set aside the new trial order, which we now grant.

Treating the new trial order as what it really was—a judgment notwithstanding the verdict—it cannot stand. The association’s behavior, in particular the sheer presumption of telling Cunningham what sort of reading material he could keep in his own home, was easily the sort of conduct that the jury could find was unreasonable and beyond the association’s rights as stated in the CC & R’s. We hasten to add, however, that this is all we decide. We do not hold that a letter from the lawyers for a homeowner’s association threatening litigation unless an adult cleans up his or her own room is necessarily actionable. That issue has not been briefed. It is enough for the moment that we merely hold that, given the actual CC & R’s involved, the demands set forth in the letter were unreasonable.

The homeowner’s association also sued the Department of Veterans Affairs, hoping to make it also responsible to clean up what it perceived to be Cunningham’s mess. The trial judge ruled in favor of the Department on that one, holding that it was, insubstance, a lender, not an owner. We affirm the judgment in favor of the Department because the applicable statute, Civil Code section 2920, also looks to substance over form.

FACTS

Robert Cunningham bought an attached home subject to the CC & R’s of theFountain Valley Chateau Blanc Homeowner’s Association with the help of the Department of Veterans Affairs. The deal was structured as a traditional land sale installment contract, with the Department taking title and entering into a recorded contract with Cunningham which showed him as the real purchaser of the property.

In September 1993 a roofing contractor hired by the association complained that he could not maneuver his equipment in Cunningham’s backyard due to “debris” there. That, and some previous complaints by neighbors, generated a letter from the association’s lawyers demanding Cunningham not only clear his patio, but also open up the interior of his unit because there had been reports of fire hazards inside.

In November 1993 Cunningham allowed association representatives to inspect his home—albeit under threat of litigation. After the inspection Cunningham removed a number of personal items from the house.

On December 9, 1993, the association returned for another inspection and decided Cunningham still had not removed enough of his belongings. That inspection generated another letter threatening litigation.

Litigation came on March 14, 1994, based on alleged fire and safety hazards arising from the junk and paper stored in and about Cunningham’s home. The association named both Cunningham and the Department as defendants.

In May 1994, however, housing code and fire inspectors found no hazardous conditions on the property. Still, the association continued with the litigation. And in early February 1995, the association’s attorneys wrote a lengthy letter to Cunningham detailing the inadequacies of Cunningham’s housekeeping and demanding he undertake a number of actions concerning the interior of his home. He was told to:

— Clear his bed of all paper and books.

— Remove paper, cardboard boxes and books from the floor area around his bed and dresser.

252*252 — Remove all boxes and papers not currently in use in the living room and dining room because they increased the risk of fire.

— Clear all objects, including cardboard boxes, from his interior stairs and stairwells to allow passage.

— Not use his downstairs bathroom for storage.

— Maintain a functioning electrical light in his downstairs bathroom.

On top of these demands, the letter contained this statement: “The Association suggests that all outdated clothing that has not been worn in the last five years be removed and/or donated to the Salvation Army or similar organization. This would allow the upstairs bathroom to be used for what [sic ] designed for. Any other remaining clothes could be stored in a walk-in closet.” The letter further told Cunningham that “[b]ooks that are currently in book shelves, and which are considered standard reading material, can remain in place.” It ended by reminding him that the association’s attorney fees had reached over $34,000 and were continuing.

Cunningham has Hodgkins’ disease and had been, up to that point, representing himself. In February 1996, however, he found an attorney who agreed to represent him. His new attorney then obtained leave to file a cross-complaint against the association based on a variety of causes of action, including violations of the right to privacy, trespass, negligence and breach of contract, predicated on the association’s use of the threat of litigation to gain entry to his home and force him to throw out various of his personal belongings. What the association had characterized as “debris” now had a name: “furniture, magazines, books, appliances, bookshelves, plants, bicycles, camping equipment and other personal items.”

The complaint eventually was settled in August 1996, with Cunningham stipulating he was subject to the association’s CC & R’s and agreeing to such things as keeping his patio clean, maintaining reasonable access through his garage, and not storing gasoline or kerosene in the interior of the residence.

The complaint against the Department then went to a bench trial in September 1996, with judgment entered in favor of the Department in December 1996. The judgment declared that the Department was not the legal owner of the property or responsible for compliance with the CC & R’s. The association then timely appealed from that judgment.

Meanwhile, Cunningham’s cross-complaint against the association had been first bifurcated into liability and damage portions, with the liability portion tried separately in March 1996. During the trial, the judge denied the association’s requests for a nonsuit and directed verdict, stating there was sufficient evidence for the case to go to the jury. The case went to the jury on an instruction asking it to determine the reasonableness of the association’s “activities toward the plaintiff in regard to its alleged requests and/or demands to plaintiff for the removal of items from inside the residence” during the period June 14, 1994 through May 1996. The jury was then told that the association acted reasonably if Cunningham’s activities “actually posed an unreasonable risk of fire danger” or if it “sincerely, though mistakenly, believed, under the circumstances known to it, that [Cunningham’s] residence constituted an unreasonable risk of fire danger.” On the other hand, the jury could find that the association was unreasonable if “no reasonable person” would have “believed under the circumstances known at the time” that Cunningham’s residence “posed an unreasonable risk of fire danger.”

On March 12, 1997 the jury returned a verdict in favor of Cunningham on the liability issue, having specifically found that the association had acted unreasonably. Less than a month later, the association responded with a motion for judgment notwithstanding the verdict or, in the alternative, for new trial.

On May 6, the trial judge stated that he believed the association acted “totally reasonably” and therefore he would “breach the pure law” and grant the new trial motion even though the damages phase had not yet been tried. Such a trial would be a “complete waste of time.” Indeed, said the trial court, “if we try it again on the same facts, 253*253 you can look for the same ruling.” The court set a new trial for November 1997. Cunningham petitioned for a writ commanding the trial court to set aside the new trial order. We consolidated the writ proceeding with the association’s appeal from the judgment in favor of the Department of Veterans Affairs.

DISCUSSION

A Trial Court Cannot Grant a Judgment Notwithstanding the Verdict By Perpetually Granting New Trial Motions

At the outset we must confront a serious anomaly in California’s procedural law regarding attacks on decisions made by juries. Typically, if a defendant believes that the plaintiff has not presented substantial evidence to establish a cause of action, the defendant may move for a nonsuit if the case has not yet been submitted to the jury, a directed verdict if the case is about to be submitted, or a judgment notwithstanding the verdict (jnov) following an unfavorable jury verdict.

While made at different times, the three motions are analytically the same and governed by the same rules. (See Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 327, 274 Cal.Rptr. 766 [“different aspects of the same judicial function and have long been held to be governed by the same rules”].) The function of these motions is to prevent the moving defendant from the necessity of undergoing any further exposure to legal liability when there is insufficient evidence for an adverse verdict. (E.g., Reynolds v. Willson (1958) 51 Cal.2d 94, 99, 331 P.2d 48.) Put another way, the purpose of motions for nonsuit, directed verdicts and jnovs is to allow a party to prevail as a matter of law where the relevant evidence is already in.

And naturally, given the constitutional right to jury trial and a policy of judicial economy against willy-nilly disregarding juries’ hard work (even, in the case of a motion for nonsuit, the work of the jury in listening to the case up to that point), the basic rules regarding these motions are predictably strict. Conflicts in the evidence are resolved against the moving defendant and in favor of the plaintiff; all reasonable inferences to be drawn from the evidence are drawn against the moving defendant and in favor of the plaintiff. (See, e.g., Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291, 253 Cal.Rptr. 97, 763 P.2d 948 [for nonsuit, “`every legitimate inference which may be drawn from the evidence'” should be drawn in plaintiffs favor, and the evidence should be evaluated “`in the light most favorable to the plaintiff “];CC-California Plaza Associates v. Poller & Goldstein (1996) 51 Cal.App.4th 1042, 1050-1051, 59 Cal.Rptr.2d 382 [`”A nonsuit or a directed verdict may be granted “only when, disregarding conflicting evidence and giving to plaintiffs evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.”‘”]; Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510, 65 Cal.Rptr.2d 266 [for judgments notwithstanding the verdict, “`”[i]f there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied”‘”].)

By contrast, the motion for a new trial has a different purpose. As the Supreme Court noted in the famous case of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 458-459, 20 Cal.Rptr. 321, 369 P.2d 937, the function of a new trial motion is to allow a reexamination of an issue of fact.

The difference in purpose means a difference in standards. Unlike nonsuits, directed verdicts, and judgments notwithstanding the verdict—we will call these the “dispositive” motions—granting a new trial does not entail a victory for one side or the other. It simply means the reenactment of a process which may eventually yield a winner. Accordingly, the judge has much wider latitude in deciding the motion (e.g.,Jones v. Evans (1970) 4 Cal.App.3d 115, 121, 84 Cal.Rptr. 6), which is reflected in an abuse of discretion standard when the ruling is reviewed by the appellate court. A new trial motion allows a 254*254 judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse. (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315.) Hence, given the latitude afforded a judge in new trial motions, orders granting new trials are “infrequently reversed.” (Id. at p. 113, 65 Cal.Rptr. 315, 436 P.2d 315.)

Now here is the anomaly. The reason for the “dispositive” motions is that the plaintiff cannot win, because the plaintiff has presented insufficient evidence to support a favorable judgment. Yet a new trial motion may itself be based on insufficient evidence to support a favorable judgment. (Code Civ. Proc., § 657, clause 6 [“for any of the following causes … :[¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.”].) Moreover, even though there are some extra requirements on the judge before he or she may grant a new trial on insufficient evidence,[1] the fact remains that the trial judge may, in granting such a motion, draw inferences and resolve conflicts in the evidence different from that of the jury. (E.g., Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 440, 142 Cal.Rptr. 304 [“`In passing upon a motion for a new trial made upon the ground of insufficiency of the evidence the trial judge is required to weigh the evidence; and in doing so he may disbelieve witnesses and draw inferences contrary to those supporting the verdict.'”].) Accordingly, it is natural to ask, if a trial judge is convinced that a litigant has no substantial evidence to justify a favorable judgment, why take the hard and narrow road of granting one of the dispositive motions with the attendant stringent standard of review when he or she can take a much easier and wider path by granting a new trial?

The answer is this: Inherent in the new trial statute is the following, but unstated, premise: When a trial judge grants a motion for new trial based on insufficiency of the evidence, it is not because the judge has concluded that the plaintiff must lose, but only because the evidence in the trial that actually took place did not justify the verdict.[2] Evidence might exist to justify the verdict, but for some reason did not get admitted; perhaps the plaintiffs attorney neglected to call a crucial witness or ask the right questions. There is still the real possibility that the plaintiff has a meritorious case. Indeed, such a conclusion is a simple corollary from the observation of our Supreme Court in the venerable Auto Equity decision that the essential function of the new trial is to re-examine the evidence. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp. 458-459, 20 Cal.Rptr. 321, 369 P.2d 937.) At the same time, misuse of a new trial motion as a dispositive motion renders surplusage the Legislature’s provisions for nonsuits, directed verdicts, and judgments notwithstanding the verdict. (See Code Civ. Proc., §§ 581c, 629-630 [providing respectively for dispositive motions].)

It is true that we might analyze the judge’s grant of a new trial prior to the trial of the damages issue as a simple error of prematurity. The trial judge himself appears to have recognized that he was legally incorrect—”breach the pure law” was the telltale phrase—in not waiting for the damages phase to be completed.[3]

255*255 But that wasn’t the real error. The real error was misusing a motion for new trial as a de facto dispositive motion; the trial court signaled its intention by stating on the record that plaintiff could never prevail given the reasonableness of the defendant’s position.[4] Moreover, the trial court pointed to no problem in the process of the trial which warranted a retrial.[5] The bottom line is that the judge might as well have said the association acted reasonably as a matter of law and given judgment for the defendant there and then.

We will therefore not review the trial judge’s new trial decision according to the usual abuse of discretion standard. It is clear from the record that the granting of the motion was a de facto judgment notwithstanding the verdict, and we will review the order according to those standards.[6] This resolution is important, because it means that we must conclude the jury rejected the association’s “sincere-though-mistaken” belief in the fire danger posed by Cunningham’s unit, and that, as a matter of the technical minutia of combustibility, no reasonable person would believe there really was a risk of fire.

There is precedent for looking to the substance of a new trial motion rather than just its title. In Jean v. Collins Construction Co. (1963) 215 Cal.App.2d 410, 30 Cal.Rptr. 149 the defendant moved for nonsuit. The motion was granted, then the plaintiff moved for a new trial on the ground that granting the nonsuit was error. That motion was also granted. On appeal, the court looked to the substance of the so-called new trial motion and determined it wasn’t a new trial motion after all, but simply a request to reconsider the earlier nonsuit. (Id. at p. 414, 30 Cal. Rptr. 149.) Along the same lines, we will treat the trial judge’s order as what it really was: the granting of a judgment notwithstanding the verdict. In that sense, this writ proceeding has thesubstance of an appeal from such a judgment.

It Cannot Be Said That the Association Acted Reasonably As a Matter of Law

The association argues it was perfectly reasonable for the trial judge to grant a motion for new trial after the completion of the liability phase because the trial judge decided “all issues” of liability against Cunningham. As we have pointed out above, the logical implication of this argument is that the trial judge did not, in substance, grant a new trial motion but a de facto judgment notwithstanding the verdict.

While we must pass on the propriety of the judge’s decision to grant the de facto jnov, we stress that there are at least two issues which we expressly do not decide in this proceeding: (1) Whether the association can be held liable for gaining access and ostensible voluntary removal of property through no more than a threat of court proceedings. (I.e., whether the mere specter of lawful resort to the courts can ever be the kind of “coercion” that would violate the CC & R’s.) (2) Whether the jury should have even decided 256*256 the question of whether the association’s actions were reasonable. It is, of course, one thing for the jury to determine, as factual matters, that there really was no fire danger posed by Cunningham’s unit, or that the association actually believed in a fire danger. Those are matters of fact. It is another to allow the jury (as distinct from the judge) to make the ultimate call that, at the end of the day, the association acted “unreasonably.” However, because the association has not raised these specific points in its defense, we do not address them.

Turning then to what we must decide, we begin with the now established fact that there was no actual fire danger that a reasonable person would perceive—the relevant city departments had, after all, found no fire hazard. Further, the association did not have a good faith, albeit mistaken, belief in that danger. The jury resolved those questions against the association and, in what is really an appeal from a judgment notwithstanding the verdict, those are the operative facts.

In light of those operative facts, it is virtually impossible to say the association acted reasonably. It is true the CC & R’s require “owners” to “maintain the interiors of their residential units and garages, including the interior wall, ceilings, floors and permanent fixtures and appurtenances in a clean, sanitary and attractive condition.”[7] It is also true that they provide for entry by the board “when necessary in connection with maintenance, landscaping or construction for which the board is responsible.”[8] But these sections of the CC & R’s cannot reasonably be read to allow an association to dictate the amount of clutter in which a person chooses to live; one man’s old piece of junk is another man’s objet d’ art. The association’s rather high-handed attempt to micromanage Cunningham’s personal housekeeping—telling him how he could and could not use the interior rooms of his own house—clearly crossed the line and was beyond the purview of any legitimate interest it had in preventing undesirable external effects or maintaining property values.

Particularly galling to us—and clearly to the jury as well—was the presumptuous attempt to lecture Cunningham about getting rid of his old clothes, the way he kept his own bedroom, and the kind of “reading material” he could have.[9] To obtain some perspective here, we have the spectacle of a homeowner’s association telling a senior citizen suffering from Hodgkin’s Disease that, in effect, he could not read in his own bed![10] When Cunningham bought his unit, we seriously doubt that he contemplated the association would ever tell him to clean up his own bedroom like some parent nagging an errant teenager.

If it is indeed true that homeowner’s associations can often function “as a second municipal government” (Chantiles v. Lake Forest II Master Homeowners Assn.(1995) 37 Cal.App.4th 914, 922, 45 Cal.Rptr.2d 1), then we have a clear cut case of a “nanny state”— nanny in almost a literal sense—going too far. The association’s actions flew in the face of one of the most ancient precepts of 257*257 American society and Anglo-American legal culture. “A man’s house is his castle” was not penned by anonymous, but by the famous jurist Sir Edward Coke in 1628.[11]

The jury could thus find that the association did not act reasonably under the circumstances (and that is all we decide). The de facto judgment notwithstanding the verdict masquerading as a new trial order therefore must be the de facto equivalent of reversed. The case must now proceed to damages.

The Department of Veterans Affairs Was Indeed a Lender, Not an Owner, and Therefore Not Bound By The CC & R’s

Cunningham purchased his home through the state “Cal-Vet” program enacted after World War I—not to be confused with the traditional “G. I. Loan” program operated by the federal government. (See generally Department of Veterans Affairs v. Duerksen(1982) 138 Cal.App.3d 149, 155, 187 Cal.Rptr. 832.)[12] The Cal-Vet program (see Mil. & Vet.Code, § 987.50 et seq.)[13] is specifically targeted at California veterans. (See generally Del Monte v. Wilson (1992) 1 Cal.4th 1009, 4 Cal.Rptr.2d 826, 824 P.2d 632 [holding that conditioning program on California residency at a “fixed point in the past” violated the federal equal protection clause].) The program is funded by general obligation bonds. (Former § 987.567.)

In keeping with its early 1920’s enactment, and in contrast with the federal program (in which the Department of Veterans Affairs guarantees loans to buy homes), the state program operates by having the Department of Veterans Affairs take title to the home the veteran seeks to buy, with the veteran entering into a long term installment contract with the Department at a low rate of interest. (Id. at p. 151, 187 Cal.Rptr. 832; see §§ 987.69, 987.51.) The device of taking title allows the Department to assure that a veteran or a member of his or her family will actually reside on the property until the loan is paid off or the property is sold. (See Nadler v. California Veterans Board (1984) 152 Cal.App.3d 707, 712, 199 Cal.Rptr. 546; § 987.60.) Of course, there are provisions for a waiver of occupancy requirements under certain circumstances, including reentry into active military service. (§§ 987.62-987.63.)

The installment sales contract obligates the veteran to keep the property “in good order and repair all buildings, fences, and other permanent improvements,” and maintain insurance. (§ 987.75.) In the same vein, the veteran must pay all taxes and assessments and other charges against the property and keep the buildings on it in “good order and repair,” and, if he or she doesn’t, the Department has thediscretionary right to pay the taxes and assessments or even do repair work itself. (§ 987.75; cf. Brown v. Department of Veterans Affairs (1986) 178 Cal.App.3d 392, 224 Cal.Rptr. 149 [noting Cal-Vet did not have a duty to procure insurance, but could do so at its discretion and assess the cost to the veteran].)[14]

Because Cal-Vet loans involve land sale installment contracts, they are, as a technical matter, loans enforced by a forfeiture rather than a foreclosure. (Duerksen, supra, 138 Cal.App.3d at p. 157,187 Cal.Rptr. 832 [“The simple fact is that the Legislature has, by section 987.77, expressly authorized the Department to force a forfeiture when a veteran breaches his Cal-Vet contract.”].) Indeed, the applicable statute, section 987.77, provides for a classic forfeiture remedy. (“All payments theretofore made shall be deemed to be rental paid for occupancy.”)

However, when read in conjunction with section 2920, subdivision (b) of the Civil 258*258Code, it is clear that a Cal-Vet sales contract is still, in reality, a mortgage. That statute provides that “any security device or instrument, other than a deed of trust, that confers a power of sale … after a breach of the obligation” is a mortgage for purposes of default (see also Civ.Code, § 2924).

As Civil Code section 2920 would lead one to believe, the Department clearly acts as a lender, as distinct from owner, on a Cal-Vet loan. The veteran retains control and actual possession of the property; he or she has all the indicia of ownership except legal title.

Accordingly, we must agree with the trial court that because the Department functions as a lender, not an owner, it is not bound by the CC & R’s.[15] The Department only had options against Cunningham’s poor management of the property, not obligations. The Department did not control how Cunningham kept house, he did. The idea that it might be held responsible as a kind of backup enforcement arm to the homeowner’s association is simply a makeweight to support a claim against the Department for legal fees.

Our conclusion should hardly serve as some novel legal sunburst. Anyone who has ever bought a home would understand that the true legal substance of the veteran’s loan obtained by Cunningham was to make him the owner of the house, with the Department being the lender, even if technical legal title were retained in the Department as a security device. The law always favors substance over form as a general rule in any event (see Civ.Code, § 3528), but here we even have a specific statute, Civil Code section 2920, subdivision (b), which mandates that we look to the substance of an installment sales contract as well. The trial judge was, accordingly, correct in rendering judgment for the Department.

DISPOSITION

The judgment in favor of the Department is affirmed. The Department is to recover its costs on appeal.

Let a peremptory writ of mandate issue directing the trial court to vacate the order granting the association’s new trial motion and to enter a new and different order denying the motion, and to proceed with the second half of the bifurcated trial on the issue of damages. Cunningham is to recover his costs.

Because the trial judge predetermined that Cunningham was to lose, we direct the presiding judge of the superior court to reassign the case to another judge for further proceedings. (Code Civ. Proc., § 170.1, subd. (c).)

WALLIN and BEDSWORTH, JJ., concur.

[*] Kennard, J., dissented.

[1] The 10th paragraph of section 657 of the Code of Civil Procedure provides: “A new trial shall not be granted upon the ground of insufficiency of the evidence … unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.”

[2] The questions arise: Suppose there is evidence to justify the jury’s verdict, but the great weight favors the other side? Would granting a new trial be an abuse of discretion because it represented a substitution of the court’s view for the jury’s? We need not explore these matters. We need only note for the moment that a new trial motion based on insufficient evidence certainly entails the possibility that the plaintiff could still win on retrial.

[3] And in that respect he was right: It is well established hornbook law that a motion for new trial is premature where the plaintiff has prevailed on the liability issue if the motion is made before the damages phase has even commenced (Cal. Rules of Court, rule 232.5 (“Any motion for a new trial following a bifurcated trial shall be made after all the issues are tried ….”); e.g., Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp. 458-459, 20 Cal.Rptr. 321, 369 P.2d 937; Cobb v. University of So. California (1996) 45 Cal.App.4th 1140, 1144-1145, 53 Cal. Rptr.2d 71; Horton v. Jones (1972) 26 Cal. App.3d 952, 955-956, 103 Cal.Rptr. 399; Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal.App.3d 933, 937, 149 Cal.Rptr. 808.)

[4] That is because the trial judge said so, clearly, on the record. But what is to prevent a trial judge, bound and determined to wear down one of the litigants, from granting a new trial motion on the ground of insufficiency of the evidence and then discreetly keeping mum? The answer is that the granting of a second new trial motion based on insufficient evidence after the plaintiff has again prevailed requires the appellate court to look at the whole record to see if the trial court is up to any sort of unarticulated mischief.

[5] The announced intention to assure that plaintiff never won would mean that granting of the new trial motion in this case would constitute an “abuse” of the trial judge’s discretion, even assuming that were the applicable standard.

[6] In support of the grant of the new trial motion, the association makes a “judicial economy” argument, i.e., there is no reason to waste time with a damage trial if the plaintiff must lose anyway. The irony here is that this very argument underscores the essential nature of the motion not as a new trial motion, but as one for a jnov.

[7] Article XIII of the CC & R’s states: “The owners shall maintain the interiors of their residential units and garages, including the interior walls, ceilings, floors and permanent fixtures and appurtenances in a clean, sanitary and attractive condition, reserving to each owner, however, complete discretion as to choice of furniture, furnishings and interior decorating and interior landscaping.”

[8] Article XIV states: “The Board or its agents may enter any unit when necessary in connection with maintenance, landscaping or construction for which the Board is responsible. Such entry shall be made with as little inconvenience to the owners as practicable, and any damage caused thereby shall be repaired by the Board, at the expense of the maintenance fund.”

[9] At oral argument, counsel for the association was confronted with the letter concerning “appropriate reading material” and what Cunningham could have strewn about his own bed. Counsel conspicuously did not make an argument that the letter was a matter of minimizing combustible materials qua combustible materials. Temperatures must, after all, get pretty high before paper starts burning. (Cf. Bradbury, Fahrenheit 451 (1953).)

[10] Or, to give the association the benefit of the doubt, of telling him that he had to limit the amount of books, newspapers and magazines within easy reach when he did read in bed.

[11] Oxford Dictionary of Quotations (1992) at page 209, referencing The Third Part of the Institutes of the Laws of England (1628).

[12] The G.I. Loan program is now set forth at 38 U.S.C. sections 3700 et seq.

[13] All further statutory references are to the Military and Veterans Code unless otherwise noted.

[14] The statute is very clear that the power is discretionary, not mandatory. Section 987.75 provides in pertinent part: “If the purchaser fails or neglects to pay … [or] satisfy … all … assessments, and all other charges and encumbrances which are a lien upon the property being purchased from the department … or to keep the buildings … in good order and repair … then, in such event, the department may pay … [or] satisfy … assessments, charges, or encumbrances.” (Emphasis added.)

[15] We certainly do not discern any blanket rule, however, that anyone who can be styled in some sense as a “lender” is automatically free of the CC & R’s. A much harder case, for example, would be one where a homeowner leased out his or her residence with an option to buy.

 

Keywords: Governing Documents, Interpretation

Haley v. Casa del Rey Homeowners Assn.

Haley v. Casa del Rey Homeowners Association

63 Cal.Rptr.3d 514 (2007)

Summary by Mary M. Howell, Esq.:

Facts

Homeowners in a small condominium complex had been in the habit for many years of using common areas adjacent to their units for their own gardens and passages. When a homeowner objected to this use of the common area and demanded the board sue offending homeowners, the board circulated a CC&R amendment to legitimate the use. The CC&R amendment passed. Homeowner sued the board for alleged breach of fiduciary obligation.

Held

For association. The association has the discretion to select among various means for remedying violations of the CC&Rs, without resorting to time-consuming and expensive litigation. The amendment was characterized as a “reasonable and commonsense solution” to the homeowner’s complaints.

*** End Summary ***

Haley v. Casa del Rey Homeowners Assn.

63 Cal.Rptr.3d 514 (2007)

518*518 Patricia A. Gregory, Carlsbad, CA, for Plaintiffs and Appellants.

Shifflet, Kane & Konoske, Gregory Konoske and D. Amy Akiyama, San Diego, CA, for Defendants and Respondents Casa del Rey Homeowners Association, Patricia Lego and Doris Giannini.

Gates, O’Doherty, Gonter & Guy, Douglas D. Guy and Nikki H. Love, San Diego, CA, for Defendant and Respondent Pam Bargamian.

McCONNELL, P.J.

This case arises from a dispute concerning use of the common area at the Casa Del Rey condominium building. Terri Haley and William Haley (together Haley when appropriate) appeal a judgment entered after (1) the trial court granted nonsuit on causes of action against the Casa Del Rey Homeowners Association (the Association) for nuisance and negligence, and on a cause of action against Pam Bargamian for defamation, and ruled in the Association’s favor on a cause of action against it for declaratory and injunctive relief, and (2) the jury found against Haley on a cause of action against the Association for breach of contract, and on a cause of action against the Association, Patricia Lego and Pam Giannini for breach of fiduciary duty.

Haley contends the court abused its discretion by granting nonsuit on the causes of action for nuisance and defamation, refusing to grant declaratory and injunctive relief, and refusing to modify jury instructions pertaining to the availability of nominal damages for breach of contract. Haley also challenges the timeliness of the defendants’ memorandum of costs. We affirm the judgment.[1]

519*519 FACTUAL AND PROCEDURAL BACKGROUND

The Casa Del Rey condominium building has 18 units evenly divided between the first and second floors. The lower units have small concrete patios for owners’ exclusive use. A few feet of flat ground extends westerly beyond the patios to an ivy-covered downward slope. Originally, the flat ground was also covered with ivy, but many years ago most lower unit owners removed the ivy and replaced it with tile pavers or concrete to extend their patio areas. Some owners also placed items in that portion of the common area such as railroad ties, trellises, plantings and flower pots.

In 1998 Terri Haley and William Haley purchased a downstairs unit at Casa Del Rey, and at the time pavers and a hedge were in the common area beyond the patio. Terri Haley moved into the unit in early 2000.

In 2003 Haley and another resident of Casa Del Rey with whom she was close friends, Shawn Frampton, complained to the Association about the encroachments in the common area, even though their units both had patio extensions. Their complaints reportedly arose after a resident yelled at Frampton for walking on a railroad tie near her patio, and Haley slipped on the slope as she attempted to avoid encroachments.

In a July 2003 letter, the Association’s management company, Cal West Management & Sales (Cal West), notified owners of the complaint. The following month the Association held meetings regarding the issue. The Association also established committees and asked owners to give input as to what should be done with the small strip of common area at issue. At one meeting, a majority of owners agreed that personal items should be removed from the common area and the Association should consult an attorney about amending the covenants, conditions, and restrictions (CC & R’s) to give it authority to grant owners an exclusive use easement over that area. Under the CC & R’s, the right to use of the common area could be changed by a vote of at least 60 percent of the owners.

In October 2003 the Association circulated a draft amendment to the CC & R’s that would give it discretion to allow patio extensions. It stated, “The Board shall have the right to allow one or more owners to use portions of the common area, provided that such portions of the common area are nominal in area and adjacent to the owner’s separate interest, do not encroach upon another owner’s restricted common area; and provided further that such use does not unreasonably interfere with any other homeowner’s use or enjoyment of the development.” The amendment is intended to preserve the privacy of owners of the lower units.

The Association sent owners a ballot on the matter. Bargamian, who was then on the board of directors, certified under penalty of perjury that 16 of the 18 owners voted in favor of the amendment. Bargamian, however, did not actually see the ballots. Signe Osteen, who managed the Association through Cal West, had personally counted the ballots and determined more than 60 percent of the owners voted for the amendment. Subsequently, the ballots were misplaced. Bargamian said she got the information in her certification from Osteen. According to Osteen, she did not tell Bargamian that 16 owners approved the measure, but rather that 520*520 more than 60 percent of them approved the measure.

Most of the owners removed their pavers and other encroachments from the common area, including Haley, but some did not. The common area beyond the back patios now largely consists of dirt instead of patio extensions. Under the amendment to the CC & R’s, the Association has approved some encroachments.

In January 2004 the Haleys sued the Association, Lego, Giannini and Bargamian. A second amended complaint included causes of action against the Association for declaratory and injunctive relief, breach of the CC & R’s, nuisance and negligence; a cause of action against the Association, and Lego and Giannini, who were formerly on the Association’s board of directors, but not when the amendment to the CC & R’s was adopted, for breach of fiduciary duty; and a cause of action against Bargamian for slander.[2]

The cause of action for declaratory and injunctive relief alleged: “Throughout 2003, [Haley] protested the policy allowing private capture of common area. As a result, [she] incurred substantial attorney’s fees to contest the policy which has resulted in [the Association] only recently asking, but not forcing, condo owners to remove some of the encroachments, while at the same time, seeking to revise the CC & Rs so as to allow ongoing and future encroachments.” The breach of contract cause of action alleged the defendants’ failure to enforce the CC & R’s caused Haleydamages including her “valuable time and attorneys’ fees incurred to respond to and protest the Board actions,” diminution in property value, and “additional condominium dues or fees for wasteful and/or improper activities.”

The breach of fiduciary duty cause of action alleged the defendants failed to make reasonable and good faith efforts to enforce the CC & R’s. Further, it alleged that from 2003 Giannini, Lego and the Association had “undertaken regular and pernicious harassment of [Haley] because [she was] outspoken … regarding the encroachments on common areas.” The complaint alleged a variety of wrongdoing, including disregarding Haley’s complaints about owners’ violations of the CC & R’s, and the mounting of a hate campaign against Haley that included such things as telling owners not to talk to her, forbidding her from distributing information pertaining to the Association, directing owners to return Haley’s letters unopened, leaving eggs on her doorstep, telling her she could not walk in the common area, calling her names such as “`chicken liver shit,'” telling her she should move because she is hated, and telling owners and the police she is schizophrenic when she is not. The complaint also challenged the validity of the vote in which the amendment to the CC & R’s was made.

The nuisance cause of action alleged that by allowing encroachments in the common area, the Association “created and maintained a nuisance which substantially and unreasonably interferes with [Haley’s] use and enjoyment of property and comfortable enjoyment of life at Casa Del Rey.” It also alleged that “[b]y failing to inspect, maintain, and repair the common pipes, plumbing, and waterworks of Casa[D]el Rey … [the Association has] created and maintained a nuisance.” The negligence cause of action was also based on plumbing problems. It alleged that on August 4, 2003, her condominium was flooded by sewage from her toilet, and she endured five subsequent sewage floods. 521*521 The Association allegedly “cleaned and restored other affected condos but failed to take appropriate actions to decontaminate and restore [Haley’s condominium], thereby creating a Level 3 sewage contamination and destroying much of [the condominium].”

The slander cause of action against Bargamian alleged she falsely published to a third party (Frampton) that Haley “was having sex with [her son] William and Frampton …, and later published that [she] was having group sex with William and Frampton.” (Some capitalization omitted.)

A jury trial was held in January 2006. After the close of Haley’s evidence, Bargamian successfully moved for a nonsuit on the slander cause of action on the ground she presented no evidence on the publication element of the tort. The court also granted the Association’s motion for nonsuit on the negligence cause of action because of a lack of causation, and on the nuisance cause of action as it was essentially also based on allegations of negligence.

After the presentation of all evidence and closing arguments, the jury returned a special verdict form in which they found the Haleys substantially performed under the CC & R’s, and the Association failed to do something unspecified that the CC & R’s required, but its conduct was not a substantial factor in causing Haley any harm. The jury found the Association, Lego and Giannini did not breach their fiduciary duty to the Haleys.

The court ruled against the Haleys on their cause of action for declaratory and injunctive relief, finding the defendants enforced the CC & R’s in a fair and consistent manner, the amendment to the CC & R’s was lawfully passed and there was no breach of fiduciary duty. The court also designated the Association the prevailing party for purposes of attorney fees. It awarded Bargamian costs of $5,039, and the Association attorney fees of $169,956.26 and costs of $14,800.26. The Haleys unsuccessfully moved for a new trial, and judgment was entered for the defendants on April 10, 2006.

DISCUSSION

I

Breach of Contract Damages

Haley contends the court erred by allowing “a special verdict that specifically included the word substantial, thus precluding nominal damages [on her breach of contract cause of action]. At trial, there were objections made to the jury instructions. Erroneous jury instructions allowing the word substantial to remain caused confusion upon [sic] the jury. In fact, [the Association] made several requests to modify the jury instructions but only one addition was allowed.”

Nominal damages may be awarded in a breach of contract action (Civ.Code, § 3360; CACI No. 360), but the Haleys do not cite the appellate record to show they requested an instruction on nominal damages or made any objection to the instructions or the special verdict form. “The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) Accordingly, where a party provides a brief “without argument, citation of authority or record references establishing that the points were made below,” we may “treat the points as waived, or meritless, and pass them without further consideration.” (Troensegaard v. Silvercrest Industries,522*522 Inc. (1985) 175 Cal.App.3d 218, 228, 220 Cal.Rptr. 712.)

Even without waiver, however, Haley’s contention lacks merit. The court instructed the jury as follows: “To succeed on a claim for breach of the governing documents the plaintiffs must prove all of the following elements: [¶] Number one, that the plaintiffs did all or substantially all of the significant things that the contract required them to do. [¶] Second, the plaintiffs were excused from doing all of the significant things that the contract required them to do. [¶] Third, the defendants failed to do something that the contract required them to do. [¶] Fourth, that the failure of the defendants was a substantial factor in causing damage to the plaintiffs. [¶] Number five, the nature and extent of such damages.”

These instructions were proper (see CACI No. 303), and contrary to Haley’sposition, neither the instructions nor the special verdict form required a finding ofsubstantial damages. Rather, they required a finding the Association’s breach of contract was a substantial factor in causing damage. As the trial court noted in denying Haley’s motion for a new trial, “this business about substantial was an issue for causation. It wasn’t for damages.” “The test for causation in a breach of contract … action is whether the breach was a substantial factor in causing the damages. [Citation.] `Causation of damages in contract cases, as in tort cases, requires that the damages be proximately caused by the defendant’s breach, and that their causal occurrence be at least reasonably certain.’ [Citation.] A proximate cause of loss or damage is something that is a substantial factor in bringing about that loss or damage. [Citations.] The term `substantial factor’ has no precise definition, but `it seems to be something which is more than a slight, trivial, negligible, or theoretical factor in producing a particular result.'” (US Ecology, Inc. v. State (2005) 129 Cal.App.4th 887, 909, 28 Cal.Rptr.3d 894.)

Moreover, Haley presented no evidence of any damages caused by a breach of the CC & R’s, and in closing argument her attorney did not mention damages, even nominal damages. In the Association’s closing argument, its attorney pointed out there “is not one single piece of evidence… as to any damage [Haley] sustained.” The court’s instructions and the special verdict form did not result in a finding of no damages, Haley’s failure of proof did. Haley cites Maher v. Saad (2000) 82 Cal.App.4th 1317, 99 Cal.Rptr.2d 213, but it concerns jury instructions in a medical malpractice action and is inapplicable.

II

Declaratory and Injunctive Relief

Haley also contends the court improperly denied her request for declaratory and injunctive relief. “`A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action … against a defendant and that equitable relief is appropriate.’ [Citation.] The grant or denial of a permanent injunction rests within the trial court’s sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.] The exercise of discretion must be supported by the evidence and, `to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] review such factual findings under a substantial evidence standard.’ [Citation.] We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order.” (Horsford v. Board of Trustees of California State University 523*523 (2005) 132 Cal.App.4th 359, 390, 33 Cal.Rptr.3d 644.) The issue of whether declaratory relief is necessary or proper is also subject to review under the abuse of discretion standard. (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545, fn. 3, 40 Cal.Rptr.3d 253.)

Haley’s principal challenge is to the court’s finding the amendment to the CC & R’s giving the Association discretion to allow encroachments beyond the back patios of the lower units was lawfully passed. Haley cites Bargamian’s testimony that she did not see the owners’ votes, and in certifying the election result she relied on information she received from the Association’s manager, Osteen, that more than 60 percent of the owners voted for the amendment.

Haley, however, ignores the evidence supporting the court’s ruling. Osteen testified she personally counted the votes, more than 60 percent of the owners approved the amendment to the CC & R’s, and she reported that outcome to the Association at a board of directors meeting. Haley cites no evidence suggesting that fewer than 60 percent of the owners approved the amendment, or any authority for the proposition that the misplacement of the ballots or Bargamian’s certification of the result without personally counting the votes invalidates the vote. As to the latter issue, Osteen testified the votes identified the unit owners and the owners had a right of privacy as to how they voted.[3] Further, Karen Conlon, the president of the California Association of Community Managers and an expert in the field of property management, testified that “[t]ypically, the community management company will tally a vote,” and there was no voting irregularity. The court’s finding is supported by substantial evidence.

Haley also contends she is entitled to declaratory and injunctive relief because “removal of the encroachments [in the common area beyond the back patios] should have been enforced.” The evidence showed, however, that because of Haley’scomplaint the Association asked owners of the lower units to remove their encroachments and most of them complied. Conlon testified she had reviewed the Association’s records and “[t]here were numerous letters sent to all of the members requesting that they remove any personal items from common areas,” particularly the area of the patio extensions. Further, deposition transcripts showed that all but two owners complied. Injunctive relief is available to prevent future harm, not to address past harm. “An injunction is authorized only when it appears that wrongful acts are likely to recur.” (Russell v. Douvan (2003) 112 Cal.App.4th 399, 402, 5 Cal.Rptr.3d 137, italics added.)

To any extent the Association was unable to obtain 100 percent compliance, Haleydoes not cite any authority for the proposition that it was required to pursue an expensive and time-consuming lawsuit. To the contrary, the CC & R’s give the Association the right, but not the obligation, to file lawsuits against owners for violating their provisions. Conlon explained that while the Association is charged with enforcing the CC & R’s, 524*524 board members “also have the ability to use some discretion to do what they feel is in the best interests of the community.” She elaborated that “the business judgment rule comes [into] play, [and] boards have to take into consideration the interests of not only certain owners, but all owners and what is in the best interests of the community. They do what they think is best under the circumstances, whatever the circumstances are.” As an example, Conlon explained that if an owner was violating the governing documents but the homeowners association lacked the finances to pursue a lawsuit, the board “will continue to try to work with the owner to get them to comply with the governing documents.”

In any event, with the amendment to the CC & R’s the Association now has the discretion to allow encroachments under certain conditions to protect owners’ privacy. Haley agreed in her testimony that if the amendment was legally adopted she would abide by it. She stated, “I would have been willing to live with anything legal.” At another point she was asked whether she agreed “to be bound by what 60 percent of the voting members want to do, as far as how they govern themselves?” and she responded, “Yes.” Thus, she has conceded that the court’s finding on the vote issue resolves the encroachment matter and declaratory and injunctive relief is unwarranted.

