Heiman v. Workers’ Compensation Appeals Board

57 Cal.Rptr.3d 56 (2007)

58*58 Graiwer & Kaplan and Sherwin B. Conway and Susan Kaplan, Los Angeles, for Petitioners.

Neil P. Sullivan and Vincent Bausano, for Respondent Workers’ Compensation Appeals Board.

Office of the Director-Legal Unit, Department of Industrial Relations, and Vanessa L. Holton and Steven A. McGinty and David A. Warshaw, for Respondent Uninsured Employers Benefits Trust Fund.

Grancell, Lebovitz, Stander, Barnes & Reubens and Penny C. Fogel, for Respondents Robert Fisher, Regina Fisher and Eileen Kawas.

Malmquist, Fields & Camastra and Gregory L. Tanner, for Respondent Stuart Pollard.

Law Offices of Berkowitz & Cohen and Elliott S. Berkowitzfor Real Party in Interest.

Summary by Mary M. Howell, Esq.:

Employee of uninsured contractor, hired by property manager to work on condominium project, was injured.  Court ultimately held the employer, and the property manager who hired him, were dual employers and jointly liable for the injuries.  Further, since the property manager was the association’s agent, the association was vicariously liable to the injured employee.

**End Summary**

57*57 CROSKEY, Acting P.J.

Petitioner, a professional property manager, hired an unlicensed and uninsured contractor to install rain gutters on a condominium building, and an employee of the contractor was seriously injured on the first day of the job. The Workers’ Compensation Appeals Board (WCAB) concluded that petitioner was the employer liable for workers’ compensation. Petitioner contends that the WCAB erred because petitioner was instructed to hire the unlicensed contractor as the agent of the condominium homeowners association or the condominium owners, which were found not liable for workers’ compensation under the Labor Code.^[1]

We conclude that petitioner and the unlicensed contractor were dual employers that are jointly and severally liable for workers’ compensation. The unlicensed contractor employed the injured employee, and petitioner hired the unlicensed contractor as a professional property manager and the agent of the homeowners association. The homeowners association was not an owner or exempt employer under the Labor Code. Even if petitioner was the agent of the condominium owners, an agent may be liable for performing an act authorized by the principal whose rights are not imputed to the agent. Since liability for an agent’s authorized act is imputed to the principal and the homeowners association was a legal entity separate from the owners, we further conclude that the liability of petitioner as agent is imputed to the homeowners association as principal.

Accordingly, the WCAB’s decision is affirmed in part and annulled in part, and the matter is remanded for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, Robert P. Heiman, individually, and doing business as Pegasus Properties (Pegasus), a property manager business, entered into a Condominium Management Agreement (Agreement) with Montana Villas Homeowners Association (Association), an unincorporated association of residential condominium owners. The Agreement provided that Pegasus as the agent of the Association would manage the condominium property and arrange for repairs of the common area for a fee. The Agreement further provided that employees hired by Pegasus 59*59 to maintain or repair the property would be employees of the Association, although Pegasus had responsibility to comply with labor laws. The Agreement also provided that expenditures in excess of $100 required approval by the Association, and that Pegasus would be reimbursed for any advances or costs.

At an Association meeting, condominium owners agreed that new rain gutters should be installed on part of the condominium building as recommended by Pegasus. Pegasus hired Mark Hruby doing business as Rube’s Rain Gutter Service (Hruby), an unlicensed contractor that was also uninsured for workers’ compensation. The job contemplated was no more than two days and the cost was $1050.

Hruby hired Freddy Aguilera to perform some of the work at $65 a day. On November 5, 1997, the first day of the job, a rain gutter contacted a high voltage electrical wire and Aguilera was severely shocked and fell and was seriously injured. Hruby completed the job and was paid by check.

Aguilera filed for workers’ compensation naming Hruby as the employer, and the Uninsured Employers Benefits Trust Fund (Fund),^[2] Pegasus, the Association and the individual condominium owners (owners) were joined as defendants. The parties proceeded to trial and Hruby and Aguilera testified.

The workers’ compensation administrative law judge (WCJ) determined that Hruby was the employer of Aguilera and was liable for workers’ compensation including 90 percent permanent disability. In the opinion, the WCJ explained that even though Hruby did not have the required contractor’s license and was not an independent contractor under section 2750.5,^[3] the owners were not employers under section 3351(d)^[4] because Aguilera had not worked sufficient hours under section 3352(h)^[5]and Cedillo v. Workers’ Comp. Appeals Bd. (2003) 106 Cal.App.4th 60*60 227, 130 Cal.Rptr.2d 581 (Cedillo).”^[6] In addition, Aguilera did not have enough hours for casual employment under section 3715(b).^[7] The WCJ also reasoned that, “the agents, whether the Association or Pegasus, would be entitled to the rights and liabilities of the owners and should, be deemed owners within Labor Code §§ 3351(d) and 3352(h).” Aguilera petitioned the WCAB for reconsideration that he was permanently totally disabled, and agreed with the Fund that the Association may be liable.

The WCAB granted reconsideration and determined that Hruby “did not possess a valid contractor’s license at the time of the injury and therefore is not the employer of applicant for purposes of liability for workers’ compensation benefits.” The WCAB determined further that Hruby was hired by Pegasus, “a professional property management business” and “an agent for the homeowners’ association”, and “therefore under Labor Code section 2750.5, became the employer of applicant, Freddy Aguilera.” The WCAB awarded Aguilera workers’ 61*61 compensation to be paid by Pegasus. The WCAB also ordered further development of the record by the WCJ to determine whether Aguilera was permanently totally disabled.

Pegasus petitions for writ of review and contends that the WCJ was correct that it was the agent of the Association or owners and not liable under sections 3351(d), 3352(h) and 3715(b). Pegasus also claims that the Association or owners selected Hruby from three bids and paid for the rain gutter installation.

The Fund answers that sections 3351(d) and 3352(h) do not apply since Pegasus was not an owner, even if Pegasus was the agent of the owners or the Association. Pegasus was the joint employer of Aguilera under section 2750.5 since Pegasus hired Hruby, an unlicensed contractor, as expressly found by the WCJ and WCAB. In addition, all the defendants may have liability as employers under section 3715(b) because Aguilera’s labor cost in excess of $100.

Aguilera answers that he is permanently totally disabled and the Association, which is a separate legal entity, may be liable because Pegasus hired Hruby on behalf of the Association. This court requested further briefing from the parties regarding ownership of the property and liability under the principles of agency.^[8]

The WCAB responds that Hruby was hired by Pegasus as agent of the Association, which is indicated by the Agreement and minutes from an Association meeting. The WCAB concludes that as the principal the “homeowners’ association may also be held liable as a joint employer of the unlicensed contractor under Labor Code section 2750.5.” The Association is not an exempt employer under sections 3351(d) and 3352(h) because it was not an owner and “homeowner associations are separate and independent legal entities from the unit owners.” Even if the Association was an owner, the WCAB reasons, “the unlicensed contractor’s work for the homeowners’ association was not `personal’ because it was in the course of the association’s trade or business, management of the common areas of the condominium complex.”

Pegasus responds that it hired Hruby as instructed by the directors of the Association and in compliance with the Agreement. It argues the Association is not an owner according to the governing documents and Civil Code,^[9] and is a liable employer unprotected by sections 3351(d) and 3352(h); therefore, Pegasus and the directors are not liable.

The owners answer that the Association should be deemed an owner under the Labor Code because homeowners associations 62*62 have rights and liabilities 01 owners under the Civil Code.^[10] Otherwise, the owners contend, they would not receive the benefit of sections 3351(d) and 3352(h) as intended by the Legislature.

DISCUSSION

1. Standard of Review.

a. Factual Findings.

A decision by the WCAB that is based on factual findings which are substantial evidence is generally affirmed by the reviewing court. (Western Growers Ins. Co. v.Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233, 20 Cal. Rptr.2d 26 (Western Growers).) However, the reviewing court is authorized to reject factual findings that are erroneous, unreasonable, illogical, improbable, or inequitable when viewed in light of the entire record and the overall statutory scheme. (Western Growers, supra, 16 Cal. App.4th at p. 233, 20 Cal.Rptr.2d 26; Bracken v. Workers’Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 254, 262 Cal. Rptr. 537.)

b. Statutory Interpretation.

Interpretation of governing statutes or application of the law to undisputed facts is decided de novo by the reviewing court, even though the WCAB’s interpretation is entitled to great weight unless clearly erroneous. (Boehm & Associates v. Workers’Comp. Appeals Bd. (1999) 76 Cal.App.4th 513, 515-516, 90 Cal.Rptr.2d 486 (Boehm & Assocs.); Ralphs Grocery Co. v. Workers’ Comp. Appeals Bd. (1995) 38 Cal.App.4th 820, 828, 45 Cal.Rptr.2d 197 (Kaipus Grocery Co.).) The Legislature’s intent should be determined and given effect when interpreting and applying statutes. (DuBois, supra, 5 Cal.4th at page 387, 20 Cal.Rptr.2d 523, 853 P.2d 978; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224 (Moyer).) The Legislature’s intent is normally determined from the plain meaning of the statutory language, unless the language or intent is uncertain or ambiguous. (DuBois, supra, 5 Cal.4th at pp. 387-388, 20 Cal.Rptr.2d 523, 853 P.2d 978; Moyer, supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Interpretation of the statutory language should be consistent with the purpose of the statute and the statutory framework as a whole. (DuBois, supra, 5 Cal.4th at p. 388, 20 Cal.Rptr.2d 523, 853 P.2d 978; Moyer, supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Where statutory language or the Legislature’s intent is uncertain or ambiguous, rules of construction, legislative history or historical use may aid in determining the meaning or intent. (DuBois, supra, 5 Cal.4th at pp. 387-388, 393, 20 Cal.Rptr.2d 523, 853 P.2d 978.)

2. Hruby Was An Unlicensed Contractor.

A general or specialty contractor must be licensed to perform the contracted work. (Bus. & Prof.Code § 7057 et seq. and § 7065 et seq.) A contractor that selects, cuts, shapes, fabricates and installs sheet metal such as rain gutters is a specialty contractor who is required to have a 63*63 Class C-43 license. (See Cal.Code of Regulations, title 16, § 832.43.) Hruby testified at trial that he was hired to install rain gutters on the condominium building, and did not have the required Class C-43 license on the date of Aguilera’s injury. (See Zellers v. Playa Pacifica, Ltd. (1998) 61 Cal.App.4th 129, 133-134, 70 Cal. Rptr.2d 919 [workers’ compensation exclusive remedy under § 2750.5 where property owner hired licensed contractor whose license was expired when employee injured].) This testimony was uncontradicted and unimpeached and is substantial evidence that supports the WCAB’s finding that Hruby was an unlicensed contractor. (See Garza v. Workmen’s Comp.App. Bd.(1970) 3 Cal.3d 312, 317-318, 90 Cal.Rptr. 355, 475 P.2d 451; LeVesque v. Workmen’s Comp.App. Bd. (1970) 1 Cal.3d 627, 639, 83 Cal.Rptr. 208, 463 P.2d 432.)

a. Legal Consequences of Hiring an Unlicensed Contractor.

Among the legal consequences of hiring an unlicensed contractor who is injured or whose employee is injured performing the work is that different employment relationships may arise with respect to “employer” liability for workers’ compensation or tort damages. For example, in State Compensation Ins. Fund. v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5, 219 Cal.Rptr. 13, 706 P.2d 1146 (State Fund), the Supreme Court concluded that a homeowner, who hired an unlicensed contractor that fell from a scaffold, was required to assume the status of “employer” forworkers’ compensation liability; this is so because section 2750.5 requires an independent contractor to be licensed as a matter of law. In Blew v. Horner (1986) 187 Cal.App.3d 1380, 232 Cal.Rptr. 660 (Blew), a general contractor who hirea an unlicensed and uninsured subcontractor was determined to be the “employer” of the subcontractor and the subcontractor’s injured employee, and workers’ compensation was the exclusive remedy against the general contractor. (See alsoNick Hagopian Dry wall v. Workers’ Comp. Appeals Bd. (1988) 204 Cal.App.3d 767, 771-772, 251 Cal.Rptr. 455 [licensed and insured contractor “employed” unlicensed subcontractor’s injured employee who is not estopped for subcontractor’s misrepresentation had license], which cites Rinaldi v. Workers’ Comp. Appeals Bd.(1988) 199 Cal.App.3d 217, 221, 244 Cal.Rptr. 637 [licensed and uninsured general contractor “employed” unlicensed and uninsured subcontractor’s injured employee, who is not estopped for subcontractor’s misrepresentation had license].)

However, the owner or occupant of a residential dwelling, who hires an unlicensed contractor whose employee is injured, may not be the “employer” liable for workers’ compensation under section 2750.5 or section 3351(d) unless the employee worked sufficient hours under section 3352(h). (Cedillo, supra, 106 Cal. App.4th at pp. 235-236, 130 Cal.Rptr.2d 581; see also Furtado v. Schriefer (1991) 228 Cal.App.3d 1608, 280 Cal.Rptr. 16 [matter remanded to determine whether homeowner “employed” injured unlicensed painter under section 3352(h), which controls over section 2750.5].) Nevertheless, a homeowner may be an “employer” liable in tort under section 2750.5, and the unlicensed contractor who was also uninsured may be a dual employer with tort liability under section 3706.^[11] (Cedillo, supra, 106 Cal.App.4th at pp. 236-237, 130 Cal. Rptr.2d 581.) Since Hruby was an unlicensed64*64 contractor when he contracted with Pegasus and at the time Aguilera was injured on the job, it is necessary for us to examine the potential employment relationships in order to determine liability.

