Faiez Ennabe v. Carlos Manosa

58 Cal.4th 697 (2014)

Summary by Mary M. Howell, Esq.:

Liability for Providing Alcohol: Host who provided alcohol to guests and charged admission fee may be responsible for death related to alcohol consumption at her party.

*** End Summary ***

Ennabe v. Manosa

58 Cal.4th 697 (2014)

701*701 Innabi Law Group, Abdalla J. Innabi and Amer Innabi for Plaintiffs and Appellants.

The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Appellants.

Morris, Polich & Purdy, Richard H. Nakamura, Jr., Dean A. Olson and Sheena Y. Kwon for Defendants and Respondents.

Kamala D. Harris, Attorney General, Susan Duncan Lee, Acting State Solicitor General, Alicia M. B. Fowler, Assistant Attorney General, and Jerald L. Mosley, Deputy Attorney General, for Department of Alcoholic Beverage Control as Amicus Curiae, upon the request of the Supreme Court.

OPINION

WERDEGAR, J. —

Beginning in 1971 this court decided three cases that together reversed decades of previous law and recognized, for the first time, that sellers or furnishers of alcoholic beverages could be liable for injuries proximately caused by those who imbibed. (Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151]; Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719]; Coulter v. Superior Court (1978) 21 Cal.3d 144 [145 Cal.Rptr. 534, 577 P.2d 669].) In 1978, the Legislature abrogated the holdings of those cases, largely reinstating the prior common law rule that the consumption of alcohol, not the service of alcohol, is the proximate cause of any resulting injury. (Bus. & Prof. Code, § 25602, subd. (c); Civ. Code, § 1714, subd. (b).)^[1] The Legislature’s action in essence created civil immunity for sellers and furnishers of alcohol in most situations. The Legislature also enacted section 25602.1, which created some narrow exceptions to this broad immunity, and we find one such exception relevant to this case. In addition to permitting liability in some circumstances for the 702*702 provision of alcohol (i.e., the sale, furnishing or giving away of alcoholic beverages) by those licensed to sell alcohol (or who are required to be licensed), section 25602.1 also states that “any other person” who sells alcoholic beverages (or causes them to be sold) to an obviously intoxicated minor loses his or her civil immunity and can be liable for resulting injuries or death. Liability of such “other person[s]” is limited to those who sell alcohol; civil immunity is still the rule for nonlicensees who merely furnish or give drinks away.

We consider in this case whether defendant Jessica Manosa^[2] can be liable under the foregoing exception when, at her party, an underage, intoxicated guest who was charged a fee to enter consumed alcoholic beverages defendant supplied and subsequently, in a drunken state, killed someone in an automobile accident. To assist in resolving the issues in this case, we solicited and obtained the views of the Department of Alcoholic Beverage Control,^[3] the state agency charged by our state Constitution with enforcement of the laws relating to the consumption of alcoholic beverages in this state. (Cal. Const., art. XX, § 22, 5th par. [“The Department of Alcoholic Beverage Control shall have the exclusive power, except as herein provided and in accordance with laws enacted by the Legislature, to license the … sale of alcoholic beverages in this State….”].)

After considering the views of the parties and the Department of ABC, we conclude the pleaded facts, which allege defendant charged an entrance fee to some guests (including the minor who caused the death), payment of which entitled guests to drink the provided alcoholic beverages, raise a triable issue of fact whether defendant sold alcoholic beverages, or caused them to be sold, within the meaning of section 25602.1, rendering her potentially liable under the terms of that statute as a person who sold alcohol to an obviously intoxicated minor. Having reached this decision, we need not, and thus do not, address the further question whether defendant might also be liable on the ground she was a person who was required to be licensed who furnished alcohol to an obviously intoxicated minor.

Because the Court of Appeal affirmed the trial court’s grant of summary judgment in defendant’s favor, we reverse.

703*703 I. BACKGROUND

As the case comes to this court following the trial court’s grant of defendants’ motion for summary judgment, we “recite the evidence in the light most favorable to the nonmoving party (here, plaintiffs).” (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 764 [111 Cal.Rptr.3d 666, 233 P.3d 1066].) On the evening of April 27, 2007, defendant Jessica Manosa (Manosa) hosted a party at a vacant rental residence owned by her parents, defendants Carlos and Mary Manosa, without their consent. The party was publicized by word of mouth, telephone, and text messaging, resulting in an attendance of between 40 and 60 people. The vast majority of attendees were, like Manosa, under 21 years of age.

For her party, Manosa personally provided $60 for the purchase of rum, tequila, and beer. She also provided cups and cranberry juice, but nothing else. Two of Manosa’s friends, Mario Aparicio and Marcello Aquino, also provided money toward the initial purchase of alcohol, and Aquino purchased the alcoholic beverages for the party with this money. The beer was placed in a refrigerator in the kitchen, and the tequila and “jungle juice” (a mixture of rum and fruit juice) were placed outside on a table at the side of the house. Manosa did not have a license to sell alcoholic beverages.

Guests began to arrive at the party around 9:00 p.m., entering through a side gate in the yard. Aquino heard Manosa ask Todd Brown to “stand by the side gate to kind of control the people that came in and if he didn’t know them, then charge them some money to get into the party.” Brown thereafter served as a “bouncer,” standing at the gate and charging uninvited guests an admission fee of $3 to $5 per person. Once inside, partygoers enjoyed music played by a disc jockey Manosa had hired and could help themselves to the beer, tequila, and jungle juice.

Thomas Garcia, who had not been invited and was unknown to Manosa, testified that a “big, tall, husky, Caucasian dude” was charging an entrance fee to get into the party. Garcia paid $20 so that he and three or four of his friends could enter. The person who took Garcia’s money, presumably Brown, told him alcoholic beverages were available if he wanted them. Mike Bosley, another uninvited guest, declared he was charged $5 to enter the party. Brown eventually collected between $50 and $60 in entrance fees, and this money was used to buy additional alcohol sometime during the party.^[4] 704*704 The record is unclear whether any attendees brought their own alcoholic beverages or whether Manosa provided the only alcohol consumed on the premises.

Sometime before midnight, decedent Andrew Ennabe arrived at the party; he was Manosa’s friend and an invited guest. Thomas Garcia and his friends arrived about 30 minutes later and were charged admission. Ennabe and Garcia, both under 21 years of age, were visibly intoxicated on arrival. Garcia in particular exhibited slurred speech and impaired faculties. By his own reckoning, he had consumed at least four shots of whiskey before arriving. Although Garcia later denied drinking anything at Manosa’s party, other guests reported seeing him drinking there.

Once inside the gate, Garcia became rowdy, aggressive, and obnoxious. He made obscene and vaguely threatening comments to female guests, and either he or a friend dropped his pants. While Manosa claimed she was neither aware of Garcia’s presence nor that he was causing problems with other guests, Garcia was eventually asked to leave for his inappropriate behavior. Ennabe and some other guests escorted Garcia and his friends off the premises and ultimately to their car. One of Garcia’s friends spit on Ennabe, prompting Ennabe to chase him into the street. Garcia, who by this time was driving away, ran over Ennabe, severely injuring him. Ennabe later died from his injuries.^[5]

Plaintiffs Faiez and Christina Ennabe, on behalf of themselves and the estate of their son, filed a wrongful death action against defendant Manosa and her parents. Plaintiffs asserted three causes of action: general negligence, premises liability, and liability under section 25602.1. Defendants moved for summary judgment or adjudication, claiming plaintiffs could not show defendants were liable under section 25602.1, which permits liability for certain persons who serve alcohol to obviously intoxicated minors, and that they were entitled to civil immunity under section 25602, subdivision (b) and Civil Code section 1714, subdivision (c). Plaintiffs countered that by charging an entrance fee, Manosa had “sold” alcohol to party guests and was thus not entitled to civil immunity. The trial court granted defendants’ motion for summary judgment on all causes of action and, in the alternative, also granted the motion for summary adjudication. The Court of Appeal affirmed.

We granted plaintiffs’ petition for review.

705*705 II. DISCUSSION

“`”A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); [citation].) The moving party bears the burden of showing the court that the plaintiff `has not established, and cannot reasonably expect to establish,'” the elements of his or her cause of action. [Citation.]’ [Citation.] We review the trial court’s decision de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.” (State of California v. Allstate Ins. Co. (2009) 45Cal.4th 1008, 1017-1018 [90 Cal.Rptr.3d 1, 201 P.3d 1147].)

This case involves the scope of statutory immunity for social hosts who provide alcohol to their guests and the exception to that immunity for hosts who sell alcoholic beverages, or cause them to be sold, to obviously intoxicated minors. The history of the applicable statutes is helpful to gain a proper understanding of the issues.

A. The Immunity Statutes

For the better part of the 20th century, California case law held that a person who furnished alcoholic beverages to another person was not liable for any damages resulting from the latter’s intoxication. (Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450]; Fleckner v. Dionne (1949) 94 Cal.App.2d 246 [210 P.2d 530]; Hitson v. Dwyer(1943) 61 Cal.App.2d 803 [143 P.2d 952]; see Lammers v. Pacific Electric Ry. Co.(1921) 186 Cal. 379 [199 P. 523] [dictum].) The Legislature acquiesced in these decisions, also known as dramshop laws, by declining to enact a contrary statutory scheme that would permit civil liability (Cole, supra, at p. 355 [noting the Legislature’s failure to change the law despite making numerous other statutory changes “is indicative of an intent to leave the law as it stands in the aspects not amended”]), although it enacted legislation making the selling or furnishing of an alcoholic beverage to an obviously intoxicated person a misdemeanor in 1953 (former § 25602).^[6] This court first departed from the general common law rule of nonliability in 1971 when, noting the trend in a majority of other states, we ruled that a vendor could be liable for selling alcoholic beverages to an obviously intoxicated person who thereafter inflicted injury on third persons. (Vesely v. Sager, supra, 5 Cal.3d 153.) Overruling Cole v. Rush, 706*706 Vesely held that furnishing alcohol to an already intoxicated person could be the proximate cause of an injury to a third person on a showing that the person furnishing the alcohol violated section 25602, the misdemeanor statute enacted in 1953. (Vesely, supra, at pp. 165-167.)

Five years later, in Bernhard v. Harrah’s Club, supra, 16 Cal.3d 313, this court broadened the scope of potential liability. Bernhard involved a commercial vendor in Nevada that furnished alcohol to a California resident who then proceeded to injure another California resident while driving drunk in California. The defendant inBernhard, a Nevada corporation, argued that because the misdemeanor statute had no extraterritorial effect, it was entitled to immunity. (Bernhard, supra, at p. 323.) Although our decision in Vesely v. Sager, supra, 5 Cal.3d 153, had relied on section 25602 for its analysis, Bernhard read Vesely in broader terms: “Although we chose to impose liability on the Vesely defendant on the basis of his violating the applicable statute, the clear import of our decision was that there was no bar to civil liability under modern negligence law. Certainly, we said nothing in Vesely indicative of an intention to retain the former rule that an action at common law does not lie.” (Bernhard, supra, at p. 325.) Bernhard thus downplayed Vesely‘s reliance on the criminality of serving an intoxicated person as the analytical linchpin of the modern rule permitting liability.

Finally, in 1978, this court extended the Vesely holding to noncommercial social hosts, reasoning that a private person who serves alcohol in a noncommercial setting to an obviously intoxicated guest with the knowledge that person intends to drive a vehicle while in an intoxicated state fails to act with reasonable care. (Coulter v. Superior Court, supra, 21 Cal.3d at pp. 153-155 (plur. opn. of Richardson, J.); id.at p. 156 (conc. opn. of Mosk, J., joined by Bird, C. J.); id. at p. 157 (conc. & dis. opn. of Newman, J.).) As the plurality explained: “We think it evident that the service of alcoholic beverages to an obviously intoxicated person by one who knows that such intoxicated person intends to drive a motor vehicle creates a reasonably foreseeablerisk of injury to those on the highway. [Citation.] Simply put, one who serves alcoholic beverages under such circumstances fails to exercise reasonable care.” (Coulter, supra, at pp. 152-153.)

The Legislature responded to this trilogy of cases in 1978 by expressly abrogating their holdings and largely reinstating the previous common law rule that the consumption of alcohol, not the service of alcohol, is the proximate cause of any resulting injury. This 1978 legislation took three forms, spread across both the Civil Code and the Business and Professions Code. First, although Civil Code former section 1714 had provided generally that everyone is responsible for his own negligent or willful acts, the Legislature amended that statute, placing the existing language in new 707*707 subdivision (a) and adding subdivisions (b) and (c) to qualify that general principle. New subdivision (b) of Civil Code section 1714 provided: “It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v[.] Sager (5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151), Bernhard v. Harrah’s Club (16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719), and Coulter v. Superior Court ([21] Cal.3d [144] [145 Cal.Rptr. 534, 577 P.2d 669]) and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” (Stats. 1978, ch. 929, § 2, p. 2904.) Along these same lines, Civil Code section 1714, new subdivision (c) provided: “No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.” (Stats. 1978, ch. 929, § 2, p. 2904.)

(1) In the second change, the Legislature amended section 25602 to its current version by adding subdivisions (b) and (c). (Stats. 1978, ch. 929, § 1, pp. 2903, 2904.) Section 25602, whose previous sole provision made it a misdemeanor to serve an obviously intoxicated person, now provided in subdivision (b) that “No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage [to any habitual or common drunkard or to any obviously intoxicated person] … shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.” Section 25602, new subdivision (c), like Civil Code section 1714, subdivision (b), expressly declared the Legislature’s intent to overruleVesely, Bernhard, and Coulter. This “sweeping civil immunity” (Strang v. Cabrol(1984) 37 Cal.3d 720, 724 [209 Cal.Rptr. 347, 691 P.2d 1013]) was intended “to supersede evolving common law negligence principles which would otherwise permit a finding of liability under the[se] circumstances” (id. at p. 725).

The third prong of the legislative response to this court’s recognition of potential liability in alcohol cases authorized a “single statutory exception to the broad immunity created by the 1978 amendments.” (Strang v. Cabrol, supra, 37 Cal.3d at p. 723.) Newly enacted section 25602.1 (Stats. 1978, ch. 930, § 1, p. 2905), concerned underage drinkers and authorized a cause of action against licensees (i.e., those licensed to sell alcohol by the Department of ABC; see § 23009) who sell, furnish, or give away alcoholic beverages to 708*708 obviously intoxicated minors who later injure themselves or others.^[7] Subsequent case law emphasized the narrowness of section 25602.1’s exception to the general rule of civil immunity for providers of alcohol: the exception applied only to licensees (Cory v. Shierloh (1981) 29 Cal.3d 430, 440 [174 Cal.Rptr. 500, 629 P.2d 8] [noting in passing that nonlicensed sellers retained their immunity]), who provide alcohol to obviously intoxicated minors (seeRogers v. Alvas (1984) 160 Cal.App.3d 997, 1004 [207 Cal.Rptr. 60]). Providing alcohol to sober minors or to obviously intoxicated adults was not actionable under section 25602.1. (See Cory, supra, at p. 440 [“The obviously intoxicated minor, and those injured by him, retain a cause of action against the seller, but an adult consumer, and those similarly injured by him do not [citation].”].) Nor did the exception apply to vendors who were required to be licensed, but for some reason were not (ibid. [“A preferred liability status is thus given to those sellers who refuse to obtain licenses.”]), or to other nonlicensees (Baker v. Sudo (1987) 194 Cal.App.3d 936, 941-942 [240 Cal.Rptr. 38] [no liability for a social host]; Zieff v. Weinstein(1987) 191 Cal.App.3d 243, 248 [236 Cal.Rptr. 536] [same]).

Following the 1978 amendments, two subsequent judicial decisions prompted further legislative refinement. First, in 1981, a minor who was injured when he became intoxicated at a party and crashed his car sued the party’s host claiming, among other things, the defendant engaged in “the unlicensed and unlawful sale and furnishing of alcoholic beverages to minors.” (Cory v. Shierloh, supra, 29 Cal.3d at p. 433.) When the trial court dismissed the case, citing the 1978 amendments that reestablished civil immunity, he appealed claiming the new laws were unconstitutional. (Id. at pp. 437-441.) This court upheld the new laws, despite noting the incongruity of conditioning liability on a defendant’s status as a licensee.^[8] (Cory, supra, at p. 440.) A few years later, the Ninth Circuit Court of Appeals decided a case involving a girl’s death in a drunk driving accident allegedly caused when a club operated by the United States Department of Defense at the Concord Naval Weapons Station served alcohol to an obviously intoxicated minor. The federal appellate court held the club was not liable under section 25602.1 709*709 because it was not a licensed liquor provider under California law. (Gallea v. U.S. (9th Cir. 1986) 779 F.2d 1403.) As recognized by these two cases, persons who refused to obtain a liquor license and establishments permitted to serve alcohol on military bases without a license retained full immunity from liability.

(2) In response to these two judicial decisions, the Legislature in 1986 amended section 25602.1 to its current version, specifically to overrule Cory v. Shierloh in part and Gallea v. U.S. in full. (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1053 (1985-1986 Reg. Sess.) as amended Jan. 13, 1986, pp. 2-3.)^[9] A Senate committee report suggested the original law’s distinction between licensees and those sellers without licenses who were required by law to be licensed “may not have been foreseen or intended by the Legislature.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1053 (1985-1986 Reg. Sess.) as amended Jan. 13, 1986, p. 4 (Senate Analysis).) Significantly, both the Assembly and Senate committees involved in the 1986 amendment indicated the bill would not change existing law with regard to social hosts who provide alcoholic beverages free to their guests. (See Sen. Analysis, supra, at p. 4 [“The bill would not … affect the existing immunity for social hosts as it would not impose any liability for the free furnishing of alcohol.”].) Section 25602.1’s exception to immunity now embraces those required to be licensed and those who sell alcohol on military bases. In addition, the Legislature excepted from the rule of civil immunity “any other person” who sells alcohol to an obviously intoxicated minor.

(3) In sum, if a plaintiff can establish the defendant provided alcohol to an obviously intoxicated minor, and that such action was the proximate cause of the plaintiff’s injuries or death, section 25602.1 — the applicable statute in this case — permits liability in two circumstances: (1) the defendant was either licensed to sell alcohol, required to be licensed, or federally authorized to sell alcoholic beverages in certain places, and the defendant sold, furnished, or gave the minor alcohol or caused alcohol to be sold, furnished, or given to the minor; or (2) the defendant was “any other person” (i.e., neither licensed nor required to be licensed), and he or she sold alcohol to the minor or caused it to be sold. Whereas licensees (and those required to be licensed) may be liable if they merely furnish or give an alcoholic beverage away, a nonlicensee may be liable only if a sale occurs; that is, a nonlicensee, such as 710*710 a social host, who merely furnishes or gives drinks away — even to an obviously intoxicated minor — retains his or her statutory immunity.^[10]

B. Application of Immunity Statutes

With this statutory scheme in mind, we turn to the merits. For purposes of our review following a grant of summary judgment, given properly pleaded facts and viewing the evidence favorably to the nonmoving party (here, plaintiffs), we may assume that Thomas Garcia was underage,^[11] that he paid to enter Manosa’s party, that he was obviously intoxicated, that he consumed some of the alcoholic beverages Manosa had provided for guests, that Manosa was not licensed to sell alcohol, and that Garcia’s intoxication was the proximate cause of Andrew Ennabe’s death. Manosa contends she cannot be liable for Ennabe’s death because, as a social host, she is entitled to civil immunity under both section 25602, subdivision (b) and Civil Code section 1714, subdivision (c).

In order to resolve this question, we first discuss whether the Business and Professions Code applies to a purported social host such as Manosa. Finding that it does, we then examine whether Manosa sold alcohol within the meaning of section 25602.1. As we explain, we find the Business and Professions Code applies here, and that Manosa’s actions constituted a sale rendering her potentially liable as a person who sold alcohol to an obviously intoxicated minor.

1. Does the Business and Professions Code Apply to Manosa?

At the time this case arose in 2007, Civil Code former section 1714, subdivision (c) provided: “No social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.” (Stats. 2003, ch. 711*711 62, § 15, pp. 293, 294.)^[12] Section 25602, subdivision (b) appears largely to overlap that provision, providing: “No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.” Section 25602.1, the exception to this statutory immunity, appears in the Business and Professions Code but the Civil Code contains no similar provision.

(4) Although neither party raises it, a preliminary issue is presented: Does section 25602.1 apply to a private person who, like Manosa, is not in the business or profession of selling or providing alcoholic drinks? We solicited supplemental briefing on, among other questions, whether that Business and Professions Code provision applies to businesses only, and whether private persons are governed solely by the Civil Code, which includes no explicit exception to its statutory immunity for those who sell or furnish alcoholic beverages to others. After considering the views of the parties and that of amicus curiae, the Department of ABC, we conclude that the placement of section 25602.1 in the Business and Professions Code does not limit the scope of that provision to commercial enterprises. First, the structure of section 25602.1 suggests it applies to noncommercial providers of alcohol. The statute addresses four categories of persons and we assume those falling in the first three categories — those licensed by the Department of ABC, those without licenses but who are nevertheless required to be licensed, and those authorized to sell alcohol by the federal government — are for the most part engaged in some commercial enterprise. The final category of persons addressed by section 25602.1 is more of a catchall: “any other person” who sells alcohol. (5) Consistent with the plain meaning of the statutory language and the views of the Department of ABC, we find this final category includes private persons and ostensible social hosts who, for whatever reason, charge money for alcoholic drinks. To be sure, this category poses something of a tautology, for a person who sells alcoholic beverages is generally required to have a license (§ 23399.1), threatening to collapse this 712*712 fourth category into the second one,^[13] but we agree with the Department of ABC that the plain meaning of the word “person” as used in section 25602.1’s final category can include someone like defendant Manosa, a private person who was not engaged in a commercial enterprise.

Second, that the Business and Profession Code applies to more than “businesses” and “professions” is clearly inferable from other provisions in the code. Chapter 16 of the ABC Act is entitled “Regulatory Provisions” (§ 25600 et seq.) and includes section 25602.1, the exception to civil immunity at issue in this case. The same chapter includes provisions regulating such noncommercial activities as the possession or delivery of an alcoholic beverage in a public schoolhouse (§ 25608, subd. (a)), possession of an open container of alcohol in a public park (§ 25620), and bringing an alcoholic beverage into a state prison or county jail (§ 25603). This court has itself recognized that a violation of section 25658 (providing an alcoholic beverage to someone under 21 years old) can be committed by a private person. (In re Jennings (2004) 34 Cal.4th 254 [17 Cal.Rptr.3d 645, 95 P.3d 906].) In addition, chapter 6 of the ABC Act, entitled “Issuance and Transfer of Licenses” (§§ 23950-24082), includes several provisions addressed to the noncommercial purveying of alcoholic beverages, such as section 24045.1 (temporary daily license available for events staged by political, charitable or religious organizations), section 24045.2 (temporary off-sale license available for nonprofit public television stations) and section 24045.3 (temporary off-sale licenses available for certain women’s educational and charitable organizations). The inclusion in the Business and Professions Code of so many statutes addressed to the noncommercial provision of alcoholic beverages further supports the conclusion that section 25602.1 is not, by virtue of its placement in that code, limited to commercial enterprises only.

Finally, although we reject the suggestion that the scope of the Business and Professions Code, and thus section 25602.1, is confined to commercial, profit-generating endeavors, we note that even were we to find to the contrary, and that all private, noncommercial social-host scenarios should be governed exclusively under the provisions of Civil Code section 1714, that argument would merely beg the question of when, and under what conditions, an ostensible social host (such as defendant Manosa) loses that characterization — and thus becomes a commercial entity falling within the jurisdiction of 713*713 the Business and Professions Code — by selling alcoholic beverages. Accordingly, merely attaching to Manosa the label of “social host” does not advance the analysis, for what would we call a social host who sells alcoholic beverages? We thus turn to an examination of whether Manosa sold alcoholic beverages within the meaning of section 25602.1.

2. Did Manosa Sell Alcoholic Beverages?

(6) Section 25602.1 provides in pertinent part that “a cause of action may be brought by or on behalf of any person who has suffered injury or death against [various licensees, as well as] … any other person who sells, or causes to be sold, any alcoholic beverage, to any obviously intoxicated minor where the … sale … of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person.” (Italics added.) Thus, even aside from the question of licensing, a private “person” may be held to have shed her civil immunity if she sold alcoholic beverages (or caused them to be sold) within the meaning of section 25602.1. The meaning of the word “sold” in this context is a question of statutory construction. (7) “As with all questions of statutory interpretation, we attempt to discern the Legislature’s intent, `being careful to give the statute’s words their plain, commonsense meaning. [Citation.] If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature’s intent is unnecessary.'” (Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 288 [93 Cal.Rptr.3d 369, 206 P.3d 739].)