Haley asserts there was “uncontroverted evidence” the Association discriminated by not enforcing the CC & R’s against “individual board members [who] admitted to violating the regulations.” The single cite she gives to the record is to the testimony of Giannini that “[o]ff and on” the Association notified her that her garage was in violation of the CC & R’s because it was so full of garage sale finds it had no room for a car. The Association did not ignore the matter, however, and it was not required to sue Giannini rather than handle the matter informally whenever the issue arose. This issue does not show the Association handled CC & R violations in a discriminatory manner.

The trial court found the Association fairly and consistently enforced the CC & R’s in accordance with the guidance set forth in Lamden v. La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249, 87 Cal.Rptr.2d 237, 980 P.2d 940 (Lamden). In Lamden, a condominium owner sued the community association for diminution in the value of her property after it decided to spot-treat termite infestation rather than fumigate. The court held as follows: “Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Id. at p. 253, 87 Cal.Rptr.2d 237, 980 P.2d 940.)

Lamden is not directly on point as this case does not concern ordinary maintenance decisions. However, we believe it also reasonably stands for the proposition that the Association had discretion to select among means for remedying violations of the CC & R’s without resorting to expensive 525*525 and time-consuming litigation, and the courts should defer to that discretion. Before Lamden, the Supreme Court explained that “[g]enerally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.” (Nahrstedt v. Lakeside Village Condominium Association, Inc. (1994) 8 Cal.4th 361, 374, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)

Further, because “a stable and predictable living environment is crucial to the success of condominiums and other common interest residential developments, and because recorded use restrictions are a primary means of ensuring this stability and predictability, the Legislature in [Civil Code] section 1354 has afforded such restrictions a presumption of validity and has required of challengers that they demonstrate the restriction’s `unreasonableness’ by the deferential standard applicable to equitable servitudes.” (Nahrstedt, supra, 8 Cal.4th at p. 368, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) Haley did not show the amendment to the CC & R’s is unreasonable.

To the contrary, the evidence shows that the portion of the common area where the patio extensions existed was never used as a walkway, and instead was covered by ivy until it was removed by owners who added pavers or other improvements. Further, because of the proximity of that portion of the common area to the patios and living spaces of the lower condominium units, unrestricted use of it would invade the privacy of lower unit owners. It would be untenable, for instance, for owners to place lawn chairs directly outside a lower unit’s patio and only a few feet from a living room or bedroom, or to use that portion of the common area as a thoroughfare.

Additionally, to any extent residents would be required to use the common area for egress in an emergency, Conlon and Osteen testified the pavers or other surfaces made passage safer. Conlon believed pavers were preferable to the dirt surface in place after removal of the improvements.

Mary Howell, the Association’s attorney, testified she had represented homeowner associations for approximately 25 years. The Association retained her in the summer of 2003 regarding Haley’s complaint about its “long-standing practice of letting homeowners expand what would be their exclusive use common areas into other areas of the common area.” Howell drafted the amendment to the CC & R’s, and she believed based on her research and knowledge that the Association had discretion to grant exclusive use of the common area in question if at least 60 percent of the owners approved the amendment, as required by the CC & R’s.[4]

Under all the circumstances, the amendment is a reasonable and common-sense solution to Haley’s complaints that the letter of the original CC & R’s was being violated. The court properly exercised its discretion by denying declaratory and injunctive relief.

526*526 III

Nonsuit on Nuisance Cause of Action[5]

Haley next contends the court abused its discretion by granting nonsuit on her nuisance cause of action against the Association “because the acts of the other homeowners and the [Association] interfered with [her] use and enjoyment of [her] property interest.”[6]

“`A motion for nonsuit or demurrer to the evidence concedes the truth of the facts proved, but denies as a matter of law that they sustain the plaintiff’s case. A trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference[,] which may be drawn from the evidence, it determines there is nosubstantial evidence to support a judgment in the plaintiff’s favor. [Citations.]'” (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677, 78 Cal.Rptr.2d 225.) We review the ruling on a motion for nonsuit independently, employing the same standard that governs the trial court. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542, 50 Cal.Rptr.2d 395.)

“Nuisance is the interference `with the comfortable enjoyment of life or property.’ … [T]o recover damages for nuisance the plaintiff must prove the defendant’s `invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer “substantial actual damage.”‘ The interference ` “must also be unreasonable.“‘ The test for determining whether the plaintiff has suffered an unreasonable interference with the use and enjoyment of his [or her] property `is whether the gravity of the harm outweighs the social utility of the defendant’s conduct.'” (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles(2004) 117 Cal.App.4th 1138, 1154, 12 Cal.Rptr.3d 493, fns. omitted.)

The nuisance cause of action in the second amended complaint alleged Haley had “been damaged as a result of the nuisance in an amount to be proved at trial.” As discussed, however, Haley adduced no evidence the Association’s conduct caused her any damage.

The nuisance cause of action also sought “injunctive relief to abate the nuisance.” As we explained above, however, the Association did require owners to remove encroachments when Haley complained, and now, through the amendment to the CC & R’s it has discretion to allow encroachments to protect the privacy of owners of the lower units. Haley failed to establish there was any unreasonable interference with her use and enjoyment of the property. Certainly, the privacy interests of the lower unit owners, including Haley, outweigh any arguable minor inconvenience to her caused by the inability to access the entire periphery of the condominium building. Presumably, the amendment to the CC & R’s will increase, rather than harm, Haley’s use and enjoyment of her unit. There is simply no nuisance to abate.

IV

Nonsuit on Defamation Cause of Action

Additionally, Haley contends the court abused its discretion by granting nonsuit on her defamation cause of action against 527*527 Bargamian on the ground the publication element of the tort was unsatisfied.

“Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. [Citation.]… A false and unprivileged oral communication attributing to a person specific misdeeds or certain unfavorable characteristics or qualities, or uttering certain other derogatory statements regarding a person, constitutes slander.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242, 7 Cal.Rptr.3d 576, 80 P.3d 676.)

“One of the elements of the tort of defamation is `publication.’ In general, each time the defamatory statement is communicated to a third person who understands its defamatory meaning as applied to the plaintiff, the statement is said to have been `published,’ although a written dissemination, as suggested by the common meaning of that term, is not required. Each publication ordinarily gives rise to a new cause of action for defamation.” (Shively v. Bozanich, supra, 31 Cal.4th at p. 1242, 7 Cal.Rptr.3d 576, 80 P.3d 676.) “Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.” (Hellar v. Bianco (1952) 111 Cal.App.2d 424, 426, 244 P.2d 757.)

Haley testified that one day she and Frampton were sitting at the computer in her home when Bargamian began pounding on Haley’s screen door and commanding Haley to ” `get over here.'” Haley told Bargamian to go away, but she refused. Bargamian accused Haley of wasting the time of Bargamian’s landscapers by talking to them earlier. Haley testified that after a few minutes she went to the door, and Bargamian called her a “chicken shit for not coming out.” Haley then went outside and Bargamian called her “ugly.” Haley retorted, “you have a fat butt.” According toHaley, Bargamian then said, ” `What’s this funny stuff going on between you and your son? I know something very funny is going on between you and your son…. I know you are having sex with your son,'” and “`you are also having sex with [Frampton]'” in a three-way arrangement.

Haley, however, produced no evidence Bargamian knew Frampton was at Haley’shome. Frampton testified he visited Haley at her home occasionally, but on the day in question he had no personal effects at the front door of her home that would notify Bargamian of his presence. Frampton said he never went to the door when Bargamian was there, explaining “I didn’t feel like I had an interest in it.” Frampton also testified he was in a bedroom of Haley’s home working on a computer and there was a wall between him and Bargamian and they could not see each other. Further, Frampton testified Haley never told Bargamian he was in her home.

Haley vaguely asserts “[i]t should have been the jury who decided whether … Bargamian did in fact see … Frampton in the mirror.” (Italics added.) Haley points to no evidence, however, suggesting Frampton could have seen Bargamian in a mirror. To the contrary, Frampton testified he and Bargamian could not see each other.Haley testified that when Bargamian pounded on her door, “I was able to see who it was from the mirror.” That testimony, however, did not concern Frampton.

Contrary to Haley’s position, it is not sufficient, standing alone, that Frampton overheard Bargamian’s accusation that Haley and her son had a sexual relationship. “If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication.” (Rest.2d Torts, § 577, com.k.) Here, the evidence does not indicate Bargamian had 528*528 any reason to believe Frampton would overhear her comments. Haley asserts that “[a]ny argument by … Bargamian as to whether or not she knew Frampton was present had yet to be made…. Bargamian’s credibility should have been assessed by the jury and not simply dismissed.” Haley, however, had the opportunity to but never questioned Bargamian on the issue. The nonsuit was proper.[7]

V

Memorandum of Costs

The jury returned its special verdict on January 25, 2006. On February 23, the Association, Lego and Giannini filed a memorandum of costs.[8] At a hearing on March 22, the court granted Haley’s motion to tax costs and took the amount of attorney fees and costs to be awarded under submission. On April 10, judgment on the special verdict was entered and it included an award of attorney fees and costs to the defendants.

Haley concedes the defendants were prevailing parties entitled to fees and costs and she does not challenge the amount of the award. She contends that under California Rules of Court, rule 3.1700(a)(1) the memorandum of costs was untimely.[9] Rule 3.1700(a)(1) provides in part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.”

Haley also cites Code of Civil Procedure section 664, which provides: “When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict within 24 hours after the rendition of the verdict, whether or not a motion for judgment notwithstanding the verdict be pending, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. If the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision. In no case is a judgment effectual for any purpose until entered.”

Haley asserts that “[e]ither the [m]emorandum of costs was filed too late following the entry of the judgment by the clerk on January 25, 2006, or was filed in advance of the entry of the judgment prepared by [the defendants] and filed on April 10, 2006. Either way, the memorandum of costs was not filed in compliance with [rule 3.1700].” In her motion to strike, Haley argued the cost memorandum was too late because it was not filed within 15 days of entry of the jury’s special verdict.

The interpretation of statutes presents questions of law subject to independent review on appeal. (Board of Retirement v. Lewis (1990) 217 Cal.App.3d 956, 964, 266 Cal.Rptr. 225.) “Our primary aim in construing any law is to determine the legislative intent. [Citation.] In doing so we look first to the words of the statute, giving529*529 them their usual and ordinary meaning.” (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501, 247 Cal.Rptr. 362, 754 P.2d 708.) Under rule 3.1700(a)(1), the operative event is entry of judgment, not entry of a special verdict. Here, the defendants filed their memorandum of costs well before entry of judgment, which for some unexplained reason was entered more than two months after the jury returned its verdict. Thus, the memorandum was not late.

Further, time limitations pertaining to a memorandum of costs are not jurisdictional (Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1304, 19 Cal.Rptr.2d 197), and the premature filing of a memorandum of costs is treated as “a mere irregularity at best” that does not constitute reversible error absent a showing of prejudice. (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 961, 30 Cal.Rptr.2d 690; Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 565-566, 118 Cal.Rptr. 687.) Rather, courts treat prematurely filed cost bills as being timely filed. (Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 528, 147 Cal.Rptr. 842; Brown v. West Covina Toyota (1994) 26 Cal.App.4th 555, 560, 32 Cal.Rptr.2d 85, disapproved of on another ground in Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 996, 73 Cal.Rptr.2d 682, 953 P.2d 858.)

Haley has made no showing of prejudice, and thus no reversible error exists.

DISPOSITION

The judgment is affirmed. The respondents are entitled to costs on appeal.

WE CONCUR: BENKE and HUFFMAN, JJ.

[1] In their appellate briefing the Haleys mention their breach of fiduciary duty claim only in passing. They do not mention breach of fiduciary duty in their list of issues and develop no argument or cite any legal authority pertaining to it, and thus have waived review of the jury’s finding against them on that claim. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448, 37 Cal. Rptr.2d 126.) As the second amended complaint named Lego and Giannini only in the breach of fiduciary duty cause of action, they are parties to this appeal only insofar as the memorandum of costs issue is concerned.

[2] The second amended complaint also named Frampton as a plaintiff and Cal West as a defendant, but they are not involved in this appeal.

[3] Haley asserts the “vote count of the amendment could not be ascertained as accurate.” She cites the hearsay testimony of William Haley that the official vote count was not accurate “based upon my mother telling me how she voted and finding out from Mr. Frampton how he voted, and subsequently finding out from my mother how Mr. Slater voted.” To pass, the amendment required the approval of 60 percent of the owners, or at least 11 owners, and there is no dispute in the evidence that at least 11 owners voted in favor of it.

[4] Civil Code section 1363.07, subdivision (a), enacted in 2005 after events here, allows a homeowners association to grant exclusive use of a portion of a common area to an individual member on the affirmative vote of at least 67 percent of the members, or a different percentage specified in the governing documents.

[5] Haley does not challenge the nonsuit on the negligence cause of action.

[6] Haley erroneously asserts the nuisance cause of action was also against Lego, Giannini and Bargamian. It was only against the Association.

[7] Given our holding on the defamation issue, we are not required to address Bargamian’s contention that Frampton was not a third person for purposes of publication since she accused him of having a sexual relationship with Haley and her son.

[8] Bargamian presumably filed a separate memorandum of costs, and Haley does not challenge it on appeal.

[9] All rule references are to the California Rules of Court. Current rule 3.1700 was numbered rule 870 at the relevant time, but the rule remains substantively unchanged. (See Historical Notes, 23 Pt. 1B West’s Ann. Court Rules (2006 ed.) foll. rule 3.1700, p. 140.)

 

Keywords: Common Area

 

Duffey v. Superior Court

Duffey v. Superior Court

3 Cal.App.4th 425 (1992)

Summary by Mary M. Howell, Esq.:

Facts

A homeowner complained to the association that his neighbor’s construction violated the view protections in CC&Rs. Because the association could not decide whether the construction did, or did not, violate the CC&Rs, it filed an action for declaratory relief naming both the complaining homeowner and the homeowner seeking permission to construct an improvement. The complaining neighbor sought to be dismissed from the case.

Held

For homeowner. The association has a duty to enforce its CC&Rs, whether or not another homeowner complains about a violation. It follows that the complaining neighbors are not necessary parties to the dispute. The association argued that the neighbors should be parties to the suit, so that their objections about the construction would be before the court when it decided whether or not the association should approve the construction. After pointing out that the association had a duty to fully litigate this question of entitlement to build, the court noted that the neighbors could, should they wish, intervene in the lawsuit, but that they were not required to be parties to the suit. If they did not intervene, they would be bound by the outcome of the case.

*** End Summary ***

Duffey v. Superior Court

3 Cal.App.4th 425 (1992)

426*426 COUNSEL

Darryl J. Paul for Petitioners.

No appearance for Respondent.

427*427 Durst & Landeros, Lee H. Durst and Jose G. Landeros for Real Parties in Interest.

OPINION

SILLS, P.J.

This case presents a different twist on a common situation in California. A property owner proposes to build an improvement which neighbors claim will obstruct their view and violate the “CC&Rs”[1] to which the property is subject. If the homeowner association charged with enforcing the CC&Rs does not take action against the owner, the offended neighbors often take matters into their own hands and sue both the property owner and the homeowner association to prevent the improvement. (See e.g., Posey v. Leavitt (1991) 229 Cal. App.3d 1236 [280 Cal. Rptr. 568] [deck encroaching on common area]; Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App.3d 642 [191 Cal. Rptr. 209] [fence obstructing adjoining landowner’s view];Beehan v. Lido Isle Community Assn. (1977) 70 Cal. App.3d 858 [137 Cal. Rptr. 528][construction of house in arguable contravention of setback restrictions].)

In this case it is the homeowner association which has initiated the litigation, in particular, a request for declaratory relief concerning whether the CC&Rs prohibit a proposed improvement. The twist is that the homeowner association has named not only the property owner as a defendant, but the complaining neighbors as well.

The neighbors brought a motion for judgment on the pleadings to extricate themselves from the case. The trial court denied the motion and the neighbors have now petitioned this court for a peremptory writ of mandate commanding the trialcourt to grant the motion. We grant the petition.

I

As this matter comes to us by way of a thwarted motion for judgment on the pleadings, the following facts are taken from the first amended complaint of the plaintiff, the Coast Homeowners Association (the homeowner association), filed in January 1988: The Bertrams, Duffeys, and Mehrenses each own homes in San Clemente subject to certain CC&Rs. The Bertrams have 428*428 submitted a set of plans to the homeowner association for the construction of a patio cover. The homeowner association is organized as a corporation under the laws of California. The Duffeys and the Mehrenses are next-door neighbors of the Bertrams, and have objected[2] to the proposed patio cover because it will block their ocean views. The Bertrams contend the CC&Rs do not prohibit the patio cover; the Duffeys and the Mehrenses contend they do. The homeowner association requests a judicial declaration whether the CC&Rs do, indeed, prohibit the proposed patio cover and whether it should deny or approve the Bertrams’ proposed construction.

In October 1991, the Duffeys and the Mehrenses brought a motion for judgment on the pleadings on the grounds there is no controversy between them and the homeowner association and no relief is being sought against them by the homeowner association. The Bertrams did not oppose the motion. The homeowner association did oppose it, contending, in essence, it was enough to allege that there is a controversy between the Bertrams on the one hand, and the Duffeys and the Mehrenses on the other, to establish a cause of action on the part of the homeowner association for declaratory relief.

The trial court denied the motion and the Duffeys and the Mehrenses filed this proceeding. We invited informal responses. The homeowner association makes two arguments. One, if the Duffeys and the Mehrenses had not voiced their objections to the Bertrams’ patio cover in writing, the homeowner association would not have had to file this lawsuit. Two, if the Duffeys and the Mehrenses were dismissed from the case before the resolution of the dispute over the CC&Rs, they could sue the homeowner association if they did not approve of the outcome; the Duffeys and the Mehrenses must be kept in this litigation to avoid subjecting it to a “no-win” situation.

II

(1) Before we address the homeowner association’s arguments, we note the obvious. The homeowner association seeks no relief against the Duffeys or the Mehrenses. This is the dispositive fact in the petition before us.

Courts analyze homeowner associations in different ways, depending on the function the association is fulfilling under the facts of each case. Courts have treated associations as landlords (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499-501 [229 Cal. Rptr. 456, 723 P.2d 573, 59 429*429 A.L.R.4th 447][association could be held liable for rape and robbery of individual owner who was not allowed to install additional lighting at time of crime wave]), minigovernments (Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal. App.3d 816, 844 [182 Cal. Rptr. 813] [gated community could not discriminate among give-away newspapers]; businesses (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 796 [191 Cal. Rptr. 320, 662 P.2d 427] [condominium project with age restrictions in CC&Rs was “business” within meaning of Unruh Civil Rights Act]) and corporations (Beehan v. Lido Isle Community Assn., supra, 70 Cal. App.3d 858, 865-867 [board of directors’ good faith refusal to take action against construction of house in arguable contravention of setback restrictions was protected by corporate business judgment rule]).

The nature of the present case invokes the “corporate” function of the association. Of the four cases just cited, Beehan, which applied corporate law, is the one most similar to this, involving, as it did, a dispute between two neighbors over what sort of construction was allowable under recorded land use restrictions. Moreover, corporate principles also make the most sense in this case. The homeowner association is not acting as a business seeking a profit, a landlord exercising management over tangible property, or a minigovernment physically controlling access to its “citizen’s” property. The homeowner association here is incorporated, but is torn between competing factions as to what collective action to take. Corporate law provides a ready framework for this problem.

Under corporate principles, the homeowner association has no cause of action against the Duffeys and Mehrenses, as demonstrated in Weisman v. Odell (1970) 3 Cal. App.3d 494 [83 Cal. Rptr. 563]. In Weisman, minority shareholders sued a corporation and its majority shareholders seeking to dissolve the corporation because the majority shareholders had operated the entity for their own benefit at the expense of the minority. No direct relief or damages, however, were requested against the majority shareholders.

The majority shareholders successfully demurred to the complaint, and the decision was affirmed on appeal. The appellate court reasoned the majority shareholders could not be joined as defendants against their will because “[i]t is fundamental that a person should not be compelled to defend himself in a lawsuit when no relief is sought against him.” (3 Cal. App.3d at p. 498.) Because the “sole relief” was the dissolution of the corporation, the majority shareholders could “not be compelled to be parties defendant under the pleadings.” (3 Cal. App.3d at p. 499.)

Here, it is undisputed that no relief is sought against the Duffeys or the Mehrenses. While they, like the majority shareholders in Weisman, may be 430*430 affected by the trial court’s ultimate decision, nothing will happen to them directly as a result of that decision.

The case law on the subject of indispensable parties[3] also supports our conclusion. In Lushing v. Riviera Estates Assn. (1961) 196 Cal. App.2d 687 [16 Cal. Rptr. 763], a property owner submitted plans to a homeowner association to build a second house on a particular lot. The association refused to pass on or consider the plans, contending that the lot in question was not a “building site” within the meaning of the declarations governing the property. The property owner sued the association and the trial court decided the issue in favor of the owner. The association appealed, contending, among other things, that the property owner should have joined the other lot owners as indispensable or conditionally necessary parties to the action. (196 Cal. App.2d at p. 690.) The appellate court rejected the contention, reasoning there was no need to join the other lot owners because they were not necessary to a “complete determination of the controversy.” (Ibid.)

The impact of land use litigation on the rights of neighbors was also touched on inLeonard Corp. v. City of San Diego (1962) 210 Cal. App.2d 547 [26 Cal. Rptr. 730]. In Leonard Corp., a developer sued a city for declaratory relief concerning the correct zoning for a particular tract of land. Adjacent landowners sought to intervene, claiming they purchased their own property in reliance on the developer’s statements that the tract in question would be restrictively zoned. They argued they were indispensable parties to the dispute. The trial court denied the request and the court of appeal affirmed the decision.

The Leonard Corp. court, in essence, reasoned that the adjacent landowners were not indispensable parties because there was no logical demarcation between them and any other person who might be somehow affected by the developer’s plans: “If interveners were indispensable parties, then it might well be said that every home owner on adjacent subdivisions in Point Loma was an indispensable party who might claim some injury or loss by reason of the zoning ordinance.” (210 Cal. App.2d at p. 550.) It was enough that the trial court could make a “complete determination” of the zoning controversy with just the parties already before it. (Ibid.)

Lushing and Leonard Corp. articulate principles applicable to the instant case. The only parties the trial court needs to make a “complete determination” about the applicability of the CC&Rs to the Bertrams’ proposed patio cover are the Bertrams and the homeowner association.

431*431 Moreover, as in Leonard Corp., there is no principled demarcation to distinguish some of the Bertrams’ neighbors (the Duffeys and the Mehrenses) from others who have not been joined in the litigation. Not only will the Duffeys and the Mehrenses be affected by this litigation, but so will all owners subject to the disputed CC&Rs. Patios as yet unbuilt by owners in the tract now blissfully unaware of the Bertrams’ plans may be affected by the outcome of this case. But as the Leonard Corp. court perceived, it is unreasonable to join every nearby landowner who might conceivably be affected by the litigation. It is enough that the homeowner association, charged with the enforcement of the CC&Rs (see discussion below), and the arguably offending property owners, are in it.

III

A

We now turn to the homeowner association’s two arguments in favor of keeping the unwilling Duffeys and Mehrenses in the case. The first is that but for the Duffeys and the Mehrenses, the homeowner association would not have needed to file this action in the first place.

It does not follow, however, that the individual owner must be a defendant in any lawsuit brought by a homeowner association to discharge its own duty to enforce the CC&Rs simply because that owner complains about a neighbor’s proposed construction. Homeowner associations have the responsibility of enforcing a development’s declaration of restrictions. (Cohen v. Kite Hill Community Assn., supra, 142 Cal. App.3d 642 [association could be held liable for failing to enforce architectural standards in CC]; see also Sproul and Rosenberry, § 1.2, p. 5.) This duty exists independently of what any given group of owners, such as the complaining neighbors in this case, might think or assert. The Duffeys’ and the Mehrenses’ written objection to the Bertrams’ proposed construction is thus quite irrelevant to the question of what the association must do about that construction. If the Bertrams’ construction is, indeed, contrary to the CC&Rs, the association would still have the responsibility of trying to prevent it even if the Duffeys and the Mehrenses favored it.[4]

432*432 B

(2) The homeowner association also argues the Duffeys and the Mehrenses must remain in the case lest they sue the association if they are unhappy with the outcome. This argument is similarly unpersuasive.

If, after this litigation is over, the Duffeys and the Mehrenses are unhappy because the court has rejected their interpretation of the CC&Rs on the merits, they will have only themselves to blame. Civil Code section 1354 gives them the right to join the litigation to enforce the CC&Rs if they so desire.[5] If they are at all concerned that the homeowner association will not vigorously press their interpretation of the CC&Rs to the trial court, now is the time for them to exercise their rights under Civil Code section 1354 and do so.

The association, for its part, need only make a good faith effort to obtain a judicial declaration on the merits of the dispute. Code of Civil Procedure section 374 gives an association standing to pursue “matters pertaining” to the “[e]nforcement of the governing documents” of a “common interest development.” Enforcement is impossible when governing documents are unclear as applied in a given context. Interpretation of governing documents is undoubtedly a “matter pertaining” to their enforcement. Accordingly, we conclude Code of Civil Procedure section 374 authorizes homeowner associations to file declaratory relief actions such as this one where there is a need for an authoritative interpretation of governing documents.

At the same time, however, Code of Civil Procedure section 374 specifically relieves homeowner associations from the need to join “the individual owners of the common interest development.”[6] When read in conjunction with Civil Code section 1354, an important implication emerges from this aspect of the statute: if there is a good faith dispute concerning the interpretation 433*433 of the CC&Rs, a homeowner association need not vigorously advocate any particular interpretation — individual owners can do that if they want to under Civil Code section 1354. As long as the “matters” relate to the enforcement of the CC&Rs (which would entail joining the parties against whom they are to be enforced), the association has standing to litigate them without joining the neighboring owners with their various viewpoints. If those owners want to press their own interpretations, Civil Code section 1354 allows them to jump into the fray directly. Otherwise, they are free to stay on the sidelines.

This aspect of the statute makes sense in light of the conflicts to which homeowner associations are inevitably subject. The instant case is a good example. If the Bertrams are correct in their interpretation of the CC&Rs, then the association must allow the construction of the patio cover. The rights of not only the Bertrams are involved, but of every other homeowner who would like to exercise the right to construct a patio cover in the development. If the Duffeys and the Mehrenses are correct, then the association must seek to prevent the construction of the Bertrams’ patio cover to protect the rights of the Duffeys, the Mehrenses, and every other homeowner who does not want a neighbor’s patio cover to block their view. Given this “no-win” position, it is enough for the association to seek a determination of the controversy joining only the arguably offending property owners.

On the other hand, if the association, for some reason, lets the case go by default and be disposed of on some purely procedural basis, it will be as if the association had done nothing to enforce the CC&Rs. Worse, the Duffeys and the Mehrenses (or other neighbors of like mind) may have foregone their own rights to enforce the declarations under Civil Code section 1354 on the assumption that the association would obtain a judicial declaration on the issue, one way or the other. If the homeowner association did allow the case to go by default and for that reason alone the Bertrams were able to build their patio cover, then the Duffeys and the Mehrenses ought to be able to sue the association for failing to enforce the CC&Rs. (See Cohen v. Kite Hill Community Assn., supra, 142 Cal. App.3d 642 [duty of homeowner association to enforce architectural standards set forth in declarations].) Either way — whether there is a decision on the merits or not — there is no reason now to keep the Duffeys and the Mehrenses in this case involuntarily.

Even though the Duffeys and the Mehrenses need not be joined as parties, there is no question as to the binding effect of this litigation on them. The policy behind Code of Civil Procedure section 374 requires that declaratory 434*434 judgments brought in litigation authorized under the statute be res judicata, and binding on the individual owners, including all those who do not participate in the litigation. Unless an association’s litigation is binding, the benefits of section 374 will vanish. (See Comment, Homeowner Association Standing in California: A Proposal to Expand the Role of the Unit Owner (1986) 26 Santa Clara L.Rev. 619, 627.)

IV

Homeowner associations play an increasingly important role in the daily lives of Californians. It is common knowledge that much of the new housing developed in recent years — including single-family detached dwellings — is subject to CC&Rs enforceable by such associations. Some large homeowner associations have budgets which put them on a par with small cities and towns. In many areas of our state homeowner associations have practically become a “quasibranch” of municipal government. (Cf. Sproul and Rosenberry, supra, § 6.5, p. 252 [noting both associations and local governments can “be responsible for providing services such as road maintenance, street lighting, parks, recreation, and utilities”]; see also Cohenv. Kite Hill Community Assn., supra, 142 Cal. App.3d 642, 652 [“approval of a fence not in conformity with the Declaration is analogous to the administrative award of a zoning variance”].)

Given this role, it would be incongruous indeed if the expression of opinion to a homeowner association by one neighbor about another neighbor’s proposed construction were cause to name the objecting neighbor in a lawsuit. Merely standing up at a homeowners’ or board of directors’ meeting to argue that one’s neighbors’ plan to paint their garage door Day-Glo orange with magenta polka dots is prohibited by the CC&Rs should not land one in a lawsuit. Even a “small” lawsuit for declaratory relief can be expensive.

The tactic employed by this homeowner association of naming objecting neighbors in a declaratory relief lawsuit only sows the seeds of destruction of its own declarations. If every neighbor who demands enforcement of the CC&Rs winds ups in court, no one will demand enforcement, and landscape and construction standards will effectively cease to exist. It is difficult to imagine a denser pall cast over association governance than the prospect of being named in a lawsuit for simply insisting the association do its job.

In this case, for instance, the Duffeys and the Mehrenses have presumably had to incur legal expenses for more than four years, if only to “monitor” the case. Those expenses have functioned, in essence, as a penalty for their having objected to the Bertrams’ plans.

435*435 Enough is enough. Having invited and received a response from the homeowner association, issuance of an alternative writ would not assist our resolution of this matter. Indeed, it would only increase the fees the petition seeks to alleviate,[7] as well as cause unnecessary delay. A peremptory writ in the first instance is therefore appropriate. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178 [203 Cal. Rptr. 626, 681 P.2d 893].) Let a peremptory writ of mandate issue directing the trial court to vacate its denial of the motion for judgment on the pleadings brought by the Duffeys and the Mehrenses and enter a new judgment in their favor.

Wallin, J., and Sonenshone, J., concurred.

[1] “CC&Rs” stands for “covenants, conditions, and restrictions.” The term is technically inaccurate because declarations typically do not include conditions, which, if breached, would cause the property to revert to the developer. (Sproul & Rosenberry, Advising Cal. Condominium and Homeowners Associations (Cont.Ed.Bar 1991) § 7.1, pp. 300-301 [hereafter Sproul and Rosenberry].)

[2] In its response to the petition for writ of mandate, the homeowner association states that the Duffeys and the Mehrenses “voiced their objections in writing.” The complaint, however, makes no mention of written, as distinct from oral, objections.

[3] Under Code of Civil Procedure section 389, a person who claims an interest in the subject matter of an action and is so situated as to leave any party already in the case subject to substantial risk of inconsistent obligations “shall be joined” as a party to the action. As we are about to show, Code of Civil Procedure section 389 is not applicable here.

[4] To use a farfetched example, if the Bertrams sought to turn their backyard into a toxic waste dump, and their neighbors failed to oppose the idea, would this relieve the association from the obligation to enforce the CC&Rs, which, we presume, would forbid such a use? If not, as is obviously the case, then the fact of neighbor opposition is similarly independent of the association’s obligation.

[5] The text of Civil Code section 1354 is: “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. In any action to enforce the declaration, the prevailing party shall be awarded reasonable attorney’s fees and costs.”

[6] Code of Civil Procedure section 374 provides:

“An association established to manage a common interest development shall have standing to institute, defend, settle, or intervene in litigation, arbitration, mediation, or administrative proceedings in its own name as the real party in interest and without joining with it the individual owners of the common interest development, in matters pertaining to the following:

“(a) Enforcement of the governing documents.

“(b) Damage to the common areas.

“(c) Damage to the separate interests which the association is obligated to maintain or repair.

“(d) Damage to the separate interests which arises out of, or is integrally related to, damage to the common areas or separate interests that the association is obligated to maintain or repair.” (Italics added.)

[7] We express no opinion on what right, if any, the Duffeys and the Mehrenses may have to recoup their fees under Civil Code section 1354.

 

Keywords: Governing Documents, Statute of Limitations

 

Alcaraz v. Vece

Alcaraz v. Vece

14 Cal.4th 1149 (1997)

Summary by Mary M. Howell, Esq.:

Facts

An occupant of an apartment complex was injured when he stepped into a water meter box, which was not located on the apartment property, but on property adjacent to the apartment complex which had been sporadically maintained by the owner of the apartment complex. The occupant alleged that the apartment owner should be liable because the owner exercised control over the property, including maintaining the land in question, and, after the accident, erecting a fence around the box. Nevertheless, the complaint was dismissed and occupant appealed.

Held

For occupant. Even though the apartment owner did not own the water meter box, if the occupant could prove at trial that the owner exercised control over the land upon which the box was located, the owner could be liable for the injuries.

*** End Summary **

Alcaraz v. Vece

14 Cal.4th 1149 (1997)

1152*1152 COUNSEL

B.E. Bergesen III, O’Brien & Harrington, William K. O’Brien and Colleen Duffy-Smith for Plaintiff and Appellant.

Joni Brandvold, Arnelle, Hastie, McGee, Willis & Greene, Otis McGee, Jr., and Jesper I. Rasmussen for Defendants and Respondents.

Gassett, Perry & Frank and Jacquelyn K. Wilson as Amici Curiae on behalf of Defendants and Respondents.

OPINION

GEORGE, C.J.

Plaintiff Gilardo C. Alcaraz was injured when he stepped into a water meter box located in the lawn in front of the rental property of which he was a tenant. The cover of the meter box either was broken or missing. He sued his landlords, but the superior court granted summary judgment for defendants because the meter box was not located on defendants’ property, but within an adjacent strip of land owned by the city, running between the sidewalk and defendants’ property line.

For the reasons that follow, we affirm the Court of Appeal’s ruling that the superior court erred in granting summary judgment for defendants, 1153*1153 because we conclude that a triable issue of fact exists as to whether defendants exercised control over the narrow strip of land owned by the city, that was located adjacent to, and was not noticeably separate from, defendants’ property, and thus had a duty to warn plaintiff of, or protect him from, the hazard in question. Our determination that a triable issue of fact exists as to whether defendants exercised control over the property on which the hazard was located resolves the issue whether the superior court properly granted summary judgment for defendants and, therefore, we have no occasion in this case to decide under what circumstances, if any, a possessor of land may owe a duty to warn persons on the property of a hazard located on adjacent property that he or she does not own, possess, or control.

I

On April 17, 1991, Gilardo C. Alcaraz filed a complaint against the owners of the rental property of which he was a tenant, located at 141-147 Lincoln Avenue in the City of Redwood City (the city), alleging he had suffered personal injuries. In an amended complaint, he alleged that on the evening of April 17, 1990, he was injured when he stepped into a utility meter box embedded in the lawn next to the sidewalk in front of the building in which he was renting an apartment. Plaintiff alleged that defendants had actual notice that the cover to the utility box either was broken or missing.

On November 12, 1993, defendants filed a cross-complaint against the city and its water department, alleging that cross-defendants owned and maintained the meter box into which plaintiff had fallen and knew, or should have known, of its dangerous condition.

Defendants thereafter filed a motion for summary judgment on the complaint, asserting they owed no duty to plaintiff because they did not own either the meter box or the land upon which it was located. The evidence offered in support of the motion for summary judgment included a declaration from Jon Lynch, senior civil engineer for the city, stating that the meter box was located within a 10-foot-wide strip of land owned by the city that extends from the curb of Lincoln Avenue to defendants’ property line, encompassing the sidewalk and an additional approximately 2-foot-wide strip of lawn area adjacent to defendants’ property line. The closest edge of the meter box was one foot from defendants’ property line. Attached as an exhibit to the declaration was a copy of a page from the city’s utility block book showing that the meter box was located within this 10-foot-wide strip of land owned by the city.

Defendants also offered in support of the motion the declaration of a licensed land surveyor, John May, who stated that he had conducted a survey 1154*1154 and concluded “that the subject water meter is located outside the property boundaries of 141-147 Lincoln Avenue.” A hand-drawn map attached as an exhibit to the declaration indicates that the nearest edge of the water meter is three inches from defendants’ property line, and that the water meter is located within the strip of land owned by the city, specifically in an area approximately two feet wide lying between the sidewalk and defendants’ property line.

In his opposition to defendants’ motion for summary judgment, plaintiff maintained that defendants were responsible for his injuries because they “either own a portion of the property on which the meter box is located, … or more importantly, defendants maintain and control the subject premises.” Plaintiff submitted photographs of the premises where the accident occurred and excerpts of a deposition of defendant Peter Vece, to establish that (1) prior to and at the time of the accident, defendants maintained the entire lawn from the front of the apartment building to the sidewalk, including that portion of the lawn that lies on the strip of land owned by the city, and (2) subsequent to the incident in question, defendants constructed a fence that bordered the sidewalk and enclosed the entire lawn in front of their property, including the approximately two-foot wide portion of the strip of land owned by the city lying between the sidewalk and defendants’ property line.

In addition, plaintiff submitted the declaration of Stephen Amer, a neighbor who resided in the same building at the time of the accident. The declaration stated that, on several occasions, Amer had informed both defendant Vece and “various `Water Company meter readers'” that the cover of the meter box either was broken or missing. Plaintiff also submitted the declaration of Stanley Gray, a licensed land surveyor, who stated that the had conducted a survey of defendants’ property and concluded “that the southerly right-of-way line of Lincoln Avenue, Redwood City, California cannot be ascertained within standard accuracy (1:10,000). Making an absolute statement about this boundary line is an impossibility as no recoverable monuments were set in 1902 within the subdivision. I found a variation of professional opinions in a total range of nine inches. It is reasonably probable, therefore, that the subject water meter box is not entirely located on property owned by the City of Redwood City, but rather a portion thereof may be located inside the property boundaries of 141-147 Lincoln Avenue, Redwood City, California.”[1]

The superior court granted defendants’ motion for summary judgment, issuing a written opinion concluding that no triable issues of fact existed, 1155*1155 because defendants neither owned nor exercised control over the meter box and “it is undisputed that the City of Redwood City owns the real property upon which the box is located … and exercises control over the box….”

The Court of Appeal reversed the summary judgment rendered by the superior court. The appellate court agreed with the lower court “that the declarations filed by defendants demonstrated that there was no triable issue as to the fact of ownership of the meter box, because defendants neither owned nor exercised control over the meter box.” The Court of Appeal also agreed that there was “no triable issue of fact [disputing] that the city, not defendants, owned the real property on which the meter box was located.” But the appellate court went on to conclude that the superior court had erred in granting summary judgment for defendants, because there existed a “triable issue of fact as to whether the combination of the circumstances of defendants’ actual or apparent control over immediately adjacent premises and the foreseeability of injury to plaintiff created a duty on the part of defendants to either warn plaintiff of the danger, or protect him from it, or both.” The Court of Appeal reasoned that the circumstances that “defendants maintained the lawn completely surrounding the meter box” and that defendant Vece had actual notice of the broken or missing cover, gave rise to a duty to protect or warn plaintiff.

II

A

(1a) The superior court granted summary judgment in favor of defendants on the grounds that they did not own, or exercise control over, the water meter box into which plaintiff fell, and did not own the land upon which the meter box was located. Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

The circumstance that defendants did not own or exercise control over the meter box itself does not entitle them to judgment as a matter of 1156*1156 law. (2) “The proper test to be applied to the liability of the possessor of land … is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others….” (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) This requires persons “to maintain land in their possession and control in a reasonably safe condition. [Citations.]” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal. Rptr.2d 137, 863 P.2d 207].)

This duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control. For example, in Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233 [282 P.2d 69], this court held that the owner of land could be held liable for failing to warn its tenant of the danger posed by use of a crane near overhead electrical lines, even though the landowner neither owned nor maintained the electrical lines. The Court of Appeal reached the same conclusion on similar facts in Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal. App.4th 387, 393 [9 Cal. Rptr.2d 124]. (1b) Accordingly, in the present case, if the condition of the meter box created a dangerous condition on land that was in defendants’ possession or control, defendants owed a duty to take reasonable measures to protect persons on the land from that danger, whether or not defendants owned, or exercised control over, the meter box itself. In other words, if the presence of the broken meter box made it dangerous to walk across land in defendants’ possession or control, defendants had a duty to place a warning or barrier near the box to protect persons on the land from that danger.

The following hypothetical situation illustrates this point. If a live power transmission line falls, creating a hazard, the possessor of the property on which the power line has fallen, who knows of the hazard, cannot escape liability for injuries to persons who enter the land and encounter the power line simply because the land possessor does not own the power line and lacks the authority to disconnect the line or remove it. A possessor of land who knows of the hazard would have a duty to erect a barrier or warn persons entering the land of the danger, whether or not the possessor of the land has the authority to eliminate the hazard.