3. Hruby Is A Liable Employer Under Division 4 Of The Labor Code.

The WCAB determined that Pegasus was the “employer” liable for workers’ compensation under section 2750.5 and the Labor Code. Pegasus contends that the WCJ correctly found that Hruby was the liable employer.

Generally, employment relationships that result in workers’ compensation liability are predicated more upon the definitions pertaining to employees under sections 3351 et seq. than employers under sections 3300 et seq. (In-Home Supportive Services v.Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 727-728, 199 Cal.Rptr. 697 (In-Home Supportive Services).)^[12] The definitions are an outgrowth and expansion of common law employment concepts such as the employer’s right of control over service provided by the employee. (Id. at pp. 727-729, 199 Cal.Rptr. 697.) In addition, the definitions are part of Divisions 4 of the Labor Code, which specifically addresses workers’ compensation. Section 2750.5 is part of Division 3 of the Labor Code which supplements and does not override the Division 4 definitions of employers and employees. (State Fund, supra, 40 Cal.3d at pp. 9-15, 219 Cal.Rptr. 13, 706 P.2d 1146; Cedillo, supra, 106 Cal.App.4th at pp. 232-234, 130 Cal.Rptr.2d 581.)

Applying these principles, we conclude that Hruby was a dual employer of Aguilera and is liable for workers’ compensation under Division 4 of the Labor Code. It is undisputed that Hruby hired Aguilera to perform service within the meaning of sections 3351 and 3300.^[13] By rendering service, Aguilera is presumed to be Hruby’s employee under section 3357.^[14] Aguilera rendered the service as an employee, and not as an independent contractor under sections 3357 and 3353,^[15]because Hruby was in the business of rain gutter installation, contracted with Pegasus, paid wages and controlled Aguilera’s work and hours. (See S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350-355, 256 Cal.Rptr. 543, 769 P.2d 399.)

In addition, section 2750.5 supplements and does not negate application of the Division 4 definitions of employer and employee 65*65 to Hruby. Although the WCAB determined that Pegasus and not Hruby was the “employer” solely liable forworkers’ compensation, Cedillo indicates that there may be dual employment of an injured employee by the unlicensed contractor under Division 4 of the Labor Codeand the contractor’s hirer under section 2750.5. (Cedillo, supra, 106 Cal.App.4th at pp. 235-236,130 Cal.Rptr.2d 581.) In Cedillo, the unlicensed contractor contended that he could not be the employee of the homeowner under section 2750.5 and the employer of the injured employee at the same time. The court explained that a similar claim was rejected in Hernandez v. Chavez Roofing, Inc. (1991) 235 Cal. App.3d 1092, 286 Cal.Rptr. 919, where the unlicensed and uninsured subcontractor was potentially liable in tort under section 3706, even though the general contractor was licensed and insured for workers’ compensation.^[16] (Cedillo, supra, 106 Cal. App.4th at p. 236, 130 Cal.Rptr.2d 581.) Section 3706 is part of Division 4 of the Labor Code and subjects employers under the division to an action at law as if the division did not apply for failing to secure the payment of workers’ compensation. In addition to the civil action authorized by section 3706, workers’ compensation is a cumulative remedy under section 3715.^[17] (See Le Pare Community Assn. v.Workers’ Comp. Appeals Bd. (2003) 110 Cal. App.4th 1161,1173-1174, 2 Cal.Rptr.3d 408 (Le Pare).)

In this case, Hruby admitted at trial that he was an unlicensed contractor and illegally uninsured for workers’ compensation when Aguilera whom he had hired was injured on the job. Consequently, Hruby is liable to Aguilera for workers’ compensation under section 3715(a),^[18] and is potentially liable in tort under section 3706. (Cedillo, supra, 106 Cal.App.4th at pages 235-236,130 Cal.Rptr.2d 581.)

4. Pegasus Is A Liable “Employer” Under Section 2750.5.

The WCAB determined that Pegasus is the liable “employer” for workers’ compensation under section 2750.5, State Fund, and Blew because Pegasus hired Hruby who was an unlicensed contractor when Aguilera was injured. Pegasus contends that the WCAB erred because the Association or owners selected Hruby from three bids and instructed Pegasus to hire Hruby as indicated by the Agreement and payment from the Association’s account. The Fund answers that the claimed bids and payment are not part of the record, and the WCAB’s finding that Pegasus hired Hruby is based on substantial evidence and must be affirmed.

a. Substantial Evidence Supports The Finding That Pegasus Hired Hruby.

Only the invoice from Hruby, which was billed to Pegasus, is part of the record and66*66 the allegea Dias and documentation of who actually paid for the work is not. However, the WCJ reported that the owners agreed to the installation of new rain gutters at an Association meeting, and the WCAB indicates that Pegasus was authorized to obtain bids based on the Association’s minutes. We also note that the Agreement provides that repairs in excess of $100 must be approved by the Association, and that Pegasus was the Association’s agent. The Agreement further provides that Pegasus was an independent contractor in the business of managing properties, which is undisputed.

Nevertheless, there is no evidence that the Association or owners received bids, instructed Pegasus who to hire or had any direct involvement with Hruby. In addition, Hruby testified at trial that he agreed to install rain gutters on the condominium building with Pegasus, and did not recall contact with the owners or whose check paid for the job. These facts confirm that the agreement for installation of the rain gutters was between Hruby and Pegasus, which was an independent contractor in the business of managing properties that was acting on behalf of the Association. Therefore, the WCAB’s determination that Hruby was hired by Pegasus is supported by substantial evidence. Since Hruby was an unlicensed contractor when Aguilera was injured on the job and when Pegasus hired Hruby, Pegasus was an “employer” that is jointly and severally liable for workers’ compensation under section 2750.5,State Fund and Blew.

b. Pegasus Was The Association’s Agent.

Pegasus contends further that even if it hired Hruby, the WCJ was correct that it was the agent of the Association or owners and should be deemed an owner and exempt employer under sections 3351(d) and 3352(h) and Cediollo. However, the WCAB determined that Pegasus was the agent of the Association and neither were owners. The Fund argues that Pegasus was not an owner regardless of agency status. Although Pegasus concedes it was not an owner, we shall address whether Pegasus was the agent of the Association or owners and should be deemed an owner within the meaning of sections 3351(d) and 3352(h).

(1) The Agreement.

There is substantial evidence supporting the WCAB’s finding that Pegasus was the Association’s agent when Pegasus hired Hruby. An agent generally represents the principal in dealings with third persons (Civ.Code § 2295), may be authorized to do any act the principal may do (Civ.Code § 2304), and receives authority either by prior agreement or ratification (Civil Code § 2307). Prior authority was clearly provided by the Agreement and the Association meeting. The Agreement was between the Association and Pegasus, and was also executed by the Association’s President and Treasurer and Pegasus. Moreover, the Agreement provides that Pegasus is an independent contractor in the business of managing properties and the agent of the Association. The Agreement also states that Pegasus is authorized to manage the condominium building and provide for repairs, including the hiring of others, with Association oversight, approval of expenditures over $100 and reimbursement for advances or costs. Pursuant to the Agreement and the Association meeting, the rain gutter repair and installation was authorized and Pegasus hired Hruby who completed the job and was paid.

(2) The Davis-Stirling Common Interest Development Act.

The agency relationship between Pegasus and the Association under the Agreement67*67 is also consistent with the statutory scheme under Civil Code section 1350 et seq., which specifically address common interest developments such as condominium projects and associations and is known as the Davis-Stirling Common Interest Development Act. (See Lamden v. La Julia Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 252, 87 Cal. Rptr.2d 237, 980 P.2d 940 (Lamden) [property damage from unincorporated homeowners association spot treatment of termite infestation is subject to good faith business judgment rule and not personal injury negligence standard].) Under Civil Code section 1363(a), “A common interest development shall be managed by an association that may be incorporated or unincorporated.”^[19] In addition, “the association is responsible for repairing, replacing, or maintaining the common areas” under Civil Code section 1364(a).

It is also well established that a homeowners association is a separate legal entity apart from the owners, whether incorporated or not, with standing to sue or be sued even by a member. In White v. Cox (1971) 17 Cal.App.3d 824, 828-831, 95 Cal.Rptr. 259 (White), the court concluded that an unincorporated condominium association was a separate legal entity, which could be sued for negligence by a condominium owner. Similarly, the Supreme Court in Frances T. v. Village Green Owners Assn.(1986) 42 Cal.3d 490, 499-500, 229 Cal.Rptr. 456, 723 P.2d 573 (Frances T.) citedWhite with approval in concluding that an unincorporated condominium association has a separate legal existence, and could be held to a landlord’s duty of care to provide safety to its member. (See also Lamden, supra, 21 Cal.4th at pages 260-261, 87 Cal.Rptr.2d 237, 980 P.2d 940, Corp.Code, 18105 et seq.)

Civil Code section 1363.2 also provides for a “managing agent”, which under subdivision (f) is defined as “a person or entity, who for compensation, or in expectation of compensation, exercises control over the assets of the association” and “does not include a full-time employee of the association.” The statute further provides that the “managing agent” is authorized to receive funds belonging to the association for deposit into a trust fund account. (See also Corp.Code, § 18065, which was enacted in 2004 and provides: “Except to the extent this title provides a specific rule, the general law of agency, including Article 2 (commencing with Section 2019) of Chapter 2 of Title 6 of, and Title 9 (commencing with Section 2295) of, Part 4 of Division 3 of the Civil Code, applies to an unincorporated association.”)

In this case, the Association was unincorporated and a separate legal entity that delegated management and maintenance of the condominium building to Pegasus as the “managing agent” under the Agreement and the Davis-Stirling Common Interest Development Act. Consistent with the Civil Code, the Agreement further provided that Pegasus was a paid independent contractor and not an employee, whose duties included collecting and depositing into the Association’s account membership dues, fees, or assessments and preparing checks.

c. Pegasus’s Liability Is Unchanged By Its Agency Status.

Pegasus contends that as the agent of the Association or owners, it has the same68*68 rights or legal status as its principal under Civil Code section 2330^[20] and is an owner and exempt employer under sections 3351(d) and 3352(h). We disagree.

Civil Code section 2330 plainly states that rights and liabilities accrue from the agent’s authorized acts to the principal. The statute does not state that the principal’s rights or defenses accrue to the agent. Moreover, Pegasus was the agent of the Association, not the owners, as determined by the WCAB.

It is also well established that an agent may be liable for his or her own acts on behalf of the principal whether or not the principal is liable. (See Frances T., supra, 42 Cal.3d at pp. 505, 511, 229 Cal.Rptr. 456, 723 P.2d 573.) For example, in Cowell v. Industrial Acc. Com. (1938) 11 Cal.2d 172,176-177, 78 P.2d 1016 (Cowell), a corporate cement business, which also managed the stockholders’ ranch and hired the ranch hand who was injured, was determined to be the agent and joint employer. And although liability of the county as the state’s agent was not addressed in In-Home Supportive Services, supra, 152 Cal. App.3d at pages 729-730, 199 Cal.Rptr. 697, the state as principal was determined to be a dual employer because the county hired the injured employee and both had the right of supervision and control.

In this case, Hruby was hired directly by Pegasus as the “managing agent” on behalf of the Association. Since Pegasus was also an independent contractor in the business of managing properties and Hruby had no dealings with the Association, Pegasus “was in the best position to make the determination whether the price of the contract reflected the cost of insurance for workers’ compensation purposes and whether Mr. Hruby was properly licensed to perform the work” as stated by the WCAB. Moreover, the Agreement provided that Pegasus had responsibility for labor laws even though employees hired to perform maintenance or repairs would be employees of the Association. For these reasons, we conclude that Pegasus is an “employer” liable for workers’ compensation under section 2750.5, and is not exempted under sections 3351(d) and 3352(h) whether the agent of the Association or the owners. (Civil Code § 2330; Cowell, supra, 11 Cal.2d at pp. 176-177, 78 P.2d 1016; In-Home Supportive Services, supra, 152 Cal.App.3d at pp. 729-730, 199 Cal.Rptr. 697.)

5. The Association Is Liable As Principal.

Throughout the proceedings, Aguilera, the Fund, Pegasus and the WCAB have taken the position that the Association is liable because Hruby who was an unlicensed contractor was hired by Pegasus as the agent of the Association. As we have already noted, we have concluded that Pegasus is an employer that is jointly and severally liable for workers’ compensation under section 2750.5, State Fundand Blew. In addition, we have concluded that Hruby was hired by Pegasus as the agent of the Association, which is the principal and a separate legal entity. We have also explained that liability for an agent’s authorized acts may be imputed from the agent to the principal pursuant to Civil Code section 2330, Cowell and In-Home Supportive Services.^[21] Even if the Association was also the agent of the owners 69*69as reasoned by the WCJ, the Association may be liable for its own acts. (SeeFrances T., supra, 42 Cal.3d at page 505, 229 Cal.Rptr. 456, 723 P.2d 573.)

The owners admit the agency relationship between Pegasus and the Association but contend, as determined by the WCJ, that the Association should be deemed an owner and exempt “employer” under sections 3351(d) and 3352(h). Otherwise the owners will not benefit from sections 3351(d) and 3352(h) as the Legislature intended, “since imposing liability on the homeowner’s association would necessarily impose liability on each individual homeowner.”

However, we need not decide whether the Association should be deemed an owner and an exempt “employer” since we agree with the WCAB that the duties of Hruby and Aguilera were not “personal” and were in the “trade or business” of the Association contrary to section 3351(d). The owners do not address this issue.