(8) At the threshold, we find two principles provide potential guidance, but, as is sometimes the case, those principles point in somewhat opposite directions. First, the state Constitution grants exclusive power to the State of California to regulate the sale of alcoholic beverages (Cal. Const., art. XX, § 22, 1st par.), the Legislature has exercised that power by the enactment of the ABC Act (Bus. & Prof. Code, § 23000 et seq.), and the act expressly provides that its terms should be “liberally construed” to accomplish the stated purposes of the act, which include “to eliminate the evils of unlicensed… selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages” (§ 23001, italics added). Giving the law a liberal construction that leans in favor of promoting temperance suggests that, in a close case, we should err on the side of permitting liability, for the possibility of liability may provide a strong deterrent against the provision of alcohol to minors, especially those who are already obviously intoxicated.

But at the same time, because the general rule of law is one of civil immunity for the sale or provision of alcoholic beverages (§ 25602, subd. (b); 714*714 Civ. Code, § 1714, subd. (c)), section 25602.1 represents an exception to that general rule and therefore should be strictly construed to achieve the Legislature’s intent. (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1281 [48 Cal.Rptr.2d 229] [§ 25602.1 should be strictly construed]; Salem v. Superior Court(1989) 211 Cal.App.3d 595, 600 [259 Cal.Rptr. 447] [same].) Giving section 25602.1 a strict construction suggests that, in a close case, we should lean towards finding a wide scope of civil immunity. Cognizant of both these concepts, we turn to the language of the ABC Act to discern the meaning of a “sale” of alcohol.

(9) The ABC Act is division 9 of the Business and Professions Code, beginning with section 23000. The preliminary provisions of the ABC Act set forth basic definitions for the act, which “govern the construction of this division” “[u]nless the context otherwise requires.” (§ 23002.) Section 23025 defines the terms “sell,” “sale,” and “to sell” as including “any transaction whereby, for any consideration, title to alcoholic beverages is transferred from one person to another.” (Italics added.) Because sections 25602 and 25602.1 also appear in the ABC Act, section 23025’s definition of “sale” applies to those sections. We thus agree with the Department of ABC that the definition of a sale of alcoholic beverages in section 23025 applies to section 25602.1.

Section 23025’s broad definition of a sale shows the Legislature intended the law to cover a wide range of transactions involving alcoholic beverages: a qualifying sale includes “any transaction” in which title to an alcoholic beverage is passed for “anyconsideration.” (Italics added.) Use of the term “any” to modify the words “transaction” and “consideration” demonstrates the Legislature intended the law to have a broad sweep and thus include both indirect as well as direct transactions. (See Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 533 [120 Cal.Rptr.3d 531, 246 P.3d 612] [Legislature’s use of the word “any” suggests it intended a broad construction]; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 920 [50 Cal.Rptr.2d 309, 911 P.2d 496] [same].)

(10) Contrary to the foregoing, defendant urges us to embrace the Court of Appeal’s reasoning, which found no sale because “there [was] no transfer of title to an alcoholic beverage at the time the entrance fee [was] paid,” and that “it is difficult, if not impossible, to determine which individual or individuals held title to the alcoholic beverages consumed by Garcia.” But the definition of a sale under section 23025 is broad enough to encompass indirect sales; the statute requires simply a transfer of title, not necessarily a transfer of possession of a particular drink. This conclusion follows from both the statutory definition of a sale to include “any” transaction, as well as the Legislature’s 1937 amendment to section 23025 to clarify its meaning. The715*715 original version of what is now section 23025 was an uncodified precursor to the ABC Act and provided: “The transfer of title to alcoholic beverages unaccompanied by a transfer of possession of such beverages shall not be deemed a sale of such beverages.” (Stats. 1935, ch. 330, § 2, pp. 1123, 1124-1125.) The Legislature deleted that sentence in 1937, thereby broadening the definition of sale to encompass those situations in which an immediate transfer of possession does not occur. (Stats. 1937, ch. 758, § 3, pp. 2127, 2129.) “`We presume the Legislature intends to change the meaning of a law when it alters the statutory language [citation], as for example when it deletes express provisions of the prior version….'” (State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2008) 44 Cal.4th 230, 244 [79 Cal.Rptr.3d 171, 186 P.3d 535].)

Nor is it difficult to discern when title to a drink passed to Garcia. Although his payment of the admission fee did not entitle him to, say, take possession of all the alcohol at the party, nor did he at that time necessarily take title to any particular drink, when Garcia did pour himself a drink and begin to consume it, title to that drink clearly passed to him. We conclude the plain meaning of a “sale,” as defined in section 23025 and used in section 25602.1, includes Garcia’s payment of the entrance fee for Manosa’s party, irrespective of the fact possession of a particular drink did not occur immediately upon payment.

(11) Defendant further argues the statutory definition of “sale” in section 23025 is ambiguous because in other contexts the Legislature has specifically provided that a sale includes both direct and indirect sales. She cites two examples from the code: Section 24070, subdivision (c) restricts a corporate licensee from selling “a controlling interest in the stock ownership of the licensee” either “directly or indirectly,… for a period of two years from date of issuance of the license….” (Italics added.) Similarly, section 25511 provides in part that a beer manufacturer or beer wholesaler “may … sell, directly or indirectly, any equipment, fixtures, or supplies, other than alcoholic beverages, to a retailer whose equipment, fixtures, or supplies were lost or damaged as a result of a natural disaster.” (Italics added.) Neither statute is relevant to the issue before us. Section 24070, subdivision (c) addresses the sale of stock ownership, not alcoholic beverages. Section 25511 addresses the sale of “equipment, fixtures, or supplies, other than alcoholic beverages.” (Italics added.) By contrast, section 23025 defines the terms “sell,” “sale” and “to sell” in the specific context of the conveyance of alcoholic beverages, and the Legislature’s use of the term “any” to modify the nouns “transaction” and “consideration” is another way of including indirect sales within the scope of the definition. Accordingly, the use of the phrase “directly or indirectly” in sections 24070 and 25511 does not render ambiguous section 23025’s expansive definition of a sale of alcoholic beverages.

716*716 Although the parties have cited no previous California appellate decision addressing whether the collection of what is, in essence, a cover charge constitutes a sale of alcohol under the ABC Act, nor has our research revealed any, our decision that Manosa sold alcohol is consistent with section 25604. Section 25604 provides in part: “It is a public nuisance for any person to keep, maintain, operate or lease any premises for the purpose of providing therein for a consideration a place for the drinking of alcoholic beverages by members of the public or other persons, unless the person and premises are licensed under this division. As used herein `consideration’ includes cover charge, the sale of food, ice, mixers or other liquids used with alcoholic beverage drinks, or the furnishing of glassware or other containers for use in the consumption of alcoholic beverage drinks.” (Italics added.) To conclude that “consideration” for a drink (and hence a sale) includes a cover charge for purposes of section 25604, but not for section 25602.1, would make little sense. Certainly defendant cites no evidence the Legislature intended such an idiosyncratic definition of the term “sale.”

Our conclusion that the pleaded facts suggest a sale occurred within the meaning of section 25602.1 is consistent with an opinion prepared by the Office of the Attorney General.^[14] (See 68 Ops.Cal.Atty.Gen. 263 (1985) (AG Opinion).) The director of the Department of ABC, who is charged with enforcing the ABC Act (see § 23050 et seq.), had asked this question of the Office of the Attorney General: “May the operator of a commercial enterprise who does not have an alcoholic beverage license legally offer and provide `complimentary’ alcoholic beverages to any interested adult guest, customer or passenger of the business or service, without specific charge while at the same time charging for the product provided or the services rendered?” (AG Opinion, supra, 263.) Focusing its inquiry on whether the complimentary beverages were in fact free, and not whether, strictly speaking, title to a particular drink had passed from seller to buyer, the Attorney General concluded that offering a complimentary drink, while at the same time charging for another related service or product, constituted a sale under section 23025. (AG Opinion,supra, 263.) While the AG Opinion concerned an “operator of a commercial enterprise” and not an ostensible social host, the Attorney General’s reasoning is pertinent here because he framed the issue as “whether the `complimentary’ beverages are in fact `free’ or whether they are 717*717 in reality purveyed for a `consideration.'” (Id. at p. 265.) In other words, did a sale of alcoholic beverages occur?

Observing that no California cases on the subject existed, the Attorney General examined three out-of-state cases. In New York State Liquor Authority v. Fuffy’s Pancake House, Ltd. (N.Y.App.Div. 1978) 65 A.D.2d 556 [409 N.Y.S.2d 20], a restaurant provided complimentary glasses of wine when a patron paid for a meal. InNew York State Liquor Authority v. Sutton Social Club (N.Y.Sup.Ct. 1978) 93 Misc.2d 1024 [403 N.Y.S.2d 443], a social club charged its members and their guests a fee that entitled them to enter the club and to obtain “free” alcoholic beverages. Finally, in Commonwealth v. Worcestrr (1879) 126 Mass. 256, the Supreme Judicial Court of Massachusetts addressed a case involving a dwelling house that charged for meals that included free alcoholic beverages. The decisions in all three cases concluded a sale of alcoholic beverages had occurred.

In light of this sister state authority, the Attorney General concluded that when consideration for an alcoholic beverage is included in the basic charge for another item or service (such as a meal, admission to an event, hotel room rental, or limousine rental charge), “`[i]t is wholly immaterial that no specific price is attached to those articles separately.’ Therefore, the furnishing of the beverages, although denominated `complimentary,’ are for a consideration and constitute a sale within the meaning of California’s Alcoholic Beverage Control Act.” (AG Opinion, supra, 68 Ops.Cal.Atty.Gen., at p. 267, italics added.) Under this reasoning, Manosa’s act of charging guests a fee in exchange for entrance to her party and access to the alcoholic beverages she provided constitutes a sale under sections 23025 and 25602.1 because the beverages were purveyed for consideration and therefore not free.

Were further support needed, we observe that our interpretation of a sale for purposes of the ABC Act in general, and section 25602.1 in particular, is consistent with that of the Department of ABC. The department, appearing at our invitation as amicus curiae, opines that “a sale may occur whether the payment for alcohol is made at a bar upon delivery of the alcohol, or at the door as the price of admission to the premises where alcohol is served.” (Italics added.) The department’s view, as expressed in its amicus curiae brief, is consistent with its own internal guidelines, as expressed in a November 2009 trade enforcement information guide (TEIG), which served as an industry reference and enforcement guide for the ABC Act.^[15] In a 718*718subsection entitled “Private Parties,” addressing licensure requirements related to private parties where alcohol is served, the TEIG notes that section 23399.1, specifying exemptions from the requirement of a liquor license, does not require a license if, among other factors, “there is no sale of an alcoholic beverage” at the party. (TEIG, supra, at pp. 21-22, capitalization altered.) But the TEIG then cautions: “Be aware that the definition of `sale’ includes indirect transactions other than merely paying for a glass of wine or other drink containing alcohol. For instance, if an admission fee is charged … and the alcohol is included, but not separately charged, an ABC license is required.” (Id. at p. 22, original underscoring, italics added.) The TEIG thus supports the conclusion that under the ABC Act a sale includes indirect transactions such as occurred at Manosa’s party. While the TEIG itself is not entitled to judicial deference,^[16] that it is consistent with the meaning of “sale” urged by the department in its amicus curiae brief is significant, as the department has considerable expertise in enforcing the ABC Act. (See Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (1999) 71 Cal.App.4th 1518, 1523 [84 Cal.Rptr.2d 621] [“As a rule, it is appropriate for courts to accept the administrative expertise of the Department….”].)

Thus, according to the plain meaning of section 23025 defining a sale, the opinion of the Attorney General, and the interpretation of the Department of ABC, a “sale” of alcoholic beverages under section 25602.1 includes the type of transactions that occurred at defendant Manosa’s party. Because she sold Garcia alcoholic beverages at her party, section 25602.1 permits “a cause of action [to] be brought [against her] by or on behalf of any person who has suffered injury or death.”

Defendant’s counterarguments are unpersuasive. She contends primarily that the definitions of the terms “sell,” “sale,” and “to sell” in section 23025 (hereafter “sale”) necessarily imply a transaction that results in a commercial gain or profit for the seller. Observing that the statutory definition in section 23025 applies “[u]nless the context otherwise requires,” she argues the context of section 25602.1’s exception to the general rule of civil immunity requires we recognize a commercial gain component for the term “sale” so as 719*719 to avoid rendering the term “furnish,” used earlier in the same statute, mere surplusage. “Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage.” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22 [56 Cal.Rptr.2d 706, 923 P.2d 1]; see California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634 [59 Cal.Rptr.2d 671, 927 P.2d 1175] [same].) Placement of the definition of a “sale” in the Business and Professions Code instead of the Civil Code, she further contends, suggests that, in context, the definition contemplates a transaction of a business or commercial nature. (See Van Horn v. Watson (2008) 45 Cal.4th 322, 327 & fn. 6 [86 Cal.Rptr.3d 350, 197 P.3d 164] [that Good Samaritan immunity statute was placed in the Health & Saf. Code rather than the Civ. Code suggests it applied to emergency medical care only].)^[17]

We decline to read a financial profit or commercial gain requirement into the phrase “sells, or causes to be sold,” as used in section 25602.1. First, when construing section 25602.1, no reason appears to refrain from employing the definition of “sale” set forth in section 23025, and that statutory definition — “any transaction” for “anyconsideration” (italics added) — does not specify that some profit or gain must be made or intended. “`Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.'” (In re Jennings, supra, 34 Cal.4th at p. 265.) “[W]e must be careful not to add requirements to those already supplied by the Legislature.” (Ibid.; see Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998 [275 Cal.Rptr. 201, 800 P.2d 557] [it is a “cardinal rule of statutory construction that courts must not add provisions to statutes”].) We note the Department of ABC, the state agency tasked with interpreting and implementing the ABC Act, agrees that “[n]either profit nor intent to realize a profit is necessary for a sale to occur” under section 23025’s definition of a sale, and that “[c]onsideration which is equal to or less than the seller’s cost is still good consideration, as long as it represents some benefit to the seller or some prejudice to the buyer. (Civil Code, § 1605.)^[18] The buyer’s purchase price, however the seller intends to use it, is good consideration.”

Second, contrary to defendant’s argument, our rejection of a commercial gain component does not convert section 25602.1’s use of the term “furnish[]” — in the statutory phrase permitting liability for licensees who “s[ell], 720*720 furnish[] or give[] away” alcoholic beverages — into meaningless surplusage. A sale requires consideration; mere furnishing does not.

Third, in permitting potential liability for the provision of alcohol to obviously intoxicated minors in section 25602.1, the Legislature distinguished between licensees — presumably business or commercial entities such as bars and restaurants — and “any other person” — presumably including noncommercial entities or individuals such as Manosa. This version of section 25602.1, amended to its current form in 1986, was partly enacted in response to Cory v. Shierloh, supra,29 Cal.3d 430, which had found a social host immune from liability for injuries to a minor allegedly injured after he became intoxicated at a private party. From this we may infer the Legislature was aware of, and attempted to address, the problem of providing alcohol to minors in social settings in which no profit was expected.

Defendant raises additional counterarguments to our interpretation of the word “sale” but they are even less persuasive. She first contends we should not apply section 23025’s definition of a sale here because it will lead to “illogical results” and create an unworkable standard in the context of social parties. Observing that consideration for a sale need not be in cash, but may encompass “any value whatever” (Estate of Freeman (1965) 238 Cal.App.2d 486, 489 [48 Cal.Rptr. 1]; see generally Civ. Code, § 1605), defendant hypothesizes that a promise to attend a friend’s party or to bring a dessert to a social gathering where the host provides alcoholic beverages would constitute a sale under a broad reading of section 23025.

Defendant’s hypothetical poses a false equivalency. In the usual social situation, the dessert or other gift brought by an invited guest and given to the host cannot fairly be characterized as a transaction in which consideration is given in exchange for alcoholic beverages provided by the host; the dessert or other offering is simply a commonplace gift consistent with ordinary etiquette. (See § 23025 [definition of a sale requires a “transaction”].) We need not sweep all informal potlucks into the jurisdiction of the Department of ABC’s licensure purview to conclude the instant situation, in which Manosa operated what was in essence a popup nightclub that required a cover charge for entry, falls within section 23025’s definition of a sale of alcohol. The Department of ABC agrees, explaining that “situations involving casual reimbursement among friends who have agreed to purchase alcohol together rarely, if ever, arise for the Department, and the Department does not make a practice of intruding into clearly private parties to assess the casual pooling of money among friends to buy alcohol. On the other hand, circumstances in which alcohol is clearly being transferred in return for a purchase price, and the only defense to licensure is either that the alcohol is priced at cost or that a fee is charged for the privilege of entering [the] premises and consuming alcohol there, present clear cases of salesrequiring a license.” (Italics added.)

721*721 As to defendant’s further contention that the standard we recognize today will prove “unworkable,” we observe the Department of ABC, the agency responsible for enforcing the law with respect to the many ways in which alcoholic beverages can be distributed, expresses no concern the standard we now recognize is “unworkable”; indeed, our definition of a sale is consistent with both the plain meaning of section 23025 and the department’s own view of the law. We agree with the department’s further assertion that, faced with normal social gatherings, to interpret the statutory language strictly, leading to absurd results not contemplated by the Legislature, would be unjustified.

Noting that alcohol is “furnished at an infinite variety of social settings hosted by nonlicensees — from gallery openings, bar mitzvahs, weddings, political fundraisers and charity events — where admission is not `free’ and financial contributions from attendees are expected or required,” defendant argues by a reductio ad absurdumthat this court would wreak havoc on the “social fabric of modern life” were we to recognize indirect transactions could qualify as sales of alcohol under section 23025. The assertion is exaggerated. One does not normally charge guests an entrance fee to attend bar mitzvahs, weddings, or gallery openings, and the provision of alcoholic beverages to guests invited to such events typically is governed by social host immunity under Civil Code section 1714, subdivision (c). (Even if a host at such an event charged his or her guests for alcohol, such payment would simply raise questions of licensure, and civil liability could attach only if the host sold alcohol to an obviously intoxicated minor.) In any event, in contrast to how Manosa conducted herself at her party, ordinary social hosts do not use bouncers, allow uninvited strangers into their homes, or extract an entrance fee or cover charge from their guests. Nor does maintaining the social fabric of our society depend on protecting from civil liability those persons who would sell alcoholic beverages to minors who are already visibly intoxicated.

Defendant further argues that our interpretation of section 25602.1 will yield irrational results because some guests will pay but not drink, some will drink an alcoholic beverage provided by someone other than the host, and some will enter the party without being charged. To have liability turn on such facts, defendant argues, is absurd. (See In re J. W. (2002) 29 Cal.4th 200, 210 [126 Cal.Rptr.2d 897, 57 P.3d 363] [“courts will not give statutory language a literal meaning if doing so would result in absurd consequences…”].) We disagree. If a paying guest does not drink, there can be no liability, because section 25602.1 requires that the sale of alcohol be the proximate cause of the injury. If the guest drinks a beverage provided by someone other than the host, the same result obtains because the host’s sale of alcohol cannot be said to have been the cause of the minor’s intoxication and hence the injury. Finally, for guests who pay no admission charge the host retains her immunity, because without consideration there can be no sale 722*722 under section 23025. The final category of section 25602.1, permitting liability for “any other person who sells,” requires proof of a sale (that is, a transaction for consideration), and is not irrational for distinguishing between paying and nonpaying partygoers. In any event, a social host can retain her immunity by simply refraining from charging any of her invited guests.

In sum, we conclude that if, as indicated by plaintiff’s evidence in opposition to the summary judgment motion, defendant Manosa charged an entrance fee to her party which enabled party guests to drink the alcoholic beverages she provided, she sold such beverages (or caused them to be sold) within the meaning of section 23025, and can be liable for Ennabe’s death under 25602.1’s exception to immunity for persons who sell alcoholic beverages to obviously intoxicated minors.

III. CONCLUSION

(12) Where injuries are proximately caused by excess alcohol consumption, our Legislature has carefully balanced the interests involved and settled on a rule generally precluding liability for those who provide alcoholic beverages, on the ground that “the consumption of alcoholic beverages rather than the serving of alcoholic beverages [is] the proximate cause of injuries inflicted upon another by an intoxicated person.” (§ 25602, subd. (c).) Specifically addressing the potential liability of social hosts, the Legislature has provided that “no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.” (Civ. Code, § 1714, subd. (c).)

But the Legislature has also established some narrow exceptions to this broad civil immunity, one of which is potentially applicable here: liability may attach because plaintiff alleges facts suggesting that defendant Manosa was a “person who [sold], or cause[d] to be sold, any alcoholic beverage, to any obviously intoxicated minor.” (§ 25602.1.) A “sale” of alcohol, in turn, is defined as “any transaction” for “any consideration.” (§ 23025.) Because the facts, read in a light most favorable to plaintiffs (Clayworth v. Pfizer, Inc., supra, 49 Cal.4th at p. 764), support the conclusion Manosa is a person who sold alcoholic beverages to Garcia, a minor who was obviously intoxicated, and Garcia’s intoxication was the proximate cause of Andrew Ennabe’s death, she is potentially liable under section 25602.1, and the trial court erred in granting summary judgment in defendant’s favor.

723*723 The decision of the Court of Appeal is reversed and the case remanded for further proceedings consistent with our opinion.

Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.

[1] All further statutory references are to the Business and Professions Code unless otherwise specified.

[2] Plaintiffs do not challenge the lower court’s ruling in favor of codefendants Carlos and Mary Manosa, Jessica’s parents. Accordingly, we refer to defendant Jessica Manosa only.

[3] We will use the abbreviation “ABC” as a shorthand for “Alcoholic Beverage Control.” Hence, the Department of Alcoholic Beverage Control is referred to as “the Department of ABC” and the Alcoholic Beverage Control Act (§ 23000 et seq.) is referred to as “the ABC Act.”

[4] The summary judgment record is unclear who purchased this additional alcohol and whether Manosa had personally asked someone to use the gate money to buy more alcohol. The parties assert it is undisputed that Mario Aparicio and Stephan Filaos bought the additional alcohol, although Aparicio denies doing so. One guest, Hani Abuershaid, overheard Filaos say Manosa had asked him to purchase more alcohol using the money collected at the door, “because I think no one else had regulation of the money besides the bouncer and [Manosa].” Abuershaid also testified to seeing the bouncer give Filaos the money. Further, decedent Andrew Ennabe’s brother declared he had heard Manosa ask Aparicio and Filaos to use money collected at the door to purchase additional alcohol.

[5] Garcia was convicted of a felony in connection with Ennabe’s death and was sentenced to 14 years in prison.

[6] Prior to 1978, section 25602 provided: “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.” (Stats. 1953, ch. 152, § 1, pp. 954, 1020.) The same language now appears in subdivision (a) of the same statute. (Stats. 1978, ch. 929, § 1, pp. 2903-2904.)

[7] As added by the 1978 amendments, the original version of section 25602.1 stated: “Notwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed pursuant to Section 23300 who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any obviously intoxicated minor where the furnishing, sale or giving of such beverage to the minor is the proximate cause of the personal injury or death sustained by such person.” (Stats. 1978, ch. 930, § 1, p. 2905.)

[8] Accordingly under section 25602.1 as enacted in 1978, “whether or not the selling or supplying of the liquor is a tortious cause of a resultant injury turns on the license status of the supplier and the ageof the consumer. Causation in a common law sense, whether actual or physical, proximate or legal, has never pivoted on such a perilous and seemingly irrelevant fulcrum.” (Cory v. Shierloh, supra, 29 Cal.3d at p. 440.)

[9] We grant defendant’s request for judicial notice of the legislative history of the 1986 amendments to section 25602.1. (In re Reeves (2005) 35 Cal.4th 765, 777, fn. 15 [28 Cal.Rptr.3d 4, 110 P.3d 1218]; Elsner v. Uveges (2004) 34 Cal.4th 915, 929, fn. 10 [22 Cal.Rptr.3d 530, 102 P.3d 915].)

[10] Section 25602.1, as amended in 1986, provides in full: “Notwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed, or required to be licensed, pursuant to Section 23300, or any person authorized by the federal government to sell alcoholic beverages on a military base or other federal enclave, who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage, and any other person who sells, or causes to be sold, any alcoholic beverage, to any obviously intoxicated minor where the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person.” (Italics added.)

[11] That is, he was under 21 years of age. (See Chalup v. Aspen Mine Co. (1985) 175 Cal.App.3d 973, 975, fn. 2 [221 Cal.Rptr. 97] [for purposes of § 25602.1, “`minor’ refers to persons under the age of 21”]; Rogers v. Alvas, supra, 160 Cal.App.3d at p. 1004 [same].)

[12] Since 2007, the statute has been amended twice. In 2010, the Legislature added former subdivision (d) to Civil Code section 1714: “Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.” (Stats. 2010, ch. 154, § 1.)