Defendants rely upon the decision in Hamilton v. Gage Bowl, Inc. (1992) 6 Cal. App.4th 1706 [8 Cal. Rptr.2d 819] to support their contention that they are not liable for plaintiff’s injuries because they did not control the meter box itself. In Hamilton, the plaintiff was injured while standing in the parking lot of a bowling alley when a sign fell from the wall of an adjacent 1157*1157 building. The bowling alley did not own the sign or the wall, but had refurbished and rehung another sign on the wall and had repainted a small portion of the wall to cover graffiti, all without seeking the owner’s permission. The plaintiff argued that the bowling alley had exercised sufficient control over the wall to warrant imposition of a duty to inspect the sign that fell, but the Court of Appeal disagreed, observing that although the defendant had exercised some degree of control over the wall, it had not exercised control over the sign that caused the plaintiff’s injuries. The Court of Appeal concluded: “It follows that plaintiff’s proposed evidence was insufficient to establish a duty on defendant’s part to discover the dangerous condition of the sign….” (Id. at p. 1713.)

Hamilton is distinguishable from the present case. Unlike Hamilton, the issue in the case before us is not whether defendants had a duty to discover a dangerous condition located on property they did not own. Plaintiff in the present case alleged that defendants had received actual notice of the defective condition of the meter box. The issue, therefore, is not whether defendants had a duty to inspect or repair the meter box, but whether, in light of their alleged knowledge of the dangerous condition of the meter box, they had a duty to persons entering the strip of land to protect them from, or warn them of, the hazard. Defendants could satisfy such a duty by posting warnings or erecting barricades on the property under their control, and would not have been required to inspect or repair the meter box.

Hamilton would be more like the present case if the bowling alley had received actual notice that the sign hanging over its parking lot was secured to the wall improperly and in danger of falling. Under such circumstances, the bowling alley would have had a duty to persons using its parking lot to protect them from, or warn them of, the dangerous sign.

B

Neither does the circumstance that defendants in the present case did not own the land on which the meter box was located entitle them to judgment as a matter of law. In the present case, the superior court found it was undisputed that defendants did not own the narrow strip of land on which the meter box was located, and plaintiff does not challenge that determination here. There remains a triable issue of fact, however, whether defendants exercised control over that land and thus had a duty to protect or warn plaintiff.

(3a) “`[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by 1158*1158 the person in possession of the land [citations] because [of the possessor’s] supervisory control over the activities conducted upon, and the condition of, the land.'” (Sprecher v.Adamson Companies (1981) 30 Cal.3d 358, 368 [178 Cal. Rptr. 783, 636 P.2d 1121];Preston v. Goldman (1986) 42 Cal.3d 108, 119 [227 Cal. Rptr. 817, 720 P.2d 476][“Sprecher demonstrates that we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.”].) This court recognized in Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 [170 P.2d 5] that a defendant who lacks title to property still may be liable for an injury caused by a dangerous condition on that property if the defendant exercises control over the property. One of the defendants in Johnston operated a restaurant in a portion of a building leased from the owner of the property. A prospective customer of the restaurant fell while walking from her automobile onto an unlit portion of a walkway leading to the restaurant. The walkway was not situated within the premises leased by the defendant. This court observed: “A tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control. [Citations.] Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition. (4)(See fn. 2.) It is clear, however, that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.”[2] (28 Cal.2d at p. 401.)

(5) We subsequently restated the principles announced in Johnston: “The courts have long held that one who invites another to do business with him owes to the invitee the duty to exercise reasonable care to prevent his being injured on `the premises.’ The physical area encompassed by the term `the premises’ does not, however, coincide with the area to which the invitor possesses a title or a lease. The `premises’ may be less or greater than the invitor’s property. The premises may include such means of ingress and egress as a customer may reasonably be expected to use. The crucial element is control.” (Schwartz v. Helms Bakery Limited(1967) 67 Cal.2d 232, 239 [60 Cal. Rptr. 510, 430 P.2d 68], fns. omitted, italics added.)

The Restatement Second of Torts uses the phrase “possessor of land,” rather than the terms “owner” or “lessee,” to describe who may be liable for injuries caused by a dangerous condition of land. (See, e.g., Rest.2d Torts, 1159*1159 § 343, p. 215.) Section 328E (p. 170) of the Restatement Second of Torts defines the term “possessor of land” to include “a person who is in occupation of the land with intent to control it….” The comment to this section explains: “The important thing in the law of torts is the possession and not whether it is or is not rightful as between the possessor and some third person.” (Id., § 328E, com. a, p. 171.)

(3b) In similar fashion, the Courts of Appeal have recognized that a defendant’s potential liability for injuries caused by a dangerous condition of property may be based upon the defendant’s exercise of control over the property. “In common law parlance, the possessor of land is the party bearing responsibility for its safe condition. Possession, in turn, is equated with occupancy plus control. [Citations.] Thus, in identifying the party vulnerable to a verdict, control dominates over title. `The crucial element is control.’ [Citation.]” (Low v. City of Sacramento (1970) 7 Cal. App.3d 826, 831 [87 Cal. Rptr. 173]; see also Both v. Harband (1958) 164 Cal. App.2d 743, 748 [331 P.2d 140] [“[A]ctual exercise of control by the tenant [over a portion of leased property], even though the lease itself confers no right of such control upon him, can subject him to liability.”].)[3]

In Orthmann v. Apple River Campground, Inc. (7th Cir.1985) 757 F.2d 909, the foregoing principles were applied to circumstances analogous to those in the present case. The plaintiff in that case rented an inner tube in order to float down a river, and stopped at a place on the riverbank from which a tree extended over the river. The tree frequently was used for 1160*1160 diving. The plaintiff dived into the river, struck his head on a submerged rock, and was injured. He sued the association that had rented the inner tube to him and that owned most of the land bordering this stretch of the river — but not the land from which the plaintiff dove. That section of the riverbank was owned by the Montbriand family.

In permitting the plaintiff to proceed with his suit, the federal appellate court stated that the case before it was difficult, because “defendants do not own the property from which Orthmann dove. But according to an affidavit …, shortly after the accident the defendants came on the Montbriands’ land without asking their permission, and cut the tree down. The affidavit also states that the Montbriands had seen the defendants cleaning and maintaining the banks of the river on the Montbriands’ land. It is possible to infer that the defendants, though they did not own the Montbriand property, treated it as if they did — the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least (which is all that is necessary, as we are about to see) possession.

“This is not to say that the defendants could be held liable, under any tort theory we know, if their customers just strayed onto someone else’s property and got injured there…. But if the landowner treats the neighbor’s property as an integral part of his, the lack of formal title is immaterial. Whoever controls the land is responsible for its safety. [Citation.] That is why it is normally the tenant rather than the landlord who is liable to anyone injured as a result of a dangerous condition on leased land and why this field of tort law is more accurately described as land occupiers’ and possessors’ liability than as landowners’ liability. [Citations.] [¶] It would make no sense to treat an occupier more leniently just because his rights in the land were less well-defined than a tenant’s — or maybe were nonexistent.” (757 F.2d at pp. 913-914.)

In Husovsky v. United States (D.C. Cir.1978) 590 F.2d 944 [191 App.D.C. 242], the plaintiff was driving on a public street that ran through a federally owned and maintained park, when a tree fell upon his automobile, injuring him. The plaintiff sued the District of Columbia, which owned and maintained the street, and the United States Government, which owned and maintained the park. The tree that fell upon plaintiff, however, had stood on a tract of land owned by the Government of India. When the park was established in 1945, the United States had attempted to purchase this land. The Government of India refused to sell the land, but promised to preserve the “`natural park-like character’ of the tract.” (Id. at p. 949.) The appellate court observed: “Pursuant to this agreement, the tract of land on which the fallen tulip poplar stood has been left in a wooded state indistinguishable 1161*1161 from contiguous federal parkland. From 1945 through the date of appellee’s injuries, the tract was marked with wooden stakes and granite boundary monuments bearing United States insignia, identical with those located on federally owned lands. In addition, the wooden stakes had been periodically repainted, replaced, or restenciled by employees of the National Park Service, a federal agency, in the interim since 1945. [¶] … Park Service employees … testified at the trial in the District Court that not until a year after the occurrence of the accident involved in this appeal did it come to their attention that the tract of land upon which the tulip poplar stood was not federally owned [citation]; for at least ten years prior to the accident the Service undertook to service and maintain the tract as it did Class C federal parkland.” (Ibid., fn. omitted.)

Based upon the foregoing circumstances, the Court of Appeals concluded that the United States Government owed a duty “to use reasonable care to protect passers-by on adjoining public ways from hazardous trees” on the tract of land owned by the Government of India. (Husovsky v. United States, supra, 590 F.2d 944, 952.) The court observed: “The duties owed in connection with the condition of land are not invariably placed on the person in whom the land is titled, but, rather, are owed by the person in possession of the land, [citations], because the occupant or possessor has supervisory control over the activities conducted upon, and the condition of, the land. [¶] … We hold that having assumed such notorious and open public display of control of the tract, the United States had a duty to exercise reasonable care in its supervision thereof….” (Id. at p. 953.)

The same reasoning applies where a plaintiff is injured in a defendant’s fenced backyard by a latent dangerous condition known to the defendant. Under such circumstances, the defendant could not escape liability merely by establishing that the fence was not located on the property line and that a neighbor, rather than the defendant, actually held title to the land containing the dangerous condition. As long as the defendant exercised control over the land, the location of the property line would not affect the defendant’s potential liability.

(1c) In the present case, the superior court found that defendants held no legal interest in the land on which the meter box was located. Plaintiff does not challenge that ruling in this court. But summary judgment should not have been granted for defendants, because a triable issue of fact exists concerning whether defendants nevertheless exercised control over the property surrounding the meter box and thus had a duty to protect plaintiff from, or warn him of, the hazardous condition of the meter box. Evidence was introduced establishing that defendants maintained the lawn that covered the 1162*1162 approximately two-foot-wide portion of the strip of land owned by the city surrounding the meter box and adjoining their property and that, following plaintiff’s injury, defendants constructed a fence that enclosed the entire lawn, including the portion located on the narrow strip of land owned by the city. (6)(See fn. 4.) From this evidence, a reasonable trier of fact could infer that defendants exercised control over this approximately two-foot-wide portion of the strip of land owned by the city and treated the land surrounding the meter box, which bordered defendants’ property, as an extension of their front lawn.[4]

(3c) Justice Brown’s dissent is correct in stating that “property owners are liable for injuries on land they own, possess, or control.” (Dis. opn. of Brown, J., post, at p. 1190.) But her opinion seems to overlook the fact that the phrase “own, possess, orcontrol” is stated in the alternative. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 [211 Cal. Rptr. 356, 695 P.2d 653].) A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.

Justice Brown’s dissent would add a requirement, not found in this court’s decision inIsaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, that a landowner may be held liable for an injury on adjacent property only if the landowner both exercises control over that property and derives a commercial benefit from the portion of the property that caused the injury. (Dis. opn. of Brown, J., post, at pp. 1196-1197.) Such a “commercial benefit” requirement is not found in any decision of this court, but has been discussed by two recent decisions of the Courts of Appeal, Swann v. Olivier(1994) 22 Cal. App.4th 1324 [28 Cal. Rptr.2d 23] and Princess Hotels Internat., Inc.v. Superior Court (1995) 33 Cal. App.4th 645 [39 Cal. Rptr.2d 457]. Prior to these recent decisions, no California case had stated that a property owner could be held liable for an injury caused by a dangerous condition on 1163*1163 adjacent property only if the defendant derived a commercial benefit from the adjacent property.

The phrase “commercial benefit” apparently first was used in this context in Owensv. Kings Supermarket (1988) 198 Cal. App.3d 379 [243 Cal. Rptr. 627], which held that a supermarket was not liable for injuries to a customer suffered in a traffic accident that took place on the public street in front of the market. The plaintiff alleged that the market was liable because it used the street and sidewalk “for the commercial benefit of the supermarket for the delivery of goods and as a customer parking area.” (Id. at p. 382.) The Court of Appeal rejected the plaintiff’s reliance upon the concept of commercial benefit and instead based its decision upon the defendant’s lack of control over the public street: “[A]lthough it is indisputable that the scope of premises liability has been greatly expanded in the last 10 years, plaintiff is attempting to extend the duty beyond the premises and into an undefined zone of `commercial use.’ The imposition of such a duty is foreign to the concept upon which all premises liability is based, i.e., that possession includes the attendant right to manage and control, thereby justifying the imposition of a duty to exercise due care in the management of the property. [Citations.]” (Id. at p. 386, italics in original.)

The decision in Southland Corp. v. Superior Court (1988) 203 Cal. App.3d 656 [250 Cal. Rptr. 57] used the phrase “commercial benefit” in discussing whether there was a triable issue of fact whether a business exercised sufficient control over an adjacent parking lot to support a finding of liability for injuries to a customer who was assaulted a few feet beyond the property line of the store. The attack occurred adjacent to the store in a parking lot that was not owned or leased by the store, but that often was used by the store’s customers. The Court of Appeal noted that the plaintiff’s belief that the store controlled this parking lot “may not have been unreasonable,” observing “that to the extent a greater parking capacity increased sales, then the store realized a commercial benefit from such use of the lot.” (Id. at p. 661.) But it is clear that the Court of Appeal considered such commercial benefit to be but one factor bearing upon the dispositive issue of whether the store exercised control over the adjacent property: “The record reflects evidence, and legitimate inferences therefrom, which would support a jury’s conclusion that petitioners did exercise a sufficient control over the lot so as to legally permit the imposition of a duty to those customers using the lot. For example, (1) only eight marked parking spaces were provided on the store’s premises and these often proved inadequate, (2) customers, including [the plaintiff], regularly used the adjacent lot to park while shopping at the store, (3) petitioners’ lease apparently authorized the nonexclusive use of the adjacent lot for customer parking, (4) petitioners were aware that their1164*1164 customers regularly used the lot and took no action to limit or discourage such use, (5) a reasonable inference can be drawn that petitioners realized a significant commercial benefit from their customers’ use of the lot, (6) the store premises and the adjacent lot had become a hangout for local juveniles, among whom fist fights sometimes broke out, and (7) the store employees had, on a number of occasions, taken action, including the request of police assistance, to remove juvenile loiterers from both the store premises and the adjacent lot.” (Id. at pp. 666-667, fn. omitted.)

The court thus concluded: “Where, as here, there is evidence that petitioners received a commercial advantage from property they apparently had a leasehold right to use (which use by their customers they at least passively encouraged) and where their business was itself the attraction for both customers and loiterers, it is overly simplistic for the issue of control to be resolved solely by reference to a property boundary line and the fortuitous circumstance that the attack on [the plaintiff] took place just 10 feet beyond it. While we can not conclude that these circumstances establish that petitioners did exercise control over the adjacent lot, we do find that they are sufficient to raise an issue of fact that must be resolved by a jury.” (203 Cal. App.3d at p. 667.)

In Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal. App.4th 1578 [19 Cal. Rptr.2d 436], migrant farm workers, living in a makeshift structure on undeveloped land adjacent to the defendants’ farms, were injured when the structure caught fire. The plaintiffs argued that the defendants owed a duty to make the premises safe or warn of the dangers because they “encouraged the labor camp environment to exist, and gained an economic benefit from it.” (Id. at p. 1589.) The Court of Appeal rejected this approach, relying instead upon the settled rule that “`[t]he law of premises liability does not extend so far as to hold [the landowner] liable merely because its property exists next to adjoining dangerous property and it took no action to influence or affect the condition of such adjoining property.'” (Id. at p. 1590.)

This was the state of the law when the Court of Appeal decided Swann v. Olivier, supra, 22 Cal. App.4th 1324. The holding in Swann is unremarkable. It held, using language consistent with our holding in the present case, that the owners of a private beach were not liable for injuries sustained by the plaintiff while in the ocean adjacent to the property because the defendants “do not own or control the ocean, and they are not responsible for injuries that take place in that ocean.” (Id. at p. 1326.) The opinion in Swann, however, goes on to observe that, in several instances, businesses have been held liable for injuries that occurred on adjacent property when the business 1165*1165 has “received a special commercial benefit from the area of the injury plus had direct or de facto control of that area.” (Id. at p. 1330.) In support of this observation, which is unnecessary to the holding in that case, the court inSwann cites this court’s decision in Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, in which the owner of a restaurant was held liable for injuries sustained by a prospective customer while entering an unlit portion of a walkway leading to the restaurant, despite the circumstance that the walkway was not situated within the premises leased by the defendant.

As noted above, this court held in Johnston v. De La Guerra Properties, Inc., supra,28 Cal.2d 394, 401, “that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.” Nothing in our opinion inJohnston suggests that, in addition to exercising control of the property that caused the injury, the defendant also must derive a commercial benefit from that property. The term “business invitees” was merely a reference to the “rigid common law classifications” of trespasser, licensee, and invitee which we since have abandoned. (Rowland v. Christian, supra, 69 Cal.2d at p. 118.)

The other Court of Appeal decision to propose a “commercial benefit” requirement,Princess Hotels Internat., Inc. v. Superior Court, supra, 33 Cal. App.4th 645, 646,also involved injuries sustained in the ocean adjacent to the defendants’ property and holds, in language consistent with the established rule, “that a hotel has no duty to warn its guests of a dangerous condition of adjacent property over which the hotel has no control, to wit, the ocean currents.” Relying upon the decision in Swann,however, the Court of Appeal went on to note that the circumstance that the hotel derived an obvious commercial benefit from its proximity to the ocean was insufficient to establish liability: “The California cases, as correctly analyzed bySwann, require control as well as a commercial benefit; and the ocean is simply not within the control of humankind.” (Id. at p. 652, italics omitted.) Again, this discussion of commercial benefit is unnecessary to the decision. The absence of liability in that case follows from the defendants’ lack of control over the property that caused the injury.

Justice Brown’s dissent cites no case, and we are aware of none, in which a defendant that exercised control over property on which an injury occurred was found not liable simply because the defendant derived no commercial benefit from that property.

The opinions in Swann and Princess Hotels, and Justice Brown’s dissent, fail to explain why liability for injuries on adjacent property should depend 1166*1166 upon whether the defendant derives a commercial benefit from that property. Nothing in our opinion in Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394,suggests that the result in that case would have been different if, instead of being the owner of a business, the defendant had been a homeowner who had been sued by a social guest whom the homeowner had directed to park on adjacent property and use an unsafe walkway controlled, but not owned, by the homeowner. If a visitor is injured on property controlled by the defendant, liability does not depend upon whether the defendant derived a commercial benefit from the property.[5] We disapprove any language to the contrary in Swann v. Olivier, supra, 22 Cal. App.4th 1324, and Princess Hotels Internat., Inc. v. Superior Court, supra, 33 Cal. App.4th 645.

C

(7) In the superior court, defendants objected to the evidence introduced by plaintiff reflecting that defendants maintained the lawn on the strip of land owned by the city and, subsequent to the incident at issue, constructed a fence surrounding the entire lawn. Defendants argued this evidence was irrelevant and violated the rule set forth in Evidence Code section 1151 that evidence of subsequent remedial conduct “is inadmissible to prove negligence.” (Italics added.) In granting summary judgment for defendants, the superior court sustained defendants’ objections to this evidence.

Plaintiff argued on appeal that these evidentiary rulings were incorrect. The Court of Appeal did not rule expressly on these issues in its opinion reversing the summary judgment, but included in its statement of facts the circumstances that defendants had maintained the lawn surrounding the meter box and, subsequent to the incident at issue, had constructed a fence around the entire lawn. On review before this court, neither party briefed the issue of the admissibility of this evidence, and both parties mention in describing the circumstances of the case that defendants had maintained the lawn surrounding the meter box and, subsequent to the incident at issue, constructed a fence around the entire lawn.

We agree with the implied ruling of the Court of Appeal that the superior court erred in excluding this evidence regarding defendants’ maintenance of the lawn and their construction of the fence. This evidence was highly relevant regarding whether defendants exercised control over the strip of land owned by the city.

1167*1167 “`Relevant evidence’ means evidence … having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) As explained above, whether defendants exercised control over the strip of land owned by the city on which the meter box was located is a “disputed fact that is of consequence to the determination of the action.” (Ibid.) Indeed, if defendants exercised control over this strip of land, it appears clear they owed a duty to protect or warn plaintiff.

Evidence that defendants maintained the lawn on the strip of land owned by the city certainly has some “tendency in reason to prove or disprove” whether defendants exercised control over that land. This is not to say that the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. But it cannot be doubted that such evidence is relevant on the issue of control.

The circumstance that defendants constructed a fence surrounding the narrow, city-owned strip of land that bordered their property also is highly relevant. It is obvious that the act of enclosing property with a fence constitutes an exercise of control over that property. Code of Civil Procedure section 323, which defines adverse possession under a written instrument or judgment, states that “land is deemed to have been possessed and occupied … [¶] … [¶] 2. Where it has been protected by a substantial enclosure.” In Lofstad v. Murasky (1907) 152 Cal. 64, 69 [91 P. 1008],this court defined “actual possession” of real property as “an appropriation of the land by the claimant such as will convey to the community where it is situated visible notice that the land is in his exclusive use and enjoyment; an appropriation manifested by either inclosing it, or cultivating it, or improving it or adapting it to such uses as it is capable of.” Defendants’ maintenance of the lawn and construction of the fence could support a finding that defendants took possession of the strip of land owned by the city and exercised control over it.

Defendants argued in the superior court that construction of the fence could not be considered in determining whether defendants exercised control over the property because the fence was constructed after plaintiff was injured. We agree that the circumstance that the fence was constructed after plaintiff was injured lessens the probative value of this evidence in demonstrating that defendants were exercising control over the property at the time plaintiff was injured, but it does not render the evidence irrelevant. Defendants’ act of building the fence following plaintiff’s injury is circumstantial 1168*1168 evidence that defendants also exercised possession and control over the property at the time plaintiff was injured. (See, e.g., Morehouse v. Taubman Co. (1970) 5 Cal. App.3d 548, 555 [85 Cal. Rptr. 308] [“evidence that Taubman’s carpenters installed handrails at the point where Morehouse fell following his injury… was properly … received by the court … on the issue… of control of the premises, and as to whose duty it was under the contract to take such safety measures”]; 1 Witkin, Cal. Evidence (3d ed. 1986) Circumstantial Evidence, § 444, p. 413 [“where the issue is whether a defendant was the owner, possessor, or person in control of property involved in the injury, his subsequent repairs (which would scarcely be made by a stranger) may be shown to meet his denial of such control”]; see generally, Annot., 15 A.L.R.5th 119, 239 [citing cases that hold “that evidence of repairs, improvements, safety precautions, or like remedial or preventive measures taken after an injury may be admitted for the purpose of establishing that at the time of the accident, the defendant owned or controlled the place, thing, or activity which occasioned the injury, at least where ownership or control is controverted, and subject to other appropriate limitations.”].) The circumstance that defendants maintained the lawn on the city’s narrow strip of land both at the time of and following plaintiff’s injury indicates that the construction of the fence subsequent to the injury was but a further, consistent indication of the extent to which defendants treated the city’s property as their own.

As noted above, in Orthmann v. Apple River Campground, Inc., supra, 757 F.2d 909,the court considered a suit for personal injuries brought by a customer of the defendants who was injured diving into a river from land owned by a neighbor of the defendants. In allowing the suit to proceed, the court observed: “What makes this case more difficult than our hypothetical variants is that the defendants do not own the property from which Orthmann dove. But according to an affidavit of one of the Montbriands, which Orthmann included in the appendix to his brief in this court, shortly after the accident the defendants came on the Montbriands’ land without asking their permission, and cut the tree down. The affidavit also states that the Montbriands had seen the defendants cleaning and maintaining the banks of the river on the Montbriands’ land. It is possible to infer that the defendants, though they did not own the Montbriand property, treated it as if they did — the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least (which is all that is necessary, as we are about to see) possession.” (Id. at p. 913.)

As noted above, defendants also argued in the superior court that admission of evidence that they constructed the fence after plaintiff was injured violated Evidence Code section 1151, which states: “When, after occurrence 1169*1169 of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.” This statute does not apply, however, because evidence regarding construction of the fence was admitted, not to prove negligence, but to demonstrate that defendants exercised control over the strip of land owned by the city. As we stated in Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 118 [117 Cal. Rptr. 812, 528 P.2d 1148, 74 A.L.R.3d 986], “Section 1151 by its own terms excludes evidence of subsequent remedial or precautionary measures only when such evidence is offered to prove negligence or culpable conduct.” (Italics added; see also Fed. Rules Evid., rule 407, 28 U.S.C., which employs language nearly identical to Evidence Code section 1151 and then explains: “This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”)

Morehouse v. Taubman Co., supra, 5 Cal. App.3d 548, involved the liability of a general contractor for injuries sustained by an employee of a subcontractor when the employee fell from the top of a wall. Among the issues to be determined was whether the general contractor had retained control of the workplace so as to warrant imposition of liability on that contractor for the accident. In recounting the evidence of such control, the Court of Appeal stated: “Taubman [the general contractor] maintained a crew of carpenters whose functions included installing guardrails at [the construction site]; and in practice, at least, provided guardrails and safety devices. There was testimony both that it was Taubman’s policy to place guardrails around openings or edges of slabs above 10 feet in height and that these were installed around the perimeter of slabs where there was a dropoff, regardless of elevation.While evidence that Taubman’s carpenters installed handrails at the point where Morehouse fell following his injury was not admissible to prove negligence of Taubman (Evid. Code, § 1151) it was properly limited (Evid. Code, § 355) and received by the court, on the issue of control of the premises, and as to whose duty it was under the contract to take such safety measures. [Citation.]” (Id. at p. 555, italics added, citing Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal. App.2d 565, 573 [46 Cal. Rptr. 421] [subsequent remedial conduct cannot be considered on the issue of liability, but “is relevant and admissible” on the issues of scope of duty and the possibility or feasibility of eliminating the cause of the accident]; see also Dincau v. Tamayose (1982) 131 Cal. App.3d 780, 796 [182 Cal. Rptr. 855] [section 1151 inapplicable, “[f]or if the subsequent events are offered to prove anything other than negligence or culpable conduct, they are admissible if relevant”]; 1 Witkin, Cal. Evidence, supra, 1170*1170 Circumstantial Evidence, § 444, p. 413 [“Where evidence of subsequent precautions or repairs is independently relevant on some issue other than negligence, the policy objection is overcome….”].)

In the present case, evidence establishing that defendants constructed the fence after plaintiff was injured would not be admissible at trial to prove that defendants were negligent, but would be admissible to demonstrate that defendants exercised control over the premises. Accordingly, we may consider such evidence in determining whether a triable issue of material fact existed concerning whether defendants exercised control over the strip of land and thus owed a duty of care to plaintiff.

Defendants did not own the narrow strip of land on which plaintiff was injured, but plaintiff has presented evidence suggesting that defendants treated a portion of this strip of land as if they did own it, maintaining a lawn that spanned the property line and that rendered part of the land owned by the city indistinguishable from that owned by defendants, and (subsequent to plaintiff’s injury) demonstrated their possession of this land by constructing a fence enclosing the narrow strip containing the meter box. Standing alone, simply mowing a portion of a lawn belonging to a neighbor may not constitute an exercise of control over the property so as to give rise to a duty to protect or warn persons entering the property of known dangers. But the evidence offered in the present case goes farther and is sufficient to raise a triable issue of fact as to whether defendants exercised control over the strip of land containing the meter box and thus owed a duty of care to protect or warn plaintiff of the allegedly dangerous condition of the property.[6]

III

(1d) As should be apparent, we decide only that, based upon the circumstances of the present case, plaintiff has raised a triable issue of fact whether defendants exercised control over the strip of land owned by the city so as to 1171*1171 give rise to a duty to protect or warn persons entering the land. It will be for the trier of fact to decide, based upon the evidence received at trial, whether defendants actually exercised such control. We express no opinion as to other issues that will arise, in the event the trier of fact finds that such control was exercised by defendants — including whether defendants breached that duty of care and to what extent, if any, plaintiff’s injuries were caused by his sole or comparative negligence.[7] Finally, we express no opinion regarding defendants’ right to full or partial indemnity from the city.

The judgment of the Court of Appeal is affirmed.

Mosk, J., Werdegar, J., and Chin, J., concurred.

MOSK, J.

I concur in the judgment and generally with the majority’s reasoning. Contrary to the dissents’ criticisms, today’s decision merely applies settled principles of California law. In that respect, I write separately to explain that a body of law imposing liability for failing to maintain appurtenances to land also favors plaintiff. The principles involved ordinarily appear in tort cases involving appurtenances embedded in sidewalks to benefit adjoining property.

Before discussing the law of appurtenances, however, I explain the basis on which I join the majority opinion. First, although the scope of defendants’ duty to keep the premises in a reasonably safe condition is a legal question for the court (Ann M. v.Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal. Rptr.2d 137, 863 P.2d 207]), the trier of fact is to decide whether a breach of that duty caused plaintiff’s alleged injuries (Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633 [4 Cal. Rptr.2d 145, 822 P.2d 1292]). Nothing in our majority opinion should be interpreted otherwise.

Second, as the majority explain, possession and control govern the scope of that duty. “`[T]he right of supervision and control “goes to the very heart of the ascription of tortious responsibility….”‘” (Preston v. Goldman (1986) 42 Cal.3d 108, 119 [227 Cal. Rptr. 817, 720 P.2d 476].)

Whether or not the land containing the meter box was city owned, plaintiff offered enough evidence of defendants’ control of the premises to raise a triable factual question regarding their liability for his injury. He produced evidence that defendants hired someone to mow the lawn. He also produced 1172*1172 evidence that defendants put up a picket fence after the accident. This evidence was admissible to show control. (Morehouse v. Taubman Co. (1970) 5 Cal. App.3d 548, 555 [85 Cal. Rptr. 308]; cf. Evid. Code, § 1151 [evidence of later remedial measures inadmissible to show earlier negligence or culpable conduct].) Finally, plaintiff produced evidence that an erstwhile neighbor or tenant warned defendant Peter Vece several times about the missing meter box cover. This state of the evidence requires that a trier of fact decide defendants’ liability.

But even if the foregoing evidence were absent, the evidence that defendants neglected to maintain an appurtenance placed on adjoining land for their benefit would suffice to defeat the summary judgment motion. “`The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.'” (Mann v. Cracchiolo(1985) 38 Cal.3d 18, 35 [210 Cal. Rptr. 762, 694 P.2d 1134].)

As alluded to, the question of the duty to maintain an appurtenance ordinarily arises in cases involving traps on sidewalks. At common law an adjoining landowner owed no duty to members of the public to protect against defects in public sidewalks. (Winston v. Hansell (1958) 160 Cal. App.2d 570, 572 [325 P.2d 569, 88 A.L.R.2d 326].) Streets and Highways Code section 5610 creates a duty to maintain a sidewalk, but that duty does not extend to members of the public. (Williams v. Foster(1989) 216 Cal. App.3d 510, 521 [265 Cal. Rptr. 15].) Therefore it appears that the common law rule still applies. (Id. at pp. 515, 521.) But an adjoining landowner nonetheless may be liable “for defects created by special construction for the particular needs of the abutting property.” (Winston v. Hansell, supra, 160 Cal. App.2d at p. 575.) As we have explained, “an abutting landowner may be held liable for the dangerous condition of portions of the public sidewalk which have been altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed.” (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 423 [260 P.2d 55], reaffirmed in City & County of S.F. v. Ho Sing (1958) 51 Cal.2d 127, 129 [330 P.2d 802].) The adjoining landowner and the city are jointly and severally liable for injury resulting from such a dangerous condition. (51 Cal.2d at p. 130.)

Potential traps giving rise to such liability include “coal holes, meter boxes, and other devices of similar character located in the sidewalk which benefit the abutting owner and are located where the general public is likely to walk. In those cases, it becomes the liability of the abutting owner to keep 1173*1173 such devices in good repair.” (Steen v.Grenz (1975) 167 Mont. 279 [538 P.2d 16, 18]; see also Annot., Liability of Abutting Owner or Occupant for Condition of Sidewalk (1963) 88 A.L.R.2d 331, 399.)

Liability is imposed because emplacements of this type are appurtenances for the benefit of the possessor and controller of adjoining land. (Hamelin v. Foulkes (1930) 105 Cal. App. 458, 462-463 [287 P. 526].) Hamelin is virtually on all fours with this case. In Hamelin, the plaintiff stepped out of an automobile and into a hole created by the defendants’ “failure to maintain a proper covering upon the sidewalk hydrant box in front of [their] store…. The hydrant boxes were cut in the concrete near the curb and were approximately ten inches square.” (Id. at p. 461.) Hamelin found liability because “the hydrant box was solely for the use of appellants’ store and was connected with appellants’ meter, [and] the lease of the store and basement to appellants passed with it the possession and control of the hydrant box as an appurtenance thereto.” (Id. at p. 462.)

Hippodrome Amusement Co. v. Carius (1917) 175 Ky. 783 [195 S.W. 113] also found liability on this basis in a case involving a water service box. “[I]f the unsafe condition of the sidewalk … arises from an extraordinary use permitted him [the adjoining landowner] in the use of the sidewalk for purposes of his own, and … the sidewalk is burdened with a servitude for his benefit or that of his property, and he appropriates the use of the contrivance which constitutes the servitude, he is jointly and severally liable … with the city for the injuries sustained by individuals on account of the unsafe condition of the sidewalk.” (195 S.W. at p. 115.) This is so even if it is the city’s duty “to look after and keep in repair the water service boxes throughout the city.” (Ibid.)

The foregoing cases illustrate the principle that “ordinarily an easement or dominant tenement owner has the duty to maintain and repair the easement and the servient tenement owner is under no duty to do so.” (Williams v. Foster, supra, 216 Cal. App.3d at p. 522, fn. 9.) Concomitant with that duty is the right to repair. (Ward v. City of Monrovia (1940) 16 Cal.2d 815, 821-822 [108 P.2d 425]; Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal. App.4th 697, 706-707 [43 Cal. Rptr.2d 810]; City of Gilroy v. Kell (1924) 67 Cal. App. 734, 743 [228 P. 400] [easement by prescription].) Thus, the point made in dissent — in essence that there is no evidence sufficient to create a triable issue whether defendants could repair the meter box — is erroneous. Plaintiff produced evidence that, if accepted by the trier of fact, would establish defendants’ right to do so.

Naturally, the reason to hold responsible for pedestrians’ injuries those adjoining landowners who modify sidewalks for their own use is that 1174*1174 sidewalks are common thoroughfares, and the presence of passersby is foreseeable. This case differs from Hamelin v. Foulkes, supra, 105 Cal. App. 458, in that the evidence showed the meter box was on a “well kept lawn” a few inches from the sidewalk. Presumably the lawn was not a common thoroughfare for members of the general public. But plaintiff was not a mere passerby who might be thought unlikely to tread on the lawn: he was defendants’ tenant whose use of the lawn the trier of fact could find foreseeable — i.e., he was walking where he was “likely to walk.” (Steen v.Grenz, supra, 538 P.2d at p. 18.)

The summary judgment motion should have been denied because of evidence that defendants controlled the whole lawn, including any part the city may have owned. In the alternative, the motion should have been denied because of evidence that defendants benefitted from a servitude in the form of a meter box on adjoining land on which it was foreseeable that plaintiff might walk. (Hamelin v. Foulkes, supra, 105 Cal. App. 458; see Civ. Code, § 801, subd. 6; see also Wright v. Best (1942) 19 Cal.2d 368, 382 [121 P.2d 702] [Civil Code section 801 does not enumerate all possible servitudes].)

KENNARD, J., Dissenting.

Does a landowner who has no possessory interest in adjoining premises containing a dangerous condition, who has no legal right to control either the premises or the dangerous condition, and who did nothing to create or aggravate the danger have a duty to protect others from the danger? Before today the answer under California law would be “No.” The majority, however, holds that persons who lack the right to control either the dangerous condition or the land on which it is located, and who have done nothing to create or increase the danger, have such a duty merely because they have conducted some unrelated activity on the neighboring land. Because the majority imposes the duty based on innocuous or good-neighborly conduct that does not contribute to the danger and therefore carries no moral blame, its expansion of tort liability runs counter to traditional notions of tort law.

I

On the night of April 17, 1990, plaintiff Gilardo C. Alcaraz walked from the public sidewalk onto a narrow strip of land located in front of the rental property where he had lived for 22 years, stepped on a broken water meter box, and was injured. Both the narrow strip of land and its water meter box belonged to the City of Redwood City (hereafter City). Alcaraz sued his 1175*1175 landlord, Peter Vece, seeking damages under a theory of premises liability.[1] The complaint alleged that the meter box was located on property owned by Vece at 141-147 Lincoln Avenue in the City, and that therefore Vece was legally responsible for its defective condition, which was the proximate cause of Alcaraz’s injuries.[2]

Vece moved for summary judgment. He presented undisputed evidence that the City owned the strip of land containing the water meter box and maintained the box.

In opposition, Alcaraz argued that even if Vece did not own the water meter box or the land on which it was situated, Vece nonetheless had a duty to repair the broken meter box or to warn Alcaraz about its condition in light of Vece’s control over the City-owned land. As indicia of such control, Alcaraz pointed to (1) the periodic mowing, by Vece’s gardener, of the two-foot-wide strip of grass-covered land that was owned by the City and contained the City’s meter box; and (2) Vece’s construction, after the accident, of a picket fence that separated the lawn area from the public sidewalk and enclosed both Vece’s land and the City’s.

The trial court entered summary judgment for Vece.

II

The majority holds that summary judgment should not have been granted because “a triable issue of fact exists” whether Vece “exercised control over the property surrounding the meter box and thus had a duty to protect plaintiff from, or warn him of, the hazardous condition of the meter box.” (Maj. opn., ante, at p. 1161.) According to the majority, a jury could well decide that control sufficient to impose on Vece a duty to protect others from or warn them about the hazardous condition of the meter box could be established by evidence that Vece’s gardener had been mowing the grass on the two-foot-wide strip of land owned by the City and containing the City’s meter box, together with evidence that after the accident Vece built a picket fence around the grassy area in front of his rental property, enclosing both his land and the City’s narrow strip of land. (Id. at p. 1170.)

The majority’s holding finds no support in California case law, which until now has imposed a duty to protect others from dangerous conditions on 1176*1176 land only upon those persons who (1) have the legal right to control either the premises containing the dangerous instrumentality or the dangerous instrumentality itself, or (2) created or aggravated the hazard on the land.

The general rule of premises liability is set forth in this court’s decision in Sprecher v.Adamson Companies (1981) 30 Cal.3d 358, 368 [178 Cal. Rptr. 783, 636 P.2d 1121], which states that a landowner has a “duty to take affirmative action for the protection of individuals coming upon the land.” This duty arises because ownership of land includes the “right to control and manage the premises.” (Ibid., italics added.) The landowner’s “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” (Id. at p. 370, italics added.) The right to control the premises lies at “`the very heart of the ascription of tortious responsibility'” in premises liability actions. (Id. at p. 369, quotingConnor v. Great Western Savings & Loan Assn. (1968) 69 Cal.2d 850, 874 [73 Cal. Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224] (dis. opn. of Mosk, J.); accord, Preston v.Goldman (1986) 42 Cal.3d 108, 118-119 [227 Cal. Rptr. 817, 720 P.2d 476].)

The “right to control” gains special significance when more than one individual has a legal interest in land containing a dangerous condition, because it provides a means of ascertaining who has the duty to warn or protect others from that condition. (SeeLow v. City of Sacramento (1970) 7 Cal. App.3d 826, 831 [87 Cal. Rptr. 173] [noting that “the aggregation of powers called ownership” can be divided and the “various kinds of control [can be] held in separate hands”].) In that situation, the existence of duty depends upon whether a particular interest includes the right to control that part of the premises containing the dangerous condition. (Uccello v. Laudenslayer (1975) 44 Cal. App.3d 504, 511 [118 Cal. Rptr. 741, 81 A.L.R.3d 628]; see Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 399-401 [170 P.2d 5].)

For example, although the interests of a landlord and a tenant in property leased by the tenant overlap to some extent, the tenant has a present interest in the premises while the landlord has only a future reversionary interest. Therefore, the landlord’s relinquishment of the rental premises to a tenant generally imposes on the tenant, not the landlord, the duty to protect others from dangerous conditions on those premises. (Uccello v. Laudenslayer, supra, 44 Cal. App.3d at pp. 510-511; Prosser & Keeton, Law of Torts (5th ed. 1984) § 63, p. 434 [“In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee….”]; see Rowland v. Christian (1968) 69 Cal.2d 108, 119-120 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] [residential tenant liable for 1177*1177 dangerous condition within area of leasehold].) But when the landlord retains the right to control certain parts of rental premises (typically common areas), the law imposes on the landlord the duty to use ordinary care to eliminate dangerous conditions in the areas of retained control. (Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, 399; Uccello v. Laudenslayer, supra, at p. 511.)

In Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, this court upheld a jury verdict imposing damages on both a commercial landlord and its tenant for injuries to a patron of the tenant’s restaurant who was injured in a common area of the premises, namely, a walkway leading to the restaurant’s back door. This court held the landlord liable, applying the principle that a landlord who retains the right to control common areas has a duty for injuries occurring in such areas. (Id. at pp. 399-400.) But the tenant was also held liable, because it had a “limited right of control” over the same common area, as evidenced by its installation of a neon sign at the rear entrance beckoning patrons to use the walkway to enter the restaurant. (Id. at p. 401.)