Although under section 3351(d) an employee is a person “whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant” (emphasis added), the WCAB’s interpretation that the language defining duties should be read together rather than separately is entitled to great weight unless clearly erroneous. (See Boehm & Assocs., supra, 76 Cal. App.4th at pages 515-516, 90 Cal.Rptr.2d 486; Ralphs Grocery Co., supra, 38 Cal. App.4th at page 828, 45 Cal.Rptr.2d 197;Nunez v. Workers’ Comp. Appeals Bd. (2006) 136 Cal.App.4th 584, 587, 38 Cal. Rptr.3d 914.) We note that when the Legislature added and revised section 3351(d)^[22] and Insurance Code sections 11590^[23] and 11591,^[24] so that homeowner liability policies would provide workers’ 70*70 compensation coverage for residential employees,^[25] coverage for duties performed in the business of the insured was expressly excluded. Moreover, each statute contains language or references to the other statutes that indicate the Legislature intended these statutes to be interrelated and read together.^[26] Therefore, the WCAB’s interpretation of section 3351(d), that the language defining duties should be read together, is consistent with the statutory scheme.^[27]

In addition, the WCAB’s determination that the rain gutter repair and installation was not “personal” and was in the “trade or business” of the Association under section 3351(d) is consistent with the record, the Labor Code and the Davis-Stirling Common Interest Development Act. The Association managed the condominium building and provided for maintenance or repairs pursuant to the Agreement and Civil Code section 1364(a).^[28] The services provided by Hruby and Aguilera were also for maintenance or repairs within the meaning of section 3355,^[29] and management and maintenance by the Association were provided on a regular basis under the Agreement and section 3356.^[30] Moreover, the Association had corporate powers to finance, contract and conduct business under Civil Code section 1363(c)^[31] and Corp. 71*71 Code section 7140.^[32] The Association performed these functions through its officers or directors and Pegasus as the paid “managing agent” under the Agreement and the Civil Code. Consequently, the duties performed by Hruby and Aguilera were not “personal” and were in the “trade, business” of the Association, and the Association was not an owner and exempt “employer” under sections 3351(d) and 3352(h).^[33] Therefore, the Association is liable for workers’ compensation as the principal of Pegasus.

6. The Owners Are Not Liable For Workers’ Compensation.

We agree with the WCJ and the WCAB that the owners are not liable for workers’ compensation as either an “employer” under section 2750.5 or an employer under section 3351(d) because Aguilera did not work sufficient hours under section 3352(h). (Cedillo, supra, 106 Cal.App.4th at pp. 235-236, 130 Cal.Rptr.2d 581.) Even if the Association or Pegasus is the agent of the owners as suggested by the WCJ, “employer” liability for workers’ compensation is not imputed to the owners as principal because of the statutory immunity provided under the Labor Code. (SeeECC Construction, Inc. v. Ganson (2000) 82 Cal.App.4th 572, 575-576, 98 Cal. Rptr.2d 292 [condominium owners not personally liable under Corp.Code § 7350 for construction contract with condominium association that was nonprofit mutual benefit corporation, although association may look to members for debt].) Nor are the owners an “employer” that is liable for workers’ compensation solely for being a member of the Association since generally “[a] member of an unincorporated association does not incur liability for acts of the association or acts of its members which he did not authorize or perform.” (See White, supra, 17 Cal.App.3d at page 827, 95 Cal.Rptr. 259; Orser v. George (1967) 252 Cal.App.2d 660, 670-671, 60 Cal.Rptr. 708, which is cited by White, and Security-First Nat. Bk. v. Cooper (1944) 62 Cal. App.2d 653, 667, 145 P.2d 722 [Security-First National Bank].)^[34] Therefore, the owners are not liable for workers’ compensation and thus benefit from sections 3351(d) and 3352(h) as the Legislature intended.

DISPOSITION

Hruby and Pegasus were dual employers of Aguilera that are jointly and severally liable for workers’ compensation under the Labor Code. Pegasus was also the agent of the Association, which was a separate legal entity that is liable for workers’ compensation as the principal. Pegasus 72*72 and the Association were not owners or exempt employers under sections 3351(d) and 3352(h). The WCAB’s decision awards Aguilera workers’ compensation to be paid solely by Pegasus. We reject that limited conclusion and hold that Hruby is jointly and severely liable with Pegasus and the Association is also liable as Pegasus’ principle. To the extent that WCAB’s decision is inconsistent with our conclusion, it is annulled. The award will otherwise be affirmed.

The decision of the WCAB is affirmed in part and annulled in part, and the matter is remanded for further proceedings consistent with this opinion.

KITCHING and ALDRICH, JJ., concur.

[1] All statutory reference is to the Labor Code unless otherwise stated.

[2] The Fund provides workers’ compensation in place of illegally uninsured employers, who may be subject to penalties, civil liability and reimbursement of the Fund. (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388-389, 20 Cal.Rptr.2d 523, 853 P.2d 978 (DuBois); § 3710 et seq.)

[3] Section 2750.5 states in part: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor … [¶] … [¶] any person performing any function or activity for which a license is required … shall hold a valid contractors’ license as a condition of having independent contractor status, [¶] For purposes of workers’ compensation law, this presumption is a supplement to the existing statutory definitions of employee and independent contractor, and is not intended to lessen the coverage of employees under Division 4 and Division 5.”

[4] Section 3351 states in part: “`Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes: [¶] … [¶] … (d) Except as provided in subdivision (h) of Section 3352, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.”

[5] Section 3352 in relevant part states: “`Employee’ excludes the following: [¶] … [¶] (h) Any person defined in subdivision (d) of Section 3351 who was employed by the employer to be held liable for less than 52 hours during the 90 calendar days immediately preceding the date of the injury … or who earned less than one hundred dollars ($100) in wages from the employer during the 90 calendar days immediately preceding the date of the injury….”

[6] In Cedillo, a homeowner hired an unlicensed and uninsured roofer whose employee was injured after about 14 hours on the job. The court of appeal affirmed that the homeowner was not the employer liable for workers’ compensation even though the roofer was unlicensed under section 2750.5, since neither the roofer nor the injured employee worked sufficient hours under section 3352(h). However, the court concluded the roofer was a liable employer even though unlicensed. (Id.at pp. 235-236, 130 Cal. Rptr.2d 581.)

[7] Section 3715(b) states in part: “… any person described in subdivision (d) of Section 3351 who is … (3) engaged in casual employment where the work contemplated is to be completed in not less than 10 working days, without regard to the number of persons employed, and where the total labor cost of the work is not less than one hundred dollars ($100) (which amount shall not include charges other than for personal services), shall be entitled, in addition to proceeding against his or her employer by civil action in the courts as provided in Section 3706, to file his or her application with the appeals board for compensation. The appeals board … shall make the award to the claimant as he or she would be entitled to receive if the person’s employer had secured the payment of compensation as required….”

Historically, employment that was both casual and not in the usual course of the trade, business, profession, or occupation of the employer was excluded from workers’ compensation. (Section 6, Rosebury Act of 1911; Section 14, Boynton Act of 1913; Section 8, Workmen’s Compensation Insurance & Safety Act of 1917; former § 3352(a); Ingram v. Department of Indus. Relations (1930) 208 Cal. 633, 284 P. 212; Walker v. Industrial Acc. Com. (1918) 177 Cal. 737, 171 P. 954; Key Ins. Exchange v. Washington (1970) 7 Cal. App.3d 209, 212-213, 86 Cal.Rptr. 542.) Casual employment was defined as work contemplated to be completed in not exceeding 10 working days, without regard to the number of employees, and where the total labor cost was less than $100. (Former section 3354.) If either the work contemplated exceeded the 10 days or the cost was more than $100, the employment was not casual or excluded. (Daniels v. Johnson (1940) 38 Cal. App.2d 619, 621-622, 101 P.2d 707.) Former § 3354 was deleted by the legislation in 1975 which added § 3351(d) so that casual employment would be covered under workers’ compensation. (State Farm Fire & Casualty Co. v. Workers’ Comp. Appeals Bd. (1997) 16 Cal.4th 1187, 1205, 69 Cal.Rptr.2d 602, 947 P.2d 795 (State Farm ); Scott v. Workers’ Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 985, 176 Cal. Rptr. 267.) The reference to casual employment essentially in its present form was then added to section 3715(b) by the legislative revisions in 1977, and whether the WCJ’s test in the disjunctive for casual employment and liability under the statute is correct is undecided. (See California State Automobile Assn. Inter-Ins. Bureau v. Workers’ Comp. Appeals Bd. (2006) 137 Cal.App.4th 1040, 1046-1048, 40 Cal.Rptr.3d 743.)

[8] The court asked the parties the following questions:

“1. Why should not the homeowners’ association (as opposed to the individual unit owners) be deemed the owner of the common area for the purposes of this proceeding?

2. Was there an agency relationship between the homeowners’ association and Pegasus when the unlicensed contractor was hired?

3. If the property management company hired the unlicensed contractor and is an employer liable for workers’ compensation under Labor Code section 2750.5, what is the liability, if any, of the homeowners’ association?

4. Is the homeowners’ association excused from liability pursuant to Labor Code section 3351, subdivision (d) and Labor Code section 3352. subdivision (h)?”

[9] See Civil Code § 1362 which provides: “Unless the declaration otherwise provides, in a condominium project, or in a planned development in which the common areas are owned by the owners of the separate interests, the common areas are owned as tenants in common, in equal shares, one for each unit or lot.”

[10] For example, the owners cite Civil Code § 1368.3 which provides in part: “An association established to manage a common interest development has standing to institute, defend, settle, or intervene in litigation, arbitration, mediation, or administrative proceedings in its own name as the real party in interest and without joining with it the individual owners of the common interest development, in matters pertaining to the following: [¶] (a) Enforcement of the governing documents. [¶] (b) Damage to the common area….”

[11] Section 3706 states: “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.”

[12] In In-Home Supportive Services, supra, 152 Cal.App.3d 720, 199 Cal.Rptr. 697 an attendant who was hired by the county as part of a state in-home assistance program injured her back while lifting a disabled person out of a car. Although the attendant had insufficient hours to qualify as an employee of the disabled person under § 3352(h), the court concluded that the state was a dual employer with supervision and the right of control with the county as its agent under § 3351. (Id. at pp. 729-733, 199 Cal.Rptr. 697.) The court also rejected that employment by the disabled recipient under § 3351.5 excludes other employment relationships under the statutory scheme. (Id. at pp. 733-738, 199 Cal.Rptr. 697.)

[13] Section 3300 in part provides: “As used in this division, `employer’ means: … [H] (c) Every person … which has any natural person in service.”

[14] Section 3357 states: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.”

[15] Section 3353 provides: “`Independent contractor’ means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

[16] The court in Hernandez cited Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 333, 265 Cal.Rptr. 788 (injured employee of unlicensed and insured subcontractor limited to workers’ compensation and precluded from personal injury action against licensed and insured general contractor).

[17] Section 3715(a) states in part: “Any employee, except an employee as defined in subdivision (d) of Section 3351, whose employer has failed to secure the payment of compensation as required by this division, or his or her dependents in case death has ensued, may, in addition to proceeding against his or her employer by civil action in the courts as provided in Section 3706, file his or her application with the appeals board for compensation….”

Section 3715(b) addresses illegally uninsured employers who employ employees defined by section 3351(d). (See footnote 7, ante.)

[18] See Le Pare, supra, 110 Cal.App.4th at pages 1173-1174, 2 Cal.Rptr.3d 408.

[19] See Civil Code section 1351(a) which states: “`Association’ means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.” See also Civil Code § 1363(c) and Corporations Code § 18000 et seq., which was enacted in 2004 and addresses associations that are unincorporated [Corp. Code § 18035(a)] or non-profit [Corp.Code § 18020].

[20] Civil Code § 2330 states: “An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal.”

[21] See also Corp.Code § 18250, which was enacted in 2004 and was based on former Corporations Code § 24001 and which states: “Except as otherwise provided by law, an unincorporated association is liable for its act or omission and for the act or omission of its director, officer, agent, or employee, acting within the scope of the office, agency, or employment, to the same extent as if the association were a natural person.”

[22] Section 3351(d) was added in 1975 and provided: “Any person employed by the owner of a private dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the performance of household domestic service. For the purposes of this subdivision, household domestic service shall include, but not be limited to, the care and supervision of children in a private residence.” Section 3351(d) was amended in 1977 to essentially its current form and § 3352(h) was added. (See fn. 4 and fn. 5, ante.)

[23] Insurance Code § 11590 was also added in 1975 and stated: “Except as provided in Section 11591 or 11592, no policy providing comprehensive personal liability insurance, or endorsement thereto, may be issued, amended, or renewed in this state on or after January 1, 1977, unless it contains a provision for coverage against liability for the payment of compensation, as defined in Section 3207 of the Labor Code, to any person defined as an employee by subdivision (d) of Section 3351 of the Labor Code. Any such policy in effect on or after January 1, 1997, whether or not actually containing such provisions, shall be construed as if such provisions were embodied therein.”

Insurance Code § 11590 was also revised in 1977 and basically was unchanged except for the addition of the provision: “However, such coverage shall not apply if any other existing, valid and collectible, workers’ compensation insurance for such liability is applicable to the injury or death of such employee.”

[24] Insurance Code § 11591 was also added in 1975 and provided: “The requirements of Section 11590 shall be inapplicable to any such policy of insurance or endorsement where the services of such employee are in connection with business pursuits of the insured.”

Insurance Code § 11591 was also amended in 1977 and states: “The requirements of Section 11590 shall be inapplicable to any such policy of insurance or endorsement where the services of such employee are in connection with the trade, business, profession, or occupation, as such terms are defined in Sections 3355 and 3356 of the Labor Code, of the insured.”

[25] See State Farm, supra, 16 Cal.4th at pp. 1193-1196, 69 Cal.Rptr.2d 602, 947 P.2d 795 (son hired to work on father’s residence not excluded under § 3352(a) and homeowners policy since coverage elected by insuring under § 4150 et seq.); see also In-Home Supportive Services, supra, 152 Cal.App.3d at pp. 735-736, 199 Cal.Rptr. 697.