A year later, the Legislature moved former subdivision (d) to subdivision (d)(1) and added what is now Civil Code section 1714, subdivision (d)(2): “A claim under this subdivision may be brought by, or on behalf of, the person under 21 years of age or by a person who was harmed by the person under 21 years of age.” (See Stats. 2011, ch. 410, § 1.) The same amendment also added that liability under section 1714, subdivision (d) would attach if a person knew, or should have known, that the person served was under 21.

[13] The two categories are not precisely congruent, as an extremely small group of purveyors of alcohol are allowed under the code to operate without a license. Thus, under section 23102, subdivision (a), a person acting on behalf of a deceased, insolvent or incompetent licensee can sell alcoholic beverages for 30 days without a license. In addition, section 23399.5 permits limousine and hot air balloon operators to serve alcoholic beverages without a license so long as they do not charge extra for alcohol, although the Legislature enacted this provision in 1986 so it could not have had such operators in mind when it enacted section 25602.1 in 1978.

[14] As we have explained, “`[a]bsent controlling authority, [the Attorney General’s opinion] is persuasive because we presume that the Legislature was cognizant of the Attorney General’s construction of [the statute] and would have taken corrective action if it disagreed with that construction.'” (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1013 [90 Cal.Rptr.2d 236, 987 P.2d 705].) “Attorney General opinions are entitled to considerable weight.” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1087, fn. 17 [103 Cal.Rptr.3d 767, 222 P.3d 214]; see California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17 [270 Cal.Rptr. 796, 793 P.2d 2] [“`Opinions of the Attorney General, while not binding, are entitled to great weight.'”].)

[15] Although both parties discuss the TEIG and debate its usefulness, it apparently was never reduced to hardcopy and existed as an online resource only. The TEIG no longer appears on the department’s Web site, but can be found at: (as of Feb. 24, 2014).

[16] Although the TEIG itself cannot be enforced and is not binding legal authority because, as the parties acknowledge, it was not promulgated in accordance with the Administrative Procedure Act (Gov. Code, § 11340 et seq.), we can consider the Department of ABC’s interpretation of the law to the extent it is persuasive. (See Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 576-577 [59 Cal.Rptr.2d 186, 927 P.2d 296] [holding that while we do not defer to the Department of Labor Standard Enforcement’s interpretation of Industrial Welfare Commission wage orders, “we do not necessarily reject its decision …” either]; see also Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 563 [67 Cal.Rptr.3d 468, 169 P.3d 889] [court may adopt a “statutory interpretation embodied in a void regulation if the court independently determines that the interpretation is correct”].)

[17] The holding in this case was superseded by an amendment to Health and Safety Code section 1799.102. (Stats. 2009, ch. 77, § 1.)

[18] Civil Code section 1605 states: “Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.”

Keywords: Negligence, Premise Liability

Beacon Residential Community Association v. Skidmore, Owings & Merrill

59 Cal.4th 568 (2014)

Summary by Mary M. Howell, Esq.:

Principal architect owes a duty of care to future homeowners in the design of a residential building, even when the architects do not actually build the project or exercise ultimate control over construction.

*** End Summary ***

570*570 Law Offices of Ann Rankin, Ann Rankin, Terry L. Wilkens; Katzoff & Riggs, Kenneth S. Katzoff, Robert R. Riggs, Sung E. Shim and Stephen G. Preonas for Plaintiff and Appellant.

Berding & Weil and Matt J. Malone for Consumer Attorneys of California and Executive Council of Homeowners as Amici Curiae on behalf of Plaintiff and Appellant.

Horvitz & Levy, Peder K. Batalden and Peter Abrahams for Defendants and Respondents Skidmore, Owings & Merrill LLP and HKS, Inc.

Robles, Castles & Meredith and Richard C. Young for Defendant and Respondent Skidmore, Owings & Merrill LLP.

Schwartz & Janzen, Noel E. Macaulay and Steven H. Schwartz for Defendant and Respondent HKS, Inc.

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

Shannon B. Jones Law Group, Kathleen F. Carpenter, Jessica M. Takano and Amy R. Gowan for California Building Industry Association as Amicus Curiae on behalf of Defendants and Respondents.

Collins Collins Muir + Stewart, David E. Barker and Melinda W. Ebelhar for The American Institute of Architects California Council and The American Institute of Architects as Amici Curiae on behalf of Defendants and Respondents.

571*571 OPINION

LIU, J. —

A homeowners association on behalf of its members sued a condominium developer and various other parties over construction design defects that allegedly make the homes unsafe and uninhabitable for significant portions of the year. Two defendants were architectural firms, which allegedly designed the homes in a negligent manner but did not make the final decisions regarding how the homes would be built. Applying our decision in Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370 [11 Cal.Rptr.2d 51, 834 P.2d 745] (Bily) and relying on Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152 [22 Cal.Rptr.3d 660] (Weseloh), the trial court sustained a demurrer in favor of defendant architectural firms, reasoning that an architect who makes recommendations but not final decisions on construction owes no duty of care to future homeowners with whom it has no contractual relationship. The Court of Appeal reversed, concluding that an architect owes a duty of care to homeowners in these circumstances, both under the common law and under the Right to Repair Act (Civ. Code, § 895 et seq.).

Building on substantial case law and the common law principles on which it is based, we hold that an architect owes a duty of care to future homeowners in the design of a residential building where, as here, the architect is a principal architect on the project — that is, the architect, in providing professional design services, is not subordinate to other design professionals. The duty of care extends to such architects even when they do not actually build the project or exercise ultimate control over construction. Accordingly, we affirm the judgment of the Court of Appeal.

I.

In considering whether a demurrer should have been sustained, “we accept as true the well-pleaded facts in the operative complaint….” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189, fn. 1 [151 Cal.Rptr.3d 827, 292 P.3d 871].) The facts alleged in plaintiffs’ third amended complaint (the complaint) are as follows.

Skidmore, Owings & Merrill LLP (SOM) and HKS, Inc. (individually and doing business as HKS Architects, Inc.; hereafter HKS), are design professionals. SOM and HKS (collectively defendants) provided architectural and engineering services for The Beacon residential condominiums, a collection of 595 condominium units and associated common areas located in San Francisco (the Project). Although the units were initially rented out for two years after construction, defendants provided their services knowing that the finished construction would be sold as condominiums. A condominium 572*572 association was formed, and the condominium’s conditions, covenants, and restrictions were recorded, before construction commenced.

The homeowners association, plaintiff Beacon Residential Community Association (Association), sued several parties involved in the construction of those condominiums, including several business entities designated as the original owners and developers of the condominium, as well as SOM and HKS, with whom the owners and developers contracted for architectural services. SOM and HKS were the only architects on the Project. Plaintiff alleged that negligent architectural design work performed by defendants resulted in several defects, including extensive water infiltration, inadequate fire separations, structural cracks, and other safety hazards. One of the principal defects is “solar heat gain,” which made the condominium units uninhabitable and unsafe during certain periods due to high temperatures. Plaintiff alleged that the solar heat gain is due to defendants’ approval, contrary to state and local building codes, of less expensive, substandard windows and a building design that lacked adequate ventilation. Defendants are named in the first cause of action (“Civil Code Title 7 — Violation of Statutory Building Standards for Original Construction”), the second cause of action (“Negligence Per Se in Violation of Statute”), and the fifth cause of action (“Negligence of Design Professionals and Contractors”).

According to the complaint, defendants “provided architectural and engineering services” for the Project that “included, but were not limited to, architecture, landscape architecture, civil engineering, mechanical engineering, structural engineering, soils engineering and electrical engineering, as well as construction administration and construction contract management.” Defendants were paid more than $5 million for their work on the Project. In addition to “providing original design services at the outset”, of the Project, defendants played an active role throughout the construction process, coordinating efforts of the design and construction teams, conducting weekly site visits and inspections, recommending design revisions as needed, and monitoring compliance with design plans.

Defendants demurred, contending they owed no duty of care to the Association or its members under the facts alleged. The trial court agreed: “The allegations do not show that either of the architects went beyond the typical role of an architect, which is to make recommendations to the owner. Even if the architect initiated the substitutions, changes, and other elements of design that Plaintiff alleges to be the cause of serious defects, so long as the final decision rested with the owner, there is no duty owed by the architect to the future condominium owners, in the Court’s view. The owner made the final decision according to the third amended complaint.” The trial court granted plaintiff leave to amend the complaint to allege that defendants 573*573″actually dictated and controlled the decision to eliminate [ventilation] ducts, acting in a manner that was contrary to the directions of the owner, or that ignored the owner’s directions,” but plaintiff declined.

The Court of Appeal reversed. It applied the factors set forth by this court in Biakanja v. Irving (1958) 49 Cal.2d 647, 650 [320 P.2d 16] (Biakanja) for determining whether a party owes a duty of care to a third party and concluded that the defendants owed a duty of care to the Association in this case. The court distinguished Weseloh, supra, 125 Cal.App.4th 152, a case that found no duty of care owed by a design engineer to a commercial property owner, on the grounds that Weseloh was decided on summary judgment rather than demurrer and that Weseloh had expressly limited its holding to its facts. The Court of Appeal further concluded that Bily, supra, 3Cal.4th 370, did not support defendants’ position. Finally, the court concluded that the Right to Repair Act expressed a legislative intent to impose on design professionals a duty of care to future homeowners. (See Civ. Code, § 895 et seq.)

We granted review.

II.

(1) “Actionable negligence involves a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594 [83 Cal.Rptr. 418, 463 P.2d 770].) This case is concerned solely with the first element of negligence, the duty of care. Whether a duty of care exists “in a particular case is a question of law to be resolved by the court. [Citation.] [¶] A judicial conclusion that a duty is present or absent is merely `”a shorthand statement … rather than an aid to analysis …. `[D]uty,’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”‘ [Citation.] `Courts, however, have invoked the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act….”‘” (Bily, supra, 3 Cal.4th at p. 397.)

Here we consider whether design professionals owe a duty of care to a homeowners association and its members in the absence of privity. Although the issue presented in this case has not been decided by this court, we do not write on a blank slate. As explained below, courts have found in a variety of circumstances that builders, contractors, and architects owe a duty of care to third parties.

574*574 A.

(2) Although liability for the supply of goods and services historically required privity of contract between the supplier and the injured party, the significance of privity has been greatly eroded over the past century. As we noted more than 50 years ago, “[l]iability has been imposed, in the absence of privity, upon suppliers of goods and services which, if negligently made or rendered, are `reasonably certain to place life and limb in peril.’ [Citations.] There is also authority for the imposition of liability where there is no privity and where the only foreseeable risk is of damage to tangible property. [Citations.]” (Biakanja, supra, 49 Cal.2d at p. 649.) In Biakanja, we held that a notary public who negligently drafted a will was liable to the intended beneficiary of the will. (Id. at pp. 650-651.) We explained that “[t]he determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” (Id. at p. 650.)

The declining significance of privity has found its way into construction law. We described the evolution in Aas v. Superior Court (2000) 24 Cal.4th 627 [101 Cal.Rptr.2d 718, 12 P.3d 1125] (Aas): “Formerly, after a builder had completed a structure and the purchaser had accepted it, the builder was not liable to a third party for damages suffered because of the work’s condition, even though the builder was negligent. (E.g., Fanjoy v. Seales (1865) 29 Cal. 243, 249-250; see also Hale v. Depaoli [(1948)] 33 Cal.2d 228, 230 [201 P.2d 1] [reviewing the former law].) The purchaser, of course, had remedies against the builder in contract and warranty. But injured third parties had no clear remedy until we, following the trend that began withMacPherson v. Buick Motor Co. (1916) 217 N.Y 382 [111 N.E. 1050], qualified the general rule exonerating manufacturers from third party claims with an exception applicable whenever `”the nature of a [manufactured] thing is such that it is reasonably certain to place life and limb in peril when negligently made….”‘ (Kalash v. Los Angeles Ladder Co. (1934) 1 Cal.2d 229, 231-232 [34 P.2d 481], quotingMacPherson v. Buick Motor Co., supra, 111 N.E. 1050, 1053.) Having already held that the manufacturers of defective ladders [citation], elevators [citation], and tires [citation] could be liable to persons not in contractual privity with them yet foreseeably injured by their products, we easily applied the same rule to someone responsible for part of a house, i.e., a defective railing (Hale v. Depaoli, at pp. 230-232).

575*575 “We first recognized a remedy in the law of negligence for construction defects causing property damage, as opposed to personal injury, in Stewart v. Cox [(1961)] 55 Cal.2d 857 [13 Cal.Rptr. 521, 362 P.2d 345]. There, we upheld a homeowner’s judgment against a subcontractor who had negligently applied concrete to the inside of a swimming pool, thereby causing the release of water that damaged the pool, lot and house. In our opinion we noted, and seemingly were influenced by, the `”decisions … plac[ing] building contractors on the same footing as sellers of goods, and … [holding] them to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by the negligence, even after acceptance of the work.”‘ (Id. at p. 862, quoting Prosser, Torts (2d ed. 1955) pp. 517-519.)” (Aas, supra, 24 Cal.4th at p. 637.)

The court in Stewart applied the Biakanja factors to determine the scope of the duty of care: “Here it was obvious that the pool for which Cox provided the gunite work was intended for the plaintiffs and that property damage to them — and possibly to some of their neighbors — was foreseeable in the event the work was so negligently done as to permit water to escape. It is clear that the transaction between [the pool subcontractor] and Cox was intended to specially affect plaintiffs. There is no doubt that plaintiffs suffered serious damage, and the court found, supported by ample evidence, that the injury was caused by Cox’s negligence. Under all the circumstances Cox should not be exempted from liability if negligence on his part was the proximate cause of the damage to plaintiffs.” (Stewart v. Cox, supra, 55 Cal.2d at p. 863 (Stewart).)

Soon after, in Sabella v. Wisler (1963) 59 Cal.2d 21 [27 Cal.Rptr. 689, 377 P.2d 889], we held that a contractor was liable to a homeowner, although the homeowner’s identity was unknown at the time of construction. The contractor had built a house on inadequately compacted soil, causing major subsidence and property damage. Applying the Biakanja factors, we said that although “it appears that… this house was not constructed with the intention of ownership passing to these particular plaintiffs, the Sabellas are members of the class of prospective home buyers for which Wisler admittedly built the dwelling. Thus as a matter of legal effect the home may be considered to have been intended for the plaintiffs, and Wisler owed them a duty of care in construction. (See Prosser, Torts (2d ed. 1955) § 36, pp. 166-168.) It is apparent that harm was foreseeable to prospective owners when the home was constructed upon the inadequately compacted earth in the lot, and it is undisputed that the Sabellas’ home was seriously damaged. Also, there was found to be a close connection between the negligent elements of workmanship for which defendant contractor must be held responsible … and the injury suffered.” (Sabella, at p. 28.)

576*576 Courts have applied these third party liability principles to architects. In Montijo v. Swift (1963) 219 Cal.App.2d 351 [33 Cal.Rptr. 133], the plaintiff sued an architect after falling and injuring herself on a stairway at a bus depot that she alleged had been negligently designed with an inadequate handrail. Relying in part on Stewart, supra, 55 Cal.2d 857, and Hale v. Depaoli, supra, 33 Cal.3d 228, the court said: “Under the existing status of the law, an architect who plans and supervises construction work, as an independent contractor, is under a duty to exercise ordinary care in the course thereof for the protection of any person who foreseeably and with reasonable certainty may be injured by his failure to do so, even though such injury may occur after his work has been accepted by the person engaging his services.” (Montijo, at p. 353.) Similarly, in Mallow v. Tucker, Sadler & Bennett, Architects etc., Inc. (1966) 245 Cal.App.2d 700 [54 Cal.Rptr. 174], the court upheld an architect’s liability to a construction worker where the architect’s plans negligently failed to indicate the location of underground high-voltage transmission lines, resulting in the worker’s electrocution. (Id. at pp. 702-703.)

Architect liability to third parties has not been confined to personal injury; it also extends to property damage. The Court of Appeal in Cooper v. Jevne (1976) 56 Cal.App.3d 860 [128 Cal.Rptr. 724], perhaps the case most similar to the one before us, recognized such liability to condominium purchasers where an architectural firm “prepared and furnished to the builder-seller … architectural drawings and plans and specifications for the construction and other improvements within the … project and acted as supervising architects in the construction of the buildings within the project.” (Id. at p. 867.) Applying the Biakanja factors, Cooper held on demurrer that “the architects’ duty of reasonable care in the performance of their professional services is logically owed to those who purchased the allegedly defectively designed and built condominiums…. The architects must have known that the condominiums they designed and whose construction they supervised were built by [the builder-seller] for sale to the public and that purchasers of these condominiums would be the ones who would suffer economically, if not bodily, from any negligence by the architects in the performance of their professional services.” (Id. at p. 869.)

Similarly, in Huang v. Garner (1984) 157 Cal.App.3d 404 [203 Cal.Rptr. 800], the Court of Appeal overturned a nonsuit in an action by a property owner against a building designer and civil engineer for defective design, including insufficient fire retardation walls, that violated building code standards. (Id. at pp. 411-415.) The court took as a given that design professionals could be held liable to third parties for defective designs causing property damage and economic loss; the only issue was whether negligence had to be proven by expert testimony or could be established by showing departure from then Uniform Building Code requirements as negligence per se. (Huang, 577*577 at pp. 411-414.) In Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278 [136 Cal.Rptr. 603], the court said it is “now well settled that … the architect may be sued for negligence in the preparations of plans and specifications either by his client or by third persons….” (Id. at p. 299.)

B.

(3) The Association argues that the general principle that an architect may be sued in negligence by a future homeowner absent privity is also recognized by statute. The Right to Repair Act establishes a set of building standards for new residential construction and provides that builders and other entities “shall … be liable for” violation of those standards “[i]n any action seeking recovery of damages arising out of” such construction. (Civ. Code, § 896; see id., § 936; all undesignated subsequent statutory references are to this code.) Section 896 states that the deficiencies for which builders and other entities are liable include “the residential construction, design, specifications, surveying, planning, supervision, testing, or observation of construction” of a dwelling unit. The Association points to section 936, which provides in part: “Each and every provision of the other chapters of this title apply to general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals to the extent that the general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract. In addition to the affirmative defenses set forth in Section 945.5, a general contractor, subcontractor, material supplier, design professional, individual product manufacturer, or other entity may also offer common law and contractual defenses as applicable to any claimed violation of a standard.” (Italics added.) Section 937 makes clear that the term “design professionals” includes “architects and architectural firms.”

The Court of Appeal, relying on legislative history, concluded that the Right to Repair Act is “dispositive of the scope of duty” owed by defendants to the homeowners in this case. Defendants make several arguments against this position. First, they observe that whereas the act applies to “new residential units,” the residential units in the Project were initially rented as apartments. Second, defendants contend that even if the Right to Repair Act applies to this case, it does not support imposing a duty of care toward the Association’s members greater than the duty imposed at common law. Highlighting the portion of section 936 that preserves “common law … defenses,” defendants argue that under common law principles of duty articulated by this court, a design professional owes no duty of care to homeowners in the circumstances of this case. Defendants further rely on the established principle that “`”[a] statute will be construed in light of common 578*578 law decisions, unless its language `”clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning a particular subject matter….”‘”‘” (California Assn. of Health Facilities v. Department of Health Services (1997) 16Cal.4th 284, 297 [65 Cal.Rptr.2d 872, 940 P.2d 323].) According to defendants, the Legislature’s limited purpose in enacting the Right to Repair Act in 2002 was to abrogate the “economic loss rule” affirmed in Aas, supra, 24 Cal.4th 627, 636 (seeGreystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1202 [86 Cal.Rptr.3d 196] (Greystone)), not to otherwise create new tort duties.

We need not decide whether the Right to Repair Act is itself dispositive of the issue before us. Assuming defendants are correct that the existence of a common law duty of care is required to maintain a negligence action under the statute, such a duty exists under the facts alleged here. This conclusion follows from an application ofBiakanja and Bily, as we now explain.

III.

As noted, Biakanja set forth a list of factors that inform whether a duty of care exists between a plaintiff and a defendant in the absence of privity: “the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” (Biakanja, supra,49 Cal.2d at p. 650.) Although the application of these factors necessarily depends on the circumstances of each case, it is possible to derive general rules that govern common scenarios. An example is our decision in Bily limiting the duty of care owed by auditing firms to nonclient third parties. We begin here with a review of Bily, whose reasoning provides a useful point of comparison. We then discuss the key considerations that counsel in favor of recognizing a duty of care that design professionals owe to future homeowners in circumstances like those alleged in plaintiff’s complaint.

A.

Bily involved a suit brought by investors in a computer company against the accounting firm that the company had hired to conduct an audit and issue audit reports and financial statements. The plaintiffs claimed that the accounting firm, Arthur Young & Company, had committed negligence in conducting the audit and reporting a $69,000 operating profit rather than the company’s actual loss of more than $3 million. The computer company eventually filed for bankruptcy, and its investors lost money. They sued, claiming injury from reliance on Arthur Young’s allegedly negligent audit. (Bily, supra, 3 Cal.4th at pp. 377-379.)

579*579 We held that an auditor generally owes no duty of care to its client’s investors. (Bily, supra, 3 Cal.4th at p. 407.) In so holding, we recognized the important “`”public watchdog” function'” of auditors (id. at p. 383) but sought to set a reasonable limit on their potential liability for professional negligence given the vast range of foreseeable third party users of audit reports. “Viewing the problem … in light of the [Biakanja] factors,” the court in Bily focused on “three central concerns.” (Id. at p. 398.)

First, “[g]iven the secondary `watchdog’ role of the auditor, the complexity of the professional opinions rendered in audit reports, and the difficult and potentially tenuous causal relationships between audit reports and economic losses from investment and credit decisions, the auditor exposed to negligence claims from all foreseeable third parties faces potential liability far out of proportion to its fault….” (Bily, supra, 3 Cal.4th at p. 398.) In elaborating on this concern, the court observed that “audits are performed in a client-controlled environment.” (Id. at p. 399.) The client “necessarily furnishes the information base for the audit,” “has interests in the audit that may not be consonant with those of the public,” and “predominates in the dissemination of the audit report.” (Id. at pp. 399-400.) “Thus, regardless of the efforts of the auditor, the client retains effective primary control of the financial reporting process.” (Id. at p. 400.)

In addition, the court noted a mismatch between the auditor’s “secondary” role in the financial reporting process and the “primary” role attributed to the auditor as the cause of economic loss in a negligence suit by a third party. (Bily, supra, 3 Cal.4th at p. 400.) Because “the auditor may never have been aware of the existence, let alone the nature or scope, of the third party transaction that resulted in the claim” (ibid.), and because “the ultimate decision to lend or invest is often based on numerous business factors that have little to do with the audit report,” the auditor’s conduct lacks a sufficiently “`close connection'” to the loss of loaned or invested funds to justify recognition of a duty of care to third parties (id. at p. 401). In this context, “the spectre of multibillion-dollar professional liability … is distinctly out of proportion to: (1) the fault of the auditor …; and (2) the connection between the auditor’s conduct and the third party’s injury….” (Bily, at p. 402.)

Second, Bily emphasized that unlike ordinary consumers in product liability cases, “the generally more sophisticated class of plaintiffs in auditor liability cases (e.g., business lenders and investors) permits the effective use of contract rather than tort liability to control and adjust the relevant risks through `private ordering’….” (Bily, supra, 3 Cal.4th at p. 398.) “For example, a third party might expend its own resources to verify the client’s financial statements or selected portions of them that were particularly 580*580 material to its transaction with the client. Or it might commission its own audit or investigation, thus establishing privity between itself and an auditor or investigator to whom it could look for protection. In addition, it might bargain with the client for special security or improved terms in a credit or investment transaction. Finally, the third party could … insist[] that an audit be conducted on its behalf or establish[] direct communications with the auditor with respect to its transaction with the client.” (Id. at p. 403.) “As a matter of economic and social policy, third parties should be encouraged to rely on their own prudence, diligence, and contracting power, as well as other informational tools. This kind of self-reliance promotes sound investment and credit practices and discourages the careless use of monetary resources. If, instead, third parties are simply permitted to recover from the auditor for mistakes in the client’s financial statements, the auditor becomes, in effect, an insurer of not only the financial statements, but of bad loans and investments in general.” (Ibid.)

Third, Bily expressed skepticism that exposing auditors to third party negligence suits would improve the quality of the audits. (Bily, supra, 3 Cal.4th at pp. 404-405.) “In view of the inherent dependence of the auditor on the client and the labor-intensive nature of auditing, we doubt whether audits can be done in ways that would yield significantly greater accuracy without disadvantages. [Citation.] Auditors may rationally respond to increased liability by simply reducing audit services in fledgling industries where the business failure rate is high, reasoning that they will inevitably be singled out and sued when their client goes into bankruptcy regardless of the care or detail of their audits.” (Id. at p. 404.)