In some situations, the right to control premises containing a hazardous condition or instrumentality may be found in someone who has no ownership or leasehold interest in the premises. For instance, a landowner may grant that right to an independent contractor or licensee. (See Morehouse v. Taubman Co. (1970) 5 Cal. App.3d 548 [85 Cal. Rptr. 308].) In such a case, the contractor or licensee would have a duty to protect those coming onto the land from a dangerous condition or instrumentality on the land because of the contract- or license-based right to control those premises.

In other situations, an individual’s “right to control” may extend only to the dangerous condition or instrumentality itself and include no other portion of the premises, and yet the individual would have a duty to protect or warn others of the hazard because the right to control the dangerous condition carries with it “a concomitant right and power to obviate the condition and prevent the injury.” (Uccello v. Laudenslayer, supra, 44 Cal. App.3d at p. 511; accord, Connor v. Great Western Savings & Loan Assn., supra, 69 Cal.2d 850, 874 (dis. opn. of Mosk, J.) [the right to control the “agency of harm” gives rise to a duty to protect others from the harm].)

As I have just explained, the right to control land or dangerous conditions on the land may exist separately from any property interest. California courts, in determining whether a duty of care exists in premises liability actions, have therefore treated a possessory interest in property with its attendant right to control the property as a concept separate from the right of 1178*1178 control over property that is not grounded in any possessory interest, and they have occasionally used the shorthand term “control” to denote what is more correctly described as the “right to control.” (See generally, Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 [211 Cal. Rptr. 356, 695 P.2d 653] [“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.” (Italics added.)]; Gray v. America West Airlines, Inc. (1989) 209 Cal. App.3d 76, 81 [256 Cal. Rptr. 877] [“In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.” (Italics added.)].) These cases do not suggest, as the majority would have it, that a person who has no possessory interest in adjoining land or who lacks the legal right to control the land or the hazardous condition on it assumes a duty to protect others against or warn them of the danger on the land, simply because of some innocuous activity that the individual performed on the neighboring land.

Rather, the general rule to be drawn from California case law is that, in premises liability actions, those who have a right to control either the premises containing a dangerous condition or the dangerous condition itself have a duty to correct the hazard or to warn others of it. The converse, of course, is also true. Absent the right to control either the premises or the dangerous condition, there generally is no duty to correct or to warn. (See Gillespie v. City of Los Angeles (1950) 36 Cal.2d 553, 556 [225 P.2d 522] [City of Los Angeles had no duty to post signs warning motorists of a hairpin curve on Topanga Canyon Road, and hence no liability for failing to do so, because it was a state highway over which the city had no legal authority].)

One exception to this general rule is when a person’s conduct or activity on another’s land causes or increases the risk from a hazardous condition on that land. In that situation, California courts have not hesitated to subject the person to liability. Thus, in Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 859 [37 Cal. Rptr. 65, 389 P.2d 529], the operator of a butcher shop located in a large public market hall was held liable to a customer who slipped and fell on a small piece of meat dropped on the sidewalk outside the market during meat delivery. The defendant butcher shop’s use of the sidewalk for commercial purposes in the course of which the hazard was created was held to give rise to a duty by the butcher shop to discover and remove the hazard. (Ibid.) Similarly, in Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 235-239 [60 Cal. Rptr. 510, 430 P.2d 68], a bakery was held liable for injuries to a small boy who was hit by a car as he ran across the road to catch up with the bakery truck after its driver had agreed 1179*1179 to wait for the child to go home and to return with money to buy an item from the truck. A duty to protect others from harm arises in cases such as these because the defendant either created the dangerous condition on someone else’s property (as in Kopfinger), or by some affirmative conduct aggravated the danger to the plaintiff (as inSchwartz).

In contrast, when, as here, a defendant’s conduct on another’s land does not create or aggravate a dangerous condition on that land, California law imposes no duty on the defendant to protect others from the hazard. Thus, in Hamilton v. Gage Bowl, Inc.(1992) 6 Cal. App.4th 1706, 1712-1713 [8 Cal. Rptr.2d 819], the owner of a bowling alley and adjoining parking lot in which a bowling alley patron was injured when a sign fell off an adjacent building was held not to have a duty to protect the patron from the danger of the falling sign. The court noted that the owner of the bowling alley did not own either the building or the sign; therefore, the owner lacked the right to control the danger posed by the sign. It was considered irrelevant to the issue of duty that the bowling alley owner had painted the wall on the adjacent property and maintained his own advertisement on it (thus, arguably, under the view of the majority here, exercising “control” over the neighboring property containing the dangerous condition). As the court in Donnell v. California Western School of Law (1988) 200 Cal. App.3d 715, 720 [246 Cal. Rptr. 199], aptly stated: “The law of premises liability does not extend so far as to hold [a defendant] liable merely because its property exists next to adjoining dangerous property and it took no action to influence or affect the [harmful] condition of such adjoining property.”

In summary, under California law persons who have the right to control premises containing a dangerous condition, or who have the right to control the dangerous condition itself, or whose conduct caused or contributed to the hazard have a duty to protect others from the hazard. Therefore, contrary to the majority’s holding, our law does not impose a duty on a landowner to correct or warn of a dangerous condition on neighboring land when the landowner has no right to control that property, and did not create or aggravate the hazardous condition.

Undaunted, the majority seeks, without avail, to justify its holding by relying on two federal appeals court decisions, Husovsky v. United States (D.C. Cir.1978) 590 F.2d 944 [191 App.D.C. 242] and Orthmann v. Apple River Campground, Inc. (7th Cir.1985) 757 F.2d 909, and on section 328E of the Restatement Second of Torts.

The same two reasons that the California cases I discussed earlier have articulated in imposing a duty to protect — affirmative conduct creating a 1180*1180 hazard and a right to control the premises containing the hazard, a right that arises from a possessory interest or an agreement with one holding the possessory interest — underlie Husovsky v. United States, supra, 590 F.2d 944. That case imposed on the United States Government a duty of care to a motorist who was injured when a tree located on land belonging to the Government of India fell on his car. The land had been left in its natural state pursuant to a written agreement that the United States had negotiated with India 20 years before the accident. Therefore, the United States had in effect created the hazardous condition. In addition, the court found the existence of a “unique relationship … between the United States and the tract of land” containing the tree in question, based on certain acts by the United States Government indicating the right of control and supervision over the land owned by India. (Id. at p. 592.) These acts included “[t]he initial and subsequent surveys of the land, the agreement with India concerning the use to which it could be put, placement and maintenance by the Park Service of monuments and stakes with United States insignia….” (id. at p. 593, fn. omitted) and “[t]he presence for over twenty years of permanent granite markers bearing the United States’ insignia indicat[ing] that the Indian Government did not contest the indicia of federal control over the tract.” (Id. at p. 953, fn. 20.)

Similarly misplaced is the majority’s reliance on Orthmann v. Apple River Campground, Inc., supra, 757 F.2d 909 (hereafter Orthmann). In that case, the plaintiff sued certain businesses located on the Apple River for injuries he sustained when diving into the river. The businesses were engaged in a joint venture, the Floater’s Association, that rented out inner tubes for floating down a four-mile stretch of the river; members of the association owned most of the land on both sides of that stretch of the river. The plaintiff rented an inner tube, but interrupted his floating to go ashore at a spot belonging not to the association but to the Montbriand family. A tree on the property that grew out over the river was a popular location for diving. When the plaintiff arrived at the tree, several others were waiting to dive from it, so the plaintiff dived from the riverbank instead and was injured. (Id. at pp. 910-912.)

To decide whether the plaintiff’s complaint stated a negligence claim under Wisconsin law, the federal appeals court in Orthmann first posited that the Floater’s Association, by advertising its inner tube rental to potential customers, had issued an implied invitation for persons renting inner tubes “to use the tree and surrounding land for diving into the river.” (Orthmann, supra, 757 F.2d at p. 913.) The court reasoned that under these circumstances the association would be “prima facie liable” if it owned the land where the diving took place. (Ibid.) The plaintiff’s complaint, the court1181*1181 concluded, was sufficient to satisfy the liberal federal pleading requirements based on statements in a supporting affidavit that, after the accident, an association member had gone onto the riverbank of the Montbriand property without permission and cut down the tree. The federal court held that even though the defendants did not own the part of the riverbank from which the plaintiff dived into the river, it was possible to infer from the tree-cutting activity that they had “treated it as if they did.” (Ibid.)

Therefore, under Orthmann, a duty of care arises only when a landowner either creates a dangerous condition on neighboring land or encourages a particular use of that land resulting in the plaintiff’s injury. (Orthmann, supra, 757 F.2d at pp. 913[discussing the association’s encouragement of diving as part of the basis for imposing a duty of care on its members], 914 [giving two examples of when treatment of neighboring land as one’s own could give rise to liability, one involving the landowner’s creation of a dangerous pothole on adjoining land and the other in which the landowner encouraged a particular use of adjoining land that exposed the plaintiff to the dangerous condition].) Here, Vece neither created the hazard posed by the City’s broken water meter box nor encouraged a particular use of the City’s land leading to plaintiff’s injuries.

According to the majority, “[i]t would be anomalous to conclude that a person who wrongfully takes possession of land owned by another, exercising control over that land, cannot be held liable for injuries caused by a dangerous condition of the property.” (Maj. opn., ante, at p. 1159, fn. 3.) The majority equates “exercising control” over adjoining land with “possession” of land. In support, the majority cites to Restatement Second of Torts section 328E, which defines the term “possessor of land” to include “a person who is in occupation of land with intent to control it” and to section 328E’s comment a, which states that “[t]he important thing in the law of torts is the possession, and not whether it is or is not rightful as between the possessor and some third person.” (See maj. opn., ante, at p. 1159.) Upon close examination, however, section 328E and comment a have no application here. Ignored by the majority is the next sentence to comment a explaining that under section 328E, a person who occupies land with intent to control it can be a possessor with a duty to protect others coming upon the land only if that person is a “disseisor,” that is, someone in the process of gaining ownership of another’s land through the legal doctrine of adverse possession. (Rest.2d Torts, § 328E, com. a, p. 171 [“Thus a disseisor is a possessor from the moment that his occupation begins, although as between the disseisor and the true owner he is not legally entitled to possession until his adverse possession has ripened through lapse of time into ownership.”]; and1182*1182 see 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 93, p. 318 [explaining how title is gained through “disseizen”].)[3]

In order to occupy another’s land with the intent to control it for purposes of gaining title through adverse possession, a person must exercise dominion over the property in such a way as to put the true owner on notice that the person claims a right, title and interest in the land. (4 Witkin, Summary of Cal. Law, supra, Real Property, § 96, p. 320; id., § 104, pp. 323-324.) The claim of right must be “hostile” to the possessory rights of the true owner. Therefore, “[i]f the owner permits the person to use the land, the possession is not adverse.” (Id., § 97, p. 321.) Furthermore, the hostile occupancy under a claim of right must continue uninterrupted for a full five-year period (Code Civ. Proc. §§ 318, 319, 325; 4 Witkin, supra, Real Property, § 108, p. 328), during which time the disseisor must have paid all taxes levied or assessed on the property (Code Civ. Proc., § 325; 4 Witkin, supra, Real Property, § 110, p. 330). Understood in light of these substantial preconditions for gaining title to land through adverse possession (none of which is satisfied in this case), section 328E of the Restatement Second of Torts does not support the majority’s expansive and unprecedented holding that when, as here, a landowner performs innocuous or good-neighborly activity on neighboring property, he or she may be said to “exercise control” over that land, thus warranting imposition of a duty to protect or to warn others of dangers on that land.[4]

In its eagerness to impose liability where none existed before, the majority does not even bother to consider the test this court articulated in Rowland v. Christian, supra,69 Cal.2d 108, 113, in determining the existence of duty. Pertinent are such considerations as the closeness of the connection between 1183*1183 the plaintiff’s injury and the defendant’s conduct, the moral blame attached to the defendant’s conduct, advancement of the public policy of deterring or preventing future harm, the extent of the burden to the defendant and the consequences to the community in imposing a duty to exercise care and subjecting the defendant to liability for breach of the duty, and the availability of insurance. These factors weigh against the majority’s imposition of a duty of care here, as I explain below.

When, as here, a plaintiff suffers injury from a dangerous condition on land over which the defendant has no right of control, and the defendant’s innocuous or good-neighborly activity on that land neither created nor aggravated the hazard, there is no nexus between the plaintiff’s injury and the conduct of the defendant. Therefore, the defendant bears no moral blame. Nor would imposition of liability in this circumstance advance society’s interests in punishing wrongdoers and in preventing future harm; instead, it would discourage individuals from undertaking socially beneficial actions on neighboring property or turn those who do so into guarantors of the safety of others coming onto the adjoining property. Furthermore, persons lacking any lawful interest in the premises containing a hazardous condition have no insurable interest in those premises. Accordingly, consideration of the various factors set forth inRowland v. Christian, supra, 69 Cal.2d 108, 113, do not support the creation of a duty of care in this case.[5]

III

The majority’s holding suffers from yet another serious flaw. The majority leaves it to the jury, on a case-by-case basis, to decide as “a triable issue of fact” the issue of when a landowner has “exercised control” over adjoining property so as to give rise to a duty of care. (Maj. opn., ante, at p. 1153.) But the majority never explains what it means to “exercise control” over adjoining premises. Pity the poor trial judge who after today’s decision will have to fashion a jury instruction on this point.

Furthermore, the majority claims that leaving this decision for the jury is entirely consistent with the rule that the existence of duty is a question of 1184*1184 law to be decided by a court. (Maj. opn., ante, at p. 1162, fn. 4; see generally, Knight v. Jewett(1992) 3 Cal.4th 296, 313 [11 Cal. Rptr.2d 2, 834 P.2d 696]; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624]; see also Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 832 [59 Cal. Rptr.2d 756, 927 P.2d 1260] (dis. opn. of Kennard, J.) [“Whether a defendant has a duty to use reasonable care to avoid harm to the plaintiff is decided as a matter of law….”].) But it is not. When facts are not in dispute, deciding whether those facts give rise to a legal duty is a question for the court rather than the jury. (Rest.2d Torts, § 328B, subd. (b), p. 151; id., com. e, p. 153; Prosser & Keeton, Law of Torts, supra, § 37, at p. 236 [“whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other …. is entirely a question of law … [to] be determined only by the court”];Mozingo by Thomas v. Memorial Hosp. (1991) 101 N.C. App. 578 [400 S.E.2d 747, 753] [“When there is no dispute as to the facts … the issue of whether a duty exists is a question of law for the court.”]; Gabrielson v. Warnemunde (Minn. 1989) 443 N.W.2d 540, 543, fn. 1 [88 A.L.R.4th 237] [“It is not … the jury’s function to determine whether the facts give rise to a duty. Rather, the jury’s role is to resolve disputed facts, upon which the court then determines whether a duty of care exists.”].) Here, there is no dispute that Vece’s gardener periodically mowed the grass on the City’s two-foot-wide strip of land containing the City’s water meter, and that Vece, after the accident, built a picket fence that enclosed both his land and the City’s, separating the entire lawn from the public sidewalk.

The majority denies that “the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another)generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property.” (Maj. opn., ante, at p. 1167, italics added.) But the majority never decides whether the occasional mowing of the City’s adjacent narrow strip of land by Vece’s gardener in this case is the type of “minimal, neighborly maintenance of property owned by another” that will not give rise to a duty. Thus the majority leaves open the possibility that a jury here and in future cases may well decide that just such minimal, neighborly acts do establish control over adjoining property sufficient to give rise to a duty to prevent harm.

With regard to Vece’s construction of a picket fence, that action took place after the accident in this case. In the majority’s view, evidence of the fence building is relevant to the issue of Vece’s control over the City property before the accident. Even under the rule that the majority announces today, however, that evidence has no relevance, as I discuss below.

1185*1185 Under that rule, a landowner with no legal interest in adjoining property has a duty to protect others from harm on that property if the landowner has exercised “control” over that property. Logically, that duty can come into existence only after the defendant has begun the conduct that constitutes such control. When, as here, the defendant after occurrence of the harm on the neighboring property engages in some new activity on that property, the new activity has no “tendency in reason to prove or disprove” (Evid. Code, § 210) that before occurrence of the harm the defendant had engaged in conduct sufficient to constitute control over the adjacent property.

In arriving at a contrary conclusion, the majority relies on a decision by the Court of Appeal in Morehouse v. Taubman Co., supra, 5 Cal. App.3d 548. In Morehouse, a contract allocated responsibilities at a jobsite between the general contractor and the subcontractor. At issue was which of the two had the contractual right of control over a specific safety requirement. Because the question was one of contractual intent, one party’s assumption of control of that safety requirement after an accident was held to be indicative of that party’s understanding that it had the obligation all along. Here, however, the issue is not one of contractual or any other form of intent, but theactual control by Vece over the City’s land and the water meter box on that landbefore the accident.

Even if Vece’s construction of the picket fence were relevant under the majority’s test, I doubt the wisdom of a rule permitting judicial consideration of after-the-fact conduct as a basis for determining the existence of control before the occurrence of the harm. Such a rule discourages a landowner who learns of an accident involving a dangerous condition on neighboring property from taking any remedial steps to protect others from the hazard, because it might expose the landowner to civil liability on the theory that his or her postaccident conduct established control over the adjacent premises.

CONCLUSION

Unlike the majority, I would hold that a landowner who has no possessory interest in adjoining property containing a dangerous condition, who has no legal right to control the neighboring premises or the dangerous condition, and whose innocuous, good-neighborly activity on that property has neither caused nor increased the hazard thereon, has no duty to prevent harm to others.

Applying this approach to the undisputed evidence that Vece offered in support of his motion for summary judgment, I conclude that Vece had no duty to protect others against the harm posed by the City’s broken water 1186*1186 meter box on City-owned land. Vece had no legal interest in or right to control the City’s meter box located on the City land running along the front of Vece’s rental property. Furthermore, plaintiff Alcaraz never alleged that Vece caused or aggravated the danger posed by the City’s broken water meter box. Therefore, Vece established the absence of duty (an essential element of plaintiff’s case), thereby entitling him to summary judgment. (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 362; Gray v. America West Airlines, Inc., supra, 209 Cal. App.3d at p. 81.)

The majority in this case adopts an ill-conceived and unprecedented expansion of tort liability. By untethering tort liability from either the existence of any legal right to control the property or conduct that creates or aggravates the harmful condition, the majority unduly expands both the scope and uncertainty of negligence liability. A person’s innocuous or good-neighborly acts on the land of another (for example, mowing a lawn, planting flowers, or regularly picnicking) can now make him or her liable to anyone coming on that land, even though there is no causal connection between the acts and the subsequent injury. Nor can anyone be certain just what acts on the land of another will amount to sufficient “control” so as to lead to liability, because all such questions will henceforth be decided by the jury on a case-by-case basis.

Under the majority’s rule, defendant Vece would have been better off and not subject to liability if instead of mowing the City’s adjoining strip of land, he had left it in its natural state, unkempt and a blight on the neighborhood.

I would reverse the judgment of the Court of Appeal and reinstate the trial court’s grant of summary judgment for Vece.

BAXTER, J.

I respectfully dissent. In doing so, I agree with many of the criticisms leveled against the majority opinion by Justices Kennard and Brown. As they suggest, the majority have created a new, vague, dangerous, and unreasonable form of premises liability against persons who merely volunteer for limited caretaking activities on their neighbors’ land. The limits of the rule applied by the majority are not clearly articulated, and the majority’s recognition of possible liability in this case cannot be justified under the balancing test pertinent to the existence of a tort duty, as set forth in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].

I write separately only because I am uncertain that either of the other dissenting opinions has isolated the precise principles which negate defendants’ duty in this case. Indeed, as the multiple opinions themselves demonstrate, the numerous authorities governing premises liability permit differing 1187*1187 shades of interpretation. However, we need not develop a “universal theory” on this subject in order to conclude, as a matter of law, that the instant defendants are not liable for the injury suffered by plaintiff Gilardo C. Alcaraz.

It is clear that one has no affirmative responsibility for the safety of property he or she does not “own, possess, or control.” (Isaacs v. Huntington Memorial Hospital(1985) 38 Cal.3d 112, 134 [211 Cal. Rptr. 356, 695 P.2d 653].) Rather, “the duty to take affirmative action for the protection of individuals coming on the land is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368 [178 Cal. Rptr. 783, 636 P.2d 1121], italics added.) Unless one’s possessory relationship to premises on which an injury occurred was sufficient to imply “control and supervisory power” over the cause of injury (ibid.), one cannot justly have assumed a “manage[ment]” duty to remedy or warn against a danger which one neither caused nor aggravated.

In determining whether occupiers of land should be liable for harm arising on adjacent property for which they disclaim possessory responsibility, the courts have considered numerous case-specific factors to decide whether the requisite power and duty to “supervis[e]” and “manage” the safety of the adjacent premises has fairly arisen. However, given the extreme facts before us, it is unnecessary here to reconcile every arguable ambiguity and inconsistency.

At the very least, nothing in the case law described at length by the majority and the dissents of Justices Kennard and Brown suggests that a person owes a duty to protect or warn against hazards which arise exclusively on the premises of another, and to which premises the danger is confined, when the person neither (1) caused or aggravated the dangerous condition, nor (2) holds any legal right of “supervisory” possession and control over the premises or the hazard, nor (3) has engaged in conduct suggesting the “de facto” assertion of such “supervisory” possession and control, nor (4) has derived any direct benefit which is linked to the hazard, nor (5) is vested with authority to remedy the specific danger. Indeed, there are no fair or rational grounds for imposing a duty of safety management on one who has none of these connections to the dangerous condition or the premises on which it is located.

We need go no further to decide this case. Even under the minimum standard I have just described, the instant trial court’s summary judgment for defendants was correct.

1188*1188 The undisputed facts are that plaintiff was injured when, while walking on a strip of land owned by the City of Redwood City (City), he tripped on a broken water meter, which was also owned by the City and was located entirely on the City-owned strip. While defendants owned closely adjacent premises, the broken meter posed no danger to persons on defendants’ land. Conversely, defendants had no legal rights of possession and control in either the City-owned strip or the defective meter itself, which gave them supervisory and management powers over those areas.

Moreover, there is no evidence or argument that defendants derived any direct economic benefit from the City-owned strip, or from the broken meter itself. It is undisputed that defendants were not responsible for either the existence or the degree of the danger on premises they did not legally own, possess, or control. Nor is there the slightest evidence that defendants contributed to the danger by encouraging persons to traverse the area where the hazard was located. Of course, plaintiff does not contend that defendants had any authority to repair the broken meter, which was operated and maintained solely by City.

The majority nonetheless hold that there is a triable issue of defendants’ duty at least to warn of the danger, or to cordon it off. The majority’s conclusion seems premised on the notion that by their conduct, defendants asserted, de facto, some form of “control” over the City-owned strip. Accordingly, the majority reason, a trier of fact should be free to hold defendants generally responsible for the reasonable safety of that area.

Like Justices Kennard and Brown, I disagree. Prior to plaintiff’s injury, defendants’ sole relationship to the premises on which plaintiff was injured — other than the adjacent nature of their own land — was that they mowed the lawn on the City-owned strip at the same time they mowed their own.

Contrary to the majority’s assertion, this evidence has no “tendency in reason” (Evid. Code, § 210) to prove that defendants asserted de facto “control” over the City-owned strip of a degree and nature which might impose a general duty to supervise and manage its safety. As Justice Kennard suggests, the mere fact that one enters his neighbor’s land from time to time, in order to conduct limited volunteer caretaking activities which have no relationship to hazardous conditions on the premises, obviously does not imply an assumption of supervisory control over all such hazards, with the attendant duty to manage them safely. To conclude otherwise, as the majority do, is both illogical and unfair. Such a conclusion is also bad public policy. Under facts like those presented here, the majority’s rule will discourage communitarian efforts to maintain the appearance of a neighbor’s neglected land.

1189*1189 Indeed, the majority ultimately concede the weakness of their analysis. “[S]tanding alone,” they acknowledge, evidence that a landowner mowed his neighbor’s lawn would “generally” not establish “control” sufficient to impose a duty of safe management of the neighbor’s premises. (Maj. opn., ante, at p. 1167.) Hence, the majority bootstrap their result by holding additionally relevant and admissible, on the issue of “control,” the fact that after the accident in which plaintiff was injured, defendants fenced in the lawn, including the City-owned strip.

But even if postinjury conduct at the scene of an accident may sometimes be relevant and admissible on a disputed issue of “control” of the site, that principle is not logically applicable here. Morehouse v. Taubman Co. (1970) 5 Cal. App.3d 548 [85 Cal. Rptr. 308], the primary authority cited by the majority for this theory, illustrates its proper limits. There, the injured employee of a subcontractor simply sought to show that the general contractor, who was jointly involved at the site in the project which caused the injury, had not relinquished all “control” of workplace safety conditions at the point where the subcontractor’s employee had fallen from a wall. The employee presented evidence that the general contractor maintained a policy of installing guardrails around unprotected areas of similar elevation throughout the project area, and had placed such a guardrail at the site of the employee’s injury after he fell. This evidence was properly received, said the Court of Appeal, on the issue of control of the premises, “and as to whose duty it was under the contract to take such safety measures. [Citation.]” (Id. at p. 555, italics added.)

Thus, in Taubman, the very nature of the business relationship between two contractors created inherent uncertainty about the degree of responsibility for workplace safety retained by each in their joint efforts on the contracted project. Evidence that one or the other actually undertook safety duties on the site, both before and after the accident, was therefore probative on that issue.

Orthmann v. Apple River Campground, Inc. (7th Cir.1985) 757 F.2d 909 is to similar effect. There, the court deemed relevant, on the issue of duty, the fact that defendants had entered another’s property without permission and cut down a tree thereon which had caused a swimming injury to defendants’ inner tube rental customer. However, the tree-cutting evidence was but one of numerous indications that, both before and after the accident, defendants had incorporated the property on which the tree was located as a recreational attraction of their business and, although they did not own the property, had “treated it as if they did.” (Id. at p. 913.)

Here, by contrast, there is no other basis for an inference that, at the time of plaintiff’s accident, defendants maintained any relationship with the City-owned strip or the defective meter which implied responsibility for safe 1190*1190 management of that hazard. Under these circumstances, evidence of their later understandable response to plaintiff’s accident has no logical power either to create or to bolster such an inference.

In sum, evidence that defendants mowed the City-owned strip, and that they fenced the property after the accident, even when considered in combination, is not sufficient to create a triable issue that they asserted “supervisory” possession and control of the strip, thereby assuming a duty to protect or warn against a City-owned hazard on that land. It follows that the trial court did not err in awarding defendants summary judgment. (See Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, 362.) Like Justices Kennard and Brown, I would therefore reverse the contrary judgment of the Court of Appeal.

BROWN, J., Dissenting.

This case should be governed by the venerable judicial maxim: “[I]f it ain’t broke, don’t fix it.” Unfortunately, the majority fails to heed this sensible advice, and today’s decision drastically enlarges the potential tort liability of thousands of California homeowners.

Until now both the rules for finding a duty and the rationale for imposing adjacent premises liability have been reasonably clear. The existence of “duty” is a question of law. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701].) Legal duties are not discoverable facts of nature; they are limiting principles designed to reduce potentially infinite liability to manageable proportions. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]; Dillon v. Legg(1968) 68 Cal.2d 728, 739 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].) Until today, the imposition of a duty was ultimately a question of fairness.

Thus, property owners are liable for injuries on land they own, possess, or control; they are liable for injuries on adjacent property if their active negligence created an external effect which led to the injury; but when they have not created the external hazard and, as in this case, the question of control cannot be cleanly resolved, courts have prudently required an additional prerequisite for liability. In cases where the landowner or tenant might be liable for off-premises injuries, courts require evidence of substantial control, a clearly derived benefit from the use of the particular area that caused plaintiff’s injury, or some combination of control and benefit. Although not always articulated in the cases implicitly applying them, the logic of these rules provided a rational and intelligible basis for finding or rejecting liability in adjacent premises cases. Until today.

The majority opinion abrogates these essential limits. It jettisons the requirement that the defendant property owner derive a benefit directly from 1191*1191 the plaintiff’s use of the adjacent area where the injury occurred and, that restraint on liability removed, posits the liability of all property owners for injuries sustained on land over which, as this case pointedly demonstrates, they exercise only the most insubstantial cosmetic “control.” As if to underscore the limitless reaches of its holding, the majority leaves the legal question of whether any duty exists to the jury.

I

A

Two recent opinions of the Court of Appeal — both of which found landowners notliable for off-premises injuries and which the majority now peremptorily disapproves as precedent — illustrate the essential conditions for tort liability in the typical adjacent landowner case. In Swann v. Olivier (1994) 22 Cal. App.4th 1324 [28 Cal. Rptr.2d 23] (hereafter Swann), the Fourth District Court of Appeal affirmed a summary judgment in favor of a homeowners association the plaintiff sought to hold liable for injuries sustained in rough surf along a stretch of beach near San Clemente. The plaintiff, one of a party of birthday celebrants visiting a beach owned by the association, was injured while in the “`surf’ of the public ocean, seaward of the mean high tide line that marks the border” of the association’s private property with the waters of the Pacific. (Id. at p. 1327.) He sued the association, alleging it had breached a duty to warn him of the dangerous condition of the surf. After the trial court granted defendants’ motion for summary judgment, the plaintiff appealed.

A unanimous Court of Appeal affirmed. Starting from “the commonsense rule that one generally cannot be liable, as a landowner, for injuries that occur on property outside one’s ownership, possession or control” (Swann, supra, 22 Cal. App.4th at p. 1329), Justice Sills went on to invoke the “corollary … that a landowner has no duty to warn of dangers beyond … her own property when the owner did not create those dangers.” (Id. at p. 1330, italics in original.) The rule of landowner nonliability for off-premises injuries, the court said, is subject to only two exceptions. “Landowners or businesses have been held liable for injuries not technically on their `premises’ when: [¶] (1) they imposed or created some palpable external effect on the area where the plaintiff was injured; or [¶] (2) they received a special commercial benefit from the area of the injury plus had direct or de facto control of that area.” (Ibid., italics added.)

“The first exception,” the Swann court wrote, “needs no elaboration. Obviously one cannot leave a banana peel on a public sidewalk and escape 1192*1192 liability to the pedestrian who slips on it because one does not own the sidewalk.” (Swann, supra,22 Cal. App.4th at p. 1331, fn. omitted.) “The second category is commercial in nature. A review of five of the cases in this category shows that they are predicated on the ideas of `creation’ and `control,’ which can extend beyond the strict perimeters of the area to which one has title or a leasehold interest.” (Ibid.) The Swann opinion went on to analyze in detail the five selected cases in which landowner liability had been upheld — including two relied on in the majority opinion, Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232 [60 Cal. Rptr. 510, 430 P.2d 68], and Johnstonv. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 [170 P.2d 5] — before concluding that they “all arose in commercial contexts, where the defendants received direct pecuniary benefits from the plaintiff’s use of the areas where the plaintiffs were injured.” (Swann, supra, 22 Cal. App.4th at p. 1333.)

“Moreover,” the Court of Appeal continued, “the defendants either directly created the risk (Schwartz) or exercised direct (Johnston) or de facto (Kopfinger [v. Grand Central Pub. Market (1964) 60 Cal.2d 852 (37 Cal. Rptr. 65, 389 P.2d 529)],Johnston and Southland [Corp. v. Superior Court (1988) 203 Cal. App.3d 656 (250 Cal. Rptr. 57)]) control over that area.” (Swann, supra, 22 Cal. App.4th at p. 1333.) Applying these liability rules to the facts before it, the Court of Appeal in Swannconcluded that “[b]ecause there was no commercial benefit to the defendants, nor creation or control by them of the hazards in the precise area where the injury occurred, we hold defendants owed no duty to warn the plaintiff of the dangerous condition of the ocean beyond their private beach.” (Ibid., fn. omitted.)

B

As an even more recent opinion by the First District Court of Appeal makes clear, the liability of landowners for injuries sustained on adjacent property requires proof ofboth a direct (or “special”) commercial benefit to the abutting landowner and“possession or control”; neither condition is sufficient alone. In Princess Hotels Internat., Inc. v. Superior Court (1995) 33 Cal. App.4th 645 [39 Cal. Rptr.2d 457](hereafter Princess Hotels), a vacationing couple, staying at the defendant’s Acapulco hotel, went swimming in the adjacent ocean. Caught in a sudden undertow, large waves, and riptide currents, the plaintiff was seriously injured and her companion drowned. In the ensuing negligence and wrongful death actions, the trial court denied the hotel’s motion for summary judgment on the ground that it had “`commercially benefit[ed] from the adjacent beach,'” purportedly distinguishingSwann, supra, 22 Cal. App.4th 1324. (Princess Hotels, supra, 33 Cal. App.4th 1193*1193at p. 648.) The Court of Appeal issued a writ of mandate directing the trial court to enter summary judgment for the hotel.

Building on the opinion in Swann, supra, 22 Cal. App.4th 1324, Justice Peterson wrote that “[t]he present case seems to be Swann once removed: This is a suit against private adjacent landowners whose property abuts a public beach — owned and controlled by the Mexican government — in turn abutting the uncontrollable ocean. Swann provides compelling authority that the [defendant hotel owner] had no duty to warn as a matter of law.” (Princess Hotels, supra, 33 Cal. App.4th at p. 650.) “One must be sensitive,” the opinion in Princess Hotels observed, “to the obvious fact that the hotel does substantially commercially benefit from its oceanfront premises, and that the proximity of the Pacific Ocean no doubt draws substantial numbers of paying guests. The argument that because of this commercial benefit the hotel bears a duty to warn its guests of the ocean’s dangers simply ignores the law of this state. The California cases, as correctly analyzed by Swann, require controlas well as a commercial benefit; and the ocean is simply not within the control of humankind.” (Princess Hotels, supra, 33 Cal. App.4th at pp. 651-652, italics in original.)

C

These two recent opinions do not stand alone. They build on a thick strand of precedent whose persistent (if not always articulated) theme is the commonsense requirement that before one can be liable for injuries sustained on land she does not own, the defendant must have exploited the adjacent premises in a way that was not only “direct,” “special,” or “unique,” but carried with it an advantage arising out of theplaintiff’s use of the very feature of the adjacent property that led to the injury. Where these prerequisites are met, the duty properly applies even though the defendant has no ownership or possessory interest in the adjacent property, and only exercises “control” over part of it. As the cases demonstrate, however, the precise nature of the “control” necessary to support the possibility of tort liability differs markedly from the control exercised by one who owns or possesses real property.

The majority’s response to these reasoned analyses is simply to sweep aside these limiting principles as “dicta,” and to disapprove the language in Swann, supra, 22 Cal. App.4th 1324, and Princess Hotels, supra, 33 Cal. App.4th 645, that presents an obstacle to its result. (Maj. opn., ante, at pp. 1164-1166.) However, as the Swannopinion convincingly demonstrates, the handful of reported adjacent premises cases in which the landowner has been held liable for injuries sustained on property the defendant did not own 1194*1194 can only be rationally explained by the fact that the defendant obtained some tangible, substantial benefit from a feature of the adjacent property that caused the plaintiff’s injury.

As the Court of Appeal’s opinion in Swann, supra, 22 Cal. App.4th 1324, put it, the governing liability rule in these cases requires that the defendant landowner “receive[] direct pecuniary benefits from the plaintiff’s use of the areas where the plaintiffs were injured.” (Id. at p. 1333, italics added.) It is not enough that the plaintiff was injured on adjacent property whose features may otherwise have provided some incremental advantage to the defendant, however attenuated, and it is certainly not sufficient that the defendant obtained no benefit whatever from the adjoining property. Rather, liability in this handful of cases is grounded in some characteristic of the adjacent property whose use by the plaintiff directly benefited the defendant.

Viewed from that perspective, the cases upholding landowner tort liability for injuries on property the defendant does not own or possess comprise a limited and coherent exception to the general rule of nonliability. In Southland Corp. v. Superior Court(1988) 203 Cal. App.3d 656 [250 Cal. Rptr. 57], for example, the plaintiff patron’s use of an adjacent lot in which to park his car directly benefited the defendant convenience store owner — additional customers and revenue were the direct result — and it was the plaintiff’s use of the parking lot that led to his injuries. In Johnston v.De La Guerra Properties, Inc., supra, 28 Cal.2d 394, the plaintiff fell on an unlit private walk leading to defendant’s restaurant, a passageway that had been used by restaurant patrons as a convenient means of entry. Again, the plaintiff’s use of the precise area where the injury occurred — the adjacent walkway — directly benefited the defendant’s business. In Schwartz v. Helms Bakery Limited, supra, 67 Cal.2d 232, the defendant bakery directly benefited from the plaintiff’s use of a public street to reach the defendant’s bread truck. And in Ross v. Kirby (1967) 251 Cal. App.2d 267 [59 Cal. Rptr. 601], the plaintiff was injured when she fell on a low-lying drainage berm the defendant restaurant owner had invited his customers to cross in order to use a rear entrance to his business, clearly another instance in which the property owner obtained a direct and business-related benefit from the very feature of the adjacent property that contributed to the plaintiff’s injuries.

Indeed, every case relied on by the majority as upholding landowner liability for injuries sustained on adjacent property involved just such a “direct” commercial benefit. In none did the court uphold tort liability absent a palpable advantage to the defendant from the plaintiff’s use of a feature of the adjacent property that caused the injury. Each of these cases involved uncertainties about the “control” the defendant landowner exercised over the adjacent property.

1195*1195 In Southland Corp. v. Superior Court, supra, 203 Cal. App.3d 656, 666-667, for example, the Court of Appeal relied on a combination of seven factors to uphold the store owner’s tort liability for injuries its customer suffered after being beaten in the adjacent parking lot. None of these factors included outright ownership, possessionor control of the parking lot. But what the court called an “apparent” nonexclusive right to use the lot for customer parking, together with limited parking on defendant’s premises, knowledge that customers regularly used the lot, a failure to take action to discourage such use, an obvious commercial benefit from the additional customer parking, and repeated problems with juvenile loiterers, led the court to conclude that the issue of “control” should not “be resolved solely by reference to a property boundary line and the fortuitous circumstance” that the plaintiff was attacked a few feet beyond the boundary line. Instead, although the Court of Appeal could “not conclude that these circumstances establish that [defendants] did exercise control over the adjacent lot,” in combination they were sufficient to send the case to the jury. (Id. at p. 667.)

In Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, the tenant restaurant owner had encouraged his patrons to park in an adjacent service station lot, gaining access to the restaurant by walking across a narrow “parkway” and stepping down a few inches from a low wall onto a private walk leading directly to a side entrance. The plaintiff customer misjudged the height of the wall one night and, stepping into darkness, fell and broke her hip. This court reversed a judgment of nonsuit and held that the plaintiff’s evidence supported a finding that the restaurant tenant was negligent, despite the fact that the injury occurred on that part of the premises he neither leased nor occupied. The plaintiff presented evidence, we said, “that the tenant … assumed some responsibility for, and exercised control over, the means of lighting the approaches to the side entrance….” (Id. at p. 401.) By installing a neon sign a few feet above a single light illuminating the side entrance, and connecting the sign and the light to a common switch, a jury could have found that the restaurant operator “had a limited right of control over this portion of the premises and of the means of illuminating the entranceway,” knew of the attendant danger at night, and failed to warn business visitors of the risk. (Ibid.)

In Ross v. Kirby, supra, 251 Cal. App.2d 267, the back door to defendant’s restaurant fronted directly onto an adjoining public parking lot, and three feet from “an irregularly shaped asphalt drainage berm” paralleling defendant’s building; half of the berm’s four-inch width lay on city-owned property, the other half on the property adjoining defendant’s lot. (Id. at p. 268.) Relying on Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, the Court of Appeal affirmed a judgment of liability against the restaurant 1196*1196 operator. Why? Not because defendants “controlled the walkway,” but because they “knew the berm was present and by the location of the back door, invited the general public to enter from the parking lot. Thus, they derived a special benefit apart from the ordinary and accustomed use of the walkway.” (Ross v. Kirby, supra, 251 Cal. App.2d at p. 270.) The court also relied on substantial evidence that the berm could not be seen because the white paint the city had applied to it had worn off that part paralleling defendant’s restaurant, a condition supporting “a logical inference … that the foot traffic from the parking lot to the back door of the restaurant caused the paint to wear off.” (Id. at p. 271.)

We relied on Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, andRoss v. Kirby, supra, 251 Cal. App.2d 267, among other cases, in Schwartz v.Helms Bakery Limited, supra, 67 Cal.2d 232, where we summed up — and even may have broadened — the liability rule at work in these cases. The plaintiff, a child of four acting at the suggestion of the defendant bakery truck driver to meet him up the street to buy a doughnut, was struck by an automobile as he crossed in the middle of the block. We reversed a judgment of nonsuit, stating, in pre-Rowland v.Christian language (Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]), that “[a]n invitor bears a duty to warn an invitee of a dangerous condition existing on a public street or sidewalk adjoining his business which, because of the invitor’s special benefit, convenience, or use of the public way, creates a danger.” (Schwartz v. Helms Bakery Limited, supra, 67 Cal.2d at pp. 239-240, fn. omitted, italics added.) Although Justice Tobriner’s opinion for the court asserted that “[t]he crucial element” on which liability depends “is control” (id., at p. 239), it is evident from the facts of the case that “control” in any meaningful sense has all but disappeared from the liability equation. It is replaced by the defendant’s knowledge of “a dangerous condition existing on a public street or sidewalk adjoining [defendant’s] business.” (Ibid.) This was so, the court in Schwartz reasoned, because the “premises may include such means of ingress and egress as a customer may reasonably be expected to use.” (Ibid.)