[26] In contrast, the Supreme Court in State Farm concluded that insurance coverage under Insurance Code § 11590 was broader than indicated by section 3351(d) because there was no reference in these statutes to section 3352(a), which excludes residential employees employed by a parent, spouse or child. (State Farm, supra, 16 Cal.4th at pp. 1194-1198, 69 Cal.Rptr.2d 602, 947 P.2d 795.)

[27] The term “personal” in section 3351(d) may be a reference to the term “household domestic service”, which was included in the 1975 version of the statute. The term “household domestic service” implies duties that are personal to the homeowner and not related to the homeowner’s commercial or business activity. (See Fernandez v. Lawson (2003) 31 Cal.4th 31, 36-37, 1 Cal.Rptr.3d 422, 71 P.3d 779.)

[28] Civil Code § 1364(a) provides in part: “Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas, other than exclusive use common areas

[29] Section 3355 states “As used in subdivision (d) of Section 3351, the term `course of trade, business, profession, or occupation’ includes all services tending toward the preservation, maintenance, or operation of the business, business premises, or business property of the employer.”

[30] Section 3356 provides: “As used in subdivision (d) of Section 3351 and in Section 3355, the term `trade, business, profession, or occupation’ includes any undertaking actually engaged in by the employer with some degree of regularity, irrespective of the trade name, articles of incorporation, or principal business of the employer.”

[31] Civil Code § 1363(c) states: “Unless the governing documents provide otherwise, and regardless of whether the association is incorporated or unincorporated, the association may exercise the powers granted to a nonprofit mutual benefit corporation, as enumerated in Section 7140 of the Corporations Code, except that an unincorporated association may not adopt or use a corporate seal or issue membership certificates in accordance with Section 7313 of the Corporations Code. The association, whether incorporated or unincorporated may exercise the powers granted to an association in this title.”

[32] Corporations Code § 7140 states in part: “… a corporation … shall have all of the powers of a natural person, including … [¶] (e) … to indemnify and purchase and maintain insurance … [¶] (g) Levy dues, assessments … [¶] (i) Assume obligations, enter into contracts … [¶] (l) Carry on a business at a profit and apply any profit that results from the business activity to any activity in which it may lawfully engage.”

[33] The Fund argued at oral argument that the rain gutter repair and installation was also not “personal” and in the “trade, business” of Pegasus, and is another reason why § 3351(d) and § 3352(h) do not apply to Pegasus.

[34] See also Holmes v. Roth (1992) 11 Cal. App.4th 931, 934-935, 14 Cal.Rptr.2d 315 (mere membership does not entitle condominium owner to raise workers’ compensation exclusivity as defense to doorman’s negligence claim): Corporations Code § 18260, which was enacted in 2004 and is based on former Corporations Code § 24002 that is cited by White; Corporations Code § 18605 and § 18610 which was enacted in 2004 and codify the rule of Security-First Nat. Bk. and Corporations Code, § 18620.

Keywords: Contractors

Gray v. McCormick

167 Cal.App.4th 1019 (2008)

1021*1021 Stradling Yocca Carlson & Rauth and Donald J. Hamman for Plaintiffs, Cross-defendants and Appellants.

Cunningham & Treadwell, Francis J. Cunningham III and David S. Bartelstone for Defendants, Cross-complainants and Respondents.

Summary by Mary M. Howell, Esq.:

CC&R-created exclusive use easement over a neighbor’s property, used by the owners of the easement for passage of their horses, and for the transportation of their rubbish, horse feed, and manure, prevented the neighbor from developing the property with a driveway and other improvements, or making any other use of the exclusive easement area.

**End Summary**

OPINION

MOORE, J.—

Douglas and Hope Gray, on the one hand, and Daniel and Marilyn McCormick, on the other, own neighboring properties in a subdivision of multimillion dollar luxury homes. The Grays hold an exclusive access easement over the property owned by the McCormicks. The Grays contend the McCormicks are precluded from making any use whatsoever of the easement area, and they sued for a judgment to that effect. The McCormicks maintain they are entitled to make any use of the easement area that does not interfere with the Grays’ use of the same, and they filed a cross-complaint in furtherance of their position. The trial court ruled in favor of the McCormicks and the Grays appeal.

The express easement in question clearly provides that the easement is for the exclusive use of the owners of the dominant tenement. While as a general rule, the owners of a servient tenement, such as the McCormicks, are entitled 1022*1022 to use the easement area in any manner not inconsistent with the specified use by the owners of the dominant tenement, such as the Grays, in this case, any use of the surface of the easement area, by the owners of the servient tenement, would be inconsistent with the exclusive use by the owners of the dominant tenement. The judgment is reversed in part and affirmed in part as modified herein.

I

FACTS

The Grays and the McCormicks own multiacre custom residential properties in upscale Coto de Caza. The Grays own Lot 6 of Tract Map No. 14505, as shown on a subdivision map recorded in book 717, pages 1 et seq. of miscellaneous maps, in the official records of Orange County, California, assessor parcel No. 778-131-03, known as 9 Olympic Way, Coto de Caza. The McCormicks own adjacent Lot 3 of Tract Map No. 14505, as shown on a subdivision map recorded in book 717, pages 1 et seq. of miscellaneous maps, recorded in the official records of Orange County, California, assessor parcel No. 778-131-05, known as 8 Olympic Way, Coto de Caza.

The properties are subject to the “Master Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Coto de Caza” (capitalization omitted) recorded March 5, 1984, as instrument No. 84-092424 in the official records of Orange County, California (Master CC&R’s) and the “Notice of Addition of Territory and Supplemental Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Coto de Caza (Delegate District No. 22/Tract 14505)” (capitalization omitted) recorded December 9, 1994, as instrument No. 94-0705287 in the official records of Orange County, California (Supplemental CC&R’s).

Tract Map No. 14505 denotes certain private streets providing access to the lots shown thereon. The Master CC&R’s provide that the various property owners have “nonexclusive appurtenant easements for vehicular, pedestrian and equestrian traffic over all [the] private streets . . . .” Lot A, known as Olympic Way, is the private street that provides access to Lot 3.

Tract Map No. 14505 also denotes a proposed easement across Lot 3, providing Lot 6 with access to Lot A, without which Lot 6 would be landlocked. The easement is 16 feet wide and approximately 90 feet long. The Supplemental CC&R’s provide that the easement is an exclusive easement in favor of Lot 6.

The easement area is currently unimproved. However, the McCormicks have been using the easement area for the passage of their horses, and for the 1023*1023transportation of their rubbish, horse feed and manure, to and from the stables in their backyard, to Lot A. The Grays, who paid $2,995,000 for the unimproved six-acre Lot 6, say they plan to spend several times that amount on the construction of the residence and other improvements, and intend to improve the easement area with a driveway, perimeter walls and landscaping. They object to the McCormicks’ continued use of the easement area. The McCormicks object to the Grays’ plans to exclude them from use of the easement area and to place walls on it. They say that they designed their landscaping to make continued use of the easement area for the passage of their horses and for the transportation of their rubbish, horse feed and manure.

After commencement of the litigation, the matter was submitted to the court on a joint statement of undisputed facts. The McCormicks argued that the easement was labeled “exclusive” to distinguish it from the other “nonexclusive” easements for roadway purposes, so that the easement would not be available for the use of other owners of properties within the Tract, but that they, as the owners of the servient tenement, would be entitled to use the easement area in any manner not inconsistent with the Grays’ access, ingress and egress rights. They also asserted that exclusive easements are not permitted under California law. The Grays, on the other hand, contended that the easement was designated an “exclusive” easement to mean that the Grays could exclude all other persons from the use of the easement area, including specifically the owners of Lot 3. They also emphasized that the Supplemental CC&R’s are clear with respect to the exclusivity of the easement and that an exclusive easement, in effect, prohibits the owner of the servient tenement from using the easement area at all.

Judgment was entered in favor of the McCormicks. The judgment provided: “The owners of Lot 3 have the right to use the Easement Area in any way that does not interfere with the [Grays’] Uses. [The McCormicks] and any subsequent owners of Lot 3 are enjoined from using the Easement Area in any way which interferes with the [Grays’] Uses.” The Grays appeal.

II

DISCUSSION

A. Introduction

(1) Generally speaking, “`[a]n easement is a restricted right to specific, limited, definable use or activity upon another’s property, which right must be less than the right of ownership.’ [Citation.]” (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702 [43 Cal.Rptr.2d 810].) The question here 1024*1024 is the degree of exclusivity of the easement described in the Supplemental CC&R’s. “The term `exclusive’ used in the context of servitudes means the right to exclude others. The degree of exclusivity of the rights conferred by an easement . . . is highly variable and includes two aspects: who may be excluded and the uses or area from which they may be excluded. At one extreme, the holder of the easement . . . has no right to exclude anyone from making any use that does not unreasonably interfere with the uses authorized by the servitude. . . . At the other extreme, the holder of the easement. . . has the right to exclude everyone, including the servient owner, from making any use of the land within the easement boundaries.” (Rest.3d Property, Servitudes (2000) § 1.2, com. c., p. 14.)

(2) “Under section 806 of the Civil Code `the extent of a servitude is determined by the terms of the grant . . .’. . . .” (Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576, 578 [110 P.2d 983].) “In construing an instrument conveying an easement, the rules applicable to the construction of deeds generally apply.” (Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at p. 702; see also Civ. Code, § 1066 [grants interpreted as contracts].) The instrument, “unless it is ambiguous, must be construed by a consideration of its own terms. The meaning and intent thereof is a question of law and the reviewing court is not bound by the trial court’s findings and conclusions regarding such intent and meaning. [Citations.]” (Keeler v. Haky (1958) 160 Cal.App.2d 471, 474 [325 P.2d 648].)

These rules concerning the interpretation of an easement contained in a deed apply with equal force to an easement set forth in CC&R’s. “The same rules that apply to interpretation of contracts apply to the interpretation of CC&R’s. `”[W]e must independently interpret the provisions of the document.. . .”‘” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1377 [50 Cal.Rptr.3d 40].)

B. Easement Language

Section 12 of the Supplemental CC&R’s (section 12) provides: “Lot 6 Access Easement. Declarant hereby reserves for the benefit of Lot 6 of Tract 14505 (`Lot 6′) an exclusive easement of access, ingress and egress (`Easement’) over that portion of Lot 3 of Tract 14505, more fully described as Easement G on the Final Subdivision Tract Map for Tract . . . 14505 (`Easement Area’). The Easement is created for the benefit of the Owner of Lot 6 for purposes of (a) access, ingress and egress to and from Lot 6 to the private street located on Lot A of Tract 14505 which constitutes a portion of the Association Property; and (b) construction, installation, maintenance and repair of access drive improvements on the Easement Area all in accordance with the provisions of the Master Declaration. Use of the Easement by the 1025*1025Owner of Lot 6 and such Owner’s family, guests, tenants and invitees shall be exclusive and in connection with such use the Owner of Lot 6 shall indemnify, defend and hold the Owner of Lot 3 harmless from any loss, damage or liability resulting from or arising in connection with such use (including without limitation attorneys’ fees and costs of court), provided however that such indemnity shall not apply to liability resulting from the negligence or misconduct of the Owner of Lot 3, such Owner’s family, guests, tenants or invitees. The cost of improvement and maintenance of the Easement Area shall be the sole responsibility of the Owner of Lot 6.”

C. Analysis

(1) Language of exclusivity

The McCormicks concede that this language creates an exclusive easement over their property. However, they maintain that even though the easement is exclusive, it nonetheless does not operate to exclude them from the easement area. They citePasadena v. California-Michigan etc. Co., supra, 17 Cal.2d 576, which states: “Where the easement is founded upon a grant . . . only those interests expressed in the grant and those necessarily incident thereto pass from the owner of the fee. The general rule is clearly established that, despite the granting of an easement, the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement. [Citations.]” (Id. at p. 579.)

(3) This is indeed the often repeated general rule. (See, e.g., Blackmore v. Powell(2007) 150 Cal.App.4th 1593, 1599 [59 Cal.Rptr.3d 527]; Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at pp. 702-703.) However, we observe that in stating that the owner of the servient tenement retained limited rights to use the easement area, the court in Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d 576, was construing a grant of a nonexclusive easement—one that contained no exclusivity language whatsoever. (Id. at p. 578.) In contrast, where exclusive easements are concerned, the court noted that “an `exclusive easement’ is an unusual interest in land; it has been said to amount almost to a conveyance of the fee. [Citations.] No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention. [Citations.]” (Id. at pp. 578-579; accord, Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1308 [54 Cal.Rptr.2d 284].) The court confirmed that “[i]t is, of course, possible to draft an instrument . . . which would make the easement exclusive.” (Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d at p. 581.) However, it concluded that “the very general language used in the instrument under consideration [could not] be given any such effect.” (Ibid.)

1026*1026 The question is whether the language of section 12 of the Supplemental CC&R’s clearly expresses the intention that the use of the easement area shall be exclusive to the owners of Lot 6, in the sense of excluding all other owners of property in the subdivision, including the owners of Lot 3. We see that it does.

Section 12 expressly defines the easement as an “exclusive easement of access, ingress and egress.” It specifically states that “[t]he Easement is created for the benefit of the Owner of Lot 6 . . . .” It emphasizes that the “[u]se of the Easement by the Owner of Lot 6 and such Owner’s family, guests, tenants and invitees shall be exclusive. . . .” In other words, the provision repeatedly uses language of exclusivity. It clearly states that the “[u]se” by the owner of Lot 6 “shall be exclusive.”