Notably, Bily did not categorically hold that auditors never owe a duty of care to third parties. Instead, Bily limited the duty to a “narrow class of persons who, although not clients, may reasonably come to receive and rely on an audit report and whose existence constitutes a risk of audit reporting that may fairly be imposed on the auditor. Such persons are specifically intended beneficiaries of the audit report who are known to the auditor and for whose benefit it renders the audit report.” (Bily, supra, 3 Cal.4th at pp. 406-407.) In situations where an auditor “clearly intended to undertake the responsibility of influencing particular business transactions involving third persons” with “sufficiently specific economic parameters to permit the [auditor] to assess the risk of moving forward,” liability for negligent misrepresentation may extend to persons “to whom or for whom the misrepresentations were made” so long as those persons have actually and justifiably relied on the auditor’s report. (Id. at pp. 408-409.)

581*581 B.

(4) In many ways, the circumstances of the present case stand in contrast to the concerns in Bily that counseled against general recognition of an auditor’s duty of care to third parties. Here we focus on three considerations that drive the analysis and distinguish this case from Bily: (1) the closeness of the connection between defendants’ conduct and plaintiff’s injury; (2) the limited and wholly evident class of persons and transactions that defendants’ conduct was intended to affect; and (3) the absence of private ordering options that would more efficiently protect homeowners from design defects and their resulting harms. We then summarize this analysis in terms of the Biakanja factors, and we distinguish Weseloh, supra, 125 Cal.App.4th 152, the principal case on which defendants rely. As explained below, we hold that an architect owes a duty of care to future homeowners where the architect is a principal architect on the project — that is, the architect, in providing professional design services, is not subordinate to any other design professional — even if the architect does not actually build the project or exercise ultimate control over construction decisions.

1.

First, unlike the secondary role played by the auditor in the financial reporting process, defendants’ primary role in the design of the Project bears a “`close connection'” to the injury alleged by plaintiff. (Bily, supra, 3 Cal.4th at p. 401.) According to the complaint, defendants were the only architects on the Project. In that capacity, defendants “reviewed and approved the course of action where the specifications for the exterior windows … were changed to a design that inadequately prevented heat gain, which causes a seriously defective and nonfunctional condition that is also unhealthy.” Defendants also “recommended that the number of Z ducts [(ventilation ducts)] be reduced by a significant quantity, which is a major factor in the nonfunctional, unhealthy condition [of] the interior of the units.” The complaint alleges that these professional judgments were negligent and rendered the residential units unsafe and uninhabitable during certain periods of the year. Compared to “the connection between the auditor’s conduct and the third party’s injury (which will often be attenuated by unrelated business factors that underlie investment and credit decisions)” (Bily, at p. 402), the connection between defendants’ unique role as the design professionals on the Project and plaintiff’s damages resulting from negligent design is far more direct and immediate.

The trial court assigned dispositive significance to the fact that defendants did not go “beyond the typical role of an architect, which is to make recommendations to the owner,” and that “the final decision rested with the 582*582 owner….” Similarly, defendants contend that “they had no role in the actual construction. Instead, the developer, contractors, and subcontractors retained primary control over the construction process, as well as final say on how the plans were implemented.”

However, even if an architect does not actually build the project or make final decisions on construction, a property owner typically employs an architect in order to rely on the architect’s specialized training, technical expertise, and professional judgment. The Business and Professions Code defines “[t]he practice of architecture” as “offering or performing, or being in responsible control of, professional services which require the skills of an architect in the planning of sites, and the design, in whole or in part, of buildings, or groups of buildings and structures.” (Bus. & Prof. Code, § 5500.1, subd. (a); see id., § 5500.1, subd. (b) [providing a nonexhaustive list of “[a]rchitects’ professional services”].) The profession is licensed and regulated by the California Architects Board (id., §§ 5510, 5510.1, 5510.15, 5526), and the unlicensed or unauthorized practice of architecture is punishable as a misdemeanor (id., §§ 5536, 5536.1). In order to practice architecture, an applicant must pass two specialized exams, must demonstrate eight years of training and educational experience in architectural work, and must complete an internship program. (Id., §§ 5550, 5551, 5552, subd. (a); Cal. Code Regs., tit. 16, §§ 116-117.)

In this case, defendants were the principal architects on the Project. Among all the entities involved in the Project, defendants uniquely possessed architectural expertise. There is no suggestion that the owner or anyone else had special competence or exercised professional judgment on architectural issues such as adequate ventilation or code-compliant windows. Just as a lawyer cannot escape negligence liability to clearly intended third party beneficiaries on the ground that the client has the ultimate authority to follow or reject the lawyer’s advice (see, e.g.,Heyer v. Flaig (1969) 70 Cal.2d 223, 226 [74 Cal.Rptr. 225, 449 P.2d 161]; Lucas v. Hamm (1961) 56 Cal.2d 583, 588 [15 Cal.Rptr. 821, 364 P.2d 685]), so too an architect cannot escape such liability on the ground that the client makes the final decisions. An architect providing professional design services to a developer does not operate in a “client-controlled environment” comparable to the relationship between an auditor and its client. (Bily, supra, 3 Cal.4th at p. 399.) Whereas an auditor’s “client, of course, has interests in the audit that may not be consonant with those of the public” (ibid.), it would be patently inconsistent with public policy to hold that an architect’s failure to exercise due care in designing a building can be justified by client interests at odds with the interest of prospective homeowners in safety and habitability.

Were there any doubt as to defendants’ principal role in the design of the Project, it is dispelled by additional facts alleged here. According to the 583*583 complaint, defendants not only provided design services at the outset of the Project but also brought their expertise to bear on the implementation of their plans and specifications by doing weekly inspections at the construction site, monitoring contractor compliance with design plans, altering design requirements as issues arose, and advising the owner of any nonconforming work that should be rejected — all for a fee of more than $5 million. In other words, defendants applied their specialized skill and professional judgment throughout the construction process to ensure that it would proceed according to approved designs. The work defendants performed does not resemble “a broadly phrased professional opinion based on a necessarily confined examination” of client-provided information (Bily, supra, 3 Cal.4th at p. 403), nor did defendants act merely as “suppliers of information and evaluations for the use and benefit of others” (id. at p. 410). Instead, defendants played a lead role not only in designing the Project but also in implementing the Project design.

Nor do we find persuasive defendants’ claim that the connection between their conduct and plaintiff’s injury is “attenuated because … when the developer sold the units two years after construction, it was aware of, and concealed, the alleged defects.” This specific allegation, if true, may inform whether defendants’ conduct was the proximate cause of plaintiff’s injury. (See, e.g., Gonzalez v. Derrington(1961) 56 Cal.2d 130, 134 [14 Cal.Rptr. 1, 363 P.2d 1] [“independent, intervening cause” may preclude finding of proximate cause]; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1214, pp. 590-591.) It also may give rise to a claim of equitable indemnity by defendants against the developer. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1197-1198 [246 Cal.Rptr. 629, 753 P.2d 585];Greystone, supra, 168 Cal.App.4th at p. 1208.) There is no reason to think in this case or in general that the developer and other major players have “left the scene” via bankruptcy, as is often the case with auditor liability suits. (Bily, supra, 3 Cal.4that p. 400.) But because the developer’s alleged misdeeds are themselves derivative of defendants’ allegedly negligent conduct, they do not diminish the closeness of the connection between defendants’ conduct and plaintiff’s injury for purposes of determining the existence of a duty of care.

2.

Second, recognizing that an architect who is a principal provider of professional design services on a residential building project owes a duty of care to future homeowners does not raise the prospect of “`liability in an indeterminate amount for an indeterminate time to an indeterminate class.'” (Bily, supra, 3 Cal.4th at p. 385,quoting Ultramares Corp. v. Touche (N.Y. 1931) 255 N.Y. 170 [174 N.E. 441, 444].) As the complaint here alleges, defendants engaged in work on the Project with the knowledge that the 584*584 finished construction would be sold as condominiums and used as residences. There was no uncertainty, as there was in Bily, as to “the existence, let alone the nature or scope, of the third party transaction that resulted in the claim.” (Bily, supra, 3 Cal.4th at p. 400.) Defendants’ work on the Project “was intended to affect the plaintiff,” and “the `end and aim’ of the transaction was to provide” safe and habitable residences for future homeowners, a specific, foreseeable, and well-defined class. (Biakanja, supra, 49 Cal.2d at p. 650.) There is no “spectre of vast numbers of suits and limitless financial exposure” in this case. (Bily, at p. 400.) Instead, defendants “clearly intended to undertake the responsibility of influencing particular business transactions [(i.e., condominium purchases)] involving third persons [(i.e., prospective homeowners)]” (id. at p. 408) and could therefore “ascertain the potential scope of its liability and make rational decisions regarding the undertaking” (id. at p. 409). Further, as noted, defendants can limit their liability in proportion to fault through an action for equitable indemnification.

Defendants point to a provision in the contract with the developer that expressly disclaims the existence of any “third-party beneficiary of the obligations contained in the Agreement.” But we have never held that third party beneficiary status is a prerequisite to alleging negligence. In Bily, we noted only that third party beneficiaries “may under appropriate circumstances possess the rights of parties to the contract” (Bily, supra, 3 Cal.4th at p. 406, fn. 16), not that the lack of such status precludes liability in tort. If anything, the contract provision on which defendants rely “only serves to emphasize the fact that [defendants] were more than well aware that future homeowners would necessarily be affected by the work that they performed,” as the Court of Appeal observed.

3.

Third, the prospect of private ordering as an alternative to negligence liability is far less compelling here than in Bily. Whereas “[i]nvestors, creditors, and others who read and rely on audit reports and financial statements are not the equivalent of ordinary consumers” because “they often possess considerable sophistication in analyzing financial information and are aware from training and experience of the limits of an audit report `product,'” the average home buyer is more akin to “the `presumptively powerless consumer’ in product liability cases.” (Bily, supra, 3Cal.4th at p. 403.) The typical home buyer “`clearly relies on the skill of the developer and on its implied representation that the house will be erected in reasonably workmanlike manner and will be reasonably fit for habitation. He has no architect or other professional adviser of his own, he has no real competency to inspect on his own, his actual examination is, in the nature of things, largely superficial, and his opportunity for obtaining meaningful protective changes 585*585 in the conveyancing documents prepared by the builder vendor is negligible.'” (Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 228 [74 Cal.Rptr. 749] (Kriegler).) As Chief Justice Traynor said for the court in Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850 [73 Cal.Rptr. 369, 447 P.2d 609], “the usual buyer of a home is ill-equipped with experience or financial means to discern … structural defects. [Citation.] Moreover a home is not only a major investment for the usual buyer but also the only shelter he has. Hence it becomes doubly important to protect him against structural defects that could prove beyond his capacity to remedy.” (Id.at p. 867.)

Defendants contend that plaintiff has options for redress within the bounds of privity: Plaintiff may seek an assignment of the developer’s rights against defendants, or plaintiff may pursue its design defect claims against the developer, and the developer may in turn seek redress from defendants. But it is questionable whether this more attenuated form of liability will consistently provide adequate redress. More importantly, the chief interest of prospective homeowners is to avoid purchasing a defective home, not only to have adequate redress after the fact. The long-established common law rule holding architects as independent professionals directly accountable to third party homeowners is most likely to vindicate that interest.

Moreover, as we recognized in Bily, the sophisticated consumer of audit reports “might expend its own resources to verify the client’s financial statements or selected portions of them that were particularly material to its transaction with the client. Or it might commission its own audit or investigation, thus establishing privity between itself and an auditor or investigator to whom it could look for protection.” (Bily, supra,3 Cal.4th at p. 403.) But it is unrealistic to expect home buyers to take comparable measures. A liability rule that places the onus on home buyers to employ their own architects to fully investigate the structure and design of each home they might be interested in purchasing does not seem more efficient than a rule that makes the architects who designed the homes directly responsible to home buyers for exercising due care in the first place. This seems especially true in “today’s society” given the “mass production and sale of homes” (Kriegler, supra, 269 Cal.App.2d at p. 227), such as the 595-unit condominium project in this case.

4.

For the reasons above, we conclude that the allegations in the complaint are sufficient, if proven, to establish that defendants owed a duty of care to the homeowners who constitute the Association. Our conclusion, which coheres with a substantial body of case law (ante, at pp. 574-577), may be 586*586 summarized in terms of the Biakanja factors: (1) Defendants’ work was intended to benefit the homeowners living in the residential units that defendants designed and helped to construct. (2) It was foreseeable that these homeowners would be among the limited class of persons harmed by the negligently designed units. (3) Plaintiff’s members have suffered injury; the design defects have made their homes unsafe and uninhabitable during certain periods. (4) In light of the nature and extent of defendants’ role as the sole architects on the Project, there is a close connection between defendants’ conduct and the injury suffered. (5) Because of defendants’ unique and well-compensated role in the Project as well as their awareness that future homeowners would rely on their specialized expertise in designing safe and habitable homes, significant moral blame attaches to defendants’ conduct. (6) The policy of preventing future harm to homeowners reliant on architects’ specialized skills supports recognition of a duty of care. Options for private ordering are often unrealistic for typical homeowners, and no reason appears to favor homeowners as opposed to architects as efficient distributors of loss resulting from negligent design.

Defendants contend that the balance of Biakanja factors is no different in this case than in Weseloh, supra, 125 Cal.App.4th 152, where the court found no duty of care owed by a design engineer to the third party owner of commercial property. But the defendants in Weseloh played a materially different role in the construction project than defendants did here.

In Weseloh, a property owner (Weseloh) contracted with a general contractor (Wessel) to build an automobile dealership on the property. A subcontractor, Sierra Pacific Earth Retention Corporation (Sierra), built the retaining walls for the project. Sierra, in turn, enlisted Charles Randle, an employee of Owen Engineering Company (Owen), to design two retaining walls for a fee of $1,500 or $2,200. Neither Randle nor Owen had a contractual relationship with Weseloh, and neither supervised the construction of the retaining walls. At Sierra’s request, Randle and Owen inspected the retaining walls after construction. When a portion of the retaining walls failed, resulting in $6 million of property damage, Weseloh sued Wessel, Sierra, Randle and Owen. Weseloh entered into a settlement agreement with Wessel and Sierra, but the suits against Randle and Owen went forward. On summary judgment, the trial court concluded that Randle and Owen owed no duty to Weseloh, and the Court of Appeal affirmed. (See Weseloh, supra, 125 Cal.App.4th at pp. 158-162.)

As suggested by the size of their fee, the defendants in Weseloh had a limited role in the construction project. The “undisputed evidence” showed that “neither Randle nor Owen had a `role in the construction’ of the retaining walls….” (Weseloh, supra, 125 Cal.App.4th at p. 164.) In addition, 587*587 although “Randle was aware the property was owned by Weseloh,” the Court of Appeal found it significant that Randle and Owen provided their services to Sierra, another engineering firm. As the court observed, “the earth retention calculations prepared for Wessel … identified the preparer as [Sierra], not Randle or Owen. This evidence bolsters the position that Randle and Owen’s role in the project was to primarily benefit Sierra as the preparer of the calculations. To the extent Randle and Owen’s participation in the project would also benefit Wessel and the Weseloh plaintiffs, it was only through Sierra.” (Id.at p. 167; see id. at p. 171, fn. 5 [noting that Sierra paid $1.2 million of the alleged $6 million liability under the settlement agreement].)

The circumstances in this case are plainly different. Unlike Randle and Owen, whose work informed their client’s own exercise of technical expertise in preparing earth retention calculations, defendants here were the sole entities providing architectural services to the Project. They did not provide their specialized services to a client or other entity that in turn applied its own architectural expertise to the plans and specifications supplied by defendants. Moreover, defendants not only applied their expertise to designing the Project but further applied their expertise to ensure that construction would conform to approved designs. Weseloh, which expressly limited its holding to its facts (Weseloh, supra, 125 Cal.App.4th at p. 173), does not stand for the broad proposition that a design professional cannot be liable in negligence to third parties so long as it renders “professional advice and opinion” (id. at p. 169) without having ultimate decisionmaking authority. Instead, Weseloh merely suggests that an architect’s role in a project can be so minor and so subordinate to the role or judgment of other design professionals as to foreclose the architect’s liability in negligence to third parties.

Moreover, the Weseloh court, reviewing the case at the summary judgment stage, concluded that the plaintiffs had “failed to produce evidence showing how and the extent to which their damages were caused by the asserted design defects.” (Weseloh, supra, 125 Cal.App.4th at p. 168.) The court also noted the absence of evidence that “Sierra actually used Randle and Owen’s design without alteration in constructing the retaining walls.” (Ibid.) These observations regarding lack of causation not only informed Weseloh‘s duty analysis (see id. at pp. 168-169) but also provided an independent basis for granting summary judgment in the defendants’ favor. In the present case, which is before us on demurrer, no similar causation problem confronts us. According to the complaint, defendants approved the use of defective windows and designed a defective ventilation system, all of which created conditions that made the homes uninhabitable for portions of the year. The complaint sufficiently alleges the causal link between defendants’ negligence and plaintiff’s injury that was lacking in Weseloh.

588*588 IV.

For the reasons above, we conclude that the trial court erred in sustaining defendants’ demurrer on the ground that they owed no duty of care to the Association’s members. Because the Court of Appeal correctly reversed the trial court’s judgment, we affirm the Court of Appeal’s judgment.

Cantil-Sakauye, C. J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J., and Richman, J.,^[*] concurred.

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

Keywords:Construction Defect

Woodridge Escondido Property Owners Association v. Superior Court/Nielsen

(Apr. 26, 2004, D043860)

(2005) 130 Cal.App.4th 559

Feist, Vetter, Knauf and Loy, Alan H. Burson and Lisa Frazee Morgosh for Plaintiff and Respondent.

Joseph J. Rego for Defendant and Appellant.

NARES, Acting P. J.

Summary by Mary M. Howell, Esq.:

Association entitled to have court order requiring owner to remove encroachment (deck in easement area) which had been inadvertently and incorrectly approved by Architectural Review Committee.  Association also awarded its attorney fees and court costs.

**End Summary**

This case involves a dispute between a homeowners association and a homeowner regarding the construction of a wooden deck over an easement. Plaintiff Woodridge Escondido Property Owners Association (association) managed a planned residential development known as Woodridge in Escondido. Defendant Paul Nielsen owned a home in Woodridge and had a side yard easement over the adjoining property of his neighbor, Virginia Kendall. The declaration of covenants, conditions and restrictions (CC&R’s) expressly prohibited the installation of “any permanent structure other than irrigation systems” on the easement. (Italics added.) After he received permission from Woodridge’s architectural committee, Nielsen constructed a wooden deck that encroached upon the easement. The association’s board of directors later found that the architectural committee had erroneously approved the construction of the deck, ordered Nielsen to remove the portion of the deck that encroached upon the easement, and offered to pay for the removal cost.^[1] Nielsen refused the offer. The association brought this action for injunctive and declaratory relief against him, seeking an order requiring him to remove the encroaching portion of the deck. The association also recorded a notice of pendency of action (lis pendens).^[2]

The court granted the association’s motion for summary judgment and its motion for attorney fees. After the court issued an order granting Nielsen’s motion to expunge the lis pendens, the association petitioned for writ relief (Woodridge Escondido Property Owners Assn. v. Superior Court/Nielsen (Apr. 26, 2004, D043860) [nonpub. opn.]). This court granted the petition and issued a peremptory writ directing the court to vacate that order and enter an order denying Nielsen’s motion.

Nielsen appeals the summary judgment and the order granting the association’s motion for attorney fees. Nielsen also purports to appeal from the order granting his motion to expunge the lis pendens, and he requests “review” of this court’s writ decision. For reasons we shall explain, we affirm the summary judgment and award of attorney fees in favor of the association and conclude that we have no authority to either reach the merits of Nielsen’s purported appeal of the expungement order or review this court’s final writ decision.

FACTUAL AND PROCEDURAL BACKGROUND^[3]

The homes in the Woodridge Escondido development (development) are a type known as “zero lot line.” One exterior side wall of each home is built on one of the side yard property lines of the lot on which the home is located (the lot on which the home is located is sometimes referred to as the dominant tenement). Each lot has a five-foot easement over the side yard of the adjacent lot that belongs in fee to the owner of that neighboring lot (which is sometimes referred to as the servient tenement).

A. CC&R’s

Article IV (Architectural Control) of the subject CC&R’s requires written approval of all “structure[s] or improvement[s]” to be built or installed on any lot in the development, and provides:

“No building, fence, wall, patio, patio cover or other structure or improvement . . . shall be commenced, erected, placed, installed or altered upon any Lot until the location and the complete plans and specifications . . . have been submitted to and approved in writing as to . . . location to surrounding structures . . . by the Board, or by the architectural committee composed of at least three . . . and not more than [five] representatives from the membership of the Association appointed by and serving at the pleasure of the Board. All or any number of the members of the architectural committee may be members of the Board. In the event no architectural committee is named, the Board shall serve as the architectural committee. . . .” (Italics added.)

Article X, section 1, which pertains to the enforcement of the CC&R’s, declares that a violation of the CC&R’s is a nuisance for which the association and “any owner” may seek a remedy:

“The Association and any owner shall have the right to enforce, by any proceedings at law or in equity, all restrictions, conditions, covenants and reservations now or hereafter imposed by the provisions of [these CC&R’s]. . . . The result of every act or omission whereby any convenant contained in [these CC&R’s] is violated in whole or in part is hereby declared to be a nuisance, and every remedy against nuisance, either public or private, shall be applicable against every such act or omission. . . .” (Italics added.)

Article X, section 8(c), which is of central importance in this appeal, limits use of side yard easements in the development and prohibits the owners of dominant tenements from installing “any permanent structure other than irrigation systems” on appurtenant side yard easements.

Article X, section 9 (Litigation) of the CC&R’s contains an attorney fees provision that authorizes the prevailing party in litigation commenced by the association or any homeowner to recover costs of suit and reasonable attorney fees.

B. Nielsen’s Lot and Deed Restrictions

Nielsen owns lot 64 in the development. Lot 64 is subject to the CC&R’s and is located at 2234 Hilton Head Glen in the City of Escondido. The deed transferring title of the property to Nielsen (deed) described the “easement appurtenant to lot 64 on, over and across that portion of” the neighboring lot (lot 63) and, like article X, section 8(c) of the CC&R’s, prohibited Nielsen from using the easement for the installation of “any permanent structure other than irrigation systems”:

“The owner of Lot 64 may use the easement granted herein for access, recreation and landscaping (including irrigation systems) purposes only and shall not use the easement in violation of any law or for the installation or maintenance of any permanent structure, other than irrigation systems. . . .” (Italics added.)

C. Nielsen’s Deck and Hot Tub^[4]

Nielsen built a 17- by 21-foot deck with a full-size hot tub that extended into the five-feet-wide side yard easement over the adjacent side yard of the neighboring lot (lot 63) owned by Virginia Kendall.^[5] Two members of the architectural committee had approved Nielsen’s architectural approval request form pertaining to the deck.

The association’s board of directors later found that the architectural committee had erroneously approved the construction of the deck, decided that the deck should be removed, and offered to pay Nielsen for the removal cost.^[6]

D. Association’s Complaint and Lis Pendens

In April 2003 the association filed a complaint for injunctive and declaratory relief against Nielsen to enforce the CC&R’s and the provisions of the deed pertaining to the easement. In the prayer of the complaint, the association sought a declaration of the parties’ rights and obligations under the CC&R’s, and an order requiring Nielsen to remove the portion of the deck that was encroaching on the subject easement. The association also recorded and served on Nielsen a notice of pendency of action (lis pendens).

E. Association’s Motion for Summary Judgment and Nielsen’s Motion To Expunge Lis Pendens

The association filed a motion for summary judgment. Nielsen filed a motion to expunge the lis pendens. After hearing argument, the court issued an order granting summary judgment for the association. The court found “no triable issue as to whether [Nielsen] violated the CC&Rs by constructing a permanent structure on the easement.” (Italics added.) The court also found as a matter of law that “the deck constitute[d] a permanent structure within the meaning of the CC&Rs.” (Italics added.) Furthermore, the court found that to the extent Nielsen raised the relative hardship doctrine in opposing summary judgment, “no evidence has been submitted in support of the application of this doctrine.”

The court also issued an order granting Nielsen’s motion to expunge the lis pendens. In expunging the lis pendens, the court confirmed its earlier tentative ruling that provided in part:

“The court finds that the [association’s] complaint failed to state a real property claim as defined in [Code of Civil Procedure^[7] section 405.4.^[8]Although the complaint alleges that [Nielsen’s] deck encroaches upon an easement, the court finds that the complaint does not affect possession of real property since a judgment in favor of [the association] will merely require removal of personal property, to wit, the deck.” (Italics added.)