In each of these cases, the equivocal character of the defendant property owner’s actual “control” over the adjacent property was supplemented — and occasionally replaced — by the commonsense perception that, because the defendant had derived a direct, business-related benefit from the use made by the plaintiff of the very feature of the adjoining property that led to the injury in suit, tort liability was properly a matter for the trier of fact to determine. However rough-and-ready it may appear in theory, this reading of the case law has an instinctive appeal. Imposing liability on a property owner for injuries sustained on adjoining land seems sound in these cases 1197*1197 not so much because the defendant exercised “control” over the adjacent property in the same sense an occupier “controls” land she owns or leases, but because the nexus between the plaintiff’s injury, the causal role of some feature of the adjoining property, and the related benefit to the defendant property owner, make liability appropriate.

Thus the formulation by the Court of Appeal in Swann, supra, 22 Cal. App.4th 1324,and Princess Hotels, supra, 33 Cal. App.4th 645, is accurate. A property owner who receives “`direct pecuniary benefits from the plaintiff[s’] use of the areas where the plaintiffs were injured’ and `either directly created the risk [citation] or exercised direct [citation] or de facto [citations] control over that area'” may be found liable for the plaintiff’s injury. (Princess Hotels, supra, 33 Cal. App.4th at p. 649, quotingSwann, supra, 22 Cal. App.4th at pp. 1331-1333, italics in original.)

Of course, the corollary also applies. In the absence of a direct benefit derived from the very feature of the adjoining property that caused the plaintiff’s injury, no liability should attach. The majority insists that the result in Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, would have been the same if the plaintiff, instead of having been injured on a defective walk adjacent to the defendant’s restaurant, had been a social guest who suffered a like injury while approaching the defendant’s residence. I disagree. Indeed, as I read these cases, the office of the so-called “benefit” requirement is to limit the potential for tort liability in adjacent premises litigation by identifying a causally significant feature to serve as a functional substitute for the ownership or possession that, by definition, is absent from these adjacent premises liability cases. That a “direct” or “special” benefit to the defendant landowner should have been singled out is hardly surprising. Benefit is frequently the pivot on which legal duties, and liability for their breach, turn.

II

It is possible the majority is impliedly adopting a new rule in the aftermath — almost 30 years on — of this court’s opinion in Rowland v. Christian, supra, 69 Cal.2d 108,and is now obliterating altogether the link between a direct commercial benefit and a corresponding legal duty that has long served as the underlying basis for liability in the adjacent premises cases. It is true, of course, that Rowland v. Christianabolished the distinction between business invitees and other classes of visitors to real property, supplanting it with a property owner’s general duty to “act[] as a reasonable [person] in view of the probability of injury to others….” (Id. at p. 119.) It is a dramatic leap, however, from that proposition to the view that the 1198*1198 substantial distinction between those who derive a commercial benefit from the plaintiff’s use of a feature of adjacent property and those who do not is simply not relevant to the question of liability.

Moreover, as Justice Kennard has noted, applying the Rowland v. Christian criteriademonstrates that liability should not attach in this case. (Dis. opn. of Kennard, J.,ante, at pp. 1182-1183.) While it is “foreseeable” that one in plaintiff’s precise circumstance might be injured by stepping on the defective meter housing cover, and certain that plaintiff was injured, not one of the remaining factors outlined in Rowlandsupports liability in this case. Indeed, several pull strongly in the opposite direction. The lesson of this case is simple: Do no good works lest you incur liability. The homeowner who clears brush from public lands to minimize fire danger; the property owner who pays a horticulturist to prune trees in a subdivision’s common area, as well as the landlord who mows an unowned strip of ground, may now be liable to anyone injured on the premises even though their activity is completely unrelated to the cause of the injury.

These defendants did nothing villainous or even negligent. They neither created the hazard, nor made it worse, nor obtained a “commercial benefit” from the plaintiff’s “use” of it. Moreover, they had no ability to correct a problem that resulted from the city’s apparent negligence. Instead, defendants acted responsibly by mowing the city-owned strip between their property and the sidewalk rather than allowing it to become an eyesore. And once an injury occurred, they sought to prevent future problems. For their pains, the majority will teach them the truth of another old adage: “no good deed goes unpunished.”

CONCLUSION

I would reverse the judgment of the Court of Appeal and direct the trial court to enter summary judgment for defendants.

[1] Defendants objected to Gray’s declaration on several grounds, and the superior court sustained the objection. Plaintiff argued on appeal that this evidentiary ruling was incorrect. The Court of Appeal did not expressly rule on this issue in its opinion reversing the summary judgment, but included in its statement of facts a quotation from the Gray declaration. Later in its opinion, the Court of Appeal concluded that the Gray declaration was insufficient to raise a triable issue of fact concerning ownership of the land upon which the meter box is located. On review before this court, neither party has briefed the issue of the admissibility of this evidence, and plaintiff does not challenge the Court of Appeal’s conclusion that the Gray declaration was insufficient to raise a triable issue of fact concerning ownership of the land upon which the meter box is located. Accordingly, we express no view regarding the correctness of the superior court’s and the Court of Appeal’s rulings on these issues.

[2] Of course, the liability of a possessor of land no longer depends upon the “rigid common law classifications” of trespasser, licensee, and invitee. (Rowland v. Christian, supra, 69 Cal.2d 108, 118.) Instead, we “approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. [Citations.]” (Ibid.)

[3] In her dissent, Justice Kennard asserts that a defendant who exercises control over land may be liable for injuries caused by a dangerous condition on the property only if the defendant had the rightto control the property. (Dis. opn. of Kennard, J., post, at pp. 1176-1178.) But Justice Kennard cites no case, and we are aware of none, in which a defendant who exercised control over property was held not liable for injuries caused by a dangerous condition of such property simply because the defendant had no right to control the property. It would be anomalous to conclude that a person who wrongfully takes possession of land owned by another, exercising control over that land, cannot be held liable for injuries caused by a dangerous condition of the property.

In her dissent, Justice Kennard asserts that the comment to section 328E of the Restatement Second of Torts, cited above, applies only to persons in the process of gaining ownership of land through adverse possession. (Dis. opn. of Kennard, J., post, at p. 1181.) The comment, while offering such circumstances as one example of possession that is not rightful, does not limit the application of the general principles stated in the comment to such circumstances.

Justice Kennard’s interpretation of section 328E of the Restatement Second of Torts suggests that liability may flow from a wrongful exercise of control over property if such conduct constitutes adverse possession that ultimately will ripen into ownership. (Dis. opn. of Kennard, J., post, at p. 1182.) But this means that the potential liability of an adverse possessor of land depends upon whether that person has satisfied all of the prerequisites for obtaining title, such as paying taxes on the property. (Code Civ. Proc., § 325.) It is difficult to discern why the payment or nonpayment of taxes should affect the liability of a possessor of land for injuries caused by a dangerous condition of the property.

[4] In her dissent, Justice Kennard maintains that our holding that there exists a triable issue of fact — as to whether defendants exercised control over the land — is inconsistent with the rule that the existence of a duty is a question of law. (Dis. opn. of Kennard, J., post, at p. 1183.) We agree that “the existence and scope of a defendant’s duty of care is a legal question” for the court to decide (Knight v.Jewett (1992) 3 Cal.4th 296, 313 [11 Cal. Rptr.2d 2, 834 P.2d 696], italics in original), and we have applied that principle by reaffirming the established rule that a person who exercises control over property owes a duty of care to persons injured by a dangerous condition on that property. The determination of this issue, however, does not eliminate the role of the trier of fact. “In an action for negligence the plaintiff has the burden of proving [¶] (a) facts which give rise to a legal duty on the part of the defendant….” (Rest.2d Torts, § 328A, p. 149; O’Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 749 [51 Cal. Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1]; cf. Ramirez v. Plough, Inc. (1993) 6Cal.4th 539, 546 [25 Cal. Rptr.2d 97, 863 P.2d 167, 25 A.L.R.5th 899].) Where a triable issue of fact exists, it is the function of the jury to determine the facts. (Rest.2d Torts, § 328C, subd. (a), p. 154.) We simply hold that a trier of fact could find on the record before us that defendants exercised control over the property on which the meter box was located.

[5] Were a “commercial benefit” requirement to exist, its application to the present case would require the resolution of questions including whether residential income property, like that here involved, is a business within the meaning of the rule, and whether the benefit conferred by a water meter (see Justice Mosk’s concurring opinion, post) constitutes a “commercial benefit.”

[6] Having concluded that it was improper for the trial court to grant summary judgment in favor of defendants, because a triable issue of fact exists as to whether defendants controlled the property on which the allegedly defective meter box was located, we have no occasion to consider the circumstances, if any, under which a possessor of land may owe a duty to persons using its property to warn them of, or protect them from, hazards on adjacent property that is not owned, possessed, or controlled by the defendant. (See, e.g., Southland Corp. v. Superior Court (1988) 203 Cal. App.3d 656 [250 Cal. Rptr. 57]; Donnell v. California Western School of Law (1988) 200 Cal. App.3d 715, 720 [246 Cal. Rptr. 199]; Stedman v. Spiros (1959) 23 Ill. App.2d 69 [161 N.E.2d 590, 597] [In holding that a hotel operator was not liable for injuries sustained by a guest who fell over a precipice in a state park approximately 50 feet from the hotel property, the court observed: “Clearly, if the brink of the precipice were a step or two from the defendant’s door …, we would have a different case than is now presented to us.”].)

[7] Justice Brown’s dissent concludes that defendants “did nothing … negligent.” (Dis. opn. of Brown, J., post, at p. 1198.) As noted above, the issue whether defendants were negligent is not before us, and we express no opinion on that issue.

[1] Alcaraz did not sue the City and conceded at oral argument that he had not preserved his right to do so because he did not file the required claim within the statutory time. (See Gov. Code, §§ 905, 911.2.)

[2] Also named in the complaint were four additional owners of the property at 141-147 Lincoln Avenue. For simplicity’s sake, I will refer to the property owners collectively as the landlord or as Vece.

[3] The majority asserts that under comment a to section 328E, any conduct that can be construed as an act of control can give rise to a duty. (Maj. opn., ante, at p. 1159, fn. 3.) The majority is wrong. Comment a gives only one illustration of a person occupying land with the intent to control it: a person in the process of gaining ownership through the legal doctrine of adverse possession. Comment a thus seems directed at those who occupy land with intent to control it for all purposes, that is, those who exercise the degree of control required for adverse possession. Moreover, even assuming that something less than an ongoing effort to gain ownership through adverse possession might qualify as occupation of another’s land with the intent to control it within the meaning of section 328E, nothing in comment a suggests this could include innocuous or good-neighborly activity such as a landowner’s mowing of a small strip of adjoining land, as involved here.

[4] This court has never adopted section 328E of the Restatement Second of Torts as the law of California, and I can see no reason to do so in this case. Not only are the facts here wholly insufficient to constitute a hostile, open and notorious occupation of the City’s land under a claim of right, but the property on which the activity took place belongs to a public entity (the City) and therefore a disseisor may not gain title to it by adverse possession. (Civ. Code, § 1007 [public land not subject to adverse possession]; 4 Witkin, Summary of Cal. Law, supra, Real Property, § 94, pp. 319-320 [same].)

[5] I am not persuaded by Justice Mosk’s proposal that adjoining landowners should have a duty of care with regard to any “appurtenances” (conc. opn. of Mosk, J., ante, at p. 1173) that provide some benefit to their property, such as “`coal holes, meter boxes, and other devices of similar character located in the sidewalk which benefit the abutting owner….'” (Ibid.) Like the majority, Justice Mosk fails to take into account the policy considerations enunciated in Rowland v. Christian, supra, 69 Cal.2d 108, 113, in determining the existence of a duty. For reasons I have fully articulated earlier, I cannot agree that someone who lacked the right to control a defective appurtenance on adjoining land and who did not create or increase the hazard should nevertheless be held liable for the harm posed to others.

 

Keywords: Maintenance, Duty to Repair, Negligence, Premises Liability

Pamela W. v. Millsom

Pamela W. v. Millsom

25 Cal.App.4th 950 (1994)

Summary by Mary M. Howell, Esq.:

Facts

A resident of a 4-unit condominium project was raped in her unit. She sued the owners of the unit and the association, alleging that their negligence was a cause of the damage. She urged that the association could have employed additional security measures to prevent the attack, however, she conceded that there was no evidence of prior, similar criminal activity.

Held

For association. Violent criminal acts are generally not foreseeable, and that was the case here. Without foreseeability, there is generally no duty to provide security measures, particularly measures which may not prevent the crime in question, and which would impose a heavy financial burden on a small association.

*** End Summary ***

Pamela W. v. Millsom

25 Cal.App.4th 950 (1994)

952*952 COUNSEL

Carl A. Grubb and Frank E. Noble for Plaintiff and Appellant.

Ault, Deuprey, Jones & Gorman, Graham S.P. Hollis, Kenneth C. Rickelman, Robie & Matthai, James R. Robie, Kyle Kveton, Pamela E. Dunn, Allison H. Hout and Joseph J. Barr, Jr., for Defendants and Respondents.

953*953 Hill, Genson, Even, Crandall & Wade and Edwin B. Brown as Amici Curiae on behalf of Defendants and Respondents.

OPINION

NARES, J.

Pamela W. (Pamela) appeals from entry of summary judgment terminating her suit against her landlords and the condominium association governing the four-unit Pacific Beach complex in which she lived. She asserts the trial court in this case improperly determined the defendants were under no duty to have taken security measures which might have prevented the rapist who assaulted her in her home from having accomplished his crime. The trial judge found that the assault and rape of Pamela were not foreseeable to the degree which would have imposed a legal duty upon the defendants. Pamela asserts this determination was a question of fact, not law, and also that it was erroneously made. Under controlling authority, we reject these challenges, and affirm the judgment.

FACTS AND PROCEDURE

Beginning on the first of March 1989, Pamela leased from defendants Mark Millsom, Sr., Sharon Millsom, and Mark Millsom, Jr. (collectively, the Millsoms), one condominium unit of a four-unit, two-building project known as Sand Dollar Court, located on Reed Street in Pacific Beach. The units are governed by the defendant Sand Dollar Court Owners Association (Sand Dollar).

Pamela and defendants all believed the neighborhood was safe. Neither Pamela nor others were aware of specific criminal acts in the vicinity of her condominium, with the exception of a daytime burglary of the unit above hers which occurred in the beginning of October 1989.

Early in the morning hours of October 30, 1989, however, an assailant gained entrance (possibly through a window) to Pamela’s unit. The intruder raped Pamela, and during the assault he told her (calling her by her name) he had been watching her.

Pamela sued her landlords, the condominium association, and others, alleging as a first cause of action negligence, as the second cause of action a 954*954 breach of the implied warranty of habitability, and as a third cause of action, nuisance.[1] Answers to the complaint were filed.

The Millsoms and Sand Dollar later moved for summary judgment on the basis (among others) that, upon the undisputed facts, as a matter of law they owed no duty to Pamela to have protected her from the harm which had occurred, because that harm was not reasonably foreseeable in the absence of the occurrence of prior similar assaultive incidents on the premises.[2]

Counsel for Pamela, although purporting to dispute some of the facts relied upon by Sand Dollar, essentially argued the relevance or the legal significance of the undisputed facts, rather than their existence. The opposing papers did note Sand Dollar’s no-duty argument was “whether they had notice of facts which would cause them to reasonably anticipate the acts of a third party. SAND DOLLAR bases their contention on the fact that they did not have notice of any prior assaults and were not aware of any other similar acts.”

Counsel for Pamela argued the fact no prior assault “or prior similar incident had occurred does not render the wrongful conduct unforseeable. Forseeability is a question of fact to be determined by the totality of the circumstances.” Counsel also pointed out that “[a] significant fact which Defendant MILLSOMS and Defendant SAND DOLLAR keep overlooking is that the property in question is located in Pacific Beach, a noted high crime area.”

955*955 In a telephonic ruling on February 14, 1992, the trial court tentatively ruled that “[d]efendants Sand Dollar Court Owner’s [sic] Assn. and the Millsoms’ motions for summary judgment are granted. Defendants have no duty to protect plaintiff from third party criminal conduct in the facts of this case.” Oral argument was continued to February 21, 1992.

At oral argument counsel for Pamela characterized the moving parties’ position essentially as being that “[t]here was no notice of any prior rapes in the area. There was no knowledge that the area was a high crime area, and there was no notice from Miss W[.] of any problems within her particular unit.”

Counsel for Pamela thus summed up the basis for the defendants’ contention they owed no duty as being “that, without notice or reason to know of criminal acts of third parties, the conduct is unforseeable, and, therefore, no duty [is] owed.” The trial judge then pointed out to counsel that (contrary to Pamela’s position) “[i]n determining whether a duty exists, foreseeability is an issue at law.”

The court observed that the issue of forseeability had been the “one I looked at, yes.” Finding that the assault and rape of Pamela had not been foreseeable, the court confirmed the previous telephonic grant of summary judgment in favor of defendants Sand Dollar and the Millsoms.[3]

Thereafter Pamela filed voluminous papers in support of a motion for reconsideration, which was denied. The Millsoms thereafter filed a costs memorandum which claimed $15,141.68 in recoverable costs. Pamela filed a motion to (1) strike the costs memorandum as prematurely filed, (2) disallow expert witness fees, and (3) disallow other items as not reasonably necessary.

Pamela’s motion to strike the entire costs memorandum was denied, but her motion to tax costs was granted in appropriate part. The costs ultimately awarded were reduced by $2,700, for a final costs award of $12,441.68.

956*956 STANDARD OF REVIEW

(1) “An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. [Citations.] On review of a summary judgment in favor of the defendant, we review the record de novo to determine whether the defendant has conclusively negated a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal. Rptr. 122, 762 P.2d 46].)” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674 [25 Cal. Rptr.2d 137, 863 P.2d 207].)

In the proceedings below the trial court determined the first element, duty owed the plaintiff, was not present on the particular facts of this case. Contrary to the position taken below and in this court by counsel for Pamela, this was a proper determination for the court to make, rather than a jury. (2) As we stated in Lopez v. McDonald’s Corp., supra, 193 Cal. App.3d at page 506, “`The question of “duty” is decided by the court, not the jury. [Citations.]’ (Ballard v. Uribe [1986] 41 Cal. 3d [564,] 572, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624].).” Further, “[t]he existence of a duty is a question of law for the court. [Citations.] Accordingly, we determine de novo the existence and scope of the duty owed by [defendants] to [plaintiff].” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 674.) Finally, “[f]oreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court. (Ballard v. Uribe [supra,] 41 Cal.3d [at pp.] 572-573, fn. 6; Lopez v.McDonald’s Corp., supra, 193 Cal. App.3d at p. 507, fn. 6.” (Id. at p. 678.)

Under this authority, we review de novo the question of the forseeability of the criminal conduct in this case as it bears on the question of whether the Millsom and Sand Dollar defendants did, or did not, owe a duty to Pamela to prevent the crime.[4]

DISCUSSION

Counsel for Pamela in the appellant’s opening brief makes what appear to be five separate substantive arguments on appeal, and two separately stated challenges to the award of costs below. There are two respondent’s briefs (Sand Dollar’s and the Millsoms’), and an amicus curiae brief in support of respondent Sand Dollar. Counsel for Pamela has filed one reply brief to the 957*957 two respondents’ briefs and a separate reply to the amicus curiae brief. Finally, Sand Dollar sought and obtained permission to file also a supplemental brief, and plaintiff was permitted to respond thereto.

While the briefing in this case has been quite complex, we do not believe the issues now before us remain so. As all of the parties recognize, there is recent Supreme Court authority on the issue before us. In Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, the plaintiff was an employee of a business in the Pacific Plaza shopping center. “Shortly after Ann M. opened the store, a man she had never seen walked in…. The man, who was armed with a knife, went behind the counter, raped Ann M., robbed the store, and fled.” (Id. at p. 671.)

Thus Ann M., like this case, concerns whether a landowner has a duty to a tenant to take measures to prevent a criminal assault. In our view, the Ann M. authority fully supports the ruling below, and we thus despite the wide scope of the briefing restrict our discussion to the issues of (1) whether respondents owed plaintiff a duty (de novo review) and (2) whether the award of costs was proper, an issue on which we defer in accordance with normal practice to the trial court’s exercise of discretion.

I. DUTY

(3) We begin by noting that in any analysis of foreseeability, the emphasis must be on the specific, rather than more general, facts of which a defendant was or should have been aware. That is, there is little utility in evidence that, for example, the Pacific Beach area of San Diego is a “high crime area.” As our Supreme Court has noted on this point, “[u]nfortunately, random, violent crime is endemic in today’s society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678.)

Also relevant are the observations of another court: “No one really knows why people commit crime, hence no one really knows what is `adequate’ deterrence in any given situation. While bright lights [or in this case, an alarm] may deter some, they will not deter all. Some persons cannot be deterred by anything short of impenetrable walls and armed guards.” (7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal. App.3d 901, 905 [172 Cal. Rptr. 528].)[5]

The major distinction between Ann M. and this case is the nature of the corrective measures which, it is urged, the various defendants ought to have 958*958 employed. InAnn M., the question was “whether the scope of the duty owed by the owner of the shopping center to maintain common areas within its possession and control in a reasonably safe condition includes providing security guards in those areas.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670.) Here, in contrast, the corrective measures urged only extend to a suggested need for improving the physical security of the premises which Pamela rented from defendants.

(4a) Plaintiff here argues that the assertedly minimal nature of the proposed burden justifies ready imposition of the duty. (5a) It is of course true that “… the scope of a landlord’s duty to provide protection from foreseeable third party crime … is determined in part by balancing the forseeability of the harm against the burden of the duty to be imposed.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678.) (4b) But what may be a minimal burden for the owner of a large apartment building or a shopping center may also be, in the case of the owner of a single unit in a four-unit project, a significant burden indeed.

That is, the burden of providing security guards in the case of a shopping center is likely no more onerous than the burden of providing greatly increased physical security for the Millsoms’ condominium unit. Thus, when this case is compared withAnn M., the foreseeability in each instance of any third party criminal activity should be approximately comparable in order to impose a burden of additional security, whether human or physical.

(5b) With this essential comparability in mind, we turn again to Ann M.: “While there may be circumstances where the [provision of substantial additional security] will be required to satisfy a landowner’s duty of care, such action will rarely, if ever, be found to be a `minimal burden.’ … Moreover, the obligation to provide [security measures] adequate to deter criminal conduct is not well defined…. For these reasons, we conclude that a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes [adequate measures to prevent the harm]. We further conclude that the requisite degree of foreseeability rarely, 959*959if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, italics added, fn. omitted.)

(4c) If a “high degree of foreseeability is required” in order to find a shopping center landlord’s duty of care includes hiring of security guards (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679), then necessarily a similarly “high degree of foreseeability” must be required to find in this case that either the individual landlord or the four-member condominium association has a duty of care which would include “hardening” of the rented premises to become essentially entry-proof.

Given the facts as set out in the pleadings and motion papers filed below, one matter is undisputed, and controlling: neither the Millsoms nor Sand Dollar had any particularized information concerning “prior similar incidents of violent crime on the landowner’s premises.” Given this, a final paraphrasing of the Ann M. holding is dispositive: “Turning to the facts of the case before us, we conclude that violent criminal assaults were not sufficiently foreseeable to impose a duty upon [defendants] to provide [physical security making the premises entry-proof]. [Citation.] First, [none of the defendants had] notice of prior similar incidents occurring on the premises. [Pamela] alleges that [a burglary had occurred in another unit of the complex]…. [E]ven assuming that [defendants] had notice of th[is] incident[], [it was] not similar [] to the violent assault that [Pamela] suffered. Similarly, none of the remaining evidence presented by [Pamela] is sufficiently compelling to establish the high degree of foreseeability necessary to impose upon [defendants] a duty to provide [extraordinary physical security measures]. Neither the evidence regarding the [burglary of the other unit] nor the evidence of the statistical crime rate of the surrounding area is of a type sufficient to satisfy this burden.”[6] (Ann M. v.Pacific Plaza Shopping Center, supra, 6 Cal.4th at pp. 679-680.)

There is another and even more fundamental reason why the judgment was proper. On the facts of this case, involving what appeared to be an attack by someone who had stalked the victim, it is wholly unclear what level of security short of armed guards could have been fully relied upon to prevent the crime. If the criminal activity in a shopping plaza did not give rise to a duty to provide such a level of crime prevention, necessarily neither the landlord nor the four-member condominium association in this case could reasonably be placed under a duty to have provided a level of security likely to have prevented the attack.

960*960 We must also note that the same result would obtain in this case even absent the Ann M. decision. The leading case authority which does support liability by others, such as defendants here, for a rape committed in a condominium unit isFrances T. v. Village Green Owners Assn., supra, 42 Cal.3d at page 503. There, however, the following factual bases of liability were pleaded:

“The facts alleged here, if proven, demonstrate defendant’s awareness of the need for additional lighting and of the fact that lighting could aid in deterring criminal conduct, especially break-ins…. [T]he Association was on notice that crimes were being committed against the Project’s residents. Correspondence from plaintiff and other residents of her court, along with the articles in the Project’s newsletter, demonstrate affirmatively that defendant was aware of the link between the lack of lighting and crime.

“Plaintiff’s unit had, in fact, been recently burglarized and defendant knew this….

“Thus, plaintiff has alleged facts sufficient to show the existence of a duty, that defendant may have breached that duty of care by failing to respond in a timely manner to the need for additional lighting and by ordering her to disconnect her additional lights, and that this negligence — if established — was the legal cause of her injuries.” (42 Cal.3d at p. 503.)

The distinctions between Frances T. and this case are many and of great significance. Most importantly, the central point in Frances T. was the knowledge on the part of defendants, which knowledge required them to have foreseen the probability of harm which befell the plaintiff there. In this case, absent such prior knowledge of a likelihood of harm, there was no basis for holding the defendants to a duty to have prevented such harm. Again, the trial court correctly determined the issue of duty in this case, and for this reason the judgment must be affirmed.

II. COSTS

(6) Plaintiff also sought by motion to strike certain of the costs claimed by the Millsom defendants. The general basis for the motion was that (1) the costs memorandum had been filed prematurely, and thus should be struck, and (2) some of the discovery done by the Millsoms prior to the grant of the summary judgment motion was unnecessary, and had only been “incurred substantially as a result of their conducting late discovery and bringing their summary judgment motion on the last possible day.”

961*961 The Millsoms replied with a memorandum supporting their claimed costs, and plaintiff again countered with a reply claiming that (1) the cost bill should be struck and (2) some costs were not necessary. On May 1, 1992, the trial court issued a telephonic ruling, denying plaintiff’s motion to strike the cost memorandum, but reducing costs awarded by $2,700. On this appeal plaintiff continues both arguments which were rejected by the trial court. We, in turn, reject them also.

As to the premature filing, counsel for Pamela relies upon Pioneer Title Ins. Co. v.Guttman (1959) 175 Cal. App.2d 116, 121-122 [345 P.2d 577], to argue that premature filing requires striking the cost memorandum. The case is unhelpful, as it concerns a matter whose governing statutes have been since amended (see, e.g.,Lange v. Fisher (1983) 146 Cal. App.3d 113, 115-118 [194 Cal. Rptr. 517]; 7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 121, pp. 548-549) and then repealed (Stats. 1986, ch. 377, § 11, p. 1579; 7 Witkin, Cal. Procedure (1994 pocket supp.) Judgment, §§ 118-121 pp. 141-143) and not since judicially construed.

In any event, even the wholly outdated cases cited by counsel have treated premature filing of a cost memorandum as a mere irregularity at best, and we have been offered no reason to impose a contrary rule. In the absence of any possibility that plaintiff was prejudiced in any way by the timing of the filing of the cost memorandum, we reject this argument.

As to whether the items allowed were proper, once more there is no basis demonstrated to us which would support a finding that the sound discretion of the trial court was abused in the award of costs below. While initially the costs claimed included expert witness fees which are not recoverable,[7] this claim was later retracted, and the costs finally awarded were thus reduced substantially, with the court reducing the claim by $2,700 for nonrecoverable expert’s fees.

Those costs which were allowed were, in the opinion of the trial judge (if not plaintiff’s counsel), costs which were in fact reasonably “necessary” to the conduct of the litigation, rather than “merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) No reason has been advanced to us which would support any contrary finding, and we thus reject plaintiff’s challenge to the costs which were awarded below.

962*962 DISPOSITION

The judgment is affirmed. Respondents the Millsoms and Sand Dollar to recover costs on appeal.

Todd, Acting P.J., and Huffman, J., concurred.

Appellant’s petition for review by the Supreme Court was denied August 10, 1994.

[1] As plaintiff admits, the cause of action for a breach of the implied warranty of habitability necessarily depends, as does the negligence count, upon a finding of forseeability, while the “nuisance” pleaded in this case also requires negligent conduct. Thus, the entire complaint stands or falls with the determination of the negligence cause of action, and in light of our disposition of that count, we will not further refer to the subsidiary breach-of-warranty and nuisance pleadings.

[2] Sand Dollar also cited our decision in Lopez v. McDonald’s Corp. (1987) 193 Cal. App.3d 495, 516 [238 Cal. Rptr. 436], where we stated that (in contrast to measures involved in “hardening a target” against property crimes by such means, for example, as the improved security for windows cited by Pamela) with respect to violent criminal conduct that “without infringing upon the issue of causation, what protective measures should be pursued to protect against … assault truly defy exact delineation, because how can one know which measures will be effective against a degenerate, a psychopath or a psychotic.” (Id. at p. 512.) In like fashion, there is no assurance better physical security would have prevented the crime in this case, because no one really knows what measures might be required to deter a rapist who, unobserved, watches and stalks his victim, as here.

In the Lopez case, the lead opinion addressed both duty and causation (193 Cal. App.3d at pp. 504-517), while one of the other justices concurred as to each point separately (id. at p. 517 (conc. opn. of Butler, J.)). While this point on causation also might be dispositive given the facts of this case, because of our resolution of the duty issue, we do not pursue the question on causation, as it is unnecessary to our determination of this cause.

[3] The court’s precise wording was as follows: “This was a tragic case, and my heart goes out to the plaintiff. But I don’t believe that the assault and the rape of the plaintiff was foreseeable. No one knew that additional security measures were needed. ¶ I also think it’s one of those cases where — I hate to say it’s too great a burden, but that’s really the way I feel. We’re talking about landlords. We’re talking about a couple who rented their apartment out. And nobody knew that this was a problem. ¶ The telephonic [ruling] is confirmed.”

Counsel for appellant asserts the foregoing language demonstrates that “[t]he Trial Court Judge used her personal feelings in determining duty” rather than utilizing a legal standard. The point is without merit. While the trial judge may have been refreshingly candid about her view of the case, there is no doubt that her view was based upon her analysis of the law and the facts, rather than her “feelings.” We will not dignify this point with further discussion.

[4] As noted above (fn. 2, ante), we do not, on the facts of this case, have occasion to address the issue of causation.

[5] In the case of Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 502-503 [229 Cal. Rptr. 456, 723 P.2d 573, 59 A.L.R.4th 447], our Supreme Court stated that 7735 Hollywood Blvd. Venture, while factually distinguishable from Frances T., was also “legally questionable because inIssacs v. Huntington Memorial Hospital [1985] 38 Cal.3d 112 [211 Cal. Rptr. 356, 695 P.2d 653], we explicitly rejected the `rigidified forseeability concept’ … and adopted [a rule] that `”[f]orseeability does not require prior identical or even similar events.”‘ (38 Cal.3d at p. 127.)” In Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at page 679, the 7735 Hollywood Blvd. Venture case is both quoted and cited with apparent approval, however, in the process of “refinement of the rule enunciated in Isaacs, supra.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678.) We take this as evidence that the quoted observations from 7735 Hollywood Blvd. Venture, cited also by this court in Lopez v. McDonald’s Corp., supra, 193 Cal. App.3d at page 516, remain valid.

[6] Thus in this case testimony from police officers about rapes in the general area of the condominiums would not suffice to demonstrate that the defendants were or should have been on notice to guard against this sort of offense.

[7] See, e.g., Government Code section 68092.5, Code of Civil Procedure section 1033.5, subdivision (b)(1), and McGarity v. Department of Transportation (1992) 8 Cal. App.4th 677, 685-686 [10 Cal. Rptr.2d 344].

 

Keywords: Negligence, Premises Liabilty

Frances T. v. Village Green Owners Association

Frances T. v. Village Green Owners Association

42 Cal.3d 490 (1986)

Summary by Mary M. Howell, Esq.:

Facts

A homeowner, worried about break-ins in the community, asked the board to erect additional lighting. When the board declined to do so, she bought lights and plugged them into a common area electrical source. The board directed her to quit using common area electricity for the lights, and she complied. Shortly thereafter, she was raped and robbed in her unit. She sued both the association and the individual directors on various causes of action. The trial court dismissed her case, and she appealed.

Held

For homeowner. An association has the same duties to residents of the association as a landlord has to tenants. Under California law, this may, depending on the circumstances, give rise to a duty to investigate criminal wrongdoing in and around the association, and to take appropriate safety measures. Here, the board was alleged to have been on notice of criminal activity, and yet to have failed to adequately investigate reports of criminal activity, and take adequate precautions (such as installing sufficient common area lighting.) The court also considered whether individual directors could be liable for her injuries, since they made the decisions which allegedly gave rise to the dangerous condition. The court concluded that directors who are on notice of a dangerous condition, and do not vote to take appropriate action to alleviate the danger, may be individually liable to a person injured as a result of the dangerous condition. (Homeowner also sued for breach of contract and breach of fiduciary duty, but the court held that as to fiduciary duty, the directors had acted appropriately in ordering her to disconnect her lighting from the common area electrical source. As to contract, the governing documents did not specifically impose the duty to provide lighting, and there was no breach of contract.)

NOTE

Since the decision in Frances T., the legislature enacted Civil Code §1365.7 (now Civil Code §5800), which provides immunity to officers and directors under these circumstances, provided the association carries the prescribed amounts of insurance, and also that the officer/director’s decision was made in good faith, and was not willful, wanton, or grossly negligent.

*** End Summary ***

Frances T. v. Village Green Owners Association

42 Cal.3d 490 (1986)

495*495 COUNSEL

Terry Steinhart for Plaintiff and Appellant.

Jamoa A. Moberly, Schell & Delamer, Steven J. Revitz and Raiskin & Revitz for Defendants and Respondents.

OPINION

BROUSSARD, J.

The question presented is whether a condominium owners association and the individual members of its board of directors may be held liable for injuries to a unit owner caused by third-party criminal conduct. Plaintiff, Frances T., brought suit against the Village Green Owners Association (the Association)[1] and individual members of its board of directors for injuries sustained when she was attacked in her condominium unit, a part of the Village Green Condominium Project (Project). Her complaint stated three causes of action: negligence, breach of contract and breach of fiduciary duty. The trial court sustained defendants’ general demurrers to plaintiff’s three causes of action without leave to amend and entered a judgment of dismissal. Plaintiff appealed.

I.

On the night of October 8, 1980, an unidentified person entered plaintiff’s condominium unit under cover of darkness and molested, raped and robbed 496*496 her. At the time of the incident, plaintiff’s unit had no exterior lighting. (1) (See fn. 2.) The manner in which her unit came to be without exterior lighting on this particular evening forms the basis of her lawsuit against the defendants.[2]

The Association, of which plaintiff was a member, is a nonprofit corporation composed of owners of individual condominium units. The Association was formed and exists for the purposes set forth in the Project’s declaration of covenants, conditions and restrictions (CC&Rs). The board of directors (board) exercises the powers of the Association and conducts, manages and controls the affairs of the Project and the Association. Among other things the Association, through its board, is authorized to enforce the regulations set forth in the CC&Rs. The Association, through the board, is also responsible for the management of the Project and for the maintenance of the Project’s common areas.

At the time of the incident, the Project consisted of 92 buildings, each containing several individual condominium units, situated in grassy golf course and parklike areas known as “courts.” Plaintiff’s unit faced the largest court. She alleges that “the lighting in [the] park-like area was exceedingly poor, and after sunset, aside from the miniscule park light of plaintiff’s, the area was in virtual … darkness. Of all the condominium units in [plaintiff’s court] … plaintiff’s unit was in the darkest place.”

Throughout 1980, the Project was subject to what plaintiff terms an “exceptional crimewave” that included car thefts, purse snatchings, dwelling burglaries and robberies. All of the Project’s residents, including the board, were aware of and concerned about this “crimewave.” From January through July 1980, articles about the crimewave and possible protective measures were published in the Association’s newsletter and distributed to the residents of the Project, including the directors. The newsletters show 497*497 that residents, including the directors, were aware of some of the residents’ complaints regarding lighting.[3]

In early 1980 the board began to investigate what could be done to improve the lighting in the Project. The investigation was conducted by the Project’s architectural guidelines committee.

Plaintiff’s unit was first burglarized in April 1980. Believing the incident would not have occurred if there had been adequate lighting at the end of her court, plaintiff caused the following item to be printed in the Association’s newsletter: “With reference to other lighting, Fran [T.] of Ct 4, whose home was entered, feels certain (and asked that this be mentioned) that the break-in would not have occurred if there had been adequate lighting at the end of her Court. This has since been corrected. We hope other areas which need improvement will soon be taken care of….”[4]

In May 1980 plaintiff and other residents of her court had a meeting. As court representative plaintiff transmitted a formal request to the Project’s manager with a copy to the board that more lighting be installed in their court as soon as possible.[5]

Plaintiff submitted another memorandum in August 1980 because the board had taken no action on the previous requests. The memorandum stated that none of the lighting requests from plaintiff’s court had been responded to. Plaintiff also requested that a copy of the memorandum be placed in the board’s correspondence file.

By late August, the board had still taken no action. Plaintiff then installed additional exterior lighting at her unit, believing that this would protect her 498*498 from crime. In a letter dated August 29, 1980, however, the site manager told plaintiff that she would have to remove the lighting because it violated the CC&Rs. Plaintiff refused to comply with this request. After appearing at a board meeting, where she requested permission to maintain her lighting until the board improved the general lighting that she believed to be a hazard, she received a communication from the board stating in part: “The Board has indicated their appreciation for your appearance on October 1, and for the information you presented to them. After deliberation, however, the Board resolved as follows: [¶] You are requested to remove the exterior lighting you added to your front door and in your patio and to restore the Association Property to its original condition on or before October 6. If this is not done on or before that date, the Association will have the work done and bill you for the costs incurred.”

The site manager subsequently instructed plaintiff that pending their removal, she could not use the additional exterior lighting. The security lights had been installed using the same circuitry used for the original exterior lighting and were operated by the same switches. In order not to use her additional lighting, plaintiff was required to forego the use of all of her exterior lights. In spite of this, however, plaintiff complied with the board’s order and cut off the electric power on the circuitry controlling the exterior lighting during the daylight hours of October 8, 1980. As a result, her unit was in total darkness on October 8, 1980, the night she was raped and robbed.

II.

Negligence

In her first cause of action plaintiff alleged that the Association and the board negligently failed to complete the investigation of lighting alternatives within a reasonable time, failed to present proposals regarding lighting alternatives to members of the Association, negligently failed to respond to the requests for additional lighting and wrongfully ordered her to remove the lighting that she had installed. She contends that these negligent acts and omissions were the proximate cause of her injuries.

The fundamental issue here is whether petitioners, the condominium Association and its individual directors, owed plaintiff the same duty of care as would a landlord in the traditional landlord-tenant relationship. We conclude that plaintiff has pleaded facts sufficient to state a cause of action for negligence against both the Association and the individual directors.

499*499 A. The Association’s Duty of Care.

(2a) The scope of a condominium association’s duty to a unit owner in a situation such as this is a question of first impression. Plaintiff contends, and we agree, that under the circumstances of this case the Association should be held to the same standard of care as a landlord.

Defendants based their demurrer to the negligence cause of action on the theory that the Association owed no duty to plaintiff to improve the lighting outside her unit. The Association argues that it would be unfair to impose upon it a duty to provide “expensive security measures” when it is not a landlord in the traditional sense, but a nonprofit association of homeowners. The Association contends that under its own CC&Rs, it cannot permit residents to improve the security of the common areas without prior written permission, nor can it substantially increase its limited budget for common-area improvements without the approval of a majority of the members.

(3) (See fn. 6.), (2b) But regardless of these self-imposed constraints, the Association is, for all practical purposes, the Project’s “landlord.”[6] And traditional tort principles impose on landlords, no less than on homeowner associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents’ safety in those areas under their control. (See, e.g., Kwaitkowski v. Superior Trading Co. (1981) 123 Cal. App.3d 324, 328 [176 Cal. Rptr. 494]; O’Hara v. Western Seven Trees Corp., supra, 75 Cal. App.3d 798, 802-803; Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970) 141 App.D.C. 370 [439 F.2d 477, 480-481, 43 A.L.R.3d 311]; Scott v. Watson (1976) 278 Md. 160 [359 A.2d 548, 552].)