In addition to the language of exclusivity, section 12 imposes upon the owners of Lot 6 the obligations of the “construction, installation, maintenance and repair of access drive improvements” and the burden of all costs associated with the improvement and maintenance of the easement area. So, the owners of Lot 6 must not only improve the easement area, they must also shoulder all costs of the maintenance of it. It is inconceivable that the owners of a multimillion dollar property who build out 90 feet of access drive improvements would be expected to share that drive with a neighbor whose property abuts the street and to bear the costs of cleaning up the horse droppings and hay scatterings associated with that neighbor’s use of the easement area.

The exclusivity of the easement is underscored by the indemnification obligation contained in section 12. Section 12 requires the owners of Lot 6 to defend, indemnify, and hold harmless the owners of Lot 3 from any liability, loss, or damage resulting from the exclusive use of the easement area by the owners of Lot 6. This indemnification obligation makes sense because the owners of Lot 3 have no right to use the easement area.

The McCormicks see it differently. They emphasize the portion of section 12 that makes the indemnification obligation inapplicable to liability arising out of the misconduct or negligence of the owners of Lot 3. According to the McCormicks, this language proves that the owners of Lot 3 are entitled to use the easement area—because the indemnification obligation does not extend to liability arising out of acts the owners of Lot 3 undertake on the easement area. But this is not quite what section 12 says. The indemnification obligation expressed therein does not address acts performed on the easement area. Rather, it pertains to liabilities arising from the misconduct or negligence of the owners of Lot 3, without regard to where the acts of misconduct or negligence take place. Misconduct or negligence in the use of the portions of 1027*1027 Lot 3 immediately adjacent to the easement area could give rise to liability, loss or damage affecting the easement area.

The McCormicks insist that the language of section 12, despite labeling the easement “exclusive,” gives them the right to all uses of the easement area that are not inconsistent with the Grays’ access rights. In support of their position, they citeCity of Los Angeles v. Igna (1962) 208 Cal.App.2d 338 [25 Cal.Rptr. 247], relied upon by the trial court in this matter.

In Igna, the city and its department of water and power (collectively, the city) acquired, through two similar deeds, an easement for the purpose of power transmission. (City of Los Angeles v. Igna, supra, 208 Cal.App.2d at p. 339.) The deeds conveyed “`exclusive easements and rights of way . . .’ (emphasis added)” for the construction and maintenance of “`poles, towers, wires, cables, and/or any other structures . . . together with the right and easement for roads, ingress, egress and other convenient purposes . . . and the right and easement to construct, . . . maintain and operate same and to clear and keep said real property free from explosives, buildings, structures, brush and natural wood growth, and inflammable materials . . . in, under, upon, over and across'” the easement area. (Id. at p. 340.)

While the deeds used the word “exclusive” in describing the easements, they also contained extensive reservations in favor of the owner of the servient tenement. (City of Los Angeles v. Igna, supra, 208 Cal.App.2d at p. 340.) The deeds contained reservation clauses “`excepting and reserving'” from the grant “`only such grazing, agricultural and mineral rights and the right to maintain, cultivate, use, plant, and replant said real property . . . and erect non-inflammable fences upon said real property, as will not interfere with or prohibit the free and complete use and enjoyment by grantee . . . of the rights or easements hereby granted, provided, however, that no building, inflammable fence, other structure, material or explosive . . . shall be placed . . . upon any portion of the above described real property by grantor . . . .'” (Ibid., italics added & omitted.)

A dispute arose as to the extent of the rights of the owner of the servient tenement to use the easement area. (City of Los Angeles v. Igna, supra, 208 Cal.App.2d at p. 339.) The owner of the servient tenement operated a trailer park thereon. The city sought to quiet title to the easement area and to obtain injunctive relief to exclude all uses of the easement area other than agricultural and mineral uses. (Ibid.) The trial court granted relief, ordering the owner of the servient tenement to remove certain obstructions within the boundaries of the easement area (id. at p. 340), and to refrain “`from conducting business, commercial, industrial, or residential activities'” on the easement area except to the extent reserved in the deeds (id. at p. 341).

1028*1028 The appellate court in Igna affirmed the judgment with modifications. (City of Los Angeles v. Igna, supra, 208 Cal.App.2d at pp. 341-342.) It held that “[t]he judgment must be modified so as to exclude only those uses by the servient owner which [were] shown to be inconsistent with the rights granted under the easement or which [interfered] with those rights.” (Id. at p. 342.)

The McCormicks contend that City of Los Angeles v. Igna, supra, 208 Cal.App.2d 338 proves their position—that they are entitled to use the easement area in any manner not inconsistent with the Grays’ access rights. As they see it, the language in the deeds in Igna was “strikingly similar” to the language used in the Supplemental CC&R’s pertaining to the easement at issue before us. We disagree completely.

The language of section 12 of the Supplemental CC&R’s labels the interest in question an “exclusive easement,” as did the language of the deeds in Igna. (City of Los Angeles v. Igna, supra, 208 Cal.App.2d at p. 340.) However, the language of section 12 also specifically states that the use of the easement by the owners of Lot 6 “shall be exclusive.” The deeds in Igna contained no such qualifying language. (208 Cal.App.2d at p. 340.) To the contrary, the deeds contained extensive reservations in favor of the owner of the servient tenement. The language of the deeds reserved unto the owner of the servient tenement not only agricultural and mineral uses, as the city alleged, but other uses as well. (Ibid.) Specifically, the owner of the servient tenement reserved “`the right to . . . use . . . said real property . . . as will not interfere with or prohibit the free and complete use and enjoyment by grantee . . . of the rights or easements hereby granted . . . .’ (Emphasis added.)” (Ibid.) The Igna court correctly construed this language as permitting the owner of the servient tenement to use the easement area in all ways not inconsistent with the rights granted in favor of the owner of the dominant tenement. (City of Los Angeles v. Igna, supra, 208 Cal.App.2d at p. 342.)

Section 12 of the Supplemental CC&R’s however, contains no express reservation in favor of the owners of Lot 3. The language of section 12 is not, as the McCormicks assert, “strikingly similar” to the language of the Igna deeds. Rather, it is in stark contrast thereto. The language of the Igna deeds shows without a doubt that the owner of the servient tenement was not intended to be excluded from all use of the easement area. Consequently, the easement in question was not completely exclusive, since there was no expression of intent that the easement area be for the sole use of the owner of the dominant tenement to the exclusion of the owner of the servient tenement. (Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d at pp. 578-579.) In short, the language of the Igna deeds did not meet the exclusivity test of1029*1029 Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d 576. The language of section 12 of the Supplemental CC&R’s does.

(2) Exclusive easements are not prohibited under California law

Language interpretation aside, the McCormicks contend that an exclusive easement that bars the owners of the servient tenement from using the easement area is prohibited under California law, because it would in effect grant the owners of the dominant tenement fee ownership over the easement area. They are in error.Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d 576, as we have seen, provides that an express exclusive easement may be created by an instrument clearly stating the intention that the easement be exclusive. (Id. at pp. 578-579, 581.) Exclusive easements may be created in other ways as well. In the prescriptive easement context, it has been stated that “[t]here are some circumstances in which the grant of an exclusive easement, which resembles or is nearly the equivalent of a fee interest, can be justified.” (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1306.) As we shall show, while exclusive easements that exclude even the owners of the servient tenement from the easement area may be less common than nonexclusive easements, they do nonetheless arise from time to time and have been held to be valid and enforceable under California law.

In Blackmore v. Powell, supra, 150 Cal.App.4th 1593, cited by the Grays, the court construed an express easement “for `parking and garage purposes’ over a defined area” on the servient tenement. (Id. at p. 1597.) It held that the construction by the owner of the dominant tenement of a two-car garage on a portion of the easement area was within the scope of the easement and that the owner of the dominant tenement was entitled to the exclusive use of the garage. (Id. at pp. 1599, 1606.) The appellate court agreed with the trial court’s conclusion “that [the owner of the dominant tenement] was entitled to exclusive use of the garage as `a necessary incident’ of the easement, reasoning that a shared garage would generate disputes about allocation of parking spaces, security, and maintenance costs” and with its “determination that nonexclusive use of the garage would interfere unreasonably with [the] rights [of the owners of the dominant tenement]. [Citation.]” (Id. at p. 1599.)

The easement language in Blackmore v. Powell, supra, 150 Cal.App.4th 1593 was not nearly as explicit as the language in the case before us. In fact, there is no indication in the Blackmore decision that the deed contained any language at all about exclusivity. Rather, the exclusivity was simply implied. Or, rather, the court logically reasoned that it made no sense to construe a garage as being for anything other than exclusive use.

1030*1030 In the case before us, on the other hand, section 12 of the Supplemental CC&R’s expressly provides that the “[u]se of the Easement . . . shall be exclusive” to the owners of Lot 6. Furthermore, the sharing of improvements over an area only 16 feet wide would prompt disputes over the passage of vehicles, and/or vehicles and horses, and create a source of chronic aggravation for the owners of Lot 6, who would be left perpetually cleaning up after the owners of Lot 3. This cannot have been the intent of the subdividers of a tract of land for multimillion dollar custom luxury homes. Indeed, “[t]he amount of consideration paid for the interest conveyed is of considerable importance in construing the deed. [Citation.]” (Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 35 [96 Cal.Rptr. 317].)

Blackmore v. Powell, supra, 150 Cal.App.4th 1593, while an express easement case, was not a case where the governing instrument used exclusivity language, even though the court construed the easement as granting certain exclusive rights, by necessity. City of Los Angeles v. Igna, supra, 208 Cal.App.2d 338, also an express easement case, used exclusivity language, but nonetheless specifically reserved extensive rights in the owner of the servient tenement. The parties have cited no case comparable to the one before use, dealing with what is clearly an express exclusive easement. However, the creation of valid exclusive uses of the property of another is seen in other contexts.

For example, an exclusive easement was upheld in Otay Water Dist. v. Beckwith(1991) 1 Cal.App.4th 1041 [3 Cal.Rptr.2d 223]. There, a water district acquired property pursuant to a deed that contained an overly inclusive legal description. That is to say, the grantor purported to convey more property than it owned, unbeknownst to the water district. The result was that the water district unwittingly built a reservoir on property it did not own. (Id. at pp. 1044-1045.) More than 20 years later, the water district learned that the reservoir occupied 1.68 acres of property that belonged to another. (Id. at p. 1045.) The water district brought a quiet title action, claiming a prescriptive easement. (Id. at p. 1044.) The trial court granted an exclusive prescriptive easement in favor of the water district. (Id. at p. 1045, fn. 2.) The appellate court affirmed. (Id. at p. 1044.)

The appellate court stated: “Contrary to [the servient tenement owner’s] arguments, however, an exclusive easement is not always `tantamount to a fee estate.’ The easement granted by the court here, for example, was significantly less than a fee title. The court granted [the water district] an easement consistent with its historical use, restricting [its] use of the property for reservoir purposes only and prohibiting [the water district] from increasing the burden placed upon the servient estates. If [the water district] stops using the property as a reservoir or increases the burden on [the servient tenement, the 1031*1031 water district’s] easement can be taken away. Such a restricted use is not the same as a fee interest.” (Otay Water Dist. v. Beckwith, supra, 1 Cal.App.4th at p. 1048.)

The practical effect of the exclusive easement in Otay Water Dist. v. Beckwith, supra, 1 Cal.App.4th 1041 was to completely exclude the owner of the servient tenement from the use of 1.68 acres of his property. And while the easement was not tantamount to fee title because the water district could only use it for reservoir purposes and the easement theoretically could be lost, this was likely little consolation to the owner of the servient tenement.

In the case before us, to construe section 12 of the Supplemental CC&R’s as creating an exclusive right of use in the owners of Lot 6, would no more create a fee ownership interest in the owners of the dominant tenement than did the granting of the exclusive prescriptive easement in Otay Water Dist. v. Beckwith, supra, 1 Cal.App.4th 1041. In Otay, the owner of the dominant tenement had not acquired a fee interest in the servient tenement; rather, the use of the servient tenement was limited to reservoir purposes, not all conceivable uses of the property. Here, the owners of Lot 6 have not acquired fee title to the easement area; rather, their use of the easement area is limited to access, ingress and egress purposes, not all conceivable uses of the property. In the case before us, however, the exclusive easement is an express easement of record and was known to the McCormicks at the time they purchased their property.

An exclusive use was also granted to neighboring property owners in Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 [110 Cal.Rptr.2d 861]. In that case, the boundary line between two residential properties in Bel-Air had been mistaken for many years and the yards of the two properties had been extensively improved in reliance thereon. Eventually, the parties learned that the boundary line was not where they had believed, each one having made use of a portion of the other’s property. The plaintiffs brought suit, seeking to quiet title to one 32.5-square-foot triangle of land and one 217-square-foot triangle of land. The defendants had placed a block wall and certain landscaping on the smaller parcel. They had improved the larger parcel with a portion of a sand trap, extensive underground electrical and water lines, several motors to provide circulation for waterfalls and a swimming pool, and an underground iron and concrete enclosure housing one of the motors. (Id. at pp. 755-756.)

The trial court in Hirshfield v. Schwartz, supra, 91 Cal.App.4th 749 exercised its equitable powers to grant relief in the form of a judgment for what it termed an exclusive easement, giving the defendants the exclusive right to use the property in question, until such time as they sold their 1032*1032 property or ceased residing thereon. (Id. at pp. 757, 764.) The appellate court affirmed. (Id. at p. 772.) It noted, with respect to the law of prescriptive easements, that “exclusive easements, while rare, are possible [citation] . . . .” (Id. at p. 769, fn. 11.) However, it also stated that the judgment did not violate the law of prescriptive easements, because the right of exclusive use created by the judgment was not in reality a prescriptive easement. Rather, the trial court had created the right of exclusive use through the employment of its equitable powers, to grant affirmative relief to an encroacher. (Id. at pp. 754-755.)