F. This Court’s Writ Directing the Court To Vacate Its Order Expunging the Lis Penden (D043860), and the Supreme Court’s Rejection of Nielsen’s Petition for Review

The association filed a writ petition in this court (case No. D043860) challenging the expungement of the lis pendens on the grounds that the definition of “real property claim” in section 405.4 (see fn. 8, ante) included “the use of an easement identified in the pleading” and that in the summary judgment proceeding the association had established the probable validity of its claim against Nielsen.

In an unpublished opinion filed in April 2004 (Woodridge Escondido Property Owners Assn. v. Nielsen, supra, D043860), this court concluded that the association was entitled to writ relief because it had asserted a “real property claim” against Nielsen within the meaning of section 405.4 by filing a complaint for declaratory and injunctive relief alleging that Nielsen violated the CC&R’s by constructing a deck in the restricted area of the side yard easement. This court reasoned that “[w]hether or not the deck [was] labeled personal property, a fixture or anything else, the association’s claim against Nielsen [was] for his use (misuse) of the side yard easement.” This court ordered the issuance of a writ directing the court to vacate its order granting the expungement, enter a new order denying Nielsen’s motion to expunge the lis pendens, and entertain any motion for reasonable attorney fees and costs the association might bring pursuant to section 405.38. In July 2004, the superior court issued an order vacating the order granting Nielsen motion to expunge the lis pendens and entered a new order denying that motion.

G. Attorney Fees Award, Judgment, and Appeal

As the prevailing party on its action to enforce the CC&R’s, the association brought a motion for attorney fees, which Nielsen opposed. The court issued an order (the attorney fees order) granting the motion and awarding reasonable attorney fees to the association in the amount of $9,672.35. The award did not include attorney fees incurred by the association in the writ petition proceeding in this court (case No. D043860, discussed, ante).

On March 25, 2004, the court entered judgment in favor of the association. Nielsen’s timely appeal from the judgment and attorney fees order followed.

DISCUSSION

A. Summary Judgment

We first address Nielsen’s appeal of the summary judgment entered in favor of the association.

1. Background and Nielsen’s contentions

In granting summary judgment in favor of the association, the court found no triable issue of material fact as to whether Nielsen violated the CC&R’s by constructing a permanent structure on the side yard easement on Kendall’s property. The court also found that the deck was a permanent structure within the meaning of the CC&R’s as a matter of law and that, to the extent Nielsen raised the relative hardship doctrine (discussed, post) in opposing summary judgment, he had submitted no evidence in support of the application of that doctrine.

Nielsen does not dispute that his deck extended over the side yard easement on Kendall’s property. He contends the summary judgment should be reversed because (1) there is no evidence to show the deck was a permanent structure within the meaning of the CC&R’s; (2) there are triable issues of material fact whether the deck was a permanent structure in violation of article X, section 8(c) of the CC&R’s, and whether the hot tub motor caused any vibration in Kendall’s house; (3) there are also triable issues of material fact as to whether he was required to seek approval by a three-member panel of the architectural committee, whether “the Board [sic]^[9]erroneously approved [his] request [to build the deck],” whether his architectural approval request form was erroneously approved by the architectural committee, and whether that form was incomplete; (4) the association “act[ed] in an arbitrary manner by directing [him] to remove the deck extending over the easement, soon after his application was approved”; (5) the association’s claim that Nielsen’s hot tub caused a nuisance on Kendall’s property is based on insufficient evidence; (6) the relative hardship doctrine should be applied because there is nothing to show that the association, in bringing this action for injunctive and declaratory relief “based on a breach of the CC&Rs and the deck and hot tub causing a nuisance to [Kendall’s] residence,” has been irreparably damaged; and (7) the association denied Nielsen’sright to a hearing before the board of directors approved a motion requesting him to remove the portion of the deck that extended over the easement.

2. Standard of review

On an appeal from a grant of summary judgment, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) “In performing our de novo review, we view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing [the prevailing party’s] own showing, and resolving any evidentiary doubts or ambiguities in [favor of the losing party].” (Id. at p. 768.)

“[T]he party moving for summary judgment [(here the association)] bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar), fn. omitted.) “[A] plaintiff bears the burden of persuasion that `each element of’ the `cause of action’ in question has been `proved,’ and hence that `there is no defense’ thereto. ([] § 437c, subd. (o)(1).)” (Aguilar, supra, 25 Cal.4th at p. 850.)

If the moving plaintiff meets its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, the burden shifts to the defendant (here Nielsen) “to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.)

3. Analysis

The key factual issue in this case is whether Nielsen’s deck, which encroached upon the side yard easement on Kendall’s property, violated the provisions of article X, section 8(c) of the CC&R’s because it was a permanent structure prohibited by those provisions. For reasons we now discuss, we conclude the association met its initial burden of production to demonstrate that the deck was a permanent structure, and thus met its burden to make a prima facie showing of the nonexistence of any triable issue of material fact.

In support of its summary judgment motion, the association presented to the court a copy of the CC&R’s. The plain language of article X, section 8(c) of the CC&R’s limits use of the side yard easements in the development, including Nielsen’s easement on Kendall’s property over which he built his deck, and it prohibits the owners of dominant tenements (including Nielsen) from installing “any permanent structure other than irrigation systems” on the appurtenant side yard easements. That section provides:

“Each side yard easement may be used by the Owner(s) of the Dominant Tenement to which it is appurtenant for access, landscaping (including irrigation systems) and recreational purposes only. The Owner(s)of the Dominant Tenement shall not use the appurtenant side yard easement in violation of any law or for the installation or maintenance of any permanent structure other than irrigation systems. . . .” (Italics added.)

The association also submitted authenticated photocopies of color photographs showing the location and construction details of the deck that abutted the house of Nielsen’s neighbor, Kendall (the owner of the servient tenement), as well as a declaration by Kendall, who described the deck as “a wooden deck structure [constructed] over the easement on my property which abuts my house and completely covers the drainage culvert established by the builder.” Kendall also stated in her declaration that “the legs of the deck are buried into the ground and it is attached to his house.”

Nielsen challenges Kendall’s declaration, claiming that it “is nothing more than hearsay because she was not a party to the action against [him].” This claim is unavailing. Section 437c, subdivision (b)(5) provides that evidentiary objections not made at the hearing on a summary judgment motion “shall be deemed waived.” Here,Nielsen asserted his hearsay objection to Kendall’s declaration in his written response to the association’s separate statement of undisputed material facts. However, a mere objection is insufficient. To preserve an evidentiary objection for appellate review, the objecting party must also obtain a ruling on the objection from the trial court. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1[evidentiary objections deemed waived because “the record contain[ed] no rulings on those objections”], disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) Here, Nielsen has failed to show that the court ruled on his hearsay objection to Kendall’s declaration, and our review of the record discloses no such ruling. Accordingly, we deem Nielsen’s evidentiary objection waived and view Kendall’s declaration as having been admitted in evidence as part of the record for purposes of this appeal. (Sharon P. v. Arman, Ltd., supra, at p. 1186, fn.1.)

We reject Nielsen’s contention that there is “no evidence to demonstrate the deck [was] a permanent fixture.” Neither the CC&R’s nor Nielsen’s grant deed^[10] define the term “permanent fixture.” The Oxford English Dictionary Online (OED Online), however, defines “permanent” as “[c]ontinuing or designed to continue indefinitely without change; abiding, lasting, enduring; persistent.”^[11]

Here, the association’s photographic evidence and Kendall’s declaration establish that because Nielsen’s deck was attached to his house and its supporting legs or posts were buried in the ground, it was “designed to continue indefinitely without change” and was constructed to last or endure. Nielsen’s contention that the deck was not permanent because it could be (and has been) removed, is unavailing. As already noted, article X, section 8(c) of the CC&R’s prohibits the owner of a dominant tenement (in this case, Nielsen) from constructing any permanent structure “other than irrigation systems” over an appurtenant side yard easement. The plain language of that section shows that for purposes of enforcing the CC&R’s, “permanent” and “removable” are not mutually exclusive terms. Although irrigation pipes and fixtures, like a deck, can be removed from an easement, they (like a deck) are designed to continue indefinitely without change, and thus are no less “permanent” than a deck. Article X, section 8(c) of the CC&R’s, however, like Nielsen’s grant deed, provides an exception permitting the construction of such permanent irrigation systems on appurtenant side yard easements.

We thus conclude that the association met its burden of producing evidence showing that the deck was permanent within the meaning of article X, section 8(c) of the CC&R’s. Accordingly, we also conclude that the association met its burden of showing that Nielsen’s deck was a prohibited permanent structure that encroached upon the appurtenant side yard easement on Kendall’s property in violation of that section of the CC&R’s.

Because the association met its burden of producing evidence showing thatNielsen’s construction of the deck on the easement on Kendall’s property was a violation of the CC&R’s, we further conclude it also met its burden of producing evidence showing that the encroaching portion of the deck was a nuisance within the meaning of article X, section 1 of the CC&R’s, which provides in part that “[t]he result of every act or omission whereby any convenant contained in [these CC&R’s] is violated in whole or in part is hereby declared to be a nuisance” (italics added), and “every remedy against nuisance, either public or private, shall be applicable against every such act or omission. . . .” (Italics added.) That section also expressly authorizes the association to enforce the CC&R’s “by any proceedings at law or in equity.” In sum, the association met its initial burden of producing evidence showing prima facie entitlement to the injunctive and declaratory relief for which it prayed in its complaint against Nielsen.^[12]

Because the association met its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, the burden shifted to Nielsen to make a prima facie showing of the existence of such an issue. (Aguilar, supra, 25 Cal.4th at p. 850.) In support of his written opposition to the summary judgment motion, Nielsen submitted his own declaration, which he cited several times in his written response to the association’s separate statement of undisputed material facts. In its order granting the summary judgment motion, however, the court found that Nielsen’s declaration failed to comply with section 2015.5,^[13] and ruled that it was inadmissible.^[14] On appeal, Nielsen does not contend the court erred in excluding his declaration.

Because Nielsen’s excluded declaration was the purported evidence that he offered to show the existence of a triable issue of material fact, we conclude that he failed to meet his burden “to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)

Nielsen’s contention that the association acted in an arbitrary manner by directing him to remove the encroaching portion of the deck soon after its construction was approved is unavailing because it is not supported by evidence, and because the undisputed facts show that the association, its board of directors, and its architectural committee had no authority to approve the construction of any permanent structure other than an irrigation system on the subject easement in violation of the express prohibitory provisions of article X, section 8(c) of the CC&R’s (discussed, ante).

Nielsen’s reliance on Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394 (Denktas) is misplaced. There, a homeowners association brought an action for injunctive relief and damages against two homeowners, alleging they had painted their house in violation of the association’s CC&R’s, which required the homeowners to obtain approval of the association’s architectural review committee before painting the exterior of the house and restricted the color choices to those the association approved. (Id. at pp. 1395-1396.) The homeowners hired a painter to paint their house green and pink, and the painter took paint samples to the association’s president to obtain his approval. The president approved the green paint color, but told the painter to “tone down” the pink color. (Id. at p. 1396.) When the painter returned with a different shade of pink, the president approved that color. (Ibid.) The trial court entered judgment in favor of the homeowner defendants, but denied their request for attorney fees. (Ibid.) The Court of Appeal reversed the order denying the homeowners’ request for attorney fees, reasoning that they were entitled to an award of reasonable attorney fees under the fees provision of the CC&R’s because they had successfully defended the suit that the homeowners association had brought against them, and thus they were the prevailing parties. (Id. at pp. 1398, 1399.)

Denktas is factually distinguishable in that the restrictive covenants in that case did not prohibit that which the president of the homeowners’ association approved: the color of the paint that the homeowner defendants had used to paint the exterior of their house. (See Denktas, supra, 13 Cal.App.4th at p. 1396.) The restrictive covenants required the homeowners to obtain approval of the color they chose, and they obtained that approval. (Ibid.) Here, in contrast, the CC&R’s expressly prohibited that which the board of directors found the architectural committee had erroneously approved: the construction of a “permanent structure other than irrigation systems” (Nielsen’s deck) over the appurtenant side yard easement on Kendall’s property.

We reject Nielsen’s contention that the relative hardship doctrine (see Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 754 (Hirshfield))^[15] should be applied because (he asserts) there is nothing to show that the association, in bringing this action for injunctive and declaratory relief “based on a breach of the CC&Rs and the deck and hot tub causing a nuisance to [Kendall’s] residence,” has been irreparably damaged.Nielsen is claiming that the association is not entitled to summary judgment because proof of irreparable injury is an element of a claim for injunctive relief and here the association is only suing on behalf of Nielsen’s neighbor, Kendall, and thus cannot show that it has suffered an irreparable injury. Nielsen cites Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 238, which held that a trial court has discretion to deny a mandatory injunction to remove an encroachment, and in exercising that discretion the court should balance or weigh the relative hardships. Nielsen also relies on Christensen, supra, 114 Cal.App.2d 554, and Hirshfield, supra, 91 Cal.App.4th 749, which he asserts are on point.

Nielsen, however, incongruously maintains that because he has removed the encroaching portion of the deck, “[t]he allegation regarding the removal of a portion of the deck that encroaches over the easement is no longer an issue.” Nielsen thus appears to concede that application of the relative hardship doctrine is a moot issue because the association’s claim for a mandatory injunction is now moot.

Assuming that the issue of the applicability of the relative hardship doctrine is not moot with respect to the association’s remaining claim for declaratory relief, Nielsenhas presented no evidence with respect to the relative hardships that he claims should be balanced in this matter. As already discussed, Nielsen’s evidence primarily consisted of his own declaration (see fn. 14, ante), which the court, in a ruling Nielsen does not challenge, found inadmissible. Even if Nielsen’s brief declaration were admissible, it contains no evidence regarding the relative hardships that he claims should be weighed.

The Christensen and Hirshfield cases, upon which Nielsen relies, are distinguishable in that neither case involved an action by a homeowners association authorized to remove an easement encroachment that violated the express provisions of applicable restrictive covenants. In Christensen, which involved a dispute between owners of adjoining parcels of real property in Santa Cruz, the plaintiff sought a mandatory injunction to compel removal of a cement abutment that the defendants had mistakenly constructed on the plaintiff’s land. (Christensen, supra, 114 Cal.App.2d at p. 555.) In Hirshfield, which involved a dispute between owners of adjoining parcels of real property in Bel-Air, the defendants’ cement block wall encroached upon the plaintiffs’ land. (Hirshfield, supra, 114 Cal.App.2d at p. 756.) As already noted, none of the plaintiffs in those cases was a homeowners association charged with the responsibility of enforcing valid restrictive covenants, and in neither case did the encroachment constitute a violation of such covenants.

Also unavailing is Nielsen’s contention that the summary judgment should be reversed because the association denied him a hearing before the board of directors approved a motion requesting him to remove the portion of the deck that extended over the easement. Ordinarily, issues not raised in the trial court proceedings are waived. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) ¶ 1:44, p. 1-9 (rev. #1, 2002).) Here, a review of both Nielsen’s written opposition to the summary judgment motion and the reporter’s transcript of the oral argument on that motion shows that Nielsen did not raise this contention in the trial court, and thus he has waived this point. Were it necessary to reach the merits of this contention, we would conclude the record shows that Nielsen was present at the board of directors meeting at which the board approved the motion to direct him to remove the encroaching portion of his deck and that he participated in the proceedings and had an opportunity to be heard. Specifically, the board of directors’ October 15, 2002 minutes indicate that Nielsen was the president of the association at the time of the meeting, and the minutes referred to item No. 2230-34 HH on the agenda as “Problem re deck at 2234 abutting home at 2230, Nielsen and Kendall.” Those minutes also state:

“Paul [Nielsen] shared items in a title report which he felt were apropos. Mrs. Kendall stated her case, including not having access to the side of her home, noise from spa heater and what she called `illegality’ of a permanent structure in the area she owned (servient tenement). She stated if she decided to sell, the buyer would not be able to get clear title. She also pointed out she was not advised of project in advance and had no opportunity to state her objections on the [architectural approval request form]. At this point Paul excused himself so that the Board could vote.”^[16]

In sum, the record shows that Nielsen failed to meet his burden of presenting evidence establishing the existence of a triable issue of material fact, and the association met its burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. Accordingly, we affirm the summary judgment.

B. Attorney Fees Order

Nielsen also appeals the attorney fees order that awarded reasonable attorney fees in the amount of $9,672.35 to the association as the prevailing party in this matter. The record shows that the award was based on article X, section 9, of the CC&R’s, which provides in part that “[i]n the event the Association . . . shall commence litigation to enforce any of the Covenants, Conditions or Restrictions contained in [the CC&R’s], the prevailing party in such litigation shall be entitled to costs of suit andsuch sum for attorney’s fees as the Court may deem reasonable.” (Italics added.)

“The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:15, pp. 8-4 to 8-5 (rev. #1, 2004), italics omitted.) As the appellant, Nielsen has the burden of presenting “argument and legal authority on each point raised on appeal.” (Id., ¶ 8:17.1, p. 8-5 (rev. #1, 2004).)

Although his appellant’s opening brief raises the issue of whether the association was entitled to an award of attorney fees in this matter, Nielsen fails to present any argument or legal authority regarding this issue in either that brief or his appellant’s reply brief. Accordingly, we presume the award of attorney fees was proper. As the prevailing party in the summary judgment proceeding, the association is entitled to recover reasonable attorney fees it has incurred both in the trial court proceedings and on appeal.

C. Expungement Order and This Court’s Writ Decision

Last, Nielsen’s appellant’s opening brief states that he is also appealing from the court’s order granting his motion to expunge the lis pendens recorded by the association, and that he is requesting review of this court’s April 2004 decision in the writ petition proceeding (D043860) to issue a peremptory writ directing the court to vacate its expungement order and enter a new order denying Nielsen’s motion to expunge.^[17] Nielsen claims that the trial court properly expunged the lis pendens because the association failed to state a “real property claim” within the meaning of section 405.4 (the provisions of which are set forth in fn. 8, ante).

1. Background

In granting Nielsen’s motion to expunge the lis pendens, the court found that although the association’s complaint alleged that Nielsen’s deck encroached upon an easement, the complaint failed to state a “real property claim” as defined in section 405.4 because it “[did] not affect possession of real property since a judgment in favor of [the association] will merely require removal of personal property, to wit, the deck.” (2AA 210, 320)! The association challenged the expungement by filing in this court a writ petition (case No. D043860), arguing that the definition of “real property claim” in section 405.4 included “the use of an easement identified in the pleading.”

In Woodridge Escondido Property Owners Assn. v. Superior Court/Nielsen, supra,D043860, this court concluded that the association was entitled to writ relief because it had asserted a real property claim against Nielsen within the meaning of section 405.4 by filing a complaint for declaratory and injunctive relief alleging that Nielsenviolated the CC&R’s by constructing a deck in the restricted area of the side yard easement. This court explained that “[w]hether or not the deck [was] labeled personal property, a fixture or anything else, the association’s claim against Nielsen [was] for his use (misuse) of the side yard easement.” Noting that Nielsen still had time to appeal the summary judgment, we also stated that “a lis pendens may remain on record while the appeal is pending. [Citation.]” Citing California Rules of Court,^[18] rule 24(b)(3),^[19] the opinion also stated that “the opinion is made final immediately as to this court.”

Nielsen sought to challenge this court’s writ decision by filing a petition for review with the California Supreme Court. In June 2004 the high court sent a letter toNielsen’s counsel stating that it had considered Nielsen’s petition for review, but “ha[d] directed that the petition for review be returned unfiled.” We issued the remittitur on June 28, 2004.

2. Analysis

Under section 405.39,^[20] an order granting or denying a motion to expunge a lis pendens is not an appealable order. (See also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 2:259.2, p. 2-111 (rev. #1, 2001).) Thus, this court has no authority to review on appeal either the court’s initial order granting Nielsen’smotion to expunge the lis pendens (an order in Nielsen’s favor) or its subsequent order denying that motion following this court’s issuance of the peremptory writ and the remittitur.

This court also has no authority to review our writ decision in case No. D043860. As already noted, the opinion stated that it was “final immediately as to this court.”Nielsen challenged the decision by attempting to file a petition for review with the Supreme Court, which considered it and then returned it to him unfiled. Because the writ decision is final as to this court, we have no power to review it. (See also rule 24(b)(1) [“[e]xcept as otherwise provided in this rule, a Court of Appeal decision . . . is final in that court 30 days after filing”].) In sum, we affirm the summary judgment and award of attorney fees in favor of the association and conclude that we have no authority to either reach the merits of Nielsen’s purported appeal of an expungement order, or review this court’s final writ decision.

DISPOSITION

We affirm the judgment and the attorney fees order. The association shall recover its costs and attorney fees on appeal. The cause is remanded to the trial court for a determination of the amount of reasonable attorney fees and costs on appeal the association shall recover from Nielsen under the provisions of article X, section 9, of the CC&R’s.

WE CONCUR:

HALLER, J.

O’ROURKE, J.

[1] According to the parties on appeal, the portion of the deck that encroached upon the easement has been removed.

[2] “`A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title to or right to possession of the real property described in the notice.’ [Citation.]” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.)

[3] The following background is based primarily on the facts that the parties acknowledge are undisputed, and this court’s prior opinion in this matter (Woodridge Escondido Property Owners Assn. v. Nielsen, supra, D043860), discussed, post.

[4] Nielsen asserts on appeal that he “recently removed the portion of the deck that extend[ed] over the [five-foot] easement,” and thus “[t]he allegation regarding the removal of a portion of the deck that encroach[ed] over the easement is no longer an issue.”

[5] Kendall, who is not a party to this appeal, states in her declaration supporting the association’s summary judgment motion that Nielsen’s deck was built “over the easement on [her] property,” and it “abut[ted] [her] house.” In his written opposition to that motion, Nielsen did not dispute that he constructed the deck over the side yard easement on Kendall’s property, but he disputed that the deck was a “permanent structure” and that it abutted Kendall’s house.

[6] As shown by its October 15, 2002 minutes, the board made the following determination: “That [homeowner] Nielsen remove the 5[-foot] encroachment on property owned by Kendall at 2230 [Hilton Head Glen], with Association to pay for the cost of removal, due to fact the Architectural Committee erred in giving approval. Work to be completed in 60 days. Board felt allowing encroachment would set a very harmful precedent.”

[7] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

[8] Section 405.4 defines the term “real property claim” as “the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.” (Italics added.)

[9] The record shows that the architectural committee, not the board of directors, approved Nielsen’s request to build the deck, and the board of directors later overruled that approval and directed Nielsen to remove the encroaching portion of the deck. In support of his contention that the board of directors approved the deck, Nielsen relies on article IV of the CC&R’s, which provides in part that “[i]n the event no architectural committee is named, the Board shall serve as the architectural committee.” (Italics added.) Nielsen fails to cite any evidence in the record showing that no architectural committee was named in this matter.

[10] The grant deed, like article X, section 8(c) of the CC&R’s, prohibited Nielsen from using the appurtenant side yard easement on Kendall’s property for the installation of “any permanent structure, other than irrigation systems.”

[11] OED Online (2d. ed. 1989) (as of Apr. 2005).

[12] Noting that he recently removed the portion of the deck that encroached upon the easement on Kendall’s property, Nielsen asserts that “[t]he [association’s] allegation regarding the removal of a portion of the deck that encroache[d] over the easement is no longer an issue.” The association agrees, and states that “[i]t is apparently the issue of declaratory relief concerning the rights and duties of the parties [that Nielsen] is now appealing.”

[13] Section 2015.5 provides: “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. . . .”

[14] Nielsen’s brief declaration stated: “I [NIELSEN] AM THE DEFENDANT IN THE ABOVE REFERENCED MATTER, AND DECLARE UNDER PENALTY OF PERJURY AS FOLLOWS: [¶] 1. I first became aware of the Lis Pendens on my property about two weeks ago when I attempted to secure a refinance through `World Savings.’ I wanted to place my financial affairs in order, especially since I am still recouping from the loss of my wife in April 2003. [¶] 2. As far as the deck is concerned this is not a permanent structure, and completely detachable. [¶] 3. I obtained approval of the Architectural Committee of the Association before the deck was built. [¶] 4. The deck does not interfere with my neighbor’s use, and in fact improved the value of our property as there was nothing but rock and dirt in the area the deck occupies. [¶] 5. My neighbor was aware at all times that I wanted to build this deck, and never once complained to me until this suit was filed about eight months ago. [¶] 6. The City of Escondido inspected the deck and stated no permit was required for the deck.” (Italics added.)Nielsen and his counsel signed and dated the declaration.

[15] The Hirshfield court explained that “[t]he doctrine we refer to as `relative hardship’ is the equitable balancing required by Christensen [v. Tucker (1952) 114 Cal.App.2d 554 (Christensen)] and related decisions. The case law and commentaries use various other labels, such as `”balancing of equities”‘ [citation], `balancing conveniences’ [citation], and `comparative injury’ [citation]. For consistency, we will call it the `relative hardship doctrine.'” (Hirshfield, supra, 91 Cal.App.4th at p. 754, fn. 1.)