Two previous California decisions support our conclusion that a condominium association may properly be held to a landlord’s standard of care 500*500 as to the common areas under its control. In White v. Cox, supra, 17 Cal. App.3d 824, the court held that a condominium owner could sue the unincorporated association for negligently maintaining a sprinkler in a common area of the complex. In so holding, the court recognized that the plaintiff, a member of the unincorporated association, had no “effective control over the operation of the common areas … for in fact he had no more control over operations than he would have had as a stockholder in a corporation which owned and operated the project.” (Id., at p. 830.)[7] Since the condominium association was a management body over which the individual owner had no effective control, the court held that the association could be sued for negligence by an individual member.

In O’Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, this court held that the Association’s restriction limiting residency in the project to persons over 18 years of age was a violation of the Unruh Civil Rights Act (Civ. Code, § 51).[8] In so doing, we were mindful of the Association’s role in the day-to-day functioning of the project: “Contrary to the association’s attempt to characterize itself as but an organization that `mows lawns’ for owners, the association in reality has a far broader and more businesslike purpose. The association, through a board of directors, is charged with employing a professional property management firm, with obtaining insurance for the benefit of all owners and with maintaining and repairing all common areas and facilities of the 629-unit project…. In brief, the association performs all the customary business functions which in the traditional landlord-tenant relationship rest on the landlord’s shoulders.” (O’Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 796, italics added.)[9]

501*501 Since there are no reported California cases dealing with the liability of a condominium association in a situation such as this, the parties have analogized this case to four landlord-tenant cases involving similar facts. The reasoning employed by this line of landlord-tenant cases is equally applicable here. In two of these cases the courts found the landlord liable, while in the other two they declined to do so.

O’Hara v. Western Seven Trees Corp., supra, 75 Cal. App.3d 798 established that in some instances a landlord has a duty to take reasonable steps to protect a tenant from the criminal acts of third parties and may be held liable for failing to do so. InO’Hara plaintiff alleged that the defendant landlords were aware that a man had raped several tenants and additionally “were aware of the conditions indicating a likelihood that the rapist would repeat his attacks.” (Id., at p. 802.) In addressing the question of the landlords’ liability the court observed: “Traditionally, a landlord had no duty to protect his tenants from the criminal acts of others, but an innkeeper was under a duty to protect his guests. [Citations.] But in recent years, the landlord-tenant relationship, at least in the urban, residential context, has given rise to liability under circumstances where landlords have failed to take reasonable steps to protect tenants from criminal activity. [Citations.] … [S]ince only the landlord is in the position to secure common areas, he has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure. … [Citations.]” (Id., at pp. 802-803, italics added. See also Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806-807 [205 Cal. Rptr. 842, 685 P.2d 1193].)

The court concluded that, as in the case before us, plaintiff had alleged the most important factor pointing to the landlord’s liability: foreseeability. “[The landlords] allegedly knew of the past assaults and of conditions making future attacks likely. By not acting affirmatively to protect [the plaintiff], they increased the likelihood that she would also be a victim.” (Id., at p. 804.)[10] Moreover, “evidence of prior similar incidents is not the sine 502*502 qua non of a finding of foreseeability.” (Isaacs v.Huntington Memorial Hospital (1985) 38 Cal.3d 112, 127 [211 Cal. Rptr. 356, 695 P.2d 653].) “[F]oreseeability is determined in light of all the circumstances and not by a rigid application of a mechanical `prior similars’ rule.” (Id., at p. 126.)

Similarly, in Kwaitkowski v. Superior Trading Co., supra, 123 Cal. App.3d 324, the court held that the plaintiff had stated a cause of action against the landlords for negligence in failing to protect her from assault, battery, rape and robbery by a person who had accosted her in the dimly lit lobby of an apartment building. The facts, as alleged, indicated that complaints by tenants and a prior assault on a tenant provided the landlords with notice of the injuries that might result from the level of crime in the area. The landlords also had notice that a defective lock on the lobby entrance door was allowing strangers access to the building. Relying primarily onO’Hara, the court concluded that the plaintiff had alleged facts sufficient to show that her injuries were the foreseeable result of the landlord’s negligence in maintaining the entrance door. (See also Sherman v. Concourse Realty Corporation (1975) 47 App.Div.2d 134 [365 N.Y.S.2d 239]; Holley v. Mt. Zion Terrace Apartments, Inc.(Fla.App. 1980) 382 So.2d 98; Spar v. Obwoya (D.C.App. 1977) 369 A.2d 173;Johnston v. Harris (1972) 387 Mich. 569 [198 N.W.2d 409]; Warner v. Arnold (1974) 133 Ga. App. 174 [210 S.E.2d 350].)

As in O’Hara and Kwaitkowski, it is beyond dispute here that the Association, rather than the unit owners, controlled the maintenance of the common areas. This is clearly illustrated by the fact that when plaintiff attempted to improve security by installing additional exterior lighting, the board ordered her to remove them because they were placed in an area over which the Association exercised exclusive authority.

Defendants further contend that even if the landlord-tenant standard of care is applicable, under this standard the Association owed no duty to the plaintiff. Defendants rely primarily upon 7735 Hollywood Blvd. Venture v. Superior Court(1981) 116 Cal. App.3d 901 [172 Cal. Rptr. 528] and Riley v. Marcus (1981) 125 Cal. App.3d 103 [177 Cal. Rptr. 827] for this contention. Both cases are factually distinguishable from the case before us primarily because the alleged prior criminal acts were not of a nature that would create a duty to better secure the common areas. Both cases are legally questionable because in Isaacs v. Huntington Memorial Hospital, 503*503 supra, 38 Cal.3d 112, we explicitly rejected the “rigidified foreseeability concept” applied by the court in Riley and adopted the court’s conclusion in Kwaitkowski that “`[f]oreseeability does not require prior identical or even similar events.'” (38 Cal.3d at p. 127.)

The facts alleged here, if proven, demonstrate defendant’s awareness of the need for additional lighting and of the fact that lighting could aid in deterring criminal conduct, especially break-ins. As in O’Hara and Kwaitkowski, the Association was on notice that crimes were being committed against the Project’s residents. Correspondence from plaintiff and other residents of her court, along with the articles in the Project’s newsletter, demonstrate affirmatively that defendant was aware of the link between the lack of lighting and crime.

Plaintiff’s unit had, in fact, been recently burglarized and defendant knew this. It is not necessary, as defendant appears to imply, that the prior crimes be identical to the ones perpetrated against the plaintiff. (Isaacs v. Huntington Memorial Hospital, supra,38 Cal.3d 112; Kwaitkowski, supra, 123 Cal. App.3d at p. 329.) Defendant need not have foreseen the precise injury to plaintiff so long as the possibility of this type of harm was foreseeable. (Isaacs, supra; Kwaitkowski, supra, at p. 330.)

Thus, plaintiff has alleged facts sufficient to show the existence of a duty, that defendant may have breached that duty of care by failing to respond in a timely manner to the need for additional lighting and by ordering her to disconnect her additional lights, and that this negligence — if established — was the legal cause of her injuries.

B. Directors’ Duty of Care.

(4a) Plaintiff’s first cause of action also alleged that the individual directors on the Association’s board breached a duty of care they owed to her by ordering her to remove the external lighting she had installed for her protection and by failing to repair the Project’s hazardous lighting condition within a reasonable period of time.

(5) It is well settled that corporate directors cannot be held vicariously liable for the corporation’s torts in which they do not participate. Their liability, if any, stems from their own tortious conduct, not from their status as directors or officers of the enterprise. (See United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 595 [83 Cal. Rptr. 418, 463 P.2d 770].) “[A]n officer or director will not be liable for torts in which he does not personally participate, of which he has no knowledge, or to which he has not consented…. While the corporation itself may be liable 504*504 for such acts, the individual officer or director will be immune unless he authorizes, directs, or in some meaningful sense actively participates in the wrongful conduct.” (Teledyne Industries, Inc. v. Eon Corporation (S.D.N.Y. 1975) 401 F. Supp. 729, 736-737 (applying Cal. law), affd. (2d Cir.1976) 546 F.2d 495.)

Directors are jointly liable with the corporation and may be joined as defendants if they personally directed or participated in the tortious conduct. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., supra, 1 Cal.3d 586, 595; Dwyer v. Lanan & Snow Lumber Co. (1956) 141 Cal. App.2d 838, 841 [297 P.2d 490]; accord Thomsen v.Culver City Motor Co., Inc. (1935) 4 Cal. App.2d 639, 644-645 [41 P.2d 597]; see also Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 785 [157 Cal. Rptr. 392, 598 P.2d 45]; Middlesex Ins. Co. v. Mann (1981) 124 Cal. App.3d 558, 574 [177 Cal. Rptr. 495]; O’Connell v. Union Drilling & Petroleum Co. (1932) 121 Cal. App. 302 [8 P.2d 867]; Tillman v. Wheaton-Haven Recreation Ass’n, Inc. (4th Cir.1975) 517 F.2d 1141, 1144; Teledyne Industries, Inc. v. Eon Corporation, supra, 401 F. Supp. 729, 736-737 (applying Cal. law); cf. Price v. Hibbs (1964) 225 Cal. App.2d 209, 222 [37 Cal. Rptr. 270].)

(6) Directors are liable to third persons injured by their own tortious conduct regardless of whether they acted on behalf of the corporation and regardless of whether the corporation is also liable. (See, e.g., Tillman v. Wheaton-Haven Recreation Ass’n, Inc., supra, 517 F.2d 1141, 1144 [“a director who actually votes for the commission of a tort is personally liable, even though the wrongful act is performed in the name of the corporation”]; and see rule and authorities cited in 3A Fletcher, Cyclopedia of the Law of Private Corporations (Perm. ed. 1986) §§ 1135-1138, pp. 267-298; 18B Am.Jur.2d (1985) Corporations, §§ 1877-1880, pp. 723-729; Knepper, Liability of Corporate Officers and Directors (3d ed. 1978) § 5.08 and (1985 supp.) § 5.08; 1 Ballantine & Sterling, Cal. Corporation Laws (4th ed. 1986) § 101, at pp. 6-3, 6-4; 19 C.J.S., Corporations, § 845, at pp. 271-273.)[11] This liability does not depend on the same grounds as “piercing the corporate veil,” on account of inadequate capitalization for instance, but rather on the officer or director’s personal participation or specific authorization of the tortious act. (See 18B Am.Jur.2d, supra,§ 1877, at p. 726.)

505*505 (4b) This rule has its roots in the law of agency. Directors are said to be agents of their corporate principal. (Corp. Code, § 317, subd. (a).) (7) And “[t]he true rule is, of course, that the agent is liable for his own acts, regardless of whether the principal is liable or amenable to judicial action.” (James v. Marinship Corp. (1944) 25 Cal.2d 721, 742-743 [155 P.2d 329, 160 A.L.R. 900].) (4c) Moreover, directors are not subordinate agents of the corporation; rather, their role is as their title suggests: they are policy-makers who direct and ultimately control corporate conduct. Unlike ordinary employees or other subordinate agents under their control, a corporate officer is under no compulsion to take action unreasonably injurious to third parties. But like any other employee, directors individually owe a duty of care, independent of the corporate entity’s own duty, to refrain from acting in a manner that creates an unreasonable risk of personal injury to third parties. The reason for this rule is that otherwise, a director could inflict injuries upon others and then escape liability behind the shield of his or her representative character, even though the corporation might be insolvent or irresponsible. (See O’Connell v. Union Drilling & Petroleum Co., supra, 121 Cal. App. 302; 18B Am.Jur.2d, supra, at p. 729, fn. 13.) Director status therefore neither immunizes a person from individual liability nor subjects him or her to vicarious liability.

Since this appeal follows a dismissal based on plaintiff’s failure to state a cause of action, we must next determine the nature of the duty the individual defendants owed to plaintiff. In United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., supra, we discussed the two traditional limitations on a corporate officer’s or director’s personal liability for negligence. First, we concluded that no special agency relationship imposed personal liability on the defendant corporation’s president for failing to prevent economic harm to the plaintiff corporation, a client of his principal. This conclusion reflected the oft-stated disinclination to hold an agent personally liable for economic losses when, in the ordinary course of his duties to his own corporation, the agent incidentally harms the pecuniary interests of a third party. “Liability imposed upon agents for active participation in tortious acts of the principal have been mostly restricted to cases involving physical injury, not pecuniary harm, to third persons [citations].” (1 Cal.3d at p. 595.) Since the harm in that case was pecuniary in nature and resulted from good faith business transactions, we analyzed liability under principles of agency law and denied recovery against the officer as an individual. (Ibid.)

(8a) In Haidinger-Hayes, we also restated the traditional rule that directors are not personally liable to third persons for negligence amounting merely to a breach of duty the officer owes to the corporation alone. “[T]he act must also constitute a breach of duty owed to the third person…. More must be shown than breach of the officer’s duty to his corporation to 506*506 impose personal liability to a third person upon him.” (1 Cal.3d at p. 595, italics in original.) In other words, a distinction must be made between the director’s fiduciary duty to the corporation (and its beneficiaries) and the director’s ordinary duty to take care not to injure third parties.[12] (9) (See fn. 13.), (8b) The former duty is defined by statute,[13] the latter by common law tort principles.

(4d) Thus, if plaintiff’s complaint had alleged only that the Association’s CC&Rs and bylaws delegated to the directors a general duty to conduct the affairs of the organization, including the control and management of its property, then she would not have stated a cause of action. It is true that the residents were forced to rely on the directors to oversee management of the property; however, it would be insufficient to allege that because the directors had a duty as agents of the Association to manage its property and to conduct its affairs, that they also necessarily owed a personal duty of care to plaintiff regardless of their specific knowledge of the allegedly dangerous condition that led to her injury. As this court suggested in Haidinger-Hayes, such a broad application of agency principles to corporate decision-makers would not adequately distinguish the directors’ duty of care to third persons, which is quite limited, from their duty to supervise broad areas of corporate activity. Virtually any aspect of corporate conduct can 507*507 be alleged to have been explicitly or implicitly ratified by the directors. But their authority to oversee broad areas of corporate activity does not, without more, give rise to a duty of care with regard to third persons who might foreseeably be injured by the corporation’s activities. “Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done.” (1 Cal.3d at p. 595.)

On the other hand, we must reject the defendant directors’ assertion that a director’s liability to third persons is controlled by the statutory duty of care he or she owes to the corporation, a standard defined in Corporations Code section 7231. (10a) This statutory standard of care, commonly referred to as the “business judgment rule,” applies to parties (particularly shareholders and creditors) to whom the directors owe a fiduciary obligation.[14] (11) (See fn. 15.), (10b) It does not abrogate the common law duty which every person owes to others — that is, a duty to refrain from conduct that imposes an unreasonable risk of injury on third parties.[15] The legal 508*508 fiction of the corporation as an independent entity — and the special benefit of limited liability permitted thereby — is intended to insulate stockholders from personal liability for corporate acts and to insulate officers from liability for corporate contracts; the corporate fiction, however, was never intended to insulate officers from liability for their own tortious conduct.[16]

(12) To maintain a tort claim against a director in his or her personal capacity, a plaintiff must first show that the director specifically authorized, directed or participated in the allegedly tortious conduct (United States Liab. Ins. Co. v.Haidinger-Hayes, Inc., supra, 1 Cal.3d at p. 595); or that although they specifically knew or reasonably should have known that some hazardous condition or activity under their control could injure plaintiff, they negligently failed to take or order appropriate action to avoid the harm (Dwyer v. Lanan & Snow Lumber Co., supra,141 Cal. App.2d 838; see also Fletcher, Cyclopedia of the Law of Private Corporations, supra, 509*509 at p. 268; Annot., Personal Civil Liability of Officer or Director of Corporation for Negligence of Subordinate Corporate Employee Causing Personal Injury or Death of Third Person (1979) 90 A.L.R.3d 916). The plaintiff must also allege and prove that an ordinarily prudent person, knowing what the director knew at that time, would not have acted similarly under the circumstances.

(4e) Although the statutory business judgment rule defined in sections 7231 and 309 concerns only the director’s fiduciary duty to the corporation, and not to outsiders, we recognize — as the Legislature did — that “[t]he reference to `ordinarily prudent person’ emphasizes the long tradition of the common law, in contrast to standards that might call for some undefined degree of expertise, like `ordinarily prudent businessman.'” (Legislative Committee com., Deering’s Ann. Corp. Code (1977) foll. § 309, p. 205.) We are mindful that directors sometimes must make difficult cost-benefit choices without the benefit of complete or personally verifiable information. (13) For this reason, even if their conduct leads directly to the tortious injury of a third party, directors are not personally liable in tort unless their action, including any claimed reliance on expert advice, was clearly unreasonable under the circumstances known to them at that time. This defense of reasonable reliance is necessary to avoid holding a director personally liable when he or she reasonably follows expert advice or reasonably delegates a decision to a subordinate or subcommittee in a better position to act.[17]

(4f) Under the facts as alleged by plaintiff, the directors named as defendants had specific knowledge of a hazardous condition threatening physical injury to the residents, yet they failed to take any action to avoid the harm; moreover, the action they did take may have exacerbated the risk by causing plaintiff’s unit to be without any lighting on the night she was attacked. Plaintiff has thus pled facts to support two theories of negligence, both of which state a cause of action under the standard stated above.

First, plaintiff alleges that the directors took affirmative action that made the break-in more likely when they ordered her to immediately disconnect the lighting she had installed to protect herself from the foreseeable risk of 510*510 another criminal break-in.[18] Plaintiff alleges that she installed the additional exterior lighting only after the board ignored repeated requests from residents of her court to improve the lighting condition. Since the directors were aware of the crimewave and that plaintiff had installed additional lighting to protect herself, they assumed a duty to exercise their discretion in a manner that would not increase her risk of injury from crimes that could foreseeably recur if the common areas were not secure. Instead, according to the complaint, the board’s decision actually increased the risk of harm and was the legal cause of plaintiff’s injuries. Since the additional lights were connected to the building circuits and switches, forcing her to immediately turn off all the exterior lights meant extinguishing all the additional lights. The break-in, rape and robbery occurred on the same night plaintiff complied with the board’s order, with the result that the area outside her unit was cloaked in near-total darkness.

Second, plaintiff alleges that the individual directors breached a duty of care owed to her by failing to take action to repair the hazardous lighting condition within a reasonable period of time. Some six months passed between the time the board began to investigate complaints about the lighting and the second burglary of plaintiff’s unit. The facts, as alleged, indicated that the directors had actual knowledge of the level and types of crime in the area, of complaints by residents that the lights provided inadequate security, and of the recent burglary of plaintiff’s unit. Therefore, plaintiff alleged, the directors knew the lack of adequate lighting created a risk of recurring criminal activity, yet they failed to use reasonable care to alleviate the danger, even though the residents necessarily relied on the board to do so.

Directors and officers have frequently been held liable for negligent nonfeasance where they knew that a condition or instrumentality under their control posed an unreasonable risk of injury to the plaintiff, but then failed to take action to prevent it. (See Dwyer v. Lanan & Snow Lumber Co., supra, 141 Cal. App.2d 838; Saucier v.U.S. Fidelity & Guaranty Company, supra, 280 So.2d 584; Adams v. Fidelity and Casualty Co. of New York (La. App. 1958) 107 So.2d 496; Curlee v. Donaldson (Mo. App. 1950) 233 511*511 S.W.2d 746; Schaefer v. D & J Produce, Inc., supra, 62 Ohio App.2d 53; see also Preston-Thomas Const., Inc. v. Central Leasing Corp. (Okl.App. 1973) 518 P.2d 1125, 1127; Barnette v. Doyle (Wyo. 1981) 622 P.2d 1349, 1355-1356. Dwyer is directly on point. In that case, the manager of a sawmill informed its president and director that a backline was poorly secured and might fall, as it had previously. The official failed to take any precautionary action within a reasonable period of time and was found liable to a person injured when the line subsequently fell. (141 Cal. App.2d at p. 841.) Although a director’s obligation to complete a task is ordinarily a duty owed to the corporation alone, in the instant case, as in Dwyer,when the only persons in a position to remedy a hazardous condition are made specifically aware of the danger to third parties, then their unreasonable failure to avoid the harm may result in personal liability.[19]

In this case plaintiff’s amended complaint alleges that each of the directors participated in the tortious activity. Under our analysis, this allegation is sufficient to withstand a demurrer. (14), (4g) However, since only “a director who actually votes for the commission of a tort is personally liable, even though the wrongful act is performed in the name of the corporation” (Tillman v. Wheaton-Haven Recreation Ass’n, Inc., supra, 517 F.2d 1141, 1144; Tillman v. Wheaton-Haven Recreation Ass’n (1973) 410 U.S. 431, 440, fn. 12 [35 L.Ed.2d 403, 411, 93 S.Ct. 1090]), plaintiff will have to prove that each director acted negligently as an individual. Of course, the individual directors may then present evidence showing they opposed or did not participate in the alleged tortious conduct. (Ibid.)

Under the circumstances plaintiff has alleged particularized facts that state a cause of action for negligence against the individual directors. Of course, the directors may have acted quite reasonably under the circumstances — or the causal link between the lighting and plaintiff’s injuries may 512*512 be too remote — but those are questions for the trier of fact and not appropriate grounds for sustaining a general demurrer to plaintiff’s claim. The trial court therefore erred when it sustained the defendant directors’ demurrer to plaintiff’s negligence cause of action against them and dismissed without leave to amend.

III.

Breach of Contract

(15) In her second cause of action plaintiff alleges that the CC&Rs and the Association’s bylaws formed a contract between the defendants and the members of the Association. She further alleges that the defendants were contractually obligated to “take reasonable steps to remedy the situation of inadequate exterior lighting and to refrain from instructing [her] to cut off the additional exterior lighting she had caused to be installed at her unit.” We conclude that plaintiff has failed to state a cause of action against any of the defendants for breach of contract.[20]

Civil Code section 1355 provides that prior to the conveyance of any condominium in a project the owners of the project must “record a declaration of restrictions relating to such project, which restrictions shall be enforceable equitable servitudes where reasonable, and shall inure to and bind all owners of condominiums in the project.” The servitudes may provide for, among other things, the establishment of a management body and for delineation of management’s responsibilities, and any condominium owner has the right to enforce the servitudes. (Civ. Code, § 1355.) Plaintiff alleges that this document along with the Association’s bylaws constituted a “contract” which was breached by the defendant’s acts and omissions.

The rights and responsibilities of contracting parties are determined by the terms of their contract. (Diamond Bar Dev. Corp. v. Superior Court (1976) 60 Cal. App.3d 330, 333 [131 Cal. Rptr. 458]; Civ. Code, § 1638; 1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, § 522, p. 445.) Here, plaintiff’s contract with defendants consists of the CC&Rs and the bylaws contained in the grant deed for plaintiff’s condominium.

Plaintiff’s allegation that defendants breached that contract by failing to install additional lighting must fail because she does not allege that any 513*513 provision in any of the writings imposed such an obligation on defendant. Plaintiff’s contention that defendants breached a contract by requiring her to remove the lighting she had installed is also without merit. Contrary to plaintiff’s claim, the CC&Rs expressly prohibited the installation of such lighting in common areas except with the prior approval of the board. By refusing to give plaintiff permission to install additional lighting and by ordering her to immediately disconnect her lighting, the board may have acted negligently as a landlord, but it did not breach any contractual obligation to the residents.

IV.

Breach of Fiduciary Duty

(16a) Plaintiff’s third cause of action, alleging that the CC&Rs and bylaws gave rise to a fiduciary duty defendants breached by their acts and omissions, must fail for a similar reason.

(17) Directors of nonprofit corporations such as the Association are fiduciaries who are required to exercise their powers in accordance with the duties imposed by the Corporations Code. (Raven’s Cove Townhomes, Inc. v. Knuppe Development Co.(1981) 114 Cal. App.3d 783, 799 [171 Cal. Rptr. 334].) This fiduciary relationship is governed by the statutory standard that requires directors to exercise due care and undivided loyalty for the interests of the corporation. (Mueller v. MacBan (1976) 62 Cal. App.3d 258, 274 [132 Cal. Rptr. 222]; Corp. Code, § 309, subd. (a), § 7231, subd. (a); 6 Witkin, Summary of Cal. Law, supra, § 80, p. 4378.) (16b) As concluded above, the Association and the Project’s residents also stand in a common law relationship, similar to that of landlord and tenant, that requires the landlord to exercise reasonable care in protecting tenants from criminal activity.

Plaintiff therefore had a dual relationship with defendants. These two relationships and respective standards of care are related in this case only insofar as they concern the same parties. They must be analyzed separately, however, because a landlord and tenant do not generally stand in a fiduciary relationship (Howe v.Pioneer Mfg. Co. (1968) 262 Cal. App.2d 330, 343 [68 Cal. Rptr. 617]), and plaintiff has alleged no facts to show that these directors had a fiduciary duty to serve as the Project’s landlord.

Plaintiff’s reliance on Raven’s Cove, supra, 114 Cal. App.3d 783, is therefore misplaced. In that case the homeowners acted as shareholders when they sued the developers, as directors, for breach of fiduciary duty that resulted in damage to the corporation. Raven’s Cove is inapplicable 514*514 here because plaintiff alleged that the Association, as a landlord, breached its duty to her as a tenant rather than as a shareholder. Indeed, the defendants fulfilled their duty to plaintiff as a shareholder by strictly enforcing the provision in the CC&Rs that prohibited alteration of the common areas except with the prior written consent of the board. The directors had nofiduciary duty to exercise their discretion one way or the other with regard to plaintiff’s lighting so long as their conduct conformed to the standard set out in section 7231. Since a good faith mistake in business judgment does not breach the statutory standard, plaintiff’s third claim does not state a cause of action.

V.

Conclusion

We conclude that the trial court erred in sustaining the Association’s and directors’ demurrer to the negligence cause of action. We affirm dismissal of plaintiff’s other causes of action. The judgment is therefore reversed and remanded to the trial court for further proceedings consistent with this opinion.

Bird, C.J., Reynoso, J., and Grodin, J., concurred.

BIRD, C.J.

I agree with my colleagues that the function of the Village Green Homeowners Association (Association) is analogous to that of a landlord and that the Association owed a duty to plaintiff to protect her from the foreseeable criminal acts of others. Further, I agree that plaintiff has stated a valid cause of action for negligence against the Association’s directors under two theories. I write separately to discuss the cause of action based on the directors’ failure to remedy the lighting problem in the Village Green Condominium Project (project).

The general rule is that corporate directors and officers are liable for corporate wrongs in which they actively participate. (19 C.J.S., Corporations, § 845, pp. 272-273; 18B Am.Jur.2d, Corporations, § 1877, pp. 723-724; United States Liab. Ins. Co.v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 595 [83 Cal. Rptr. 418, 463 P.2d 770].)[1] In other words, a corporate director is liable if he or she is personally negligent or commits an intentional tort. Director status neither immunizes a person from individual liability nor subjects him or her to vicarious liability. (See 3A Fletcher, Cyclopedia 515*515 of the Law of Private Corporations (1986) Liability of Directors and Officers to Third Persons for Torts, ch. XXIV, § 1137, pp. 275-276, hereafter Fletcher.)

As the majority note, plaintiff has stated a cause of action against the directors on two theories of negligence. First, plaintiff alleged that the directors acted negligently in ordering her to remove the additional lighting she had installed for her own protection. Where the negligence charged, as here, constitutes misfeasance, a defendant owes “`a duty of care to all persons who are foreseeably endangered by his conduct….'” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]; accord Prosser & Keeton on Torts (5th ed. 1984) § 56, p. 374.) “It is thoroughly well settled that a person is personally liable for all torts committed by him, consisting in misfeasance — as fraud, conversion, acts done negligently, etc. — notwithstanding he may have acted as the agent or under directions of another. And this is true to the full extent as to torts committed by the officers or agents of a corporation in the management of its affairs.” (Fletcher, supra, § 1135, p. 267.)[2]

Plaintiff alleged that the danger was foreseeable here because the directors knew that the project was experiencing a crimewave, that the project’s lighting was inadequate, and that the inadequate lighting increased the likelihood of criminal conduct. Therefore, in deciding what to do about plaintiff’s unauthorized lighting, the directors owed her a duty to exercise reasonable care. Plaintiff has sufficiently alleged that the directors breached that duty when they ordered her to take down the lights.

Second, plaintiff alleged that the directors negligently failed to take action to remedy the inadequate lighting in the project. This allegation constitutes a charge of nonfeasance. The question of the directors’ liability under this 516*516 theory is more complex than the issue of the directors’ liability for misfeasance.

A corporate director’s liability to third parties is commonly limited by the much-stated rule that a director is not liable to a third party for nonfeasance or breach of a duty owed to the corporation alone. (Haidinger-Hayes, supra, 1 Cal.3d at p. 595; see also 6 Witkin, Summary of Cal. Law (8th ed. 1974) Corporations, § 93, p. 4390; 19 C.J.S., Corporations, § 846, pp. 273-274.) This rule reflects the common law’s disinclination to impose an affirmative duty to act for the benefit of another in the absence of a special relationship. (See Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49 [123 Cal. Rptr. 468, 539 P.2d 36]; Tarasoff v. Regents of University of California, supra,17 Cal.3d at p. 435, fn. 5.)[3]

A director has a special relationship to a corporation by virtue of the fact that he acts as its agent. Therefore, he is liable to the corporation for nonfeasance or failure to perform his duties. However, failure to perform duties owed to the corporation will not result in liability to third parties unless the director has a special relationship with the third party such that he or she owes a duty to the third party to act affirmatively.

This rule is reflected in the law of agency generally. “[A]n agreement to carry out the purpose of the employer, which may be to help others, does not, without more, create a relation between the agent and the others upon 517*517 which an action of tort can be brought for the harm which results from a failure of the agent to perform his duty to the principal.” (See Rest.2d Agency, § 352, com. a, italics added.)

However, section 354 of the Restatement Second of Agency provides that “[a]n agent who, by promise or otherwise, undertakes to act for his principal under such circumstances that some action is necessary for the protection of the person or tangible things of another, is subject to liability to the other for physical harm to him or to his things caused by the reliance of the principal or of the other upon his undertaking and his subsequent unexcused failure to act, if such failure creates an unreasonable risk of harm to him and the agent should so realize.” In some circumstances, a special relationship is created when an agent assumes a principal’s duty to protect a third party.

Several states have applied section 354 to determine whether a corporation’s officers or directors are liable to third parties for their negligent acts. (See, e.g.,Johnson v. Schneider (La. App. 1972) 271 So.2d 579, 584-587; Barnette v. Doyle(Wyo. 1981) 622 P.2d 1349, 1355-1356; cf. Schaefer v. D & J Produce, Inc. (1978) 62 Ohio App.2d 53 [403 N.E.2d 1015, 1016, 1020-1021] [applying similar principles];Newman v. Forward Lands, Inc. (E.D.Pa. 1976) 418 F. Supp. 134, 137 [applying Rest.2d Agency, § 352]; Haidinger-Hayes, supra, 1 Cal.3d at p. 595 [citing Rest.2d Agency, §§ 352 and 354 for the proposition that corporate directors are not liable for negligence absent physical harm to the third party].[4])

Johnson v. Schneider, supra, 271 So.2d 579, is particularly instructive. There, the court applied section 354 to determine whether directors/officers owed employees a duty to provide safe working conditions. The negligence alleged in Johnson was failure to provide adequate ventilation, safety equipment, or adequate warnings regarding the dust-laden atmosphere of the workplace. The corporation’s duty to plaintiff to provide a safe work environment was clear. The question presented was whether that duty was shared by the directors/officers. (Id., at p. 585.)

Construing section 354, the court in Johnson devised the following test. “[T]he operative factors giving rise to the duty toward a third person in instances of this nature are: (1) the existence of a duty on the part of the 518*518 principal toward the third party; (2) delegation of that duty to an agent such as a corporate officer, director, stockholder or employee, and (3) acceptance of the delegated duty by the agent and the agent’s undertaking the performance thereof as part of the agent’s duties to his principal. When these factors co-exist, the agent assumes and incurs an obligation or duty to the third party.[[5]] The breach of the duty thus incurred subjects the agent to liability in tort to the third party thereby injured.” (Johnson v. Schneider, supra, 271 So.2d at p. 586.)[6]

In light of this analysis, plaintiff states a cause of action when she alleges that the directors failed to: (1) properly investigate the lighting problem; (2) propose lighting alternatives to the Association’s members; and (3) investigate lighting complaints. As a landlord, the Association had a duty to protect plaintiff from foreseeable criminal acts. (See maj. opn. at p. 499.) This duty was delegated to the directors in the Association’s bylaws and its covenants, conditions and restrictions (CC&Rs).

Under section 5 of the CC&Rs and article 5, section 1 of the Association’s bylaws, the directors had a duty to conduct the affairs of the Association, including the control and management of its property. The directors, not the members, had authority to alter the common areas. Although the members had the right to vote on any improvements that would cost more than $5,000, the directors had to authorize such improvements. The directors also had authority to investigate the lighting problem and propose solutions. Therefore, the residents of the project had to rely on the directors to provide sufficient lighting to protect them from criminal acts.

When an individual assumed a directorship of the Association, he or she accepted the duty to protect the residents of the project. Performance of that duty was commenced when the directors undertook an investigation of the lighting problem.

Thus, the directors owed a duty directly to plaintiff to protect her from the foreseeable criminal acts of others by providing the project with adequate lighting. Plaintiff alleges that the directors breached that duty by failing to act expeditiously despite their awareness of the lighting’s inadequacy and the connection between inadequate lighting and criminal acts.

519*519 Plaintiff contends that the directors commenced an investigation but negligently failed to carry it forward. This failure to complete the investigation constitutes active participation in the Association’s negligence. The directors may be able to establish the affirmative defense of reasonable reliance on the committee charged with investigating the lighting problem. However, this argument is dependent upon factual questions that cannot be resolved at the demurrer stage.

In sum, the Association functioned as a landlord and, therefore, owed a duty to the residents of the project to protect them from the foreseeable criminal acts of others. Plaintiff alleges that this duty was delegated to the directors of the Association as part of the responsibilities of their office. That delegation of the Association’s duty to protect the project’s residents created a special relationship between the directors and the residents. As a result of this special relationship, the directors, like the Association, owed an affirmative duty to plaintiff to protect her from foreseeable criminal acts. Given the directors’ failure to act, despite their knowledge of the danger, plaintiff has sufficiently alleged a breach of that duty.

I agree with the majority’s conclusion that the trial court’s judgment must be reversed and plaintiff must be permitted to proceed with her negligence cause of action against the directors as well as the Association.

MOSK, J., Concurring and Dissenting.

I concur in the judgment insofar as it affirms the judgment of the trial court dismissing plaintiff’s causes of action for breach of contract and breach of fiduciary duty. I dissent, however, from the judgment insofar as it reverses the judgment of the trial court dismissing plaintiff’s negligence cause of action.

Once again the majority make condominium ownership — which, as they themselves impliedly recognize, is a preferred form of home ownership available to many Californians — much more difficult and risky than it reasonably need be. InGriffin Development Co. v. City of Oxnard (1985) 39 Cal.3d 256 [217 Cal. Rptr. 1, 703 P.2d 339], they approved a local ordinance that made conversion of rental apartments to condominiums a practical impossibility in an entire city. Now, contrary to the common law principles applicable here, they impose on a voluntary nonprofit association of condominium owners the affirmative duty to protect the individual unit owner against the criminal acts of third parties committed outside common areas and within that person’s own unit, and thereby expose the association to unwarranted and potentially substantial civil liability. Worse still, contrary to statutory law, they impose a similar duty on, and expose to similar liability, the individual unit owners who serve as the association’s directors.

520*520 Plaintiff’s negligence cause of action presents two related questions: (1) Under the facts alleged in the complaint, may the Village Green Owners Association (the Association) be held liable to plaintiff for injury resulting from the criminal acts of a third party? (2) May the individual members of its board of directors (the directors) be held liable? As I shall explain, the answer to each question should be no.

Even though understandable sympathy is aroused for this plaintiff, the analysis employed by the majority does not withstand close scrutiny.

On the question of the Association’s potential liability, the analysis is unpersuasive because the claimed similarity between the relationship of condominium association to unit owner and that of landlord and tenant is not adequately probed. This is a crucial weakness since the potential liability of the Association to plaintiff is premised on the alleged similarity of these two relationships. Specifically, the majority’s reliance on O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790 [191 Cal. Rptr. 320, 662 P.2d 427], Kwaitowski v. Superior Trading Co. (1981) 123 Cal. App.3d 324 [176 Cal. Rptr. 494], and O’Hara v. Western Seven Trees Corp. (1977) 75 Cal. App.3d 798 [142 Cal. Rptr. 487], is ill founded.

O’Connor, on which the majority rely in holding condominium associations relevantly similar to landlords, has been subjected to strong criticism on its own terms. (Note,Condominium Age-Restrictive Covenants Under the Unruh Civil Rights Act: O’Connor v. Village Green Owners Association (1984) 18 U.S.F.L.Rev. 371; see Barnett, The Supreme Court of California, 1981-1982: Foreword: The Emerging Court(1983) 71 Cal.L.Rev. 1134, 1143-1146.) In any event it is plainly inapposite: whether a condominium association is similar to a landlord for the purposes of an antidiscrimination statute that covers “`all business establishments of every kind whatsoever'” (O’Connor, supra, 33 Cal.3d at pp. 793-794) is irrelevant to the issue whether such an association is similar to a landlord for the purposes of the general common law of torts. Kwaitowski and O’Hara, which discuss the basis and scope of the landlord’s potential liability, constitute too slender a reed to support the majority’s extension of such potential liability to a condominium association.

On the question of the directors’ potential liability, a major weakness appears: Corporations Code section 7231, as I shall show, is misconstrued.

Contrary to the majority’s implied holding, the Association is not under a duty to protect unit owners against the criminal acts of third parties that result from its nonfeasance, or failure to act: such a duty arises generally 521*521 from a “special relationship,” and the condominium association-unit owner is not such a relationship.

It is well settled that a private person has no duty to protect another against the criminal acts of third parties absent a special relationship between the person on whom the duty is sought to be imposed and either the victim or the criminal actor. (E.g., Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 [185 Cal. Rptr. 252, 649 P.2d 894]; Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970) 141 App.D.C. 370 [439 F.2d 477, 481]; Reynolds v. Nichols (1976) 276 Ore. 597, 600 [556 P.2d 102, 104]; Cornpropst v. Sloan (Tenn. 1975) 528 S.W.2d 188, 191 [93 A.L.R.3d 979]; Rest.2d Torts (1965) § 315; Prosser & Keeton, The Law of Torts (5th ed. 1984) § 56 at p. 385 [hereafter Prosser & Keeton]; Schoshinski, American Law of Landlord and Tenant (1980) § 4:14 at p. 216 [hereafter Schoshinski]; Haines,Landlords or Tenants: Who Bears the Costs of Crime? (1981) 2 Cardozo L.Rev. 299, 306 [hereafter Haines]; Note, Landlord’s Duty to Protect Tenants from Criminal Acts of Third Parties: The View from 1500 Massachusetts Avenue (1971) 59 Geo. L.J. 1153, 1161 [hereafter Landlord’s Duty]; Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. 886, 887; Annot., (1972) 43 A.L.R.3d 331, 339.)

As a result, the traditional rule has been that the landlord is not subject to a duty “to protect the tenant from criminal acts of third parties absent a contract or a statute imposing the duty.” (Schoshinski, supra, § 4:14 at p. 216; accord, Kwaitowski, supra,123 Cal. App.3d at p. 326; O’Hara, supra, 75 Cal. App.3d at p. 802; Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal. App.3d 538, 543 [134 Cal. Rptr. 29]; see, e.g., Pippin v. Chicago Housing Authority (1979) 78 Ill.2d 204, 208 [399 N.Ed.2d 596, 598]; Scott v. Watson (1976) 278 Md. 160, 166 [359 A.2d 548, 552];Goldberg v. Housing Auth. of Newark (1962) 38 N.J. 578, 583-588 [186 A.2d 291, 293-296, 10 A.L.R.3d 595].)

Since the landmark case of Kline v. 1500 Massachusetts Avenue Apartment Corp.,however, the rule has been undermined (see, e.g., Prosser & Keeton, supra, § 63 at p. 442; Schoshinski, supra, § 4:15; Haines, supra, 2 Cardozo L.Rev. at pp. 314-322), and today several jurisdictions impose a limited duty on landlords to protect their tenants against the criminal acts of third parties. (See, e.g., Kwaitowski, supra, 123 Cal. App.3d at pp. 327-333; Kline, supra, 439 F.2d at pp. 480-485; Samson v.Saginaw Professional Building, Inc. (1975) 393 Mich. 393 [224 N.W.2d 843, 847-850]; Trentacost v. Brussel (1980) 82 N.J. 214, 220-223 [412 A.2d 436, 439-445]; see generally Schoshinski, supra, § 4:15, pp. 217-223 & 1985 Supp. at pp. 67-70, citing and discussing cases; see also Rest.2d Property (1976) § 17.3, 522*522 com. l & Rptr.’s note 13 [landlord has a duty to use reasonable care to protect tenants from the criminal acts of third parties arising in or from parts of leased property, retained in landlord’s control, that tenant is entitled to use].)