Inasmuch as Hirshfield v. Schwartz, supra, 91 Cal.App.4th 749 did not arise in the context of an express exclusive easement, it offers no assistance in interpreting the scope of the easement in question. It does, however, help dispel the notion that the exclusive use of the property of another is prohibited under California law, as being tantamount to the taking of fee title by a neighboring property owner.

(3) Conclusion

(4) The exclusive use of a defined area of the servient tenement by the owners of the dominant tenement is not prohibited under California law. In this case, the language of the instrument by which the easement was created, section 12 of the Supplemental CC&R’s, clearly expresses an intention that the use of the easement area be exclusive to the owners of Lot 6, at least as to the surface thereof. It is, therefore, sufficient to create an exclusive easement under California law. (Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d 578-579.) A question remains as to whether there is any conceivable use of the subsurface of, or the air rights above, the easement area that would be consistent with the intended exclusive use of the surface of the easement area. That is an issue that the parties have not addressed.

The judgment is affirmed to the extent that it enjoins the owners of Lot 3 from using the easement area in any way which interferes with the use of the easement area by the owners of Lot 6, and to the extent that it orders the McCormicks to remove certain encroachments from the easement area. However, the judgment must be modified to clarify that any use of the surface of the easement area by the owners of Lot 3 is inconsistent with the exclusive use granted to the owners of Lot 6. The judgment is reversed to the extent that it permits the owners of Lot 3 to use the surface of the easement area in any manner. The owners of Lot 3 are precluded from making any use of the surface of the easement area.

1033*1033 III

DISPOSITION

The judgment is reversed in part and affirmed in part as modified. The Grays shall recover their costs on appeal.

Sills, P. J., and Rylaarsdam, J., concurred.

Keywords: Easements

Chee v. Amanda Goldt Property Management

50 Cal.Rptr.3d 40 (2006)

43*43 Von Till & Associates, Steven F. Von Till, Andrew J. Kopp, Oakland, for Plaintiff and Appellant.

Horvitz & Levy, LLP, Jon B. Eisenberg, Wendy S. Albers, Encino, Valerian, Patterson & Stratman, Frederick A. Patterson, Alameda, for Defendants and Respondents Marina Seagate Homeowners Association and Jerome Brown.

Philip M. Andersen & Associates, Jeanette N. Little, Milan R. Yancich, for Defendants and Respondents Amanda Goldt Property Management, AmandaGoldt, and John Sellars.

STEIN, Acting P.J.

Summary by Mary M. Howell, Esq.:

CC&R-imposed obligation to avoid nuisances was not enough to impose vicarious liability on owner subject to the CC&Rs, for injuries to a visitor, inflicted by the owner’s tenant’s dog.

**End Summary**

Plaintiff, Lila Chee, a resident and owner of a condominium unit in the Marina Seagate complex, appeals from a judgment entered in favor of all defendants on her complaint seeking damages for personal injuries she suffered when a dog belonging to Olga Kiymaz, a tenant of another unit in the same complex, jumped on Chee.

FACTS

At the time of the incident, plaintiff was 71 years old, and a resident of the Marina Seagate condominium complex. On March 19, 2001, she was injured when a Jack Russell Terrier owned by Olga Kiymaz, who rented the condominium next door to plaintiff, ran out of Kiymaz’s unit and jumped on Chee, causing her to fall and sustain numerous injuries. Kiymaz rented 44*44 the condominium from Jerome Brown, who had hired Amanda Goldt Property Management to find a tenant and collect rents. Cheefiled a second amended complaint against Jerome Brown, the Marina Seagate Homeowners Association (hereafter, “the Association”), Amanda Goldt Property Management, and two of its property managers, after Kiymaz, the dog’s owner, filed for bankruptcy, and was dismissed from the action.

As against Brown^[1] the complaint alleged several causes of action:

The cause of action for “premises liability” alleged that, as the owner, Brown breached his duty of care by allowing a dangerous condition to exist on his property, i.e., his tenant’s dog, whose “characteristics and traits posed a risk of harm to persons in the common areas.” The complaint did not allege Brown had actual knowledge that the dog was dangerous, but incorporated allegations concerning characteristics of the Jack Russell Terrier as a breed that made it dangerous, especially if not restrained on a leash, and further alleged that Brown had a duty to inspect and to investigate the characteristics of a dog kept on the premises by his tenant.

In the cause of action for negligence, plaintiff similarly alleged that Brown “knew, or had reason to know, or should have known” of the alleged traits, propensities, or characteristics of his tenant’s dog that posed a foreseeable risk of harm, and alleged that Brown had a duty to inspect and investigate the characteristics of a dog kept by his tenant. The cause of action for nuisance simply alleged that “[the] dog residing . . . and running free … in the common areas of the condominium project constituted and caused a nuisance.”

Plaintiff further alleged several causes of action based upon acts of Olga Kiymaz that plaintiff contended constituted negligence, negligence per se, or for which Kiymaz would be strictly liable. These acts included failing to control the dog and allowing it to be off-leash in common areas. In these causes of action, plaintiff alleged that Brown, as the owner of the unit, was vicariously liable for Kiymaz’s acts. Vicarious liability was premised upon the Marina Seagate Declaration of Covenants, Conditions and Restrictions (CC&R’s). The CC&R’s allow residents to have one small pet per unit. They provide that “[a]n owner of any pet shall assure that such pet is restrained at all times it is upon the common areas, that such pet does no waste to common areas or other Units, and that such pet causes no unreasonable noise or other disturbances or nuisance within the Project.”^[2] Article II, section 7 of the CC&R’s further provided that “any owner may delegate his right to enjoyment of the common area and facilities to . . . his tenants . . . who reside within the Project…. Such owner is fully responsible for all acts or omissions of his 45*45 delegates.” Article VIII, section 4 of the CC&R’s further specifies: “The provisions of this Declaration shall be equitable servitudes, enforceable by any Owner and/or the Association against the Association and/or any other Owner, tenant or occupant of the Project. [T]he Association or any Owner(s) shall have the right to enforce, in any manner permitted by law or in equity, any and all of the provisions of the Project Documents….”

The complaint also alleged that Brown breached a contract with plaintiff. It alleged the contract was created by the aforementioned provisions of the CC&R’s. Plaintiff alleged that Brown breached this contract by “failing to indemnify, compensate and pay for the damages and losses caused to plaintiff by the acts or omissions of Olga Kiymaz.” She also sought a declaration that under the CC&R’s, Brown was liable to plaintiff for his tenant’s negligent acts, and contracted to indemnify plaintiff for any losses she suffered as a result of his tenant’s actions.

The only causes of action alleged against Goldt Property Management, AmandaGoldt and John Sellars (hereafter, collectively, Goldt Property Management) were the causes of action for nuisance, and for negligence based upon failure to investigate the nature and suitability of the tenant’s dog.

Brown moved for summary judgment, or in the alternative for summary adjudication, and Goldt Property Management separately filed its own motion. Brown contended that, absent actual knowledge that Kiymaz’s dog was dangerous, he owed no duty to plaintiff to protect her from the dog, or to inspect or investigate whether the dog had dangerous propensities. He asserted the undisputed facts established that he did not have such knowledge, and submitted evidence supporting his assertion of these facts. He also contended that the same undisputed facts established the absence of liability for a nuisance created by Brown’s tenant, and that plaintiff could not show the dog’s presence and behavior interfered with the use and enjoyment of plaintiff’s property.

With respect to the causes of action seeking to impose vicarious liability on Brown for Olga Kiymaz’s negligence, negligence per se, or strict liability regarding her dog, Brown contended that, as a matter of law, vicarious liability could not be based upon the CC&R’s permitting a homeowner to delegate to a tenant the right to enjoy the common area, and the Association’s rules and regulations concerning pets. Brown further contended that the CC&R’s did not create a contractual obligation to indemnify other homeowners for personal injuries caused by a tenant.

Goldt Property Management also filed a motion for summary judgment on similar grounds. Goldt Property Management submitted evidence that it had no ownership interest in Brown’s condominium, and that Brown hired it merely to find a tenant and collect rents. It also submitted evidence that it had no knowledge prior to the incident involving Kiymaz’s dog that the dog had any dangerous or vicious propensities, that it had not received any complaints regarding Kiymaz’s dog, and had not observed Kiymaz’s dog display any vicious or dangerous behavior.

In opposition to both motions, plaintiff asserted that many of the aforementioned facts regarding lack of actual knowledge were disputed, but cited no evidence on this issue in her separate statements. Instead, plaintiff asserted that the credibility of the witnesses for Brown and Goldt Management was in issue. After conducting further discovery, plaintiff submitted supplemental statements of undisputed facts, and evidence that, after the incident, in 46*46 July 2001, the Association notified Kiymaz that, in July 2001, she was seen walking her dog without a leash, and fined her $50. Also in July 2001, the Association warned Kiymaz that it had received complaints she was allowing the dog to run free in the common areas and was not cleaning up after her pet, and that these actions could also result in fines. In addition, plaintiff submitted evidence that other owners had seen the dog urinating and defecating in the common areas. Plaintiff also submitted the declaration of an expert concerning characteristics of the breed of Jack Russell Terrier that the expert opined made it unsuitable for living in a condominium.

The court granted both motions. With respect to Brown, the court determined he owed her no duty of care absent actual knowledge that Kiymaz’s dog was dangerous, and plaintiff presented no evidence to create a triable issue of fact that he had such knowledge. The court further found, as a matter of law, that Brown could not be held vicariously liable for the acts of the tenant, based upon the CC&R’s, and was not contractually obligated by the CC&R’s to compensate or indemnify plaintiff. As to the cause of action of nuisance, the court stated that plaintiff submitted no evidence to create a triable issue of fact that “the presence of the dog in Mr. Brown’s unit affected Plaintiff’s use and enjoyment of her rights in real property.” The court granted the motion for summary judgment filed on behalf of Goldt Property Management on similar grounds.

Attorney Fees

After the court entered judgment in their favor, Brown and the Association jointly moved for an award of attorney fees pursuant to Civil Code section 1354. They sought fees in the amount of $33,644 incurred in their defense.

Plaintiff opposed the motion, arguing that none of her causes of action were brought to enforce the CC&R’s within the meaning of Civil Code section 1354. Plaintiff also asked the court, if it determined that only some of the causes of action fell within the purview of Civil Code section 1354, to apportion the fees requested. Plaintiff further urged the court to apportion fees between Brown and the Association where defense work was done jointly on causes of action in which they were both defendants. She argued that, if the court determined that only one defendant was entitled to fees, it should reduce the amount of fees by whatever amount the court determined was attributable to the defense of the other.

The court granted Brown’s and the Association’s motion for fees “in part.” It determined that only the causes of action for breach of contract and declaratory relief fell within the purview of Civil Code section 1354 as “action[s] brought to enforce the governing documents of the homeowner’s association.” The court apportioned the fees and determined that only $6,000 was reasonable and attributable to the defense of these two causes of action.

ANALYSIS

I.

Summary Judgments in Favor of Brown and theGoldt Property Management

This court reviews de novo orders granting motions for summary judgment, because the motion raises only issues of law. (Mata v. Mata (2003) 105 Cal.App.4th 1121, 1127-1128, 130 Cal. Rptr.2d 141; disapproved in part on another ground in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 244-250, 30 Cal. Rptr.3d 145, 113 P.3d 1159.) “Summary judgment in a defendant’s favor is proper 47*47 if (1) the defendant shows one or more elements of a cause of action cannot be established, or there is a complete defense to it; and (2) the plaintiff fails to meet the burden of showing the existence of a triable issue of material fact.” (Mata v. Mata, supra, at p. 1127, 130 Cal.Rptr.2d 141.)

Brown and Goldt Property Management filed separate motions that relied on many of the same legal principles. Nonetheless, for the sake of clarity regarding the specific causes of action alleged against each defendant and some variations in the legal theories, asserted undisputed facts, and plaintiff’s contentions on appeal, we review the court’s orders on each motion separately.

A. Order Granting Brown’s Motion for Summary Judgment.

1. Brown’s Negligence and Premises Liability

The second amended complaint alleged two causes of action seeking to impose liability against Brown, as the owner of the unit rented to Kiymaz: premises liability and negligence. These causes of action were based upon the general principle that everyone is responsible for an injury to another caused by “his or her want of ordinary care or skill in the management of his of her property….” (Civ. Code, § 1714, subd. (a).) A necessary element of both causes of action is the existence of a legal duty to the plaintiff. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207; see also Lundy v. California Realty (1985) 170 Cal.App.3d 813, 818-819, 216 Cal.Rptr. 575 (Lundy).) The determination whether a duty exists is an issue of law. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

It was undisputed that Brown owned the unit and was Kiymaz’s landlord, and that the dog belonged to Kiymaz. The general duty of care owed by a landowner in the management of his or her property is attenuated when the premises are let because the landlord is not in possession, and usually lacks the right to control the tenant and the tenant’s use of the property. Consequently, it is well established that a landlord does not owe a duty of care to protect a third party from his or her tenant’s dog unless the landlord has actual knowledge of the dog’s dangerous propensities, and the ability to control or prevent the harm. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 152, 10 Cal. Rptr.3d 18 (Yuzon); Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838, 41 Cal. Rptr.2d 192 (Donchin); Lundy, supra, 170 Cal.App.3d at p. 821, 216 Cal.Rptr. 575; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507, 118 Cal.Rptr. 741 (Uccello); see also Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1236, 112 Cal. Rptr.2d 593 (Cody F.) [“In general, courts have imposed a duty to prevent the harm caused by a third party’s animal when a defendant possesses the means to control the animal or the relevant property and can take steps to prevent the harm”].) “[A] duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities. Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, … actual knowledge and not mere constructive knowledge is required. For this reason … a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.” (Yuzon, 48*48 supra, at p. 163, 10 Cal.Rptr.3d 18, quoting Uccello, supra, at p. 514, 118 Cal. Rptr. 741, fn. omitted; see also Donchin, supra, at p. 1838, 41 Cal.Rptr.2d 192 [“a landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person”].)