[16] In light of the foregoing, we need not address Nielsen’s remaining contentions.

[17] In his appellant’s opening brief, Nielsen states: “There are three (3) specific trial court rulings[Nielsen] is seeking review on appeal. Because the court of appeal reversed a trial court ruling to expunge lis pendens on April 26, 2004, [Nielsen] is requesting the court review that decision and ask[s] the court to take judicial notice of [case No. D043860]. . . . The first order was entered on January 8, 2004, regarding [Nielsen’s] motion to expunge. . . .” (Italics added.) Nielsen also asserts that our “decision to reverse the trial court’s ruling . . . in Case No. D043860 . . . should also be reviewed.”

The record shows that the “first order” to which Nielsen refers is the superior court’s January 8, 2004 order granting his motion to expunge the lis pendens. The record also shows that on July 15, 2004, after we issued the remittitur in case No. D043860 on June 28 of that year, the trial court complied with the writ by entering an order that vacated its order granting Nielsen’s motion to expunge the lis pendens, and denied that motion. We thus presume that Nielsen is purporting to challenge the trial court’s post-remittitur order denying his motion to expunge, rather than the vacated order granting that motion.

[18] All further rule references are to the California Rules of Court.

[19] Rule 24(b)(3) provides in part: “If necessary to . . . promote the interests of justice, a Court of Appeal may order early finality in that the court of a decision granting a petition for a writ within its original jurisdiction . . . . The decision may provide for finality in that court on filing or within a stated period of less than 30 days.” (Italics added.)

[20] Section 405.39 provides: “No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party. The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days. A copy of the petition for writ of mandate shall be delivered to the clerk of the court which issued the order with a request that it be placed in the court file.” (Italics added.)

Keywords: Governing Documents, Enforcement

Titus v. Canyon Lake Property Owners Association

13 Cal.Rptr.3d 807 (2004)

808*808 William James Koontz, Los Angeles, for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter and Kathleen M. Bragg, Los Angeles, for Defendant and Respondent Canyon Lake Property Owners Association.

Bradley & Gmelich and Frederick B. Hayes, Glendale, for Defendant and Respondent Barton Protective Services, Inc.

Summary by Mary M. Howell, Esq.:

Association with manned gate access not liable for personal injuries on its private streets, due to negligence of drunk driver-homeowner admitted by guard, despite the fact that the Association was aware of a history of drunkenness, erratic and reckless driving, since this history did not involve prior injury to anyone, or a prior arrest for DUI.  The association had no duty to eject or arrest the driver, and the injury that occurred was not foreseeable.

**End Summary**

OPINION

KING, J.

INTRODUCTION

James Hauser (Hauser) was a passenger in a car driven by Jack Incorvia (Incorvia) within the community of Canyon Lake. Incorvia, who was intoxicated, drove the car off a road into a tree, killing Hauser. Hauser’s child brought an action against, among others, the Canyon Lake Property Owners Association (CLPOA) and Barton Protective Services, Inc. (Barton) for damages arising from Hauser’s death. CLPOA and Barton separately demurred to plaintiff’s second amended complaint, which the trial court sustained without leave to amend. Judgments were entered in favor of CLPOA and Barton. We affirm.

FACTUAL ALLEGATIONS

Plaintiff’s second amended complaint alleged five causes of action arising from the death of plaintiff’s father. Only the fourth cause of action, titled “Premises Liability,” was asserted against CLPOA and Barton.^[1] This purported cause of action alleges the following facts: Property owners within the “privately owned and operated community” of Canyon Lake (Community) are “prime” members of CLPOA. CLPOA is a “mutual benefit non-profit corporation” which owns, maintains, and operates the common areas and facilities, including streets, within the Community. Pursuant to its bylaws, CLPOA is “charged with `doing whatever is necessary, conducive, incidental or advisable to accomplish and promote its object and purposes.'” Its “object” is to “further and promote the common interest and welfare of its members.” Among its purposes is to “preserve, protect and police” the common facilities.

CLPOA is governed by, and derives its authority from, certain covenants, conditions, and restrictions (CC & R’s). Pursuant to the CC & R’s, CLPOA may levy 809*809 fines, set speed limits, enforce curfews on minors, make arrests, detain individuals, and limit, curtail, or prohibit conduct that violates the CC & R’s or CLPOA’s rules and regulations. It may also exclude non-prime members from the Community. Any violation of the CC & R’s is deemed to constitute a nuisance against which “every remedy allowable by law or equity” is available.

CLPOA hired Barton, a private security company, to maintain the Community in a safe and secure condition for the residents and visitors of the Community, and to enforce CLPOA’s rules and regulations “to the exclusion of any public security force.” Barton was “charged with … enforcing upon residents and visitors alike the rules and regulations of the `Community.'”

The second amended complaint further alleged that for years, the Community had a high incidence of alcohol and drug use by minors within private homes and in common areas. Such use led to numerous incidents of driving under the influence of alcohol, speeding, reckless driving, erratic driving, and other behavior contrary to the interest and welfare of the Community’s members.

Incorvia lived in the Community with his father, a property owner and “prime” member of CLPOA. Barton had previously ticketed Incorvia for speeding, evading arrest, and “running stops” on several occasions. He had also been arrested or convicted of possession of controlled substances, public drunkenness, trespassing, being under the influence of controlled substances, furnishing methamphetamine to minors, and reckless and erratic driving.^[2] As a result of such conduct, CLPOA and Barton had notice that Incorvia and minors within the Community were consistently violating the CC & R’s and CLPOA’s rules and regulations. Nevertheless, CLPOA and Barton “did nothing to curtail or prevent” such conduct.

On January 27, 2001, Incorvia “attended a series of gatherings in private homes and elsewhere” where he consumed illegal drugs and alcohol. Intoxicated, he drove his car at a high rate of speed, recklessly and carelessly, in violation of CLPOA rules and regulations and California law. Hauser was a passenger in the car. Incorvia drove off a road within the Community and into a tree, killing Hauser.

PROCEDURAL BACKGROUND

CLPOA and Barton separately filed demurrers to the fourth cause of action. CLPOA’s demurrer was based upon the grounds that (1) the fourth cause of action did not allege facts supporting a duty to Hauser or that any duty was breached, and (2) it is immune from liability pursuant to Civil Code section 1714, subdivision (c). Barton’s demurrer was based on similar grounds and added a third — that it did not own, control, or possess the property on which the incident occurred.

At the hearing on the demurrers to the second amended complaint, the court stated that the second amended complaint failed to allege “any facts showing that Barton or the homeowners association had any knowledge of the party on the night of the accident, or intoxication on the night of the accident, that they had the ability to stop this man from driving, that they had a duty to do so.” The court concluded that it did “not see a duty” and sustained the demurrers without leave to amend. Following the entry of judgments in favor of CLPOA and Barton, plaintiff appealed.

810*810 DISCUSSION

When reviewing a judgment following the sustaining of a demurrer, we assume the truth of the complaint’s properly pleaded or implied factual allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.) However, contentions, deductions, and conclusions of fact or law in the pleading are not considered. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Plaintiff contends CLPOA and Barton had a duty to affirmatively act to protect Hauser from the risks created by allowing Incorvia to drive within the Community. For CLPOA, this duty required it to “eject” Incorvia from the Community. Barton, plaintiff argues, was required to detain and arrest Incorvia prior to the accident. Plaintiff concedes that these duties would constitute exceptions to the general rule that a defendant will not be held liable for the failure to control the conduct of third parties. (See, e.g., Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894.) Plaintiff argues, however, that CLPOA and Barton had a “special relationship” with Incorvia and the residents of the Community giving rise to the proposed duties.

“Resolution of the issue whether a special relationship exists giving rise to a duty to protect (or warn) comprehends consideration of the same factors underlying any duty of care analysis.” (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 646, 9 Cal.Rptr.2d 216.) Such factors include “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland); see Davidson v. City of Westminster, supra, 32 Cal.3d at p. 203, 185 Cal.Rptr. 252, 649 P.2d 894 [analyzing the question of special relationship according to Rowland factors].)

The Rowland court’s list of factors and policy considerations is not exhaustive. In cases where the alleged duty requires taking action to protect someone from the conduct of others, courts have also considered factors involving the relationship between the parties and the connection between the defendant and the injury-producing event. These include whether the defendant induced the victim’s reliance on a promise that defendant would protect or warn the victim (see Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 944-945, 41 Cal.Rptr. 508), the extent to which a defendant created the peril or increased the risk of harm to potential victims (seeBenavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 863, 84 Cal.Rptr.2d 157), and the existence of a dependency relationship between the plaintiff and defendant (see Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 895, 20 Cal.Rptr.2d 418). When the balance of all relevant factors weigh in favor of imposing a duty to protect someone from the conduct of others, a “special relationship” is said to exist. (Hansra v. Superior Court, supra, 7 Cal.App.4th at p. 646, 9 Cal.Rptr.2d 216.) “Special relationship” is thus “simply a label expressing the conclusion that the facts, considered in light of the pertinent legal considerations, support the existence of a duty of care.” (Ibid.; see also Tarasoff v. Regents of University of California(1976) 17 Cal.3d 425, 434, 131 811*811 Cal.Rptr. 14, 551 P.2d 334 [“legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done”].)

Here, the relationship between these defendants and Incorvia and Hauser, and their connection to the injury-producing event, are minimal. CLPOA is a homeowners association with authority to make traffic laws and exclude non-prime members from the Community. Barton was engaged to enforce the Community’s rules and regulations. Incorvia, a non-prime member of the Community, resided in the Community with his father, a property owner. Although the second amended complaint does not allege that Hauser was a resident of the Community, plaintiff asserts she can amend her pleading to so allege. While these facts present some connection between the defendants and the individuals involved in the accident, the relationship is remote. At best, all that is or can be alleged is that both individuals reside in the Community. There is no contractual relationship between them and the homeowners association. No promise was made to either Incorvia or Hauser upon which they relied. Neither CLPOA nor Barton created the peril — Incorvia’s driving while intoxicated — nor did they act to increase the already existing risk of harm to which Hauser exposed himself. They did not provide Incorvia with either the car or the alcohol, and they did not cause Hauser to become a passenger in Incorvia’s car. Nothing in the pleading suggests that these defendants engaged in any conduct from which a dependency relationship arose. Although plaintiff alleges that the CC & R’s create affirmative obligations to provide for security within the Community, such obligations do not, without more, create a “special relationship” requiring defendants to affirmatively act to protect Community residents from Incorvia.

The balance of other relevant factors further weigh against the imposition of a duty on CLPOA to eject Incorvia or Barton to arrest him. As to the foreseeability of injury, Incorvia’s conduct prior to the accident did not present a “high degree of foreseeability” of harm to Community residents. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679, 25 Cal.Rptr.2d 137, 863 P.2d 207;Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 407, 1 Cal.Rptr.3d 762 (Sakiyama).) The second amended complaint alleges that CLPOA knew that Incorvia was a user of illegal drugs and alcohol, that he had engaged in “public drunkenness,” and that he was a reckless and erratic driver who exceeded speed limits and ran through stop signs. The pleading, however, does not allege any prior accidents involving Incorvia, that he had ever caused injuries to anyone, or that he had ever been stopped or arrested for driving while intoxicated. Thus, while it was foreseeable that Incorvia could become intoxicated, drive a car, and cause an accident, “`almost any result was foreseeable with the benefit of hindsight.'” (Sakiyama, supra, at p. 407, 1 Cal.Rptr.3d 762, quoting Adams v. City of Fremont(1998) 68 Cal.App.4th 243, 269, 80 Cal.Rptr.2d 196.) The foreseeability factor does not favor imposing the proposed duties.

In evaluating the degree of certainty of injury factor, courts consider the closeness of the connection between the defendant’s actions and the plaintiff’s injuries. (See, e.g.,Sakiyama, supra, 110 Cal.App.4th at p. 409, 1 Cal.Rptr.3d 762.) In Sakiyama, the owner of property on which a “rave” party was held was sued when intoxicated attendees were injured in an auto accident after leaving the party. In holding that the property owner 812*812 did not owe the attendees a duty of care, the court stated: “Although appellants undeniably were injured, their injuries were not closely connected to [the property owner’s] conduct in renting its facility for a rave party…. While the sale and consumption of drugs may have occurred at the party, there is no evidence that [the property owner] encouraged or participated in drug use or required the attendees to stay at the party.” (Ibid., fn. omitted.) As in Sakiyama, there is no allegation that CLPOA or Barton encouraged or had any involvement in Incorvia’s intoxication. Indeed, as set forth above, any connection between defendants and the injury-producing event is tenuous at best.

The burden on CLPOA of ejecting Incorvia and the consequences to the Community of such a burden weigh heavily against imposing such a duty. Plaintiff argues that CLPOA’s duty to eject Incorvia is similar to the duty a landlord has to evict a violent tenant. For this proposition, she relies on Madhani v. Cooper (2003) 106 Cal.App.4th 412, 130 Cal.Rptr.2d 778 (Madhani). In Madhani, the plaintiff and her mother lived in an apartment building owned by the defendants. For several months, plaintiff and her mother were accosted and assaulted by another tenant. Plaintiff complained at least six times to the building managers, who did nothing to protect them. The abusive tenant eventually pulled the plaintiff out of her apartment by her hair, hit her, and threw her down the stairs. (Id. at pp. 413-415, 130 Cal.Rptr.2d 778.) The owners knew that the aggressive tenant “had engaged in repeated acts of assault and battery against Madhani as well as her mother.” (Id. at p. 415, 130 Cal.Rptr.2d 778.) It was thus clearly foreseeable that the tenant’s violent outbursts and physical assaults would result in serious injury to the plaintiff. (Id. at pp. 415-416, 130 Cal.Rptr.2d 778.) Weighing such clear foreseeability against other policy considerations, the court suggested that the scope of the owners’ duty to take reasonable steps to protect the plaintiff included evicting the tenant. (Ibid.)

Madhani is distinguishable. First, the owners’ duty to evict the tenant in Madhani was based primarily upon the high degree of foreseeability of harm to the plaintiff from the aggressive tenant. “It is difficult to imagine a case,” the court stated, “in which the foreseeability of harm could be more clear.” (Madhani, supra, 106 Cal.App.4th at p. 415, 130 Cal.Rptr.2d 778.) Unlike the months of verbal and physical assaults, threats, and intimidation against the plaintiff by the tenant in Madhani, there are no allegations here that Incorvia had previously harmed, assaulted, or threatened anyone. Although his drug and alcohol use and reckless driving satisfy the “low threshold for foreseeability” in our analysis of duty, the risk of harm was significantly less certain than the “clear” foreseeability of harm present in Madhani.

Even assuming CLPOA could “eject” a resident from the Community or bar him from using its streets, such a remedy would be substantially more burdensome than evicting a tenant from an apartment building. Eviction, or an unlawful detainer action, is a “summary proceeding” for which California law provides expedited judicial procedures. (See generally Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2003) ¶ 7.75, p. 7-16; Code Civ. Proc., §§ 1159-1179a.) Time periods for pleading are shorter than ordinary civil actions, the matter is set for trial more quickly and entitled to priority on the trial calendar, and expeditious enforcement procedures are available. (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 685, pp. 872-873.) In contrast to the relatively quick and inexpensive proceedings for evicting tenants, 813*813 California law does not provide any summary remedy for ejectment. (See Friedman, supra, ¶ 7:84 at p. 7-19.) At a minimum, litigation and a court order would be required before CLPOA could preclude a resident from gaining access to his residence. (See Civ.Code, § 1361.5.)^[3] Thus, regardless of the additional legal and factual issues posed by an effort to “eject” a resident of a private community,^[4] IT IS CLEAR THAt pursuing such a remedy would involve substantially more time and expense than the mere eviction of a tenant.

The imposition of a duty to eject Incorvia would also have, at a minimum, undesirable consequences for the Community. CLPOA contends that an action to eject Incorvia violates his constitutional rights to live with his family members under Moore v. East Cleveland (1977) 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531. We need not, however, determine the constitutionality of an ejectment action by CLPOA. It is enough to note that even if an ejectment action were permissible and successful, it would result in the court-ordered separation of family members, which, even if constitutional, would not be favorable as a matter of public policy.

The “moral blame” factor does not weigh in favor of imposing liability on CLPOA or Barton. “To avoid redundancy with the other Rowland factors, the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of theRowland factors in favor of liability. [Citation.] Instead, courts have required a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result [citation]; (2) had actual or constructive knowledge of the harmful consequences of their behavior [citation]; (3) acted in bad faith or with a reckless indifference to the results of their conduct [citations]; or (4) engaged in inherently harmful acts [citation].” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 270, 80 Cal.Rptr.2d 196.) The alleged conduct of CLPOA and Barton does not involve such culpability.

Nor does the policy of preventing future harm weigh in favor of imposing a duty to eject Incorvia. Ejecting Incorvia, assuming 814*814 it could be accomplished both legally and practically, would simply preclude him from driving within the borders of the Community. There is no reason to believe that ejectment from the Community would prevent him from driving intoxicated or injuring people in other communities. Ejecting him from the Community would appear to be particularly ineffective as to protecting his own passengers, such as Hauser, who would likely be riding with Incorvia outside the Community.

Although arresting Incorvia just prior to the accident would certainly have prevented Hauser’s death, there are no facts alleged showing that Barton officers knew Incorvia was driving intoxicated. Even if they did, it is well settled that police officers have no duty to detain or prevent people from driving even when they knew or should have known the drivers were intoxicated. (See City of Sunnyvale v. Superior Court(1988) 203 Cal.App.3d 839, 841-842, 250 Cal.Rptr. 214; Lehto v. City of Oxnard(1985) 171 Cal.App.3d 285, 288, 295, 217 Cal.Rptr. 450; Jackson v. Clements(1983) 146 Cal.App.3d 983, 985-986, 988, 194 Cal.Rptr. 553.) Plaintiff contends these cases are inapposite because Barton and CLPOA, unlike police departments, had contractual obligations beyond those the police owe to members of the public. Even so, Barton’s alleged contractual duties did not include detaining or arresting intoxicated drivers. Although the CC & R’s allegedly give CLPOA and, by contract, Barton, the “authority “to “make arrests [and] detain individuals” for violating the CC & R’s or CLPOA’s rules and regulations, this does not create an affirmative obligationto do so whenever they suspect someone is violating, or may violate, a Community rule. (Cf. Knighten v. Sam’s Parking Valet (1988) 206 Cal.App.3d 69, 76, 253 Cal.Rptr. 365.) Nor do the vaguely stated responsibilities of maintaining the Community in a safe and secure environment and to preserve, protect, and police the commonly owned facilities give rise to such an obligation. Indeed, the reference to policing the facilities suggests duties similar to, and coextensive with, those of a public police force.

Balancing the relevant factors, we conclude that the low level of foreseeability of injury, and the minimal connection between these defendants and the individuals involved in the injury-producing event, is outweighed by defendants’ lack of connection to the injury-producing event, the burden of complying with the proposed duties, and the other pertinent considerations. Accordingly, we conclude that the second amended complaint fails to allege facts creating a duty on the part of either CLPOA or Barton to act to prevent Incorvia from driving intoxicated within the Community.

Plaintiff relies on Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 208 Cal.Rptr. 384 (Marois). In Marois, the Court of Appeal held that security guards hired to protect the customers of a Jack-In-The-Box restaurant had a “special relationship” with the customers and could be liable for failing to protect a customer from an assault. Marois is distinguishable in at least two respects. First, the defendant security guards did not dispute that a “special relationship” existed between the restaurant business and its customers. (Marois, supra, at p. 199, 208 Cal.Rptr. 384.) Therefore, the Court of Appeal did not analyze the factors and policy considerations to determine whether a duty to take affirmative action existed. Here, by contrast, the parties dispute the existence of a special relationship. Indeed, as explained above, we conclude that the allegations do not support the existence of a special relationship sufficient to justify the imposition of duties to eject or arrest Incorvia. The 815*815 rule applied in Marois is thus inapplicable here.

Second, Marois is distinguishable on its facts. The security guards in Maroisobserved the assailant fighting with one customer and vandalizing a kiosk in the parking lot of the restaurant before attacking the plaintiff with a baseball bat. Significantly, the court held that, as a matter of law, the security guards could not be liable for failing to restrain the assailant until the apparent risk of physical injury became “immediate.” (Marois, supra, 162 Cal.App.3d at pp. 200-201, 208 Cal.Rptr. 384.) They could not be held liable, therefore, for allowing the assailant to initially remain on the premises or for failing to restrain him while he vandalized the kiosk. When, however, “an individual is being physically assaulted, or where another individual is approached by a bat-wielding assailant,” the court explained, there is a “clearly foreseeable risk” to which the security guards should respond. (Id. at p. 202,208 Cal.Rptr. 384.) In contrast to the circumstances in Marois, Barton’s security guards were, at most, aware that Incorvia was driving while intoxicated. While Incorvia’s condition presented some foreseeable risk of injury, as explained above, it did not create a risk of immediate physical harm comparable to the bat-wielding assailant in Marois.

Plaintiff argues that she should be given leave to amend additional facts. Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737.) It is the plaintiff’s burden to show either the trial court or the reviewing court how the complaint can be amended to state a cause of action. (Ibid.) “Leave to amend is properly denied if the facts and nature of plaintiff’s claim are clear and under the substantive law, no liability exists [citation] or where it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiffs cannot state a cause of action [citation].” (Haskins v. San Diego County Dept. of Public Welfare (1980) 100 Cal.App.3d 961, 965, 161 Cal.Rptr. 385.) Here, plaintiff states that she can further allege that Barton’s security guards saw Incorvia driving his car recklessly “while under the influence from party to party” on the night of the accident, and that a Barton gate guard knew that Incorvia was “driving under the influence” but nevertheless allowed Incorvia to “pass through a guarded checkpoint shortly before the accident.” Even if we assume these facts are true, such facts would not support a duty to eject or arrest Incorvia based upon the analysis set forth above. (Jackson v. Clements, supra, 146 Cal.App.3d 983, 194 Cal.Rptr. 553.) In any event, plaintiff has already filed an original complaint and two amended complaints without including these allegations. She has thus had a “fair opportunity to correct any defect.” (SeeAngie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227, 44 Cal.Rptr.2d 197.) Accordingly, leave to amend was properly denied.

DISPOSITION

The judgments in favor of CLPOA and Barton are affirmed. CLPOA and Barton are awarded their costs on appeal.

We concur: McKINSTER, Acting P.J., and GAUT, J.

[1] The second amended complaint also alleges causes of action labeled “Survivorship” and “Vehicular Negligence” against Incorvia, “Negligent Entrustment” against Incorvia’s father, and “Unlawful Sale of Alcohol” against unknown “Doe” defendants.

[2] It is unclear from the second amended complaint whether CLPOA or Barton had actual knowledge of these arrests and convictions. In her opening brief, plaintiff states that these defendants were aware of such arrests.

[3] Civil Code section 1361.5 provides: “Except as otherwise provided in law, an order of the court, or an order pursuant to a final and binding arbitration decision, an association may not deny an owner or occupant physical access to his or her separate interest, either by restricting access through the common areas to the owner’s separate interest, or by restricting access solely to the owner’s separate interest.” Although the second amended complaint alleges that Incorvia’s father, not Incorvia, is a property owner within the Community, Incorvia allegedly lives with his father and would be an “occupant” entitled to access under this section.

[4] Incorvia’s ejectment, plaintiff suggests, could have been achieved by having his conduct declared a nuisance pursuant to the CC & R’s. Plaintiff has provided us with no authority supporting her assertion that Incorvia or his alleged conduct could be declared a nuisance or that CLPOA had a right to the proposed remedy. Indeed, if Incorvia’s conduct was a nuisance, it would appear to be a public nuisance for which private remedies are generally not available. (Civ.Code, §§ 3480, 3491, 3493, 3494; see generally 11 Witkin, Summary of Cal. Law, supra, Equity, § 124, pp. 805-806 & § 144, pp. 824-825.) Even if the conduct constituted a private nuisance against which CLPOA could seek relief, CLPOA would have had a heavy burden of proof to establish such a nuisance. Where, as here, the alleged nuisance would be based upon a potential or possibility of future injury, there must be a “reasonable certainty” of injury and a plaintiff “must demonstrate an actual and unnecessary hazard.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1213, 52 Cal.Rptr.2d 518.) While the merits of a possible nuisance or ejectment action are not before us, we note that such an action, if permitted at all, would likely involve far more complex legal and factual issues than would an unlawful detainer action by a landlord against a tenant.

Keywords: Negligence, Premises Liability

Tilly v. CZ Master Association

32 Cal.Rptr.3d 151 (2005)

153*153 Law Offices of Thomas A. Hawbaker and Thomas A. Hawbaker, Newport Beach, for Plaintiff and Appellant.