Nevertheless, the emerging view that landlords may be under a limited duty to protect their tenants against the criminal acts of third parties — on which the majority here rely — does not appear to support excepting the Association from the traditional common law “no duty” rule: the five basic theories that support the landlord-tenant exception are largely inapplicable to the condominium association-unit owner relationship.

First, landlords have been subjected to a duty to protect on the theory that when, for consideration, a landlord undertakes to provide protection against the known hazard of criminal activity, he assumes a duty to protect. (See Sherman v. Concourse Realty Corporation (1975) 47 App.Div.2d 134, 139 [365 N.Y.S.2d 239, 243]; Pippin, supra, 78 Ill.2d at p. 209 [399 N.E.2d at p. 599].) Condominium associations, however, do not generally enter into such undertakings, and indeed the Association here is not alleged to have done so.

Second, landlords have been subjected to a duty to protect on the theory that the lease impliedly guarantees such protection: “the value of the lease to the modern apartment dweller is that it gives him `a well known package of goods and services — a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors,proper sanitation, and proper maintenance.'” (Kline, supra, 439 F.2d at p. 481, italics in original; accord, Kwaitowski, supra, 123 Cal. App.3d at p. 333 [implied warranty of habitability]; Trentacost, supra, 82 N.J. at pp. 225-228 [412 A.2d at pp. 441-443][same].) There is no lease, of course, between condominium association and unit owner. Nor apparently do the unit owner and the condominium association — between whom no consideration passes — impliedly agree on such a package of goods and services. No such agreement, moreover, is alleged here.

Third, landlords have been subjected to a duty to protect on the theory that the landlord-tenant relationship is similar to the special relationship of innkeeper and guest. (See Kwaitowski, supra, 123 Cal. App.3d at pp. 327-333; Kline, supra, 439 F.2d at pp. 482-483; see also O’Hara, supra, 75 Cal. App.3d at p. 802 [impliedly following Kline].) “In [special] relationships the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff’s welfare. In addition, such relations have often 523*523 involved some existing or potential economic advantage to the defendant.” (Prosser & Keeton, supra, § 56 at p. 374, fn. omitted.) Whatever the force of the analogy in the landlord-tenant context, it fails when applied to the condominium association-unit owner relationship. First, although the unit owner is dependent on the association for the general management of the complex, he is nevertheless a member of the association and can participate in its activities. Indeed, in the case at bar, as the allegations of the complaint show, plaintiff participated quite actively and successfully. Second, the condominium association-unit owner relationship involves no existing or potential economic advantage to the association. To be sure, no such advantage is alleged here.

Fourth, landlords have been subjected to a duty to protect on the theory that “traditional tort principles … [impose on] the landlord … a duty to exercise reasonable care for the tenant’s safety in common areas under his control….” (Haines, supra, 2 Cardoza L.Rev. at p. 333; accord, Scott, supra, 278 Md. at pp. 166-167 [359 A.2d at pp. 552-554].) Because the similarity of the landlord-tenant and condominium association-unit owner relationships is the issue here in question, to conclude that the condominium association should be subjected to such a duty under traditional tort principles governing the landlord-tenant relationship is, in effect, to beg the question. In any event, the existence of such a limited duty would be immaterial on the facts pleaded in the complaint: the criminal acts plaintiff alleges she suffered were committed not in common areas subject to the Association’s control, but within her own unit.

Finally, landlords have been subjected to a duty to protect on the theory that the criminal activity in question was foreseeable. (See, e.g., Kwaitowski, supra, 123 Cal. App.3d at pp. 328-333; Braitman v. Overlook Terrace Corp. (1975) 68 N.J. 368, 375-383 [346 A.2d 76, 79-84].) It is not at all clear, however, that the criminal activity alleged here falls within even the broad definition of foreseeability articulated inKwaitowski, i.e., knowledge on the part of the defendant of prior criminal activity of the same general type in the same general area (id., at pp. 328-333). Rather, the criminal acts plaintiff alleges she suffered were rape and robbery; the prior criminal activity she alleges defendants had knowledge of included such offenses as automobile theft, purse snatching, and burglary.

In any event, foreseeability as the basis of the landlord’s duty is problematic. “[I]t is generally understood that foreseeability alone does not justify the imposition of a duty….” (Haines, supra, 2 Cardozo L.Rev. at p. 339; accord, Comment, The Landlord’s Emerging Responsibility for Tenant Security (1971) 71 Colum.L.Rev. 275, 277; Goldberg, supra, 38 N.J. at p. 583 [186 A.2d at p. 293]; Trice v. Chicago Housing Authority 524*524 (1973) 14 Ill. App.3d 97, 100 [302 N.E.2d 207, 209].) “[R]ather [foreseeability] defines and limits the scope of a pre-existent duty that is based on the relationship of the parties.” (Landlord’s Duty, supra, 59 Geo. L.J. at p. 1178, italics added.) Hence, to reason from the foreseeability of harm to the existence of a duty to prevent such harm again begs the question. It follows that if foreseeability cannot support the imposition of a duty on landlords, it cannot support the imposition of a duty on condominium associations.

Thus, insofar as the criminal acts of third parties in this case are alleged to result from the Association’s nonfeasance — in the majority’s words, the failure “to complete the investigation of lighting alternatives[,] … to present proposals regarding lighting alternatives to members of the Association, … [and] to respond to the requests for additional lighting” — they are not within the scope of any duty that the Association may have owed to plaintiff.

It is at least arguable that the Association may be under a duty to protect unit owners against the criminal acts of third parties that result from its misfeasance. (Cf. Haines,supra, 2 Cardozo L.Rev. at p. 311, fn. 55 [“Despite the general `no duty’ rule, a landlord at common law was nevertheless liable for third party criminal acts against his tenants if his direct act of negligence precipitated the injury”].) Nevertheless, the Association is not under such a duty on the facts pleaded in the complaint: the allegations fail effectively to state that the Association’s request that plaintiff remove the additional lighting she had installed — the only conduct alleged that rises above the level of nonfeasance — constituted misfeasance, or active misconduct.

“Misfeasance” evidently denotes conduct that is blameworthy in itself, apart from its alleged causal connection to the plaintiff’s injury. (See, e.g., Gidwani v. Wasserman(1977) 373 Mass. 162, 166-167 [365 N.E.2d 827, 830-831] [landlord liable for loss arising from burglary after he disconnected tenant’s burglar alarm during an unlawful entry to repossess premises for nonpayment of rent]; De Lorena v. Slud (N.Y. City Ct. 1949) 95 N.Y.S.2d 163, 164-165 [landlord liable for loss of property stolen by person who had obtained the key to the premises from landlord without tenant’s authorization].) The misconduct alleged here does not rise to such a level of blameworthiness — especially in view of plaintiff’s implied concession that the Association made the request on the ground that she had installed the additional lighting in violation of the declaration of covenants, conditions and restrictions (CC&R’s).

Again contrary to the majority’s implied holding, the directors are not under a duty to protect unit owners against the criminal acts of third parties 525*525 that result from their nonfeasance or from such “misfeasance” as is alleged here.

Assuming for argument’s sake that the majority are correct in concluding that the potential liability of the directors is governed by the general common law of torts, the directors are not under a duty to protect: just as the relationship between the Association and the unit owner does not give rise to such a duty, neither does that between the directors as the Association’s agents and the unit owner.

But as for all directors, the potential liability of the directors here — which is created by the duty imposed on them and the standard of care to which they are held — is governed not by the common law but rather by statute. (See Corp. Code, § 300 & Assem. Select Com. Rep. on Revision of Corp. Code (1975) pp. 41-43 [hereafter Assem. Select Com. Rep.] [duty under General Corporation Law, which is the source of Nonprofit Corporation Law], § 7210 [same under Nonprofit Mutual Benefit Corporation Law], § 309 [standard of care under General Corporation Law], § 7231 [same under Nonprofit Mutual Benefit Corporation Law].)

The duty of the directors here, who direct a nonprofit mutual benefit corporation, is established in Corporations Code section 7231. Although the statute fails to describe the duty with specificity or to tell directors precisely what they must do (cf. Calfas,Boards of Directors: A New Standard of Care (1976) 9 Loyola L.A. L.Rev. 820, 821 [discussing the General Corporation Law, which is similar to the Nonprofit Corporation Law] [hereafter Calfas]), it does nevertheless set forth the substance of the directors’ obligation: to pursue the interests of the corporation before even their own (see Corp. Code, §§ 7231, 7233, 7235-7237).

Under the statute the directors apparently owe a duty to the corporation alone. (See Corp. Code, § 300 & Assem. Select Com. Rep., supra, at pp. 41-43 [General Corporation Law], § 7210 [Nonprofit Mutual Benefit Corporation Law].) Assuming, however, that a duty toward third parties derives from the duty toward the corporation, it must then be determined whether such a derivative duty is broad enough to embrace, on the facts alleged here, a duty to protect unit owners against the criminal acts of third parties. I do not believe that it is: the common law, as I have shown, imposes no such duty; and since the statute has as one of its purposes thelimitation of directors’ potential liability (cf. Note, California’s New General Corporation Law: Directors’ Liability to Corporations (1976) 7 Pacific L.J. 613, 613 [discussing Corp. Code, § 309] [hereafter Directors’ Liability]), it should not be construed to impose such a duty.

526*526 I shall assume for argument’s sake, however, that the directors’ duty is in fact broad enough. But since in neither specific nor conclusory terms does plaintiff allege that the directors have failed to satisfy the standard of care to which the statute subjects them, they cannot be held personally liable.

Section 7231, subdivision (a), provides in relevant part that “[a] director shall perform the duties of a director … in good faith, in a manner such director believes to be in the best interests of the corporation and with such care … as an ordinarily prudent person in a like position would use under similar circumstances.” Subdivision (b) provides that the director is entitled to rely on information, opinions, and reports presented by certain specified persons. Finally, subdivision (c) provides in relevant part that “[a] person who performs the duties of a director in accordance with subdivisions (a) and (b) shall have no liability based upon any alleged failure to discharge the person’s obligations as a director ….” (Italics added.)

In other words, section 7231 declares that a director may not be held personally liable for acts or omissions as a director unless he breaches the duty imposed by the statute. As the Report of the Assembly Select Committee on the Revision of the Corporations Code states in discussing Corporations Code section 309, subdivision (c), which is the source and counterpart of section 7231, subdivision (c): “a person [is relieved] from any liability by reason of being or having been a director of a corporation, if that person has exercised his duties in the manner contemplated by this section.” (Assem. Select Com. Rep., supra, at p. 54.) Thus, “[i]t is clearly intended that the standard set forth is exclusive….” (Directors’ Liability, supra, 7 Pacific L.J. at p. 615.)

Section 7231, in effect, imposes on directors a standard of care that is different from, and indeed somewhat lower than, that which the common law of torts imposes generally — specifically, a standard of care that is in significant aspect one of subjective reasonableness. (Cf. 1 Marsh, Cal. Corporation Law (2d ed. 1981) § 10.3 at pp. 572-576 [discussing Corp. Code, § 309].) Such a lower standard is consistent with what almost all courts have actually demanded of directors. (See Calfas, supra,9 Loyola L.A.L.Rev. at pp. 829-830; Bishop, New Problems in Indemnifying and Insuring Directors: Protection Against Liability Under the Federal Securities Laws,1972 Duke L.J. 1153, 1154; Bishop, Sitting Ducks and Decoy Ducks: New Trends in the Indemnification of Corporate Directors and Officers (1968) 77 Yale L.J. 1078, 1095-1101.)

Section 7231 imposes the same standard that section 309 of the General Corporation Law imposes on directors of commercial corporations. “This 527*527 general standard has three elements: a director must perform duties as a director (1) in good faith, (2) in a manner the director believes is in the best interests of the corporation, and (3) with such care … as an ordinarily prudent person in a like position would use under similar circumstances.” (1B Ballantine & Sterling, Cal. Corporation Laws (4th ed. 1985) § 406.01[1] at p. 19-192 [hereafter Ballantine & Sterling].) This standard was based on the then proposed revision of section 35 of the Model Business Corporation Act (hereafter Model Act) (ABA, Rep. of Com. on Corporate Laws: Changes in the Model Business Corporation Act (1974) 29 Bus. Law. 947 [hereafter ABA Com.Rep.]), which was drafted by the Committee on Corporate Laws of the American Bar Association (hereafter the ABA Committee). (1B Ballantine & Sterling,supra, § 406.01[1] at p. 19-192; Stern, The General Standard of Care Imposed on Directors Under the New California General Corporation Law (1976) 23 UCLA L.Rev. 1269, 1275 [hereafter Stern].)

That the standard of care imposed by section 7231 is in significant aspect one of subjective reasonableness appears from a consideration of the underlying intention of the statute. The purpose of Model Act section 35 — the ultimate source of section 7231 — was that “a director should not be liable for an honest mistake of business judgment.” (ABA Com. Rep., supra, 29 Bus. Law. at p. 951, italics added.) The purpose of Corporations Code section 309, which defines the statutory standard of care for directors of commercial corporations and is the immediate source of section 7231, is the same. (Assem. Select Com. Rep., supra, at p. 48.) Thus, it is clear that “the drafters of the Nonprofit Corporation Law intended that the standard as imported into [the General Corporation Law] should have the same result.” (1B Ballantine & Sterling, supra, § 406.01[1] at pp. 19-192 — 19-193.)

That the standard of care imposed by section 7231 is one of subjective reasonableness appears also from an analysis of its three elements.

First, “good faith” — which is “[o]ne of the most basic elements of the general standard” — “is inherently largely subjective….” (1B Ballantine & Sterling, supra, § 406.01(1) at p. 19-193.)

Second, “[t]he requirement that a director believe his or her action or inaction is in the best interests of the corporation is also subjective, since the requirement relates to the director’s actual belief rather than what the director ought to have believed or what a reasonable person might have believed under comparable circumstances.” (Id., at p. 19-194.) The subjective character of this requirement becomes all the more evident when we compare section 7231 to Model Act section 35 as it was approved by the 528*528 ABA Committee. The latter provides in relevant part that a director shall perform his duties “in a manner he reasonably believes to be in the best interests of the corporation….” (ABA, Rep. of Com. on Corporate Laws: Changes in the Model Business Corporation Act (1974) 30 Bus. Law. 501, 502, italics added.) Corporations Code section 309 adopted the requirement as articulated in section 35, but with the prominent omission of the word “reasonably.” Although the drafters do not explain the omission (Stern, supra, 23 UCLA L.Rev. at p. 1278), it seems fair to infer that they consciously intended the requirement to be subjective.

Finally, the requirement that the director use the degree of skill and attention that an ordinarily prudent person in a similar position would use under similar circumstances does not transform the standard of care imposed by section 7231 into one of objective reasonableness.

First, the phrase “ordinarily prudent person” was evidently intended not to introduce the generally applicable common law standard of the reasonably prudent man, but simply to preclude the imposition in certain cases of a duty to use expertise. Quoting from the ABA Committee Report (29 Bus. Law. at p. 954) with approval, the Assembly Select Committee Report states: “`[T]he reference to “ordinarily prudent person” emphasizes long traditions of the common law, in contrast to standards that might call for some undefined degree of expertise, like “ordinarily prudent businessman” ….'” (Assem. Select Com. Rep., supra, at p. 49, italics added.)

Second, the phrase “under similar circumstances” does not suggest that the statutory standard of care is reducible to objective reasonableness. The point is established by what the Assembly Select Committee Report chooses to say and by what it chooses not to say about the phrase.

The Assembly Select Committee Report quotes approvingly from the ABA Committee Report (29 Bus. Law. at p. 954) as follows: “`The phrase … is intended both to recognize that the nature and extent of oversight will vary [depending on the circumstances] … and to limit the critical assessment of a director’s performance to the time of action or nonaction and thus prevent the harsher judgments which can invariably be made with the benefit of hindsight….'” (Assem. Select Com. Rep.,supra, at p. 49.)

The Assembly Select Committee Report, however, omits quoting the following portion of the ABA Committee Report: “The phrase also gives recognition to the fact that the special background and qualifications a particular director may possess, as well as his other responsibilities (or their absence) in the management of the business and affairs of the corporation, may place a measure of responsibility upon such director in passing on a 529*529 particular problem which may differ from that placed upon another director….” (ABA Com. Rep., supra, 29 Bus. Law. at p. 954.) “This omission was intentional…. The mere fact that a director is a lawyer, a person with accounting training or an investment banker, should not impose upon that director in the performance of his ordinary directorial functions a greater duty of care than that which is imposed upon directors generally.” (Stern, supra, 23 UCLA L.Rev. at p. 1277, fn. omitted.) By this intentional omission the drafters plainly imply that the standard of care imposed by section 7231 is different from, and indeed somewhat lower than, the generally applicable objective standard of the common law: under the common law, “if a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it.” (Prosser & Keeton, supra, § 32 at p. 185.)

The somewhat lower standard of care imposed by section 7231 is intended to limit the director’s exposure to liability and thereby encourage qualified persons to assume and remain in directorship positions. (See Directors’ Liability, supra, 7 Pacific L.J. at p. 613.) Such encouragement appears particularly needed in the context of condominium associations, in which unit owners seem generally disinclined to serve as directors. (See Hanna, Cal. Condominium Handbook (1975) § 138 at p. 115.)

Plaintiff does not allege that the directors have failed to satisfy the statutory standard of care in fulfilling any duty they may have owed her. Indeed, with regard to the request that plaintiff remove the additional lighting she had installed, the allegations suggest quite the opposite — viz., that the directors were actually fulfilling their duty: they were obligated to enforce the provisions of the CC&R’s, and the additional lighting had evidently been installed in violation of such provisions.

The effect of section 7231 cannot be avoided by asserting, as the majority do, that whereas the directors’ duty to the corporation and the applicable standard of care is governed by the statute, their duty to third parties and the standard of care applicable to that duty is governed by the general common law. First, as I have explained, the statute establishes the potential liability of directors qua directors. Second, the language of section 7231, subdivision (c), which is quoted above, by its very terms precludes liability apart from the statute. Third, the provision was plainly intended to have such an effect: “[t]he purpose of [subdivision (c)] is to relieve a person from any liability by reason of being or having been a director of a corporation, if that person has exercised his duties in the manner contemplated by this section.” (Assem. Select Com. Rep., supra, at p. 54 [commenting on Corp. Code, § 309, subd. (c)].) Finally, the purpose of the provisions — to lower the standard of care somewhat in order to encourage qualified 530*530 persons to assume and remain in directorship positions — would otherwise be frustrated. In practically every act or omission, directors necessarily affect both the corporation and third parties. To hold directors to a higher standard of care insofar as their acts or omissions affect third parties and to a lower standard insofar as they affect the corporation is, in effect, to hold them to the higher standard: they will not be free from liability unless they adhere to the higher standard.

But even if the statute were intended only to govern the potential liability of directors toward the corporation and hence did not directly govern their potential liability toward third parties, I would nevertheless conclude that under no circumstances should they be held to a standard of care higher than that established by the statute. The reason for this is plain: if directors were held to the somewhat higher common law standard, the purpose of section 7231, as I have shown, would manifestly be frustrated. To avoid such a result, I would hold that the common law standard was effectively modified in this respect.[1]

Because neither the Association nor the directors are potentially liable under applicable law, I would affirm the judgment in its entirety.

Lucas, J., concurred.

[1] Plaintiff erroneously refers to the named party as the Village Green Condominium Project. The correct name is the Village Green Owners Association. The Association is a nonprofit corporation, rather than an unincorporated association.

[2] Since this case arises from the sustaining of a demurrer, we must assume that the factual allegations in the complaint are true. (O’Hara v. Western Seven Trees Corp. (1977) 75 Cal. App.3d 798, 802 [142 Cal. Rptr. 487].) In testing the sufficiency of a complaint against a demurrer, we are guided by the well settled rule that “a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that [she] may be entitled to some relief [citation].” (Alcorn v.Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal. Rptr. 88, 468 P.2d 216].) The facts are taken from plaintiff’s first amended complaint.

[3] Many of the Association’s newsletters were attached to the complaint as exhibits. The newsletters included such items as: “LIGHTS! LIGHTS! LIGHTS! You are doing a disservice to your neighbors as well as yourself if you keep your front and back doors in darkness. Many who live upstairs are able to gaze out on the Green at night and see perfectly the presence or absence of a prowler where there is a lighted doorway. But where porches are shrouded in darkness, NOTHING is visible. AS A CIVIC DUTY — WON’T YOU KEEP THOSE LIGHTS ON? If you would like to try out a Sensor Light on a 30-day trial basis to see how efficient and economical it is, we are sure it can be arranged through the Court Council and Court Reps.”

[4] Plaintiff, of course, alleges that nothing was done to correct the lighting problem.

[5] The letter stated:

“June 12, 1980. REPORT FROM YOUR COURT REP…. It was requested that the following items be relayed to the on-site mgr. for consideration and action if possible.

“1. Lights be installed on the northeast corner of bldg. 18 promptly.

“…. …. …. …. …. …. .

“… Item No. 1 above was put into the form of a motion with the request that action be taken on this item particularly by the site manager….”

[6] Petitioners also suggest that even if the Association and its ruling board function as would a landlord in a rental complex of similar size, plaintiff’s status as a unit owner — rather than defendants’ effective control over the common areas — should determine the Association’s duty of care. We disagree that an unincorporated association has no existence apart from that of its members. (SeeMarshall v. International Longshoremen’s & Warehousemen’s Union (1962) 57 Cal.2d 781, 783-784 [22 Cal. Rptr. 211, 371 P.2d 987]; White v. Cox (1971) 17 Cal. App.3d 824, 830 [95 Cal. Rptr. 259, 45 A.L.R.3d 1161].) Constitutional and common law protections do not lose their potency merely because familiar functions are organized into more complex or privatized arrangements. (See, e.g.,PruneYard Shopping Center v. Robins (1980) 447 U.S. 74 [64 L.Ed.2d 741, 100 S.Ct. 2035]; Shelleyv. Kraemer (1948) 334 U.S. 1 [92 L.Ed. 1161, 68 S.Ct. 836, 3 A.L.R.2d 441]; Marsh v. Alabama (1946) 326 U.S. 501 [90 L.Ed. 265, 66 S.Ct. 276].) Similarly, a homeowner’s association and its board may not enforce provisions of the CC&Rs in a way that violates statutory or common law. (See O’Connor v.Village Green Owners Assn. (1983) 33 Cal.3d 790 [191 Cal. Rptr. 320, 662 P.2d 427].)

[7] The court’s analogy is particularly apt because the case before us involves a plaintiff who is a member of a nonprofit incorporated association. It has been observed that “under the new nonprofit mutual benefit corporation law, members are like shareholders in a business corporation.” (Hanna, Cal. Condominium Handbook (1975) p. 77.)

[8] Section 51 provides in relevant part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

[9] We also take judicial notice of the fact that a rapidly growing share of California’s population reside in condominiums, cooperatives and other types of common-interest housing projects. Homeowner associations manage the housing for an estimated 15 percent of the American population and, for example, as much as 70 percent of the new housing built in Los Angeles and San Diego Counties. (See Bowler & McKenzie, Invisible Kingdoms (Dec. 1985) Cal. Law., at p. 55.) Nationally, “[t]hey are growing at a rate of 5,000 a year and represent more than 50 percent of new construction sales in the urban areas. Projects average about 100 units each, so the associations affect some 10 million owners,” according to C. James Dowden, executive vice president of the Community Association Institute in Alexandria, Virginia. (Ibid.) According to Bowler & McKenzie, supra, housing experts estimate that there already are 15,000 common-interest housing associations in California. While in some projects the maintenance of common areas is truly cooperative, in most of the larger projects control of the common area is delegated or controlled by ruling bodies that do not exercise the members’ collective will on a one-person, one-vote basis. (Ibid.)

[10] The court also concluded that several sections of the Restatement Second of Torts suggest that landlords can be held liable under certain circumstances for injuries inflicted during criminal assaults on tenants. Section 302B provides: “An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.” (Italics added.)

Section 448 provides: “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime,unless the actor at the time of his negligent conduct realized or should have realized the likelihoodthat such a situation might be created, and that a third person might avail himself of the opportunity tocommit such a tort or crime.” (Italics added.)

Section 449 provides: “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” (Italics added.)

[11] The fact that directors receive no compensation for their services does not exonerate them from liability that otherwise attaches for a breach of duty. Corporations Code section 7230, subdivision (a) provides, in the context of directors’ fiduciary duty to a nonprofit mutual benefit corporation, that “[a]ny duties and liabilities set forth in this article shall apply without regard to whether a director is compensated by the corporation.” (See, e.g., Virginia-Carolina Chemical Co. v. Ehrich (D.C.S.C. 1916) 230 Fed. 1005, 1015-1016; Weidner v. Engelhart (N.D. 1970) 176 N.W.2d 509, 518; 19 C.J.S., Corporations, § 863, p. 297.)

[12] Like any other citizen, corporate officers have a societal duty to refrain from acts that are unreasonably risky to third persons even when their shareholders or creditors would agree that such conduct serves the institution’s best interests. One court succinctly summarized this distinction between a director’s institutional duty to corporate insiders and the duty every person owes to the world. “[A]n officer or director of a corporation owes a duty to the corporation which is separate and independent of any duty which he may owe to an employee or to a third person…. If he fails to perform a duty owed to the corporation, he may be answerable to that corporation for the damages which it sustained because of his failure or neglect…. [¶] The only duty which an executive officer of a corporation owes to a third person, whether he be an employee of the corporation or a complete stranger, is the same duty to exercise due care not to injure him which any person owes to another. If an injury is sustained by a third party as the result of the independent negligence of the corporate officer, or as the result of a breach of the duty which that officer, as an individual, owes to the third party, then the injured third party may have a cause of action for damages against the officer personally.” (Saucier v. U.S. Fidelity and Guaranty Company (La. App. 1973) 280 So.2d 584, 585-586.)

[13] The legislative comments indicate that section 7231, the standard of fiduciary responsibility for nonprofit directors, incorporates the standard of care defined in Corporations Code section 309. (See Legis. Committee com., Deering’s Ann. Corp. Code (1979) foll. § 7231, p. 205; see also 1B Ballantine & Sterling, Cal. Corporation Laws (4th ed. 1984) § 406.01, p. 19-192.) Section 309 defines the standard for determining the personal liability of a director for breach of his fiduciary duty to a profit corporation.

Sections 7231 and 309 provide, in relevant part: “A director shall perform the duties of a director, including duties as a member of any committee of the board upon which the director may serve, in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.” In addition, a director is entitled to rely on information, opinions and reports provided by the persons specified in the statute. (§ 7231, subd. (b); § 309, subd. (b).)

[14] The “business judgment rule” exists in one form or another in every American jurisdiction. (See 3A Fletcher, Cyclopedia of the Law of Private Corporations, supra, § 1039.) Nevertheless, no case or treatise we have unearthed mentions corporate officers or directors as a category of defendants who (like infants or public officials) enjoy some limited immunity, under the common law or by statute, from personal liability for their own tortious conduct. (See, e.g., Prosser & Keeton, The Law of Torts (5th ed. 1984) §§ 131-135, pp. 1032-1075.)

The business judgment rule has been justified primarily on two grounds. First, that directors should be given wide latitude in their handling of corporate affairs because the hindsight of the judicial process is an imperfect device for evaluating business decisions. Second, “[t]he rule recognizes that shareholders to a very real degree voluntarily undertake the risk of bad business judgment; investors need not buy stock, for investment markets offer an array of opportunities less vulnerable to mistakes in judgment by corporate officers.” (18B Am.Jur.2d, supra, § 1704, at pp. 556-557.) Of course, a tort victim cares little whether the tortfeasor acted in good faith to maximize the interests of the enterprise. Unlike shareholders challenging an unprofitable decision, a tort victim’s exposure to the risk of harm is generally involuntary and uncompensated. And unlike the review of business judgments that affect only the pecuniary interests of investors, courts have a long and distinguished record of deciding whether a defendant’s personal conduct imposed an unreasonable risk of injury on the plaintiff.

[15] The dissent has not cited a single case from any jurisdiction in which directors’ liability in tort to third persons has been governed by the business judgment rule. To the contrary, the cases have uniformly applied common law tort principles. In one case, Bowes v. Cincinnati Riverfront Coliseum, Inc. (1983) 12 Ohio App.3d 12 [465 N.E.2d 904], the court questioned whether the state legislature intended the rule to govern the relationship between directors and third persons, and not just the fiduciary duty directors owe to their corporation. However, even in that case the court followed the general rule of law which it summarized as follows: “A corporate officer is individually liable for injuries to a third party when the corporation owes a duty of care to the third person, the corporation delegates that duty to the officer, the officer breaches that duty through personal fault (whether by malfeasance, misfeasance, or nonfeasance), and the third person is injured as a proximate result of the officer’s breach of that duty.” (Id., at pp. 910-912; Schaefer v. D & J Produce, Inc. (1978) 62 Ohio App.2d 53 [403 N.E.2d 1015, 1016]; Saucier v. U.S. Fidelity and Guaranty Company, supra, 280 So.2d 584, 585-587; see generally 3A Fletcher, Cyclopedia of the Law of Private Corporations, supra,§§ 1135, 1137, at pp. 267-295; 18B Am.Jur.2d, supra, §§ 1877-1878, 1880, at pp. 723-729.)

The statutory scheme that governs the indemnification of directors (Corp. Code, §§ 7237, 317 and 5238) also militates against the dissent’s unique notion that the business judgment rule defines both the fiduciary duty directors owe to their shareholders and the standard of care they owe to third parties who might be injured by their personal conduct. If the dissent is correct, then subdivision (b) of sections 7237, 317 and 5238 would appear to be meaningless, or at best redundant of subdivision (c). In each section, subdivision (d) mandates that a director who successfully defends against an action described in either subdivision (b) or (c) shall be indemnified for the expense incurred. Subdivision (c) empowers the enterprise to indemnify a director sued “by or in the right of the corporation” only “if such person acted in good faith, in a manner such person believed to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.” Subdivision (b) empowers the enterprise to indemnify a director “made a party to any proceeding (other than an action by or in the right of the corporation …) … if such person acted in good faith and in a manner such personreasonably believed to be in the best interests of the corporation….” Subdivision (b), unlike subdivision (c), does not mention the care an “ordinarily prudent person” would use, presumably because the director is being held liable to a third party precisely for failing to use such care. This bifurcation of all three indemnity statutes suggests that the Legislature anticipated that directors could be held personally liable in situations where they nevertheless acted “in good faith and in a manner such person reasonably believed to be in the best interests of the corporation.” (Subd. (b).) In such a situation the corporation is allowed to indemnify the director because, though liable, the director has not breached his or her fiduciary duty to the corporation. Where the director breaches that fiduciary duty, then both subdivisions (b) and (c) preclude indemnification regardless of whether the suit was brought by a third party or by an insider as a derivative action.

[16] Although a director’s fiduciary and common law duties are distinct, as a practical matter we recognize that a director’s responsibility to the corporation cannot be completely divorced from the public responsibility of the corporation itself. A corporation is a citizen in society, and as such is expected to conform to societal laws and norms. Typically, the corporation’s best interests will be served by complying with those laws and norms, if only because of the sanctions which may result from noncompliance. A director who causes his or her corporation to embark upon a course of unlawful or tortious conduct may, as a consequence, be exposed to liability from both within and without the corporation if the conduct falls below the statutory standard.

[17] Sections 7231 and 309 employ identical language to provide that “[i]n performing the duties of a director, a director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, … prepared” by various employees and experts whom “the director believes to be reliable and competent in the matters presented.” A director who commits a tort because he reasonably relied on such information cannot be held personally liable for the harm that results.

[18] Section 11.2(b) of the CC&Rs provides: “Nothing shall be altered or constructed in or removed from the COMMON AREAS or the ASSOCIATION PROPERTY, except upon the written consent of the BOARD.” Plaintiff’s complaint alleges that the directors instructed her to remove the lighting on the ground that she had violated the CC&Rs by not securing the board’s prior written consent and by not using a licensed electrician pursuant to a permit obtained from the city. But even assuming plaintiff violated the CC&Rs in this manner, nothing in the CC&Rs would have prevented the board from conditioning their approval on compliance with safety regulations or other standards, or from taking care not to leave her in a worse position. In any event, whether the directors acted reasonably under the circumstances is a question of fact, not a proper ground for dismissal for failure to state a claim.

[19] Some courts have found an alternative basis for such a result in traditional principles of agency law, particularly sections 352 and 354 of the Restatement Second of Agency. Section 352 states that “[a]n agent is not liable for harm to a person other than his principal because of his failure adequately to perform his duties to his principal, unless physical harm results from reliance upon performance of the duties by the agent, or unless the agent has taken control of land or other tangible things.” The comment to section 354 explains that an agent relied on to take some action for the protection of a person “should realize that, because reliance has been placed upon performance by him there is an undue risk that his failure will result in harm to the interests of the third person which are protected against negligent invasions.” (Rest.2d Agency, § 354, com. a.) Here, the directors, as agents of the Association, undertook to fulfill the Association’s duty to secure the common areas against the foreseeable criminal acts of third parties; having undertaken this duty and having induced the residents’ reliance, they were not free to desist if doing so created an unreasonable risk of physical injury to the plaintiff. (See also Miller v. Muscarelle (1961) 67 N.J. Super. 305 [170 A.2d 437, 446-451], which explains the historical origins and defects of the traditional misfeasance-nonfeasance distinction in the context of corporate agency.)

[20] The board members may not be held personally liable absent allegations that they entered into a contract with plaintiff on their own behalf or purported to bind themselves personally. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., supra, 1 Cal.3d at p. 595.) No such allegation is made here and accordingly the discussion is limited to the question of the Association’s liability.

[1] These rules are simply applications of the law of agency to the corporate context. (See 19 C.J.S., Corporations, § 845, p. 271.) Directors are agents of their corporate principal. (See § 317, subd. (a);Haidinger-Hayes, supra, 1 Cal.3d at p. 595.)

[2] The dissent argue that the directors’ conduct in ordering plaintiff to remove the lights was not misfeasance because misfeasance “evidently denotes conduct that is blameworthy in itself, apart from its alleged causal connection to plaintiff’s injury.” (Dis. opn., post, at p. 524.) However, the distinction between nonfeasance and misfeasance does not depend upon the blameworthiness of the defendant’s conduct, but upon the defendant’s participation in the creation of the risk. “The reason for the distinction may be said to lie in the fact that by `misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by `nonfeasance’ he has at least made his situation no worse, and has merely failed to benefit [plaintiff] by interfering in his affairs.” (Prosser & Keeton, supra, § 56, p. 373.)

In order to constitute misfeasance, defendant’s act need not be blameworthy in the abstract, it need just increase the risk to plaintiff. “Participation by the defendant in the creation of the risk, even if such participation is innocent, is thus the crucial factor in distinguishing misfeasance from nonfeasance.” (Weinrib, The Case for a Duty to Rescue (1980) 90 Yale L.J. 247, 256.) The dissent’s definition of misfeasance more properly describes malfeasance. (See Annot., Liability of Servant to Third Person (1922) 20 A.L.R. 97, 104.)

[3] The simple nonfeasance/misfeasance distinction has been justly criticized in the corporate director context as “an attempt to consider the violation of the duty before the duty itself — that is, … an attempt to lay down the rule that because there was a breach of duty by reason of misfeasance or malfeasance, therefore there was a duty to the third person, but that if the act was one of omission or nonfeasance, there was no duty to the third person.” (18B Am.Jur.2d, Corporations, § 1889, p. 738.) Some courts have avoided the rule by holding that an agent’s omission or failure to act is misfeasance, not nonfeasance, once the agent has undertaken a duty and has begun performance. (See Richards v. Stratton (1925) 112 Ohio St. 476 [147 N.E. 645, 646]; Orcutt v. Century Bldg. Co.(1906) 201 Mo. 424 [99 S.W. 1062, 1067-1068].) Other courts do not rely on the nonfeasance/misfeasance distinction but discuss the issue in terms of whether the directors owe a duty to the third party. (See Adams v. Fidelity and Casualty Co. of New York (La. App. 1958) 107 So.2d 496, 501-502.)

This duty analysis is helpful because it focuses on the crux of the issue, the director’s relationship to the third party. “[T]he rule accepted in principle by the authorities is that a director, officer, or employee of a corporation is liable to third persons for injuries proximately resulting from his breach of duty to use care not to injure such persons, whether that breach is one of omission or commission…. On the other hand, a director, officer, or employee of a corporation is not liable for injuries to third persons if he has been guilty of no act or omission causing or contributing to such injury, or if he owes no duty to such third person to use care, such as where the breach of duty complained of is one owing only to the corporation.” (18B Am.Jur.2d, Corporations, § 1889, pp. 738-740, fns. omitted; see also Fletcher,supra, § 1135, p. 268; Haidinger-Hayes, supra, 1 Cal.3d at p. 595 [“the act must also constitute a breach of duty owed to the third person”].)

[4] In Haidinger-Hayes, a corporate client sued the corporation and its president and principal officer for negligent handling of the client’s business. The corporation was held liable. Although the corporate president had clearly participated in the negligence, this court held that he was not personally liable. (Haidinger-Hayes, supra, 1 Cal.3d at p. 595.) The court relied in part on the absence of physical harm and in part on the absence of a duty owed by the officer to the plaintiff. (Ibid.)

[5] The court in Johnson, unlike the Restatement Second of Agency, section 354, did not make allegation of physical harm a prerequisite to the liability of a director for torts committed against third parties. Since plaintiff here alleges physical harm, I would not reach the question whether the physical harm requirement can be reconciled with modern tort principles.

[6] The court in Johnson held that although plaintiff had not made the requisite allegations under the test the court devised, plaintiff could cure the defects in his complaint by amendment. (Id., at p. 587.)

[1] Against my conclusion that the statutory standard of care applies to the director’s duty to third parties as well as to his duty to the corporation, the majority make two arguments, neither of which has merit. The first is that the cases and treatises are to the contrary. They are not: none of the authorities cited by the majority considers statutory language or express legislative policy similar to ours — to the effect that a director is not subject to liability if he acts in good faith — and hence none is apposite.

The majority’s second argument runs in substance as follows: section 7237, subdivision (c), which authorizes indemnification in third party actions, implies that a director can be held liable even if he acts in good faith, and thereby necessarily suggests that the standard of care applicable to the director’s exercise of his duty to third parties is the general common law standard of reasonableness. But even assuming for argument’s sake that the majority’s premise is supported, the conclusion they draw is unsound. It is simply unreasonable to read the provision as impliedly contradicting the very words of section 7231, subdivision (c), and the underlying express legislative policy. Rather, the provision should be read as the Legislature’s authorization of indemnification for directors of California corporations against the costs of liability in jurisdictions — unlike California — that hold them to the general common law standard of care.

 

Keywords: Fiduciary Duty, Negligence, Premises Liability

Alpert v. Villa Romano Homeowners Assn.

ALPERT v. VILLA ROMANO HOMEOWNERS ASSOCIATION

(2000) 81 Cal.App.4th 1320

Summary by Mary M. Howell, Esq.:

Facts

Plaintiff tripped and fell on a sidewalk adjacent to association’s property. Association had planted all the trees which caused the sidewalk to rise, and had known of the dangerous condition for several years.

Held

For Plaintiff. State law imposes a duty on an abutting landowner to maintain the sidewalks adjacent to the owner’s property, although the duty is owed to the city/county, rather than to members of the public who might be injured as a result of the failure to maintain. When, however, the abutting landowner’s own negligence causes the defect in the sidewalk, the abutting landowner may be held liable for injuries caused thereby. The court also approved admission of the association’s minutes to show the association’s notice of the problem.

*** End Summary ***

Alpert v. Villa Romano Homeowners Assn.

 (2000) 96 Cal.Rptr.2d 364

367*367 Law Offices of Steven M. Klugman and Steven M. Klugman, Los Angeles, for Plaintiff and Appellant.

Early, Maslach, Price & Baukol and James Grafton Randall, Los Angeles, for Defendant and Respondent,

GOODMAN, J.[*]

Ann Alpert (Alpert) appeals from the judgment of nonsuit entered in favor of respondent Villa Romano Homeowners Association (VRHA) at the close ofAlpert’s case-in-chief. Alpert’s complaint alleged that she suffered severe injuries when she tripped and fell on the upturned and broken sidewalk adjacent to the condominium complex managed by VRHA.[1] In this appeal 368*368 Alpert asks that we determine if the owner and possessor of property owes a duty to warn or protect pedestrians from allegedly dangerous conditions known to be present. We conclude that there is such a duty and that the trial court erred in granting the defense motion for nonsuit made at the close of Alpert’s case-in-chief.