Therefore, in the absence of evidence sufficient to create a triable issue of fact that Brown had actual knowledge his tenant’s dog was dangerous, Brown owed no duty to plaintiff to protect her from his tenant’s dog. In support of his motion Brown asserted as undisputed facts, and submitted supporting evidence, that he knew that Kiymaz owned a Jack Russell Terrier, but that, prior to the incident in which plaintiff was injured, Brown had never seen the dog or received any complaints about the dog. He had no knowledge that Kiymaz’s dog had any dangerous propensities or posed any threat of bodily harm. Kiymaz declared her dog had never jumped on or bitten anyone before the incident involving plaintiff. Brown also submitted plaintiff’s deposition testimony that, prior to the incident, plaintiff had twice seen the dog out without a leash, but had never seen the dog doing anything she would interpret as dangerous. The Association had also never received any complaints or reports about Kiymaz’s dog, or reports that it was seen unleashed in the common areas of the condominium complex prior to the incident.

The foregoing evidence shifted the burden to plaintiff to submit admissible evidence to create a triable issue of fact as to Brown’s knowledge of the dog’s dangerous propensities. (Yuzon, supra, 116 Cal. App.4th at p. 166, 10 Cal.Rptr.3d 18.) Yet, plaintiff failed to present any such evidence. She did not dispute that she herself had never seen Kiymaz’s dog do anything she would interpret as dangerous. She also offered no evidence to dispute the asserted facts, supported by the testimony or declaration of Brown, Kiymaz, and a representative of the Association, that they had never received any complaints, never seen the dog engage in dangerous behavior, and had no knowledge of any dangerous propensities of Kiymaz’s dog. Instead, plaintiff merely argued that the credibility of these witnesses was in issue. If summary judgment is otherwise proper it “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc., § 437c, subd. (e) [italics added].) This discretionary exception was inapplicable because Brown did not rely solely on his affirmation of lack of knowledge.^[3] He also presented circumstantial evidence that he did not know the dog had dangerous propensities, including the absence of any complaint to him or the Association, and plaintiff’s own testimony that she had never seen the dog do anything she would interpret as dangerous. Plaintiff’s bare assertion of the existence of credibility issues was insufficient to create a triable issue of fact on the issue of Brown’s actual knowledge that the dog was dangerous. (Cf. Donchin, supra, 34 Cal.App.4th at pp. 1838-1841, 41 Cal. Rptr.2d 192 [triable issue of fact exists where plaintiff submitted circumstantial evidence that landlord’s assertion of lack of knowledge of dog’s dangerous propensities was not credible, including his admission that a prior exculpatory statement was false].)

49*49 Nor did any of the evidence plaintiff offered in her supplemental statement of undisputed facts create a triable issue of fact on the issue of Brown’s actual knowledge. Plaintiff submitted evidence that after the incident, the Association notified Kiymaz that, in July 2001, she was seen walking her dog without a leash, and fined her $50, and also warned Kiymaz that it had received complaints that she was allowing the dog to run free in the common areas and was not cleaning up after her pet, and that these actions could also result in fines. Plaintiff also submitted evidence that other residents had seen the dog off-leash, and urinating and defecating in the common areas. This supplemental evidence did not permit any inference that Brown knew of the dog’s behavior before the incident alleged to have caused plaintiff’s injuries. In any event, even if Brown had been aware that the dog was allowed to run off-leash, and that Kiymaz was not cleaning up after it, this evidence did not permit an inference that the dog was dangerous. In Yuzon, supra,116 Cal.App.4th at p. 164, 10 Cal.Rptr.3d 18, the court held that evidence that a dog “ran out the door and scared the neighbors … does not, as a matter of law, support an inference that [the dog] was a dangerous dog. If that were the case, then all dogs would be deemed dangerous, as a matter of law, and no reasonable landlord would ever permit dogs on rental property for fear of liability.” (Id. at p. 166, 10 Cal.Rptr.3d 18.) If anything, evidence that Kiymaz’s dog was seen off-leash, and engaging in the normal animal functions of urinating and defecating, is even less susceptible of an inference that the dog is dangerous, than the evidence held insufficient to create a triable issue in Yuzon.

The court also correctly concluded evidence that the breed of dog has certain characteristics,^[4] by itself, is insufficient to support an inference that Brown had actual knowledge that his tenant’s dog had any dangerous propensities. (Lundy, supra, 170 Cal.App.3d at p. 822, 216 Cal.Rptr. 575 [landlord’s awareness of breed of dog, and that its name was “Thunder,” did not support inference that landlord knew his tenant’s dog had dangerous propensities].)

Plaintiff contends that even if she failed to demonstrate the existence of a triable issue of facts as to Brown’s actual knowledge, he had a duty to inspect the premises and a reasonable inspection would have disclosed the presence of a dangerous dog. Yet, cases involving landlords of residential property have consistently declined to impose such a duty. (See, e.g., Uccello, supra, 44 Cal.App.3d at p. 514, 118 Cal. Rptr. 741 [“a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal”].) The case upon which plaintiff relies, Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 32 Cal.Rptr.2d 755 (Portillo), is distinguishable. In Portillo the plaintiff was injured by a guard dog the tenant kept on the premises of a liquor store held open to the public. The landlord had renewed the lease approximately a year before the injury occurred, and failed to conduct an inspection at that time. (Id. at p. 1132, 32 Cal.Rptr.2d 755.) The jury found the landlord had no actual knowledge that the guard dog was dangerous. (Id. at p. 1133, 32 Cal.Rptr.2d 755.) Nonetheless, in accordance with the instructions given, the jury held the landlord jointly and severally liable with the tenant (id. at p. 1133, fns. 2 & 3, 32 Cal.Rptr.2d 755) based upon its finding that a reasonable 50*50 inspection prior to renewing the lease would have disclosed the dog’s dangerous propensities because the landlord would have observed the posted “beware of dog” signs and a posted newspaper article displaying “a picture of the dog with its paws on the store counter and its mouth open as if he were about to attack. The article referred to the dog as `[a] furry juggernaut, replete with iron trap jaws, razor sharp fangs and a rotten disposition,’ and discussed the dog’s recent attack on an attempted robber in the store.” (Id. at p. 1132, 32 Cal.Rptr.2d 755.) The Court of Appeal upheld the instruction allowing a finding of liability based upon the failure to inspect the premises, but expressly limited imposition of a duty to inspect to a commercial landlord who “`leases property for a purpose involving the admission of the public.‘” (Id. at p. 1134,32 Cal. Rptr.2d 755.) It also distinguished between guard dogs in public places andresidential family pets, noting that the former “cannot be classified as `an important part of our way of life’ in the same way that pets can.” (Id. at p. 1138, 32 Cal.Rptr.2d 755.) We see no analogy between the lease of premises for a purpose involving the admission of the public, and the lease of a private condominium to a tenant for her own private residential use. We therefore decline plaintiff’s suggestion that we should extend the commercial duty of inspection discussed in Portillo to the lessor of a condominium.^[5]

2. Nuisance

Nuisance liability arises from violation of a duty to another that interferes with the free use and enjoyment of his or her property (Cutujian v. Benedict Hills Estates Assn.(1996) 41 Cal.App.4th 1379, 1389, 49 Cal.Rptr.2d 166.) Plaintiff essentially restated her premises liability and negligence cause of action against Brown as a cause of action for nuisance. She alleged that Kiymaz created a nuisance by allowing her dog to run off-leash and to urinate and defecate in the common areas. She contends that Brown is liable for a nuisance created by his tenant even in the absence of a triable issue of fact as to knowledge of the dog’s dangerous propensities or behavior.

Assuming arguendo that evidence Kiymaz allowed the dog to run off-leash and urinate and defecate in the common areas would support an inference that the dog’s behavior interfered with plaintiff’s use and enjoyment of her property,^[6] Brown, as the landlord, would not, as a general rule, be liable for a nuisance created by his tenant after the premises are let. Generally, “a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper 51*51 purpose when there is no nuisance … at the time of the leasing.” (Anderson v. Souza (1952) 38 Cal.2d 825, 831, 243 P.2d 497; see alsoNapolin v. Hotel Rose (1955) 137 Cal.App.2d 701, 706, 290 P.2d 925; Mundt v. Nowlin (1941) 44 Cal.App.2d 414, 415-416, 112 P.2d 782.) In Kalis v. Shattuck(1886) 69 Cal. 593, 11 P. 346, the court held: “`To bring liability home to the owner of real property … the nuisance must be one which is in its very essence and nature a nuisance at the time of the letting, and not something which is capable of being thereafter rendered a nuisance by the tenant.'” (Id. at p. 597, 11 P. 346.) Limited exceptions to the general rule of nonliability may hold the landlord responsible where the landlord “participated in the wrongful act by authorizing or permitting it to be done” (id. at p. 600, 11 P. 346), or where the landlord failed to conduct a reasonable inspection of the premises before renewing a lease (Burroughs v. Ben’s Auto Park, Inc. (1945) 27 Cal.2d 449, 453-454, 164 P.2d 897). These long-established limitations on imposition of liability on the lessor for a nuisance created by the lessee continue to be recognized in modern cases that require, at least, a showing of the landlord’s knowledge of the hazard, and ability to prevent the harm. (Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 100, 40 Cal.Rptr.2d 328; see also Donchin, supra, 34 Cal.App.4th at pp. 1838-1839, 41 Cal.Rptr.2d 192; Uccello, supra, 44 Cal. App.3d at p. 514, 118 Cal.Rptr. 741.)

No triable issue of fact existed as to any exception to the general rule of nonliability. Plaintiff did not submit any evidence that Brown authorized or participated in Kiymaz’s allowing the dog to run off-leash or to defecate and urinate in the public areas. The exception regarding failure to inspect was inapplicable since there was no allegation or evidence that a lease was renewed after Kiymaz created the nuisance. The final exception requires a showing of the landlord’s negligence based on knowledge of the hazard, and ability to prevent the harm. Yet, for the reasons we have already stated with respect to the cause of action for premises liability and negligence, plaintiff failed to create a triable issue of fact that Brown even had knowledge of the dog’s dangerous propensities or of the behavior alleged to constitute a nuisance.

3. Vicarious or Contractual Liability

Plaintiff’s remaining causes of action for negligence alleged acts of Brown’s tenant, Olga Kiymaz, that plaintiff contends established her negligence, or negligence per se, or constituted a factual basis for imposing strict liability upon Kiymaz. Plaintiff sought to impose liability upon Brown for Kiymaz’s acts on a theory of vicarious liability or that he owed a “non-delegable duty” to plaintiff to prevent his tenant from failing to restrain or control her dog. Plaintiff also alleged a cause of action for breach of a contract to indemnify her for personal injuries caused by his tenant’s negligence.

In support of both the tort and contract theories, plaintiff relies primarily upon Article II, section 7 of the CC&R’s, which provides that an “owner may delegate his right of enjoyment to the common area to … tenants [and such] owner is fully responsible for all acts or omissions of his delegates” (italics added). She also relies on the provision that states “[a]n owner of any pet shall assure that such pet is restrained at all times it is upon the common areas, that such pet does no waste to common areas or other Units, and that such pet causes no unreasonable noise or other disturbances within the Project (italics added).” Plaintiff contends the italicized language means that an owner who leases his or her unit may be held vicariously 52*52 liable for any act or omission of his tenant that results in personal injury to another homeowner, including the failure of the tenant to control her pet. She further contends that these provisions constitute a contract whereby each owner agrees to indemnify any other homeowner for loss caused by his tenant’s negligence in handling a pet, or to act as a surety or guarantor in the event that the tenant does not compensate the injured homeowner.

“Vicarious liability `means that the act or omission of one person … is imputed byoperation of law to another,'” without regard to fault. (Srithong v. Total Investment Co.(1994) 23 Cal.App.4th 721, 726, 28 Cal.Rptr.2d 672, italics added.) For example, vicarious liability for torts is imposed by operation of law upon employers for acts of their employees within the course and scope of employment, or upon principals for the acts of their agents. Kiymaz was neither Brown’s employee nor agent. Plaintiff’s suggestion that Brown is vicariously liable for his tenant’s negligence is contrary to established law that the negligence of a tenant “cannot be imputed to the landlord.” (Mundt v. Nowlin, supra, 44 Cal.App.2d at p. 415, 112 P.2d 782; see also O’Leary v. Herbert (1936) 5 Cal.2d 416, 418, 55 P.2d 834, Anderson v. Souza, supra, 38 Cal.2d at p. 831, 243 P.2d 497.)

The doctrine of nondelegable duty upon which plaintiff also relies is simply a form of vicarious liability. (Srithong v. Total Investment Co., supra, 23 Cal.App.4th at pp. 726-727, 28 Cal.Rptr.2d 672.) This doctrine recognizes that the duty owed by a landowner “`to persons who come on his property as well as to persons off the property for injuries due to the landowner’s lack of due care in the management of his property [g]enerally … is nondelegable.'” (Cody F., supra, 92 Cal.App.4th at p. 1240, 112 Cal.Rptr.2d 593; Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 13 Cal. Rptr.2d 755 [duty of individual homeowners to maintain the common areas in which they retain a property right cannot be delegated to the homeowners association].) The doctrine of nondelegable duty does not, however, create a duty where none would otherwise exist. Brown, as the landowner, did not owe a duty to plaintiff in the first instance, because the premises had been leased, and the undisputed facts established that he had no knowledge that his tenant’s dog was dangerous. (See Yuzon, supra, 116 Cal.App.4th at p. 152, 10 Cal.Rptr.3d 18;Donchin, supra, 34 Cal. App.4th at p. 1838, 41 Cal.Rptr.2d 192; Lundy, supra, 170 Cal.App.3d at p. 821, 216 Cal.Rptr. 575; Uccello, supra, 44 Cal. App.3d at p. 507, 118 Cal.Rptr. 741.)