Berger Kahn and William S. Yee, Marina del Rey, for Defendant and Respondent.152*152

Summary by Mary M. Howell, Esq.:

Employee of security provider under contract to association may not sue the association for injuries received in dispute with partygoer- guest of homeowner, unless association “affirmatively contributed” to the injury.  The “peculiar risk” doctrine applies as well to bar recovery, since security provider was hired to address the risk of injury posed by partygoer.  Association has no duty to control the number of non-residents allowed to attend an owner’s party.

**End Summary**

154*154 OPINION

BEDSWORTH, Acting P.J.

Donald Tilley, a security guard employed by BonaFide Security Services, Inc., sued CZ Master Association, a homeowner’s association which had contracted with BonaFide for security services, because of injuries he suffered from an assault while responding to a complaint about a youth party on CZ’s premises. In essence, Tilley argues that CZ owed the security guards a duty to provide a safe premises for them to guard, including imposing restrictions to control youth parties, that it acted negligently by failing to do so, and that it increased the danger to the guards by requiring them to work unarmed and to respond personally to complaints about such parties.

The trial court granted summary judgment in CZ’s favor, concluding that: (1) CZ had no liability for the injuries suffered by the employee of an independent contractor (BonaFide) which it hired to perform work on its premises, pursuant to Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504; and Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081; (2) CZ owed Tilley no duty to restrict access to the community’s premises; and (3) Tilley had assumed the risk of the injuries he suffered. We conclude the judgment must be affirmed.

The undisputed evidence in this case demonstrates CZ neither required nor expected its unarmed security personnel to confront potentially violent persons, or otherwise to place themselves in danger, and did nothing to alter the basic scope of its security guards’ “observe and report” responsibilities. It thus cannot be held liable for the consequences of Tilley’s decision to take action beyond the scope of his duties. Moreover, based upon the record in this case, CZ owed its security guards no duty to restrict or curtail youth parties within its premises. But even assuming CZhad such a duty, its failure to take affirmative steps to restrict or control juvenile parties within its property, cannot be construed as having “affirmatively contributed to the employee’s injuries” for purposes of the peculiar risk doctrine. (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)

And even assuming CZ were somehow responsible for requiring security guards such as Tilley to confront and attempt to detain violent wrongdoers, then such a task must be considered a normal part of the job for which BonaFide (and Tilley) was hired. As such, BonaFide’s employees would have expressly assumed the risk of such a danger, and CZ consequently had no duty to protect them from it.

Finally we reject Tilley’s contention the court abused its discretion in denying his ex-parte application for a last-minute continuance of the hearing. The application did not comply with the timing requirement of Code of Civil Procedure section 437c, subdivision (h), and the court had no obligation to grant it. Because the case had been pending for four years, and two continuances of the hearing had already been allowed, we cannot say the court’s denial of an additional continuance was an abuse of its discretion. The judgment is affirmed.

* * *

The assault on Tilley which is at the heart of this case, occurred in August of 1998. At that time, Tilley was a 62-year-old former law enforcement officer, employed 155*155as a security guard by BonaFide.^[1] BonaFide had contracted with CZ to provide security for Coto de Caza, a private, gate-guarded community (Coto), and Tilley had been assigned to work there since at least 1996.

The circumstances surrounding Tilley’s assault are undisputed. Ashley S., a 17-year-old resident of Coto, had a party. Substantially more guests attended her party than had been directly invited. The party got out of hand, and both Coto’s security officers and the Orange County Sheriff’s deputies were called. The party was broken up, and most of the guests dispersed. Unfortunately, they did not all stay dispersed.

One of the guests who returned was Robbie Carreno. He had earlier been assaulted by some other party-goers, and he returned to the S. residence with his brother, Nathan, intending to locate his assailants and perhaps retaliate.^[2] Robbie and Nathan located one of the perpetrator’s of Robbie’s assault, and attacked him.

Meanwhile, Coto security personnel again received complaints about the goings on at the S. residence. When Tilley, along with another security officer, returned to the residence, 20 to 30 people remained in and around it.^[3] Nathan and Robbie Carreno, however, were already in Nathan’s truck, preparing to leave. Tilley approached them, and informed Nathan he was “under arrest.” Tilley then asked Nathan for his keys, and obtained them. As Tilley moved away from the truck with the keys, Nathan and Robbie came after him and assaulted him in an attempt to regain the keys. Tilley was severely injured in the assault, including a fractured skull. Deputies from the sheriff’s department arrived after the assault.

Tilley obtained worker’s compensation benefits from BonaFide on account of his injuries, and sued CZ, along with several other individuals and entities he alleged were responsible for the incident.^[4] He resolved his claims against all named defendants other than CZ.

According to Tilley’s third amended complaint, “the primary function of BonaFide under its contract with CZ Master Association was to protect the privacy of the residents of Coto de Caza, by attempting to monitor and control traffic proceeding through the gates for Coto de Caza, [with] the goal of preventing entry by uninvited persons; [] CZ Master Association contracted with BonaFide to proved a roving patrol to monitor and report 156*156 to CZ Master Association the violation of the rules and regulations issued by CZ Master Association relating to pets, parking, landscaping, signage, holiday decoration, and the like; [] Bona Fide personnel, to the extent they observed nuisances, disturbances, suspicious and/or criminal acts were to make a record and report such incidents and activities to CZ Master Association for further action, and call for local law enforcement; [] the contract between CZ Master Association and BonaFide expressly forbade BonaFide personnel from carrying firearms in the performance of their employment obligations; [] BonaFide personnel were not required nor expected to perform arrests or confront lawbreakers as part of their regular employment duties . . . CZ Master Association made clear to BonaFide and its personnel that they did not have the authority, power or right to comport themselves or otherwise act as law enforcement officials in the performance of their employment duties and/or their interaction with the community. In a word, CZ Master Association originally retained BonaFide to man the gates and provide courtesy patrols, not perform law enforcement functions.”

Tilley also alleges that by the time of his injury in August of 1998, Coto already had a long-standing problem with frequent and uncontrolled youth parties, many of which erupted into violence. He specifically alleges that the S. family, which hosted the party at which he was injured, had previously held summer parties in 1996 and 1997, both of which had spiraled out of control, including numerous uninvited guests, excessive drinking, and violence. There is evidence that Ashley’s father, Richard S., was arrested at the 1996 party for allowing minors to consume alcohol at his residence. Tilley himself responded to complaints about the S.’s 1997 party, and found the S.’s other daughter, Torri, involved in a physical altercation with John Jesme, a young male resident of Coto. Tilley intervened on her behalf, and was struck by Jesme. That incident was the only one involving violence against any security guard in connection with a youth party prior to the incident at issue in this case.

Tilley alleged that CZ was aware of the many problems caused by out-of-control youth parties in Coto, and had authority to impose reasonable restrictions on the number of guests allowed, and to impose greater restrictions on access to the association’s property. He also alleged CZ was aware of two non-party incidents in which young males had “savagely” attacked adult males who had attempted to curtail the youths’ conduct within the association property, shortly prior to the S.’s 1998 party. He alleged that CZ “unreasonably increased the risk of harm to BonaFide personnel by instructing them to respond to reports of disturbances, instead of leaving such matters for law enforcement, and without instructing, training or equipping BonaFide personnel to handle such matters.”

Tilley’s complaint asserted three causes of action against CZ. The first cause of action, negligence, was based upon CZ’s alleged failure to take reasonable steps to deter or prevent the S.’s from hosting out-of-control youth parties, and its requirement that security personnel “respond to reports of such parties, as opposed to instructing them to leave such matters to local law enforcement, while at the same time, forbidding [them] to carry firearms to pr[o]tect themselves, and by failing and refusing to provide [security] personnel with the training and equipment necessary to engage in crowd control/dispersal and otherwise deal with violent assailants.”

157*157 The second cause of action, “negligent supervision of contract” alleged that CZretained control over the details of BonaFide’s work and contract performance, and that it failed to take steps to curtail out-of-control youth parties, or to provide for routine law enforcement patrols of the community, despite its knowledge that such parties posed an unnecessary and unreasonable risk of harm to the security guards.CZ was also faulted for refusing “to permit the security guards to arm themselves, while at the same time failing to establish any policies whatsoever as to whether and how the guards should respond to violent disturbances . . .,” and for increasing the risk to the guards by “insisting that the guards respond to reports of such disturbances in person, without providing any further instruction or guidance . . . as to how or what the guards were supposed to do with respect to such disturbances.” According to this cause of action, CZ allegedly expected its unarmed guards to “act, in effect, as a local law enforcement agency, when [they] were neither qualified nor trained nor equipped nor hired to perform such tasks.” CZ “specifically preferred to put the guards at risk — rather than have . . . members of the two homeowners associations incur the social and legal ramifications of prompt police involvement . . . .”

Tilley’s third cause of action against CZ is for premises liability, and asserts thatCZ’s failure to prevent or restrict parties and its requirement that the security personnel respond to out-of-control parties constituted a failure to “exercise reasonable care in the ownership, management, maintenance and operation of said premises.”^[5]

CZ moved for summary judgment, arguing that it owed Tilley no duty to provide a secure premises, that any duty it had was discharged by hiring BonaFide, that Tilley’s injury was not foreseeable, that no causal connection existed between its alleged negligence and Tilley’s injury, that the elements of premises liability could not be established, and that Tilley’s claim was barred by the firefighter’s rule, the primary assumption of risk doctrine, and the Privette doctrine.^[6]

In support of its motion, CZ claimed the following as undisputed facts: (1) “Plaintiff Donald Tilley was designated as BonaFide Security’s Special Officer for Coto and assigned a Captain’s rank. Captain Tilley supervised BonaFide Security’s patrol officers at Coto as Special Officer, and the gate guards for a time as senior Post Commander—a total of 10 officers per shift on Friday and Saturday nights.” (Fact No. 9.); (2) “CZ relied on BonaFide and its officers to use their judgment and discretion in carrying out security-related procedures. CZ relied upon BonaFide’s policy for each officer to observe and report incidents and violations of law, rather than get in harm’s way.” (Fact No. 5); (3) “BonaFide Security set the patrol routes and times, created security procedures, 158*158 approved Security post orders and directives, trained and assigned officers, instructed its officers how to respond to parties and otherwise controlled the day-to-day operations of security for CZ within Coto. Individual officers used their discretion in determining whether to contact law enforcement or residents and visitors in responding to disturbances.” (Fact No. 6); (4) “Neither Merit nor CZ ever instructed plaintiff/BonaFide to carry out arrests or detentions” (Fact No. 7); (5) “BonaFide guards were to use their discretion and call law enforcement if they felt unsafe responding to calls about parties.” (Fact No. 8); (6) “CZ did not have rules or regulations addressing parties or gatherings at the homeowners’ homes. The CC & R’s for CZ did not address parties at members’ homes.” (Fact No. 11); (7) “Merit and CZ did not know in advance of parties by various homeowners. Homeowners gave lists of guests to BonaFide Security to admit guests for parties, but those guest lists were not sent to Merit or CZ in advance.” (Fact No. 13); (8) “Plaintiff created and maintained summaries of incidents at Coto between November of 1996 and July 1998 at BonaFide account manager Scott Myers’ request. None of the incidents documented by plaintiff involved fighting, violence or underage drinking at homeowner parties. Plaintiff did note over 30 arrests, including 3 separate incidents where plaintiff was assaulted in situations not involving parties.” (Fact No. 17); (9) “Neither Robbie Carreno nor Nathan Carreno had ever come to the notice of plaintiff, BonaFide Security, Merit or CZ.” (Fact No. 15).

The parties stipulated to continue the summary judgment motion from June 27, 2003, to August 22, 2003. On July 29, 2003, Tilley filed an unopposed ex parte application to continue the hearing yet again, on the ground he needed additional time to complete “certain third-party custodian of record depositions.” That request was granted, and the hearing was continued to September 26, 2003.

Tilley filed his opposition papers on September 16 and 17, 2003, which was untimely. He attributed the delay to computer problems. His opposition included a response to the separate statement which is all but incomprehensible. Rather than merely responding to each fact with “undisputed,” or “disputed” followed by evidence demonstrating the dispute, and then a list of additional material facts supported by evidence (see Cal. Rules of Court, rule 342(h)), Tilley responded to each alleged fact with a combination of arguments, objections, factual allegations and questions about whether the evidence cited by CZ really means what it says. For example, Tilley’s response to CZ’s claimed undisputed fact No. 5, standing alone, comprises over six full pages. His assertion that the fact is actually disputed is not revealed until after five pages of arguments.^[7] Such a response accomplishes little more than obfuscation — a goal which may be prized by those opposing summary judgment, but which should not be countenanced.^[8]

Once the wheat of Tilley’s response to the separate statement is separated from its considerable chaff, it reveals that the 159*159 facts stated above from CZ’s motion are largely undisputed. With respect to fact No. 5, (i.e., “CZ relied on BonaFide and its officers to use their judgment and discretion in carrying out security related procedures [and on] BonaFide’s policy for each officer to observe and report incidents and violations of law, rather than get in harm’s way”), Tilley offers only evidence that CZ had complained to BonaFide on one occasion that its officers had ignored resident complaints about a “noise disturbance” at the “Jesme” residence (described as “several teenagers being loud and boisterous very late in the evening”), and that there appeared to be a recurring problem of BonaFide officers ignoring complaints about the Jesmes. According to the letter, BonaFide gate attendants had informed residents in the past that they could not locate the Jesme residence to patrol it. That letter does not signal any change in policy about juvenile parties in general. Instead, it appears to be focused on the Jesme residence in particular, and the concern that the guards are ignoring it. Tilley also relies upon evidence that one of BonaFide’s “post orders” stated that “[p]atrol of the property is to be aggressive, providing a feeling of omnipresence to the residents . . . .” Again, however, that order in no way suggests the officers should put themselves in harm’s way. It merely suggests the officers are expected to “see what is going on in the immediate patrol area and . . . to be seen.” It also makes clear that “[w]hen interaction is necessary with residents or guest, the greatest weapon an officer has is the quality of verbal delivery; remain non-aggressive, professional and courteous.” (Italics added.)

With respect to fact No. 7, (i.e., “Neither Merit no[r] CZ ever instructed plaintiff/BonaFide to carry out arrests or detentions”), Tilley merely responds that CZ knew or should have known that BonaFide officers sometimes did so, and thus must have impliedly encouraged it. However, the evidence he cites for the “knew or should have known” establishes only that Tilley prepared a list of such incidents for Scott Myers, the BonaFide account representative, but not that the list was transmitted to CZ. In any event, the fact CZ may have known that BonaFide guards sometimes exercised their judgment to detain suspected wrongdoers, presumably when they felt it was safe to do so, does not equate to CZ itself imposing some change in policy.

Finally, fact No. 17, (i.e., “Plaintiff created and maintained summaries of incidents at Coto between November of 1996 and July 1998 at BonaFide account manager [Scott Myers] request. None of the incidents documented by plaintiff involved fighting, violence or underage drinking at homeowner parties. . . .”) while not actually disputed by Tilley,^[9] is not entirely correct. The evidence cited actually does include Tilley’s report of the assault perpetrated on Tilley by a young male resident of Coto at the S.’s 1997 party.

In that report, Tilley described an “extremely large youth party with more then [sic] enough parents/adults supervising. John Jesme attempted to enter the party area and was instructed to leave. He refused and grabbed the 16 yr old hostes [sic] by the neck throwing her to the ground. When I attempted to help he struck me in the face with a closed fist. I struck him back and pulled him off the girl and arrested him.”

Tilley also testified that the incident with Jesme was the only time he could remember responding to a complaint about 160*160 fighting in connection with a youth party. The primary problems for which the security guards were summoned to parties were excessive noise, overcrowding and parking violations. If the problem was overcrowding alone, he would do nothing other than file a report. If the problem was noise, Tilley would knock on the homeowner’s door and ask that the noise be reduced or the party ended. If that was not successful, he had been instructed by BonaFide to “call the Orange County Sheriffs.” Tilley testified that he understood his only responsibility in connection with youth parties was to “observe and report.”

On September 25, 2003, one day prior to the hearing on the summary judgment motion, Tilley made an ex parte application for yet another continuance of the hearing. He argued that he needed additional time to complete a deposition of CZ’s custodian of records. He also stated he wished to seek leave to amend his complaint to add a claim based upon an alleged relationship of “special employment” between himself and CZ — an issue which he had claimed in his opposition created a triable issue of fact, precluding summary judgment. CZ opposed the continuance, and it was denied.

After hearing argument, the court granted the summary judgment motion. It first explained its treatment of the evidence: “the Court has noted and considered all of the many evidentiary objections, some of which go to the weight of the evidence, rather than to its admissibility. Although the Court declines to issue formal rulings on such objections, the court has disregarded inadmissible evidence. See, Biljac Associates v. First Interstate Bank, 218 Cal.App.3d 1410, 1419, 267 Cal.Rptr. 819 (1990.)”

The court then turned to the merits: “the Court is persuaded that Plaintiff’s claims fail under the doctrine explained in Hooker v. Department of Transportation, 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (2002), Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (1993), and Toland v. Sunland Housing Group, Inc. 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 (1998). Those cases stand for the principle that, except in limited circumstances, an employee of a contractor may not sue the hirer of the contractor under tort theories. The limited circumstances, recognized in Hooker, occur when the hirer retains control over the contractor’s performance in such a manner as to `affirmatively contribute’ to the employee’s injury. Thus, the issue here is whether or not there is a triable issue of fact as to whether CZ Master retained control of BFSS’s work and, in so doing, affirmatively contributed to the injury suffered by Plaintiff. [¶] . . . Based upon the evidence presented in connection with this motion, the court finds that no reasonable trier of fact could [conclude] that CZ Master in any way affirmatively contributed to this incident. Plaintiff points only to Defendant’s role in establishing policy for the admission of persons into the gated community. Any such role, would have been at most an oblique — as opposed to affirmative — contribution to the injury. Certainly, the residents of the community, acting through its homeowners’ association (CZ Master), could determine gate-admission policy or even allow completely open access to the neighborhood. Such determinations, as a matter of law, do not affirmatively contribute to the injuries resulting from a criminal assault by a person entering through the gate. [¶] In addition, the Court finds that Plaintiff’s claims are barred by the doctrine of primary assumption of risk. Here, as in Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713 (1996), `the particular risk of harm that caused 161*161 the injury was the very risk plaintiff and [his] employer were hired to prevent.’ Id. at 1765, 53 Cal.Rptr.2d 713….”

I

As explained in Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477, 110 Cal.Rptr.2d 370, 28 P.3d 116, “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc.(1998) 18 Cal.4th 604, 612, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) In the trial court, once a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff `may not rely upon the mere allegations or denials of its pleadings’ … but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action….” (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)”

Despite the statutory prohibition against plaintiff relying upon allegations of the complaint to establish a triable issue, Tilley’s opening brief on appeal relies substantially upon such allegations to establish the factual underpinnings of this case, and to support such assertions as “[j]uvenile parties turning into drunken, out-of-control affairs punctuated by vandalism and fighting repeatedly occurred … in Coto,” “there was a substantial, ongoing and known problem with unauthorized juvenile traffic streaming into Coto during … summer months,” and “there had been multiple juvenile attacks upon Mr. Tilley — as well as other adults.” Tilley asserts that to the extent these factual allegations were not specifically challenged in CZ’s motion below, it is proper to rely upon them. CZ vehemently contends otherwise, pointing out that it filed a general denial, and thus that all allegations of Tilley’s complaint are “controverted.”

Both parties are correct to a certain extent. Tilley is allowed to rely upon the allegations of the complaint which were unchallenged in the motion itself, but only to demonstrate that CZ has not met its initial burden of showing an entitlement to summary judgment. For example, if a plaintiff had alleged three distinct breaches of duty which caused him a single injury, and the defendant filed a motion for summary judgment with evidence contradicting only two of those breaches, plaintiff could rely upon the third, unchallenged, allegation of breach to demonstrate the motion was insufficient on its face to shift the burden.

Similarly, as explained in Elcome v. Chin (2003) 110 Cal.App.4th 310, 1 Cal.Rptr.3d 631, when defendant does not challenge a particular element of plaintiff’s claim (in that case, damages) in its summary judgment motion, plaintiff has no obligation to include any evidence in its opposition to support that element. Again, however, that conclusion is based upon the fact that defendant, having ignored the element in its motion, has not met its initial burden of demonstrating that summary judgment would be warranted because of undisputed evidence. Consequently, no burden shifts to plaintiff with respect to the issue.

162*162 However, if the moving defendant does claim undisputed facts which, if left uncontradicted would be sufficient to warrant a judgment in his favor, the burden shifts to the plaintiff, and everything changes. Plaintiff must “show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff … may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

The burden did shift in this case. CZ’s initial showing was sufficient to place the burden on Tilley to demonstrate triable issues of fact. Moreover, CZ’s motion specifically asserted, as undisputed facts, that BonaFide had never documented incidents of fighting, violence or underage drinking at homeowner parties between November of 1996 and July of 1998, and that neither CZ nor its property manager had been advised of any such problems. Tilley cannot attempt to undercut those assertions by relying upon the allegations of his complaint, as those allegations do not constitute evidence. Consequently, we disregard Tilley’s references to what he alleged for purposes of establishing triable issues, and focus only on the evidence actually provided in connection with those issues.

With respect to CZ’s objections to the evidence Tilley offered, they are part of the record before the trial court. The court specifically stated that it had considered them, and had based its ruling only on admissible evidence. This summary approach to evidentiary rulings, based upon Biljac Associates v. First Interstate Bank, supra, 218 Cal.App.3d at pp. 1419-1420, 267 Cal.Rptr. 819, is not ideal, and has been criticized by many courts. However, on the record in this case, given the nature and volume of the objections, the trial court did not abuse its discretion in not ruling on each of them.

Tilley’s suggestion, that CZ waived its written objections by not repeating them orally at the hearing, is rejected. Code of Civil Procedure section 437c, subdivision (b)(5) requires the objections to be made “at the hearing” but not orally. A written objection submitted for the court’s consideration in connection with the hearing would be considered made “at the hearing.” Requiring those objections to be repeated, out loud, for the court reporter’s edification serves no purpose whatsoever. CZ did not waive its objections.

II

Turning to the merits, we must first reject Tilley’s assertion, which permeates his opposition to the summary judgment, that he presented a triable issue of fact concerning CZ’s potential liability as his “special employer.” He pled no such claim. To the contrary, his complaint specifically alleges he was employed by BonaFide, and assigned by BonaFide to work at Coto pursuant to the contract it entered into with CZ. It does not allege any employment relationship with CZ.

The issue of a possible “special employment” relationship arose only after Tilley responded to an interrogatory asking him to identify anyone for whom he was acting as agent or employee at the time of the incident at issue. He responded by identifying163*163 BonaFide as his employer based upon “traditional notions of employer-employee relations.” However, he went on to explain that “to the extent the phrase `agent or employee’ is construed more broadly to encompass Mr. Tilley’s relations with other[s] that possessed and exercised the power to set and control Mr. Tilley’s scope of work and to define and shape Mr. Tilley’s employment duties, then Mr. Tilley contends at the time of the [incident] that he was also acting as the `agent and employee’ of CZ Master Association, Merit Property Management, Inc., and Ranchos Colinas Association. [¶] … [¶] Mr. Tilley’s primary duties — as set by BonaFide — were to serve as post supervisor and to perform the roving patrol function demanded by CZ Master Association, in accordance with instructions and directions as issued by CZ Master Association and/or its sub-associations, and Merit Property Management, Inc.”

Concerned about the scope of that response, CZ, along with defendants Merit Property Management and Rancho Colinas Association — all of whom denied that any employment relationship existed between themselves and Tilley — moved to amend their answers to assert the workers’ compensation exclusive remedy as a defense to any such claim. Tilley opposed those motions, arguing, among other things, that the defendants had misconstrued his answer, and that he had taken great pains to identify only BonaFide as his employer “based on `traditional notions of employer/employee relations.'” He states expressly that his answer “cannot be construed as an admission — or contention — that he was the `employee’ of RCA, Merit or CZ….”

Although the court properly allowed the defendants leave to interpose the defense (Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180, 112 Cal.Rptr.2d 838[“The discretionary power to allow amendments to the pleadings `in furtherance of justice’ must be exercised liberally at all stages of the proceeding….”]), the fact remains that Tilley vehemently denied any implication that he was seeking to establish any relationship of employer-employee as between himself and any defendant. And his denial was understandable, since Tilley had already received workers’ compensation benefits from BonaFide. If he established any employment relationship against a defendant with its own workers’ compensation coverage, he could not increase the amount of benefits he would receive, but would instead merely extinguish his claim in court against that defendant.^[10]

However, when CZ moved for summary judgment, Tilley did an about-face, suddenly suggesting the facts did give rise to the possibility that CZ was his special employer, because it had the power (even if unexercised) to affect the details of his work. He then argued that the court could infer CZ had no workers’ compensation coverage,based solely upon the fact 164*164 that he had named it, but not BonaFide, as a defendant in the lawsuit, and that under those circumstances, Labor Code section 3708, would preclude CZ from asserting assumption of the risk as a defense.