FACTUAL AND PROCEDURAL HISTORY

In the late morning of July 27, 1992, Alpert, then 69 and in good health, took her four-year-old dog, BJ, a poodle weighing approximately eight pounds, for a walk near her home in Marina del Rey. She had BJ on a leash. Alpert walked her dog several times a day, but had never fallen before while walking him. This day, on the way home, she passed in front of the VRHA condominium property (the property), which is near the condominium complex in which she resided. The weather was dry and clear; the summer sun was overhead. Alpert’s walk ended when one of her feet came in contact with an upturned, jagged piece of sidewalk, causing her to lose her balance and fall, face first, to the sidewalk. After her fall, she noticed that there was grass growing in this break in the sidewalk.

The fall knocked the wind out of her. In the fall, Alpert fractured her right wrist, fractured and lacerated her left knee, broke her fourth and fifth ribs, and sustained a large hematoma in the area of her right breast. She sought medical attention for her injuries, eventually having surgery to repair her left knee. During her recovery from the fall, she contracted pneumonia. At the time of trial, she was unable to walk more than a block without pain, and was using a wheelchair to go longer distances.

Luz Enriquez (Enriquez) had been the gardener for VRHA for 20 years. He worked at the property three times each week. In addition to performing gardening services in the area of the property between the condominium buildings and the sidewalk, including the lawn, which he routinely mowed, he did similar work in the area between the sidewalk and the curb. He routinely removed leaves and other debris from the sidewalk, including removing such material that accumulated from time to time in the crack at the location of the upturned sidewalk. He also watered the vegetation on both sides of the sidewalk, utilizing the sprinklers which VRHA had installed in both areas. Enriquez was aware of the break in the sidewalk and recalled that it had been there for a few years prior to the date of Alpert’s fall.

Bernardo Segala had been hired by VRHA to trim trees on its property. During the year 1992 and prior to Alpert’s fall, at the request of VRHA he trimmed trees on the lawn between the sidewalk and the condominium property and on the portion of the lawn between the sidewalk and the street.

John Pettijohn, who had expertise in concrete repairs, measured the difference in elevation caused by the break in the sidewalk at the scene of the fall at between three-fourths of an inch and one inch.

Elihu Crane, a resident of VRHA, was a member of its board of directors from 1990 through April 1992, and president of its board of directors for part of that time. During that two-year period there was no 369*369 person or committee of the board which had responsibility for inspecting the sidewalk in front of the property. VRHA’s view was that the City of Los Angeles (the city) controlled the sidewalks and all VRHA needed to do was to keep the sidewalk clean.

Judith Crane was in charge of the gardening committee of the VRHA. She inspected the property shortly after becoming chairman of that committee in the summer of 1992. She had been aware for some time of the existence of cracks in the sidewalk in the area in which Alpert fell and of other cracks in the sidewalk which ran along the property.

Dr. Stephen Wexler, a licensed civil engineer and licensed general contractor, testified as an expert witness at Alpert’s request. Dr. Wexler had experience in building concrete structures, including sidewalks, and in landscaping for the projects he built. Dr. Wexler also had expertise in determining the cause of sidewalk damage from root structures and root growth and expertise regarding human factors in relation to premises liability. Dr. Wexler inspected the scene of the fall on several occasions. He observed that there was mature vegetation on the property, including pine trees (some of which were 100 feet tall) between the sidewalk and buildings on the property, and bottlebrush trees in the area between the sidewalk and the street curb. In his opinion, the root of a pine tree had caused the sidewalk to be uplifted and to break. This opinion was confirmed by his observation of 15 to 20 sidewalk cracks in the area, of which seven or eight had caused serious distortions in the sidewalk in the form of uplifted panels of concrete or of cracks in panels which had been uplifted. There was a second such root-caused cracking and tilting within 15 feet of the scene of Alpert’s fall. He had observed that roots of pine trees can grow in length to be as much as four times the height of the tree itself. He explained that tree roots seek out the area under the sidewalk because water tends to collect there. He noted that the sprinklers at the property water the sidewalk as well as the lawn and other vegetation.

In Dr. Wexler’s opinion, the sidewalk defect at the location of Alpert’s fall had existed for years prior to the fall and had been caused by the progressive growth of a subterranean tree root under the sidewalk. He noted that the area of greatest angular uplift in the sidewalk was adjacent to the lawn, indicating in his opinion that the root that caused the uplift had come from a tree growing on the lawn as the root sought moisture. He explained that roots taper down in size the farther from the tree they grow. It was also his opinion that the growth of the trees and their root systems had been enhanced by the fertilizing, watering, and trimming of the trees, which VRHA had done on its property. Further, the roots remained near the surface due to the very hard-packed soil in the area, thus increasing the likelihood of cracking the sidewalk.

On cross-examination, Dr. Wexler testified that it was unlikely that the root that had caused the sidewalk at the point of Alpert’s fall to be upturned and to break had come from a tree in the area between the sidewalk and the street as roots of the bottlebrush trees planted in that area were smaller than those of the pine trees. Rather, it was his opinion that the root which had caused the sidewalk defect had come from a tree growing on the main lawn.

At the conclusion of Alpert’s case-in-chief, VRHA made a written motion for nonsuit. During argument on that motion, 370*370 Alpert’s motion for leave to reopen was denied. The court granted the motion for nonsuit, after which Alpert filed a timely appeal.[2]

CONTENTIONS ON APPEAL

Alpert contends the trial court erred (1) in concluding that VRHA, as owner of the property, owed Alpert no duty of care, (2) in refusing to permit Alpert to reopen to cure any defect that resulted in the nonsuit, (3) in refusing to permit Alpert to make offers of proof of certain evidentiary matters, and (4) by excluding evidence of knowledge of the condition of the sidewalk prior to the fall on the part of the board of directors of VRHA.[3]

DISCUSSION

1. Standard of review.

In reviewing a judgment entered upon a grant of a motion for nonsuit after the close of the plaintiffs case-in-chief (Code Civ. Proc, § 581c),[4] the appellate court reviews the entire record of the trial court (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581, 47 Cal. Rptr.2d 752) and views the evidence in the light most favorable to appellant. (Freeman v. Lind (1986) 181 Cal.App.3d 791, 799, 226 Cal.Rptr. 515.) We do not weigh the evidence or consider the credibility of the witnesses who have testified; rather we are required to accept as true the evidence most favorable to the plaintiff, disregarding conflicting evidence. (La-Monte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.) “`”The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”‘”[5] (Freeman v. Lind, supra, 181 Cal.App.3d at p. 799, 226 Cal.Rptr. 515.)

This healthy skepticism of removing factual questions from juries is inextricably bound to the California Constitution, which preserves “inviolate” the right to trial by jury.[6]

371*371 2. The trial court’s ruling.

At the conclusion of Alpert’s case-in-chief, VRHA presented a written motion for nonsuit to the court and counsel.[7] Such a motion has the effect of a demurrer to the evidence: It concedes the truth of the facts proved and contends that those facts are not sufficient as a matter of law to sustain the plaintiffs case. (See Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 98, 253 Cal.Rptr. 470.) A judgment of nonsuit is an involuntary dismissal (Costa v. Regents of University of Cal. (1951) 103 Cal.App.2d 491, 494, 103 Cal.App.2d 491) on a motion by a defendant who contends the plaintiff is unable to prove its case at trial (Doria v. International Union (1961) 196 Cal. App.2d 22, 32, 16 Cal.Rptr. 429). In reviewing a judgment of nonsuit, we look at the entire record. (Kidron v. Movie Acquisition Corp., supra, 40 Cal.App.4th at p. 1581, 47 Cal.Rptr.2d 752.) We consider grounds which were both advanced by the moving party and ruled on by the trial court.[8]

372*372 The record in this case clearly shows that the trial court weighed the evidence and erred as to the applicable law. Thus, the trial court stated: “Dr. Wexler testified that he was not sure where the roots came from which caused the elevation…. [A]nd the law seems to indicate that the ambit of liability does not include the abutting land owners but includes the city for — the city owing the duty to the third person….”

This selection from the record by the trial court was inapposite. The record reveals substantial testimony by Alpert’s expert witness different from that relied on by the trial court and quoted above; testimony which, when viewed in accordance with principles applicable to motions for nonsuit, provides factual support for Alpert’slegal contentions substantial enough to withstand such a motion. Thus, Dr. Wexler testified that the cause of the uplifted and cracked sidewalk was the root of a tree growing on VRHA’s property. While he would not rule out the possibility that the particular root came from another location as he had not dug up the lawn all the way to the particular suspected, “mature” pine tree, it was his expert opinion that a tree growing on VRHA’s lawn was the source of the destructive root. He also testified that the trees planted in the area between the sidewalk and the street were of a different type and had characteristically smaller roots. Other witnesses testified to the size of the hazard caused by the uplifted piece of sidewalk which the tree root had created and to VRHA’s prior notice of the hazardous condition of the sidewalk. The trial court did not view the evidence adduced by plaintiff in the manner required when analyzing evidence in ruling on a motion for nonsuit made at the conclusion of a plaintiffs case-in-chief. (Freeman v. Lind, supra, 181 Cal.App.3d at p. 799, 226 Cal.Rptr. 515.)

The other aspect of the trial court’s ruling was its conclusion that VRHA did not owe a duty of care to Alpert. As we next discuss, this ruling was also error.

3. Whether VRHA owed a duty to pedestrians.

The fundamental legal issue raised by the judgment of nonsuit is whether VRHA as landowner and party in possession and control owed a duty to pedestrians such asAlpert to either warn them of a dangerous condition of the premises or repair it. We will conclude that such a duty was owed under the circumstances present in this case.[9]

a. Authorities prior to Alcaraz v. Vece.

The Legislature and the courts have addressed the responsibilities, if any, of possessors of land abutting sidewalks. We begin our analysis with Civil Code section 1714, subdivision (a), which makes a possessor of land subject to the general negligence standard of that section.

Civil Code section 1714, subdivision (a) provides:

“Every one is responsible, not only for the result of his willful acts, but also for an 373*373injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury on himself.”

It is appropriate to depart from this standard only when there are clear public policy reasons for doing so. In making that determination, a court must weigh the following factors: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the proximity of the connection between the defendant’s conduct and the injury sustained, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community from imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian, supra, 69 Cal.2d at pp. 112 — 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others….” (Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)

In addition to Civil Code section 1714, subdivision (a), the Legislature has enacted Streets and Highways Code section 5610, which provides:

“The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.”

This statute places on the abutting property owner the duty to maintain the sidewalk.[10] This statutory duty has been held not to impose, by itself, a duty of care upon the abutting landowner for the safety of persons using the sidewalk, but rather a duty owed to the city.

Division Seven of this court discussed the relationship of Streets and Highway Code section 5610 to ordinary negligence principles in the course of its opinion in Jones v. Deeter (1984) 152 Cal. App.3d 798, 199 Cal.Rptr. 825 (Jones). There, plaintiff Jones tripped on a break in a sidewalk, allegedly caused by the roots 374*374 of a tree growing in a parkway maintained by the owner of the adjacent property. The court affirmed the trial court’s grant of summary judgment to the property owner, holding that Streets and Highways Code section 5610 was not the basis of a duty of care to pedestrians unless the sidewalk defect was the result of the owner’s negligence. (Jones, supra, at p. 803, 199 Cal.Rptr. 825.)[11] Under the facts of Jones, any dangerous condition resulting from the trees was attributable to the city as the city had planted and maintained the trees, and the parkway had been formally dedicated to the city by its owner. The court pointed out that the “Sidewalk Accident Decision” doctrine had been developed to distinguish those cases in which the owner of the adjacent property is not to be held liable in tort to users of the sidewalk unless the owner creates the condition that is a cause of the injury. (Ibid.) In Jones, the owner was not held to have a duty to the pedestrian because the city performed the maintenance of the area of the plaintiffs fall.

The Jones court was careful to distinguish the factual situation there presented — in which the offending trees were owned and maintained by the City on a dedicated parkway — from the facts of Moeller v. Fleming (1982) 136 Cal.App.3d 241, 186 Cal.Rptr. 24 (Moeller), in which that court, in reversing a grant of summary judgment, held that an abutting property owner could be held liable if the dangerous condition in a sidewalk had been caused by the roots of a tree owned by that landowner with his knowledge of that condition. (Id. at p. 245, 186 Cal. Rptr. 24.) In Moeller, the offending roots came from a tree on the defendant’s property. In distinguishing Moeller inJones, Division Seven of this court stated: “This case turns on this distinction.” (Jones, supra, 152 Cal.App.3d at p. 804, 199 Cal. Rptr. 825.)

In Williams v. Foster (1989) 216 Cal. App.3d 510, 265 Cal.Rptr. 15 (Williams), the Court of Appeal reversed a jury verdict in favor of a pedestrian who had been injured when he fell on a public sidewalk which had an uneven surface caused by the roots of a tree planted in a parkway in front of the property owner’s residence. The defendants had moved for nonsuit, which motion the trial court had denied. In reversing the subsequent verdict and ordering that the trial court enter a judgment of nonsuit, the Williams court held that Streets & Highways Code section 5610 was controlling, viz., that the statutory duty placed on adjacent landowners to maintain and repair sidewalks was owed solely to the city and that that statute does not impose liability for injuries incurred by reason of a defect in the sidewalk. (216 Cal.App.3d at p. 521, 265 Cal. Rptr. 15.)

The Williams court did recognize the holding of Sprecher v. Adamson Companies(1981) 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121 (Sprecher), that a landowner may be held liable for negligent 375*375 failure to correct or control a defect[12] which results in injury to neighboring property. In so holding, our Supreme Court repudiated the common law rule of nonliability for natural conditions of land and held that a possessor’s liability would be determined under ordinary negligence principles. (Williams, supra, 216 Cal. App.3d at p. 519, 265 Cal.Rptr. 15.) In the Williams court’s view, the general negligence liability analysis of Sprecher was not appropriate in the circumstances there presented because the abutting owner in Williams did not own or possess an easement over the area in which the offending roots grew (or other cause arose). (Id. at pp. 520, 521, 265 Cal.Rptr. 15.)

Williams sought to distinguish Jones, criticizing it in the following language: “We fail to see any legal foundation for [the approach that a particular abutting owner could be held liable for failing to maintain the public sidewalk or parkway where abutting owners as a class rather than a city historically had performed sidewalk maintenance] if it is applied to an abutting owner who has not undertaken such maintenance in the absence of a statute or ordinance.” (Williams, supra, 216 Cal.App.3d at p. 521, 265 Cal.Rptr. 15.)

The Williams court did recognize, however, that “[a] possessor or owner of premises is under a duty to others by virtue of that possession or ownership to act reasonably to keep the premises safe and prevent persons from being injured thereby. (SeeRowland v. Christian (1968) 69 Cal.2d 108, 111-119, 70 Cal.Rptr. 97, 443 P.2d 561.) Thus, where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it, we see no legal basis for imposing liability for failure to properly maintain the sidewalk or planting strip in the absence of statute or ordinance.” (Williams, supra, 216 Cal.App.3d at p. 521, 265 Cal.Rptr. 15.)[13]

Of particular importance to the Williams court was the absence of any evidence that Foster or his predecessor in interest had planted the trees, or that those trees had caused the sidewalk defect (Williams, supra, 216 Cal.App.3d at pp. 522-523, 265 Cal.Rptr. 15.) Thus, there was no factual basis in Williams to consider or apply the duty analysis and the principles of Rowland v. Christian, supra, 69 Cal.2d. at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.

b. Impact of Alcaraz v. Vece.

Prior to trial in the instant case our Supreme Court had occasion to apply the principles of Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, in a situation analogous in many respects to the instant case. In Alcaraz v. Vece (1997) 14 Cal.4th 1149, 60 Cal.Rptr.2d 448, 929 P.2d 1239 (Alcaraz), Alcaraz sued his landlord, the owner of the apartment building in which he resided, for injuries sustained when Alcaraz stepped into an open utility meter box located in the city-owned lawn next to the sidewalk in front of that residence. In affirming the Court of Appeal’s reversal of the grant of summary judgment to the property owner, our Supreme Court held that there was a triable 376*376 issue of fact as to whether the property owner had exercised control over the area in which the utility box was located even though that area was owned by the city. In our Supreme Court’s view, if the property owner did exercise such control, then it had a duty to warn Alcaraz[14] of the danger, or protect him from that danger.

Citing its decision in Rowland v. Christian, the Supreme Court stated: “`The proper test to be applied to the liability of the possessor of land … is whether in the management of his property [the possessor] has acted as a reasonable man in view of the probability of injury to others….’ (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561].)” (Alcaraz, supra, 14 Cal.4th at p. 1156, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

The court further explained: “This duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control.” (Alcaraz, supra, 14 Cal.4th at p. 1156, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

We distill from our Supreme Court’s holding in Alcaraz supra, that a landowner or possessor of land has a duty to take reasonable measures to protect persons from dangerous conditions on adjoining land when the landowner or possessor exercises possession or control over that adjacent land. The scope of this duty is to be determined under principles enunciated in Rowland v. Christian, supra. “The proper test to be applied to the liability of the possessor of land … is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others….” (69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)

c. Indicia of control over the land.

The facts of this case reveal that VRHA had planted and maintained all of the trees and vegetation in the area, on both sides of the sidewalk, had installed sprinklers on both sides of that walkway, and watered and trimmed the trees which grew the roots which caused the sidewalk to be uplifted and crack, presenting the danger which befell Alpert.[15] Further, VRHA had known for approximately two years prior toAlpert’s fall of the condition of the sidewalk at the location of the fall and elsewhere along that path.

Because the area of the injury in Alcaraz was owned by the city and not by the defendant, our Supreme Court was required to consider whether a possessor of land could be held liable under tort principles. Concluding in the affirmative, the court relied on principles enunciated in Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561: The relevant question is not “mere ownership,” but whether the possessor has maintained the property in a reasonably safe condition. (Accord, Alcaraz, supra, 14 Cal.4th at p. 1156, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

377*377 In the instant case, the party which had done the things just enumerated and which had prior knowledge of the resulting dangerous condition was in possessor and control of the premises, including but not limited to the sidewalk on which Alpertfell.

d. Application of Alcaraz and other cases.

VRHA contends that Jones does not allow for a duty to be placed on an adjacent landowner to repair or warn under the circumstances presented in this case. VRHA’s reliance on Jones is misplaced. As stated in Jones: “In settings where the abutting owners have planted the trees or have habitually trimmed or cared for them, these abutting owners have the duty to maintain the trees in a safe condition toward pedestrians.” (Jones, supra, 152 Cal.App.3d at p. 805, 199 Cal.Rptr. 825.) The facts of the instant case, unlike those of Jones, show the substantial activities — and responsibility — of the abutting landowner.

Similarly, VRHA’s reliance on Contreras v. Anderson (1997) 59 Cal.App.4th 188, 69 Cal.Rptr.2d 69 (Contreras), is misplaced. In Contreras, the plaintiff slipped on an improperly sloped brick path which led from the street curb to the sidewalk in the front of the defendant homeowners’ residence. The area of the fall was owned by the city and separated from the sidewalk by a five-foot high wooden fence. (Id at p. 192,69 Cal.Rptr.2d 69.) In the course of its de novo review of the summary judgment granted to defendants, the court analyzed Alcaraz, noting that while the defendant inAlcaraz exercised control over the parkway in which the fall had occurred, by contrast, the defendants in Contreras did not own, or have legal possession of the area of the fall (Contreras, supra, at p. 197, 69 Cal.Rptr.2d 69). The Contreras court described the difference: “The city-owned strip [in Alcaraz ] … was contiguous with and indistinguishable from the rest of the defendant’s lawn…. [T]he evidence showed the defendants maintained the entire lawn from the defendants’ property line to the sidewalk, including that portion of the lawn located within the city-owned strip of land, and that, subsequent to the plaintiffs alleged injury, defendants constructed a fence that bordered the sidewalk and enclosed the entire lawn in front of their property, including the two-foot-wide strip owned by the city.” In addition, the Alcaraz court found that the defendants had actual notice of the defect. (Contreras, supra, at p. 197, 69 Cal.Rptr.2d 69.)

The Contreras court characterized the holding in Alcaraz as follows: “The Alcarazcourt concluded that such evidence was ‘sufficient to raise a triable issue of fact as to whether defendants exercised control over the strip of land … and thus owed a duty of care to protect or warn plaintiff….’ [¶] Nevertheless, it is clear from Alcarazthat simple maintenance of an adjoining strip of land owned by another does not constitute an exercise of control over that property.” (Contreras, supra, 59 Cal.App.4th at p. 198, 69 Cal.Rptr.2d 69.) The Contreras court focused also on the fact that the defendants in Alcaraz had constructed a fence around the area. This act “went beyond simple neighborly maintenance and, thus, was sufficient to raise a triable issue of fact as to control. [Citation.]” (Id at p. 199, 69 Cal.Rptr.2d 69.)

By contrast, in Contreras, there “is no such `dramatic assertion of a right normally associated with ownership or … possession’ of the land….” (Id at p. 200, 69 Cal.Rptr.2d 69.) Finally, the Contreras 378*378 court focused on the fact that the fence in that case had been constructed by the city and that there was no evidence the defendants had knowledge of the hazard. (Id. at p. 201, 69 Cal.Rptr.2d 69.)

The facts of the instant case are substantially different from those presented inContreras. In Contreras, the court found that the adjacent owner had neither possession of, nor control over, the land on which the dangerous condition existed. In the instant case, the adjoining land was owned by VRHA which exercised control over the sidewalk and the area between the sidewalk and the curb. VRHA installed sprinklers, and planted and maintained the trees which Alpert’s expert testified caused the dangerous condition in the sidewalk. Further, VRHA had been aware of the condition of the sidewalk for a substantial period of time prior to the fall (and was in the process of discussing repairs when Alpert fell). In short, there was enough evidence to overcome the motion for nonsuit.[16]

4. Denial of the request to reopen.

When the trial court indicated it was going to grant the nonsuit, counsel for plaintiff sought leave to reopen. The trial court denied that request.

Alpert’s motion to reopen was timely under the circumstances. Although it was not made the instant the motion for nonsuit was served, it was made in the course of the discussion with the court and the argument of counsel that followed the filing of that motion. In addition, Alpert had previously asked for opportunities to make offers of proof on matters which were relevant to the issues presented in the motion for nonsuit and had been told by the court time would be made available later for such offers. Those requests related to evidence of knowledge by VRHA of the existence of the sidewalk defects at least a month prior to Alpert’s fall. That time never came.

The denial of a request to reopen which is accompanied by an offer of proof of the evidence that will cure the deficiency is reversible error. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 382, 11 Cal. Rptr.2d 524; Eatwell v. Beck, supra, 41 Cal.2d at pp. 133-134, 257 P.2d 643[plaintiffs, who had mistakenly relied on former law regarding damages, were improperly denied leave to introduce evidence to satisfy the current rule].)

The right to present further evidence is waived unless the plaintiff both requests leave to reopen and makes an offer of proof, describing the evidence and explaining how it would cure the deficiencies. (Consolidated World Investments, Inc., v. Lido Preferred Ltd., supra, 9 Cal. App.4th at p. 382, 11 Cal.Rptr.2d 524.) In the instant case, Alpert complied with the rule to the extent possible.

It is important to recognize, however, that even if Alpert had been granted 379*379 leave to reopen and introduce all of the evidence we have discussed, the trial court would likely still have granted the nonsuit as its legal analysis would have remained unchanged. There does not appear to have been anything in the evidence referenced in the offers of proof which would have changed the legal theory upon which the trial court granted the judgment of nonsuit. On retrial, it appears that the previously excluded evidence may be probative and relevant to the issues in the case.

5. The trivial defect ruling.

One of the bases of VRHA’s written motion for nonsuit was that the defect in the sidewalk was trivial and thus it was not foreseeable that harm would come to anyone. In its reply brief, VRHA asserts that the trial court in fact rejected VRHA’s argument that the defect was trivial. Because VRHA, in effect, has conceded that the trial court rejected this argument, we need not consider it.[17]

6. Causation

The final ground for the motion for nonsuit was that Alpert had not established that any defect was caused by a root from VRHA’s property. As we have discussed at length, ante, in reviewing a judgment of nonsuit we view the evidence in the light most favorable to the plaintiff and accept as credible the testimony of the plaintiffs witnesses. (Kidron v. Movie Acquisition Corp., supra, 40 Cal.App.4th at p. 1581, 47 Cal.Rptr.2d 752; LaMonte v. Sanwa Bank California, supra, 45 Cal.App.4th at p. 517, 52 Cal.Rptr.2d 861.) Alpert’s expert clearly stated his opinion that the break in the sidewalk was the result of the growth under the sidewalk of a root of one of the pine trees planted on VRHA’s lawn and nurtured by VRHA. For purpose of ruling on a judgment of nonsuit, there was substantial evidence of causation. VRHA’s causation argument is without merit.

7. Exclusion of evidence of prior knowledge of the condition of the sidewalk contained in the minutes of meetings of VRHA’s board of directors.

There is an evidentiary contention of Alpert which is appropriately resolved on this appeal. Alpert contends the trial court erred in refusing to permit questioning of VRHA board of director and committee members about a discussion at VRHA’s November 1997 board of directors’ meeting. The trial court sustained 380*380 VRHA’s objections to such questions and to Alpert’s attempt to gain admission of the minutes of that meeting of VRHA’s board of directors. The basis for the objection was that admission of such evidence would violate the subsequent act proscription codified in Evidence Code section 1151. We will determine that the evidence should have been admitted.

Alpert sought admission of the November minutes while questioning the former president of VRHA’s board of directors, Ehihu Crane, about that meeting. During that questioning, Alpert sought to inquire concerning a discussion of bids to repair sidewalk “bumps.” Alpert was specifically interested in references in that discussion and in the minutes of that meeting to the fact that there had been a discussion of the condition of the sidewalk and the need to repair it at a board of directors’ meeting in June of the same year, prior to Alpert’s fall.[18] The trial court sustained objections to introduction of this evidence.

Alpert seeks to overturn those rulings, arguing the evidence is probative of the facts that the sidewalk defect was known to VRHA prior to the fall, the defect was not trivial, its repair was feasible, the defect was caused by tree roots, and VRHA was in control of the cause of the defect as well as of its repair. In arguing that the trial court’s ruling was correct, VRHA contended that the evidence would relate to remedial steps taken after the fall, and is not probative on the points argued byAlpert.

In Alcaraz, supra, 14 Cal.4th 1149, 60 Cal.Rptr.2d 448, 929 P.2d 1239, the defendants had objected in the trial court to admission of evidence that they had maintained the area of that fall and that they had built a fence around the parkway where the fall had occurred subsequent to that incident. In making this objection, theAlcaraz defendants argued that the evidence must be excluded under the authority of Evidence Code section 1151 which precludes introduction of evidence of subsequent remedial conduct.[19] In its ruling granting summary judgment to the defense, that trial court had sustained defendants’ objections in this regard.

381*381 The Supreme Court expressly rejected these evidentiary rulings, stating, “This evidence [relating to maintenance of the lawn on city-owned property and subsequent construction of a fence in that area] was highly relevant regarding whether defendants exercised control over the strip of land owned by the city.” (Alcaraz, supra, 14 Cal.4th at p. 1166, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

“[W]hether defendants exercised control over the strip of land owned by the city on which the meter box was located is a `disputed fact that is of consequence to the determination of the action.’ [Citation.] Indeed, if defendants exercised control over this strip of land, it appears clear they owed a duty to protect or warn plaintiff.” (Alcaraz, supra, 14 Cal.4th at p. 1167, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

In rejecting the argument that admission of evidence that the defendants later constructed a fence around the area of the fall violated Evidence Code section 1151, the court stated: “This statute does not apply, however, because evidence regarding construction of the fence was admitted, not to prove negligence, but to demonstrate that defendants exercised control over the strip of land owned by the city. As we stated in Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 118, 117 Cal.Rptr. 812, 528 P.2d 1148, `Section 1151 by its own terms excludes evidence of subsequent remedial or precautionary measures only when such evidence is offered to prove negligence or culpable conduct’ (Italics added; see also Fed. Rules Evid., rule 407, 28 U.S.C., which employs language nearly identical to Evidence Code section 1151 and then explains: `This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.’)” (Alcaraz, supra, 14 Cal.4th at p. 1169, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

The VRHA minutes were admissible for the purposes sought by Alpert. The proper means to address the concern expressed by VRHA would have been a limiting instruction, advising the jury of the purposes for which they could, and could not, consider the minutes. (See Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555, 85 Cal.Rptr. 308 [evidence that the defendant contractor’s carpenters installed handrails at the point where the plaintiff had fallen after his injury was not admissible to prove negligence of the defendant under Evid.Code, § 1151, but was properly limited and received by the court, on the issues of control of the premises, and of whose duty it was under the contract to take such safety measures].) Similarly, inBaldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d 565, 46 Cal. Rptr. 421, the court held that subsequent remedial conduct cannot be considered on the issue of liability, but “is relevant and admissible [on the issues of scope of duty] [citation] and also on the possibility or feasibility of eliminating the cause of the accident. [Citations.]”[20] (Baldwin Contracting, at p. 573, 46 Cal.Rptr. 421.)

In the present case, the minutes of the November board meeting confirm VRHA’s knowledge of the sidewalk defect prior to Alpert’s fall, VRHA’s discussions regarding 382*382 repair, its control over the area at issue, as well as other facts that were in dispute in the litigation. The trial court erred in refusing to admit the minutes and in sustaining objections to questions of witnesses in the same areas.[21] As our Supreme Court stated in Alcaraz, such evidence “would be admissible to demonstrate that defendants exercised control over the premises. Accordingly, we may consider such evidence in determining whether a triable issue of material fact existed concerning whether defendants exercised control over the strip of land and thus owed a duty of care to plaintiff.” (Alcaraz, supra, 14 Cal.4th at p. 1170, 60 Cal. Rptr.2d 448, 929 P.2d 1239.)

DISPOSITION

The judgment of nonsuit is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Appellant shall recover her costs on appeal.

BOREN, P.J., and NOTT, J., concur.

[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Alpert had alleged causes of action against the City of Los Angeles and County of Los Angeles as well as VRHA. The claims against the governmental entity defendants were resolved prior to trial. The County of Los Angeles was dismissed; a good faith settlement was entered with the City of Los Angeles.

[2] We construe the dismissal of the jury upon the granting of the motion for nonsuit as a termination of the action as to all defendants. It is proper, therefore, to treat the appeal as an appeal from the judgment which necessarily followed. (See Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 153, 144 Cal.Rptr. 794; Graski v. Clothier (1969) 273 Cal.App.2d 605, 607, 78 Cal.Rptr. 447.)

[3] Alpert also sought review of the trial court’s refusal to permit a representative of the City of Los Angeles to testify. Resolution of that evidentiary matter is not necessary on this appeal. We make further reference to this matter in footnote 10, post.

[4] At the time of trial in this matter, Code of Civil Procedure section 581c, subdivision (a) provided:

“After the plaintiff has completed his or her opening statement, or the presentation of his or her evidence in a trial by jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.”

The section was amended in 1998 (Stats. 1998, ch. 200, § 1) in a technical manner not relevant to the instant case.

[5] VRHA correctly points out that the doctrine that a scintilla of evidence creates a sufficient evidentiary basis to reverse a judgment of nonsuit has been rejected. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 420, p. 481.) While that is a correct statement of the law, factually Alpert overcame that threshold for reasons we discuss in the text.

[6] California Constitution, article I, section 16 provides, in part:

“Trial by jury is an inviolate right and shall be secured to all….”

This right extends to factual questions only; issues of law are triable by the court. (Evid. Code, § 310, subd. (a); Code Civ. Proc., §§ 589, 591, 592.) The right to trial by jury guarantees that right in actions triable by jury at common law, including claims for damages for injuries to persons. (See generally 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 89 et seq.)

[7] In its written motion for judgment of nonsuit, VRHA contended that (1) the defect in the sidewalk was trivial as a matter of law, (2) Alpert had failed to establish that the cause of the sidewalk defect was a root growing from VRHA’s property, and (3) VRHA owed no duty to pedestrians such as Alpert, but only to the City of Los Angeles, under Streets and Highways Code section 5610.

[8] There is a split of authority over whether we may consider grounds argued by the defendant, but not relied upon by the trial court, in granting the motion. Some Courts of Appeal, including this division, have held that appellate review is limited to those grounds relied upon by the trial court, the theory being that we only need examine those grounds which a plaintiff may have been able to correct had they been called to its attention (e.g., DeVaughn Peace, M.D., Inc. v. St. Francis Medical Center (1994) 28 Cal.App.4th> 454, 459, 33 Cal.Rptr.2d 459; Walker v. Porter (1974) 44 Cal.App.3d 174, 177, 118 Cal.Rptr. 468). Other courts have taken the view that a judgment of nonsuit can be sustained on any ground specified in the motion, even if not relied upon by the trial court (e.g.,Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1542, fn. 2, 50 Cal.Rptr.2d 395, and cases there discussed). See also Adkins v. State of California (1996) 50 Cal.App.4th 1802, 1809, fn. 7, 59 Cal.Rptr.2d 59.

The source of this debate is the following language from Lawless v. Calaway (1944) 24 Cal.2d 81, 147 P.2d 604 (Lawless): “The correct rule is that grounds not specified in a motion for nonsuit will be considered by an appellate court only if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion. This rule is complementary to the requirement that a party specify the grounds upon which his motion for nonsuit is based.” (Id. at p. 94, 147 P.2d 604; accord, Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal.App.3d 860, 868, 86 Cal.Rptr. 359.) The rationale for Lawless is that, on a motion for nonsuit, the plaintiff is to be given the opportunity to cure the defect in its case. To this end, the court is required to hear offers of proof and grant a motion to reopen if timely made. (Eatwell v. Beck (1953) 41 Cal.2d 128, 133, 257 P.2d 643[one of the chief objects of a nonsuit motion is to point out to plaintiff the defects in its case so that they may be remedied and the case decided on its merits].)

The articulation of the Lawless rule has not prevented the split of authorities as discussed above: whether, on review of a judgment of nonsuit, the appellate court looks only at the reason or reasons stated by the trial judge in granting the motion, or at any reason advanced by the moving party in the trial court. In either situation, the appellate court looks also at the problem of legal preclusion — whether, as a matter of law, there is no basis for the plaintiff’s claim. In such a circumstance, affirmance of the judgment of nonsuit is appropriate even if that ground was not advanced below. It is the issue of legal preclusion that was the principal focus of the trial court in reaching its ruling below.

[9] As indicated in this opinion, the existence of a duty of care is a matter of law. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678, 25 Cal.Rptr.2d 137, 863 P.2d 207; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125, 211 Cal.Rptr. 356, 695 P.2d 653.) The foreseeability of a particular plaintiff’s injury is a question of fact. (Isaacs, at p. 126, 211 Cal.Rptr. 356, 695 P.2d 653.) The standard to be applied to determine if the duty has been met is whether the property owner has acted in management of the property as a reasonable person in view of the probability of injury to others. (Rowland v. Christian (1968) 69 Cal.2d 108, 118-119, 70 Cal.Rptr. 97, 443 P.2d 561.) The answer to that question will be determined on retrial.

[10] Streets and Highways Code section 5610 is one of several statutes codifying responsibilities with respect to maintenance and repair of sidewalks. Section 5611 gives to the superintendent of streets the authority to notify the abutting owner of the need to repair the sidewalk. Section 5615 provides that the superintendent of streets may repair the sidewalk if the abutting owner does not and assess that cost to the abutting owner. That amount may result in a lien against the property. (Sts. & Hy.Code, § 5625 et seq.)

In this case, Alpert’s attempt to introduce evidence regarding the absence of notice to the city concerning defects in the sidewalk was rejected. Alpert did give timely notice of intention to call the witness through whose testimony this and other matters were to be established. Whether the witness was competent to testify to all of the subjects which Alpert indicated in her offer of proof is a matter for consideration by the trial court in the course of proceedings on the retrial.

[11] As we discuss in the text, Streets and Highway Code section 5610 establishes the rule that the owner of the property adjoining the sidewalk has a duty to maintain it. This is a statutory exception to the general rule that the owner of the easement (typically, the local municipality) has the duty to maintain the easement.

While section 5610 places the duty to maintain and repair defects in the sidewalk on the abutting landowner, the “Sidewalk Accident Decision” doctrine provides that that duty is not owed to persons who use the sidewalk unless the abutting landowner somehow causes the dangerous condition of the sidewalk. (Schaefer v. Lenahan (1944) 63 Cal. App.2d 324, 326, 146 P.2d 929; Jones, supra, 152 Cal.App.3d at p. 803, 199 Cal.Rptr. 825.) Our holding today is consistent with this long-established doctrine.

[12] In Sprecher, supra, 30 Cal.3d at p. 358, 178 Cal.Rptr. 783, 636 P.2d 1121, the defect was a landslide.

[13] The Williams court ultimately reversed the judgment and directed the trial court to enter a judgment of nonsuit for the reason that the evidence was insufficient as a matter of law to sustain a verdict for the plaintiff. (Williams, supra, 216 Cal.App.3d at pp. 522-523, 265 Cal.Rptr. 15.) We reach a different conclusion based both on the facts of this case, which the Williams court suggested might be the basis for such a result, and due to the development in the law subsequent to the decision inWilliams.

[14] This duty is owed to Alcaraz and to others, viz., to persons who foreseeably may be in the area, not to Alcaraz due to his status as a tenant of the landowner. (Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561; Alcaraz, supra, 14 Cal.4th at pp. 1162-1163, 60 Cal.Rptr.2d 448, 929 P.2d 1239 [duty is not dependent on commercial benefit to landowner].)

[15] As indicated in the text, ante, Alpert’s expert witness was of the opinion that the offending root came from a pine tree growing between the sidewalk and the buildings.

[16] No evidence was presented below of any applicable local ordinances. Whether that will be a factor on retrial in unknown. We note that in Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 272 Cal.Rptr. 544, the court construed statutes applicable in the jurisdiction in which the property at issue in this appeal is located. The issue was framed differently, however, as that defendant had no role in creating the hazard which befell that plaintiff. (Id. at p. 1592, 272 Cal. Rptr. 544.) Nor was any evidence presented regarding the statutory presumptions of Civil Code sections 831 and 1112. (See Jones, supra, 152 Cal.App.3d at pp. 801-802, 199 Cal.Rptr. 825.)

[17] This court has had previous opportunities to consider the trivial defect defense. In Ursino v. Big Boy Restaurants of America (1987) 192 Cal.App.3d 394, 237 Cal.Rptr. 413, we sustained a summary judgment in which the trial court had determined that the trivial defect defense was established as a matter of law based on the facts there presented. (Id. at pp. 397-398, 237 Cal.Rptr. 413). In Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 50 Cal.Rptr.2d 8, we upheld a summary judgment in which the trial court had reasoned that “`”reasonable minds [could] come to but one conclusion,”‘” that the design of a staircase at a city convention center posed a minor or trivial risk at most. (Id. at p. 704, 50 Cal.Rptr.2d 8.)

We note that the trial court in the instant case had rejected VRHA’s argument that the trivial risk doctrine applied on the facts presented and that VRHA has conceded this issue in its brief on appeal. Nevertheless, as that defense is fact-specific and there will be a full trial, our opinion should not be construed as other than an indication that the trial court may consider this issue based on the evidence adduced in the new trial of this case. Nor do we infer that the trivial defect defense need not be closely scrutinized in view of the “marked changes in the law” made by Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. (Ursino v. Big Boy Restaurants of America, supra, 192 Cal. App.3d at p. 398, 237 Cal.Rptr. 413.)

[18] When Alpert sought to have the minutes in question marked as trial exhibit 29, VRHA’s counsel asked to approach. After the reported sidebar conference, the minutes were never marked. They should have been marked for identification. The parties to this appeal each make reference to those minutes, even though they are not a part of the record on appeal. By their briefs on this appeal, we are advised that the minutes of the VRHA board of directors state in part:

“The meeting was called for the purpose of discussing the bids for cement work to repair the … sidewalk `bumps.’

“Before discussing the bids the question was raised as to whether or not this work is considered an `emergency’ and therefore did not need approval of homeowners (over $5,000). The Board voted 2 to 1 (1 abstention) that is as [sic] not an emergency, since the matter has been pending since last June….

“… In several places the cement levels have change [sic] due to tree root, etc.

Alpert sought introduction of these minutes to establish knowledge of the problem by VRHA at least a month prior to her fall. VRHA objected, contending the evidence was of subsequent repair and inadmissible by statute and common law policy.

Two other attempts were made to introduce the minutes, with the same result, the court sustaining the objection that the minutes were inadmissible as evidence of subsequent repair and citing Evidence Code section 352, which gives the trial court the discretion to exclude evidence on the basis that its probative value is outweighed by its prejudicial impact. Each ruling was incorrect.

[19] Evidence Code section 1151 provides:

“When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”

[20] Pursuant to Evidence Code section 355, the opponent of the evidence (or its propoadvising the jury that the evidence is being admitted for a limited purpose, explaining that purpose. This instruction may be given at the time the evidence is admitted, in closing instructions, or both. (See Evid.Code, § 355; Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 791, 182 Cal.Rptr. 855.)

[21] Because of the manner in which the issue arose, we do not know if other evidentiary objections (e.g., relating to authenticity of the minutes) could be surmounted by Alpert. These are issues to be resolved by the trial judge on retrial.

 

Keywords: Negligence, Premises Liability