Tilley cannot have it both ways, denying any assertion that CZ might possibly be his employer when the specter of workers’ compensation exclusivity is raised, but then embracing the notion as a possible means of avoiding summary judgment. His claims against CZ are limited to the theories pled in his complaint, and there he specifically alleged that his employer was BonaFide.

In any event, Tilley failed to demonstrate any triable issue of fact with respect to the issue of a special employment relationship between himself and CZ. According to his own testimony, he took his directions strictly from BonaFide. The scope of his duties were set forth in “post orders” which he stated were provided by BonaFide. “There would be not [sic] post orders coming from CZ Masters [sic] or Merit. They would be just directives requesting this or requesting that. The post orders had to come from BonaFide.”^[11] Tilley went on to explain that a post order had more authority than a directive from CZ, and that “a directive could override a post order only if it was approved by BonaFide.” BonaFide provided the vehicles used by its officers to patrol Coto, and those vehicles were connected by radio to a dispatcher at BonaFide headquarters.

Tilley also testified about circumstances when he had implemented changes in the security procedures, explaining he discussed them with BonaFide personnel, but not with CZ. For example, Tilley stated he had implemented a policy that if a security guard came upon a situation involving a potentially violent person, the guard was to wait for backup before acting. He stated the policy was approved by BonaFide, but when asked if it had been approved by CZ, he responded “I didn’t know if it was or not.” He then explained “I didn’t go to CZ Masters [sic] because that was my boss’s responsibility.” Tilley also testified that on approximately six occasions, members of the CZ board would request he alter some procedure, such as adding a special patrol in an area, and on those occasions he would inform them they would “have to go through BonaFide.” He couldn’t remember a single time when a CZ board member had asked him to do something and he had responded in any way other than simply referring them to BonaFide.

As Tilley’s own testimony establishes, he had no substantial direct relationship withCZ. He took all his orders from BonaFide, and obtained BonaFide’s approval for his actions. To the extent he became aware of directives from CZ, he understood they were subordinate to BonaFide’s post orders. He relied upon BonaFide to resolve any concerns that CZ might have. Under those circumstances, there was no relationship of “special employment” between Tilley and CZ as a matter of law.

As explained by our Supreme Court in Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492, 162 Cal.Rptr. 320, 606 P.2d 355, “[w]hen an employer — the `general’ employer — lends an employee to another 165*165 employer and relinquishes to a borrowing employer all right of control over the employee’s activities, a `special employment’ relationship arises between the borrowing employer and the employee.” (Italics added.)

In this case, there was no evidence BonaFide relinquished any control over Tilley, or that CZ ever directly exercised such control. Instead, what this evidence demonstrates is a tripartite relationship, with BonaFide squarely in the middle. Tilley answered to his employer, BonaFide, and BonaFide endeavored to keep its client,CZ, satisfied with the services provided. The combined effect of those relationships was that CZ would have had some power to affect Tilley’s work situation and activities, but only an indirect one, and its influence extended only so far as BonaFide chose to allow. Such a relationship cannot be characterized as creating an “employment” between CZ and Tilley directly.

III

“Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries.” (Privette v. Superior Court, supra, 5 Cal.4th at p. 691, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

“A critical inquiry in determining the applicability of the doctrine of peculiar risk is whether the work for which the contractor was hired involves a risk that is `peculiar to the work to be done,’ arising either from the nature or the location of the work and `”against which a reasonable person would recognize the necessity of taking special precautions.”‘ [Citations.] The term `peculiar risk’ means neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means `”a special, recognizable danger arising out of the work itself.”‘” (Privette v. Superior Court, supra, 5 Cal.4th at p. 695, 21 Cal.Rptr.2d 72, 854 P.2d 721, quotingAceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 509, 156 Cal.Rptr. 41, 595 P.2d 619, and Griesel v. Dart Industries (1979) 23 Cal.3d 578, 586, 153 Cal.Rptr. 213, 591 P.2d 503.)

In Privette, however, the Supreme Court went on to conclude that a landowner’s liability under the peculiar risk doctrine did not extend to the employees of the independent contractor itself — in that case a roofing contractor — if the contractor had provided them with workers’ compensation coverage. The court reasoned that in the absence of direct negligence by the landowner, causing the injury, then allowing the worker to recover tort damages against it, in addition to the workers’ compensation remedy from the employer, would be a windfall.

In Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504, the Supreme Court expanded Privette, concluding that an employee of a contractor may not sue the hirer of the contractor on a theory that the hirer failed to require that special precautions be taken to avert the peculiar risks of the work, or failed to ensure that that such precautions were taken. Finally, in Hooker v. Department of Transportation, supra, 166*166 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081, the Supreme Court considered whether a landowner could be held liable to the employee of an independent contractor on the basis the landowner had retained some control over the conditions of the contractor’s work, as described in section 414 of the Restatement 2nd of Torts.^[12] The court concluded that such liability would exist only “insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Id. at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081, italics omitted.)

In this case, the peculiar risk doctrine was generally applicable. BonaFide was an independent security company, and the services it performed for CZ, including controlling access to the premises, enforcing parking restrictions, responding to complaints and otherwise promoting and encouraging compliance with association rules, obviously presented peculiar risks.

The undisputed facts demonstrate that BonaFide was in control of how its work was performed, and that all decisions concerning the activities of its employees were ultimately its responsibility. As set forth in CZ’s statement of undisputed facts, “BonaFide Security set the patrol routes and times, created security procedures, approved Security post orders and directives, trained and assigned officers, instructed its officers how to respond to parties and otherwise controlled the day-to-day operations of security for CZ within Coto. Individual officers used their discretion in determining whether to contact law enforcement or residents and visitors in responding to disturbances.”

There is evidence that CZ and its property manager, Merit, may have had significant influence on how BonaFide made certain decisions concerning the work, but no more than would be expected in the case of a contractor seeking to keep its customer satisfied. There is no evidence that CZ had any power to override BonaFide’s decisions concerning how its employees should conduct themselves. Tilley himself testified that he answered only to BonaFide, and that any changes CZ might wish to implement in the work he did had to be cleared through BonaFide.

There was evidence CZ retained control over certain aspects of the worksite — i.e., the association’s property. BonaFide had no independent authority to change the scope of access to the property, or to impose restrictions on how the homeowners could use it. In this respect, the instant case presents an issue of retained control, as in Hooker v. Department of Transportation, supra, 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081.

In Hooker, the injured employee was a crane operator, and his employer was hired by the California Department of Transportation, (Caltrans) to expand an overpass. During the project, the overpass remained in use, for construction vehicles, and each time a vehicle passed, Hooker had to retract the “outriggers” on his crane to make room. After he had done so on one occasion, he attempted to rotate the crane without first re-extending the outriggers. The crane became unbalanced and toppled over, killing Hooker. His wife sued, alleging Caltrans had negligently exercised its retained control over the safety conditions on the property by 167*167 allowing construction vehicles to continue using the overpass where Hooker operated his crane.

The Supreme Court concluded that such a claim would be sufficient to support liability, but only if the hirer “exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 210, 115 Cal.Rptr.2d 853, 38 P.3d 1081, italics omitted.) It concluded that no such “affirmative” contribution could be shown in that case. “Perhaps the clearest way to put it is this: Caltrans permittedconstruction vehicles, as well as vehicles owned and operated by Caltrans, to use the overpass while the crane was being operated, and because the overpass was narrow, the crane operator was required to retract the outriggers in order to let the traffic pass. That is what plaintiff asserted below … [¶] We are not persuaded that Caltrans, by permitting traffic to use the overpass while the crane was being operated, affirmatively contributed to Mr. Hooker’s death…. `Under the “active participation” standard, a principal employer is subject to liability for injuries arising out of its independent contractor’s work if the employer is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employerdirects that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]’ (Thompson [v. Jess (1999) 979 P.2d 322, 327], italics added.) To repeat, Caltrans did not direct the crane operator to retract his outriggers to permit traffic to pass.” (Hooker v. Department of Transportation, supra, 27 Cal.4th at pp. 214-215, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)

In this case, there is likewise no evidence that CZ’s exercise of the authority it retained over the premises affirmatively contributed to Tilley’s injuries. Like Caltrans in Hooker, CZ is accused of permitting others (in this case, residents and their guests) to have access to the premises for parties, thus increasing the danger to the contractor’s employees. But that conduct, just like Caltrans’ conduct of allowing others to use the overpass in Hooker, is merely passive. CZ did not host the parties, did not direct anyone to have them, and according to the undisputed evidence, was not given advance notice of them. CZ’s misconduct amounts to merely a failure to exercise its (presumed) power to restrict or impose controls over the parties. Such a failure cannot be the basis of liability.

Moreover, just as Caltrans did not require Hooker to retract his outriggers in response to traffic on the overpass, CZ did not direct Tilley to respond to the situation at the S.’s home by confronting and purporting to “arrest” a presumed wrongdoer. As Tilley himself alleged in his complaint, the basic premise of the agreement between BonaFide and CZ was that “BonaFide personnel were not required nor expected to perform arrests or confront lawbreakers as part of their regular employment duties …CZ Master Association made clear to BonaFide and its personnel that they did not have the authority, power or right to comport themselves or otherwise act as law enforcement officials in the performance of their employment duties and/or their interaction with the community.”

CZ asserted, as undisputed facts, that BonaFide guards were expected to use their judgment in responding to situations, CZ relied upon BonaFide’s policy for each officer to observe and report incidents and 168*168 violations of law, rather than get in harm’s way, and it never instructed BonaFide guards to carry out arrests or detentions. Tilley’s own testimony supported those alleged facts, and he failed to offer any evidence to dispute them.^[13] Under those circumstances, CZ cannot have any liability for Tilley’s decision to step out of his “observe and report” function to confront the Carrenos. There is simply no evidence that CZ expected, let alone required, that he do so.

Finally, it is irrelevant that CZ knew or should have known that Tilley (or other guards) had confronted and detained or arrested wrongdoers in the past. The same type of argument was made in Hooker, and rejected by the Supreme Court: “there was no evidence Caltrans’ exercise of retained control over safety conditions at the worksite affirmatively contributed to the … crane operator[‘s practice of retracting the outriggers to permit construction traffic to pass]. There was, at most, evidence that Caltrans’ safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it.”

Under the Privette doctrine, and its extension in Hooker, the undisputed facts of this case demonstrate CZ could not be held liable to Tilley based upon its alleged failure to exercise its retained control over the association property so as to restrict or control youth parties on the premises.

IV

In addition to determining CZ had no liability to Tilley under the peculiar risk doctrine, we also conclude CZ owed Tilley no independent duty to restrict the parties thrown by its homeowners, or to control the number of non-residents allowed to attend those parties.

Duty, of course, is primarily a matter of law, not fact. (Weirum v. RKO General, Inc.(1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) “It is the court’s `expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'” (Ibid, citing Prosser, Law of Torts (4th ed.1971) pp. 325-326.)

In Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 1 Cal.Rptr.3d 762, relied upon by CZ, the court concluded that defendant had no duty to refuse the use of its premises for an all-night rave party, even though drinking and drug use by party-goers was foreseeable. The court rejected the notion that such parties were “inherently dangerous” because no party-goers were required to engage in dangerous or illegal conduct, and explained that imposing “ordinary negligence liability on a business owner that has done nothing more than allow its facility to be used for an all-night party, even if we assume [it] knew that drugs would be used at the party, would expand the concept of duty beyond any current model.” (Id. at p. 406, 1 Cal.Rptr.3d 762.)

In reaching its decision, the Sakiyama court considered the well-known factors set out in Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561,to determine whether a legal duty of care existed: “[1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant’s conduct and the injury suffered, [4] the moral blame attached to the 169*169 defendant’s conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved.”

While foreseeability is a primary issue in determining duty, “foreseeability alone is not sufficient to create an independent tort duty…. Because the consequences of a negligent act must be limited to avoid an intolerable burden on society (Elden v. Sheldon (1988) 46 Cal.3d 267, 274, 250 Cal.Rptr. 254, 758 P.2d 582), the determination of duty `recognizes that policy considerations may dictate a cause of action should not be sanctioned no matter how foreseeable the risk.’ (Ibid., fn. omitted.) `[T]here are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for [an] injury.’ (Thing v. La Chusa(1989) 48 Cal.3d 644, 668, 257 Cal.Rptr. 865, 771 P.2d 814.) In short, foreseeability is not synonymous with duty; nor is it a substitute.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 552, 87 Cal.Rptr.2d 886, 981 P.2d 978.)

In this case, the evidence supporting foreseeability was slight, at best. Despite Tilley’s sweeping assertion concerning the numerous violent juvenile parties that took place regularly in Coto, the evidence established only one occasion in which a party had erupted into violence prior to the 1998 party at issue in this case. That incident was the S.’s 1997 party, when Tilley himself responded to a report involving an altercation between the S.’s daughter Torri, and John Jesme. According to Tilley’s own report, the party, while large, was adequately supervised by adults. Moreover, the violence was not the product of homeowners allowing a party to grow too large, or of non-residents being allowed access to the premises. To the contrary, the problem was that Torri S. was attempting to restrict access to her party, and the person she was seeking to bar was a Coto resident.

There is evidence of two other incidents of youth violence against adults within Coto in the record, but they are not sufficiently similar to the incident at issue here to support foreseeability. Those incidents were not related to parties, and the perpetrators in both cases included Coto residents, accompanied by their friends. Nothing in any of these incidents suggested any problem which could be cured by (a) limiting the size of residents’ parties, or (b) imposing more stringent restrictions on access to such parties by non-residents of Coto.

Additionally, none of the other Rowland factors (other than perhaps the certainty of plaintiffs’ injury) support imposing a duty in this case. The connection between the defendant’s conduct — failing to impose restrictions on homeowner parties — and the injury suffered, is attenuated at best. Tilley was injured after the S.’s party was over, and the Carrenos were in their car attempting to leave. It was Tilley’s attempt to detain them, not the fact that the party had taken place, which was the immediate cause of the assault. Of course, there is no moral blame attached to allowing a homeowner to host a party, and the policy of preventing future harm would be little served by restricting parties, as the typical problems associated with parties, according to Tilley’s own testimony, were noise and parking violations — not violence.

Moreover, the burden to CZ and consequences to the community of imposing a duty to place restrictions on residents’ parties, with resulting liability for breach, 170*170 would appear to be enormous. Any mishap at a party within Coto would presumably give rise to at least a colorable claim against CZ. Additionally, the undisputed evidence is that the community’s CC & R’s gave CZ no specific power to regulate parties within the residents’ own homes. While Tilley argues that CZ could have regulated parties through use of the CC & R provision prohibiting nuisance, that would not have been effective. The nuisance regulation did not declare that parties, or even large parties, constituted a nuisance. Instead, it merely stated that a “noise or other nuisance” which was “offensive or detrimental” to other residents, was prohibited. That would allow an overly-loud or raucous party to be stopped (as BonaFide guards sometimes did), but included no authority to prevent it in the first place.

And finally, it is undisputed that BonaFide had already insured against the risks encountered by its employees during the course of their work, through the workers’ compensation system.

Based upon all of those factors, we conclude CZ had no duty to restrict access to the community or to regulate the parties hosted by its residents. Like the Sakiyamacourt, we do not consider parties to be “inherently dangerous,” even assuming that underage drinking would take place. They may be unwise, troublesome, nasty, brutish and long, but they are not “inherently dangerous.” More specifically, there is no evidence these parties posed any significant danger to the BonaFide security guards who patrolled Coto, so long as those guards limited their involvement and avoided placing themselves in harm’s way. The problem in this case was Tilley did not. He chose to confront and attempt to detain a party-goer who was leaving the scene. Such conduct was not a required or expected part of his job, and was not a circumstance CZ was obligated to protect against.

V

We have concluded Tilley offered no evidence to create a triable issue of fact on his claim CZ either expressly or impliedly required the security guards to act aggressively in confronting problems with youth parties, thus placing themselves at risk. However, even if he had, summary judgment would have been appropriate based upon the primary assumption of risk doctrine.

As explained by the Supreme Court in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 34 Cal.Rptr.2d 630, 882 P.2d 347, the primary assumption of risk doctrine, as applied in the employment context, provides that one who hires a person to confront a particular risk, owes no duty to protect the person against that risk. As explained in Neighbarger, “it is unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront.” (Id. at p. 542, 34 Cal.Rptr.2d 630, 882 P.2d 347.)

In Herrle v. Estate of Marshall, supra, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713, this court applied the primary assumption of risk doctrine to bar a nurse’s aide, employed specifically to care for a violent patient who attacked and injured her, from recovering damages from that patient. Additionally, the doctrine has been applied to preclude recovery by veterinarians who were injured by the animals they were hired to treat. (See Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 20 Cal.Rptr.2d 143; Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 229 Cal.Rptr. 625; Nelson v. Hall(1985) 165 Cal.App.3d 709, 171*171 714, 211 Cal.Rptr. 668 [claim by veterinarian’s assistant].)

Although Tilley argues the primary assumption of risk doctrine cannot be applied against a private (as opposed to public) safety officer, citing Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th 532, 34 Cal.Rptr.2d 630, 882 P.2d 347, that case establishes no such rule. Instead, as we have already explained in Herrle v. Estate of Marshall, supra, 45 Cal.App.4th 1761, 1772-1773, 53 Cal.Rptr.2d 713,Neighbarger’s refusal to apply the doctrine (in that case specifically the “firefighter’s rule”) was based upon the fact that the plaintiffs’ claims had been asserted against a third-party wrong-doer, and not the entity which had hired them to undertake the risk.

As Neighbarger explained, “if we focus on the defendant and the question of the defendant’s duty toward plaintiff, we see that the third party defendant stands in a different relation to the private safety worker than members of the public stand to the public firefighter.” (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 542, 34 Cal.Rptr.2d 630, 882 P.2d 347.) “[W]hen a safety employee is privately employed, a third party lacks the relationship that justifies exonerating him or her from the usual duty of care. The third party, unlike the public with its police and fire departments, has not provided the services of the private safety employee. Nor has the third party paid in any way to be relieved of the duty of care toward such a private employee. Having no relationship with the employee, and not having contracted for his or her services, it would not be unfair to charge the third party with the usual duty of care towards the private safety employee.” (Id. at p. 543, 34 Cal.Rptr.2d 630, 882 P.2d 347.)

In this case, however, CZ is itself the entity which is alleged to have engaged Tilley to confront potentially violent young party-goers in Coto — an extension of the more passive “observe and report” function normally required of BonaFide security guards. Assuming that allegation were proven, it would establish that CZ hired Tilley to confront the very hazard which resulted in his injury, and would thus exonerate CZfrom any duty to protect him from that hazard. Under those circumstances as well, summary judgment would be appropriate.

VI

Finally, Tilley argues the court abused its discretion in denying his last minute request for an additional continuance of the summary judgment hearing. Because Tilley’s request was not filed as part of his opposition to the motion, it did not fall within the parameters of Code of Civil Procedure section 437(c), subdivision (h): “The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Italics added.) Consequently, there was no special onus on the court to grant the request.

Instead, the court had discretion to do so if it felt the additional continuance was warranted. In his request, Tilley explained that on August 29, he had served CZ with a notice of custodian of records deposition, including a 15-page list of requested document categories. CZ objected to the notice on September 4, and refused to appear. CZ followed its objection with a letter explaining the request was significantly duplicative of a prior custodian of records deposition for CZ, and offering to compromise with a limited second deposition. Apparently that did not occur. Tilley also argued that a continuance was necessary to allow him leave to amend his complaint to specifically allege a “special 172*172 employment” relationship between himself and CZ, which he had relied upon significantly in his opposition to the summary judgment motion. He stated that he believed that such an amendment might be necessary because CZ had argued in its reply brief that the failure to plead the theory precluded Tilley from arguing it.

CZ opposed the motion, noting Tilley had made no reference to the necessity of further discovery in his opposition to the summary judgment motion, and had previously obtained two continuances of the motion. It also pointed out that during the five months the summary judgment motion had been pending, Tilley had conducted no discovery other than its last-minute attempt to depose CZ’s custodian of records.CZ also argued it would be prejudiced if Tilley were allowed to amend his complaint to add an additional claim of liability based upon “special employment” on the eve of the summary judgment hearing, as time constraints precluded it from any opportunity to revise and refile the motion to meet that new allegation prior to the trial date.

Under those circumstances, there was no abuse of discretion in the court’s decision to deny the continuance. A clear implication from the facts is that Tilley was manipulating the circumstances to delay summary judgment for as long as possible. He waited until the very last minute to commence any discovery; but then abandoned the effort when CZ did not acquiesce, and filed his opposition without claiming any need for it. His opposition relied heavily on the possibility of a “special employment” relationship, a theory which he had previously denied asserting, to defeat summary judgment. And it was only after he received CZ’s reply brief, in which it noted his failure to actually allege any such claim, that he suddenly felt the need to complain about his previously thwarted discovery.

The court could easily have concluded that Tilley’s goal was merely to avoid the summary judgment by whatever means were necessary until it was too late for such a motion to be heard. If that was his goal, he could not count on court cooperation.

The judgment is affirmed.

MOORE and FYBEL, JJ., concur.

[1] According to Tilley’s testimony, he had been previously employed as a full-time deputy by the San Bernardino County Sheriff’s Department, and as a patrolman by the Adelanto Police Department. He remained an active reserve officer for the San Bernardino County Sheriff’s Department at the time of his assault.

[2] According to Nathan Carreno, it was common for young party-goers in Coto to disperse when requested to do so by law enforcement, and then simply drive around for 15 or 20 minutes until the officers were gone, before reassembling at the party.

[3] Tilley suggests the number might have been greater, but offers only the testimony of a sheriff’s deputy who arrived after Tilley’s assault. That deputy described the situation when he arrived as a “melee,” but did not offer any estimate of the number of people involved. At a later point in his deposition, that same deputy questioned the suggestion the party had been “resurrected,” noting “[t]here was just a few people staying around that were helping clean up. The party continued a little bit with them.”

[4] The other defendants included the Carrenos, the S.’s, the property management company hired byCZ, and a subsidiary homeowners’ association which governed the specific area of Coto in which the S.’s resided.

[5] Tilley’s complaint recites that it also states a “claim sounding in . . . negligent failure to warn,” but it does not. The only allegation pertaining to such a claim is in paragraph 82, which states in pertinent part “Mr. Tilley further alleges that the CZ Master and/or RCA members who called the guardhouse to request Mr. Tilley’s second appearance at the [S.] Residence negligently failed to warn of the dangerous conduct and propensities of the Carrenos, either as part of the initial telephone calls or after Mr. Tilley’s arrival. . . .[T]o the extent permitted by law, Mr. Tilley alleges and imputes this negligent failure to warn against to . . . CZ Master.” That allegation, stated in incomplete and conditional terms, does not state any cause of action.

[6] Privette v. Superior Court, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721.

[7] Technically, Tilley’s response initially concedes that fact No. 5 is undisputed, stating: “First, even if these facts were undisputed (which they are) . . . .” (Italics added.) We presume, in light of the claimed evidentiary disputes which are urged five pages later in the document, that the initial statement is a typographical error.

[8] To be fair, we must also point out that CZ’s separate statement has the unfortunate tendency to combine several facts into each alleged “undisputed fact.” That also significantly increases the complexity of determining which facts are disputed.

[9] Rather than disputing the evidence, Tilley incorrectly asserts the evidence “pre-date[s] the 1997 and 1998 assaults on Mr. Tilley at the [S.] residence.”

[10] An employee can have more than one employer, usually a general and a special employer, and both are considered his employer for purposes of the workers’ compensation law. (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 69 Cal.Rptr.2d 501.) The employee cannot sue either one in court if both have provided workers’ compensation coverage. In the case of dual employment, one employer can fulfill its obligation by entering into a contract by which the other is required to secure such coverage for the employee. (Lab.Code, § 3602, subd. (d).) In that regard, we note that Tilley provided the court with a copy of CZ’s invitation for bids on the security contract which was to commence on December 1, 1996, a contract obtained by BonaFide. Among other things, the bidding specifications include a requirement that the security company hired by CZ must maintain workers’ compensation coverage at its sole cost and expense.

[11] Scott Myers, the executive at BonaFide who handled the CZ account, testified that post orders may actually be “either provided directly from the client ….or they are a combination of those directions combined with the documents that’s [sic] produced by BonaFide.” But that does nothing to alter Tilley’s statement that any directions from CZ were subordinate to his instructions from BonaFide, and were followed only if approved by BonaFide.

[12] “Section 414 provides: `One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.'” (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 201, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)

[13] What he offered amounted to an agreement concerning the significance of CZ’s evidence on the point.

Keywords: Negligence, Premises Liability