Plaintiff argues that despite these well-established principles, we should nonetheless impose a duty of care upon Brown based upon the aforementioned provision of the CC&R’s. Yet, she cites no authority for the novel proposition that CC&R’s, which are private recorded restrictions on the use of property, may also operate as a legal basis for expanding the duty of care on the lessor of property subject to the CC&R’s to protect others from a dog owned and controlled by a tenant. In Cody F., supra, 92 Cal.App.4th 1232, 112 Cal.Rptr.2d 593, the only case we have found that considered a remotely similar argument, this court rejected a suggested expansion of the duty of care based upon provisions in the CC&R’s. In that case, an 11-year-old boy was badly injured by a pack of hunting dogs that had escaped from their owner’s property. The boy was injured by the dogs as he walked on a street over which all members of the subdivision association, including the dog owner, had an easement. The association was responsible for maintenance of the street. 53*53 (Id. at pp. 1236-1237, 112 Cal.Rptr.2d 593.) The plaintiff sought to hold individual members of the association, other than the dog owner, liable for the dog owner’s negligence based upon their property interest as easement holders over the street where the injury occurred, despite the fact that they did not own the dogs or the property where the dogs were kept by their owner. The plaintiff argued that the association members had the right to control the dog owner’s actions because “the recorded declaration of restrictions prohibits keeping dogs for commercial purposes or when their presence could constitute a nuisance to others,” and that the association or any of its members could “`proceed at law or in equity to prevent [a] violation of any of the restrictions.'” (Id. at p. 1245, 112 Cal. Rptr.2d 593.) This court held that the members of the association did not owe a duty of care simply by virtue of their easement over the street where the dogs attacked the child. We also declined the plaintiff’s suggestion that the CC&R’s expanded or created a duty of care that would not otherwise exist, reasoning that “the rights conferred on the individual members by the … declaration of restrictions do not include a duty to exercise those rights.” (Ibid.) The terms of the CC&R’s upon which plaintiff relies in this case in support of her argument for expanding the duty of care are not the same as those in Cody F., and the plaintiffs inCody F. did not even suggest that vicarious liability not recognized under existing legal principles could nonetheless be imposed based upon a provision in the CC&R’s. Therefore, our decision in Cody F. is not dispositive of plaintiff’s contentions. Nonetheless, in the absence of some other authority in support of plaintiff’s contentions, we see no reason to depart from the basic principle that the legal effects of CC&R’s should not be extended to include expansion of established tort law defining the duty of care and relationships for which vicarious liability is imposed for the act of another.

As for the breach of contract cause of action, we accept, arguendo only, plaintiff’s premise that CC&R’s can create a contractual obligation not only between a homeowners association and its members, but also between individual members.^[7]Nonetheless, we decline to adopt plaintiff’s broad interpretation of the CC&R’s as constituting a homeowner’s contractual promise to assume tort liability for the acts and omissions of his or her tenant causing personal injury, to indemnify another homeowner for any injuries caused by the act or omission of a tenant, or to act as surety or guarantor for a tenant’s obligation to compensate another homeowner for personal injuries.

The same rules that apply to interpretation of contracts apply to the interpretation of CC&R’s. “`[W]e must independently interpret the provisions of the document…. It is a general rule that restrictive covenants are construed strictly 54*54 against the person seeking to enforce them, and any doubt will be resolved in favor of the free use of land. But it is also true that the “`intent of the parties and the object of the deed or restriction should govern, giving the instrument a just and fair interpretation.'”‘” (Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, 622, 28 Cal.Rptr.3d 592.)

Plaintiff argues that the words “fully responsible” and “assure” must be broadly construed to mean an owner who rents his or her unit promises to compensate any other owner for a tenant’s acts or omissions causing personal injury. Otherwise, the owners would be deprived of the benefit of their bargain, and the intent of the CC&R’s that any pet owner living in the complex would be bound by the rules regarding handling of pets in the common area would be defeated. Moreover, she suggests the members will be left without a means of enforcement when an owner leases the premises. We find plaintiff’s broad interpretation of the CC&R’s to be unreasonable and unnecessary to accomplish what she suggests is their intent, for several reasons. First, under common law, the primary reason a landlord is not liable for the acts of his or her tenant, is that the landlord is not in possession, and lacks the power to control the tenant’s actions. (See, e.g., Uccello, supra, 44 Cal. App.3d at p. 511, 118 Cal.Rptr. 741.) Given the inability to control or predict such a risk, it is unlikely that any homeowner would willingly assume it, or be able to insure it. Second, Article II, section 7 provides other means to protect the expectation of members that tenants will be bound by the rules regarding pets. These include requiring owners to include a copy of the declaration of CC&R’s as part of a lease or rental agreement, together with a copy of the current Association rules. The CC&R’s also provide that a member or the association may enforce the CC&R’s and association rules against any “tenant or occupant of the project” (italics added). Therefore, the broad construction plaintiff advocates is neither reasonable nor necessary to accomplish the intent to provide all members with an environment in which any pet owner occupying a unit complies with the rules on pet handling in the unit and common areas. Also, any doubt must be resolved against plaintiff’s proposed construction because imposing tort liability on an owner for any act or omission of a tenant, without regard to the owner’s fault, would substantially inhibit or burden the exercise of an owner’s free use of his property as a rental unit, because of exposure to unmanageable risk. (See Zabrucky v. McAdams, supra, 129 Cal.App.4th at p. 622, 28 Cal.Rptr.3d 592 [doubts should be resolved in favor of free use of land].) Absent language expressly specifying that owners assume tort liability to other members for the acts and omissions of their tenant causing personal injury, agree to indemnify members for any injuries caused by the act or omission of a tenant, or agree to act as surety or guarantor for a tenant’s obligation to compensate another homeowner for personal injuries, we decline to read such a sweeping deviation from established common law into these provisions of the CC&R’s.

For the foregoing reasons, we conclude that the causes of action seeking to impose vicarious liability upon Brown for injuries cause by his tenant and her dog, or to hold him liable to plaintiff on a breach of contract theory based upon these provision of the CC&R’s, fail as a matter of law.

B. Order Granting Summary Judgment for GoldtProperty Management

The only causes of action alleged against Goldt Property Management were for negligence and nuisance. As to the negligence cause of action the court found 55*55that the duty of the Goldt defendants, as Brown’s leasing agent, was no different than that of the landlord, and they also owed no duty of care in the absence of a triable issue of fact as to actual knowledge of the dangerous propensities of Kiymaz’s dog. On appeal, plaintiff contends only that, based upon Portillo, supra, 27 Cal. App.4th 1128, 32 Cal.Rptr.2d 755, Goldt Property Management, as the agent responsible for leasing the premises, should at least “have a duty to investigate the nature and suitability” of the tenant’s dog when the unit is part of a “high density” multiple-unit complex. As we explained in upholding the order granting summary judgment for Brown, the court in Portillo expressly limited imposition of a duty to inspect to a commercial landlord who “`leases property for a purpose involving the admission of the public'” (id. at p. 1134, 32 Cal.Rptr.2d 755, italics added) and also distinguished between guard dogs in public places and residential family pets, noting that the former “cannot be classified as `an important part of our way of life’ in the same way that pets can” (id. at p. 1138, 32 Cal.Rptr.2d 755). Here, the undisputed facts were that Goldt Property Management, as Brown’s leasing agent, leased only a private condominium to Kiymaz for her own private residential use, and allowed her to have one residential pet. We see no analogy between the lease of premises for a purpose involving the admission of the public, and the lease the Goldt defendants arranged on Brown’s behalf. We therefore decline plaintiff’s suggestion that we should extend the commercial duty of inspection discussed in Portillo to these defendants.

With respect to the cause of action for nuisance, plaintiff also fails to demonstrate any error. She asserts that Goldt Property Management owed the same duty as a landlord for a nuisance created by the tenant, and cites Anderson v. Souza, supra,38 Cal.2d 825, 243 P.2d 497, for the principle that when “the landlord or his agent is a participant in the tenant’s creation or maintenance of the nuisance, they are subject to liability.” The undisputed facts, however, were that Kiymaz created the alleged nuisance by allowing her dog to run off leash, to defecate and urinate without cleaning up after it, and generally failing to control it in the common areas. Plaintiff failed to create a triable issue of fact that Goldt Property Management even had knowledge of the dog’s dangerous propensities or behavior alleged to constitute nuisance, much less any evidence that Goldt Property Management authorized or participated in Kiymaz’s acts.

For the foregoing reasons, we conclude that the court properly granted the motions for summary judgment in favor of Brown and Goldt Property Management.

II.

Attorney Fees

After obtaining judgment in their favor, Brown and the Association moved for attorney fees under former Civil Code section 1354, subdivision (f),^[8] which provides that reasonable attorney fees shall be awarded to the prevailing party in an action to enforce the governing documents of a common interest development.

Plaintiff contends that the court erred in finding the causes of action for breach of contract and declaratory relief were actions to enforce the rights and obligations of the parties under the CC&R’s, because CC&R’s are equitable 56*56 servitudes and actions to enforce them typically seek equitable relief. She reasons that since she sought damages for personal injury, rather than equitable relief such as an injunction against the dog entering the common areas off-leash, or ordering the dog be removed from the premises, none of her causes of action were to enforce the CC&R’s.

With respect to the cause of action for declaratory relief, this argument fails because plaintiff expressly sought equitable relief, in the form of “a declaration” that the CC&R’s “establish plaintiff’s right to be paid, compensated, or indemnified by defendant Brown for the injuries and damages sustained as a result of his tenant’s dog….” (See Caira v. Offner (2005) 126 Cal.App.4th 12, 24, 24 Cal.Rptr.3d 233[declaratory relief is generally classified as equitable].) In any event, the type of relief sought is not dispositive of entitlement to fees because CC&R’s may be enforced by proceedings in equity or law. (See, e.g., Cutujian v. Benedict Hills Estates Assn., supra, 41 Cal.App.4th at p. 1385, 49 Cal.Rptr.2d 166 [party damaged by a violation of the CC&R’s may seek money damages]; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246, 280 Cal.Rptr. 568 [“Under well-accepted principles of condominium law, a homeowner can sue the association for damages and an injunction to compel the association to enforce the provisions of the declaration”].) Indeed, the CC&R’s themselves provided that they were enforceable “in any manner provided by law or in equity.” Therefore, the fact the plaintiff did not limit her prayer for relief to equitable remedies, and also sought damages, did not preclude an award of fees under Civil Code section 1354. (See also Harbor View Hills Community Assn. v. Torley (1992) 5 Cal. App.4th 343, 345, 350, 7 Cal.Rptr.2d 96 [fee award proper under both Civ.Code, §§ 1717 & 1354 to homeowners association that prevailed in an action for injunctive relief and damages].)

Instead, the relevant question concerning entitlement to fees under Civil Code section 1354 is whether the action is to enforce the rights and obligations of the parties under the governing documents, specifically the CC&R’s. The cause of action for declaratory relief sought a declaration that the CC&R’s created a right in plaintiff to be compensated, and imposed upon Brown an obligation to pay, for damages caused by his tenant’s dog. Plaintiff asserts, without citation to authority, that a mere declaration of rights, without a prayer for injunctive relief, does not “enforce” those rights. Even if we accept this assertion arguendo, plaintiff’s cause of action for declaratory relief did not merely seek a declaration of rights. She also sought a jury trial to determine damages following a judicial declaration of her rights. The record therefore simply does not support plaintiff’s contention that she sought only a declaration of rights. By seeking damages, she unequivocally sought to “enforce” her rights under the CC&R’s based upon the judicial declaration she also sought.

The cause of action for breach of contract also constituted an action to enforce the CC&R’s. In the complaint, plaintiff described the breach of contract as a “[b]reach of the CC&R’s.” She further alleged that Brown, under the CC&R’s, was contractually obligated “to indemnify, compensate, and pay plaintiff for all of her losses and damages incurred as a result of her injuries from Brown’s tenant’s dog in the subject incident,” and that “Brown is in breach of the CC&R’s … by failing to indemnify” plaintiff for loss caused by his tenant’s “acts or omissions.” Therefore, the alleged source of the contractual obligation and its terms was the CC&R’s and plaintiff sought damages for the alleged 57*57 breach. An action for damages arising out of a breach of contract is an action to “enforce” the contract. (See Heidt v. Miller Heating & Air Conditioning Co. (1969) 271 Cal.App.2d 135, 137, 74 Cal.Rptr. 695.)

We conclude that the causes of action for breach of a contractual obligation alleged to have been created by the CC&R’s, and for declaratory relief affirming plaintiff’s interpretation of the CC&R’s, were actions brought to enforce the CC&R’s. The court therefore did not err in determining that pursuant to Civil Code section 1354 the prevailing party was entitled to fees incurred in defense of these causes of action.

The court apportioned the fees requested to reflect what it determined were the fees incurred in defense of these two causes of action, and awarded only $6,000 of the approximately $30,000 defendants had requested in fees. Plaintiff does not contend that the court abused its discretion in apportioning fees to award only those attributable to the defense of these two causes of action. (See, e.g., Abdallah v. United Savings Bank (1996) 43 Cal. App.4th 1101, 1111, 51 Cal.Rptr.2d 286[apportionment of fees is subject to court’s discretion].) She does, however, suggest that the court failed to apportion fees as between the two defendants, Brown and the Association. To the contrary, since the causes of action for breach of contract and declaratory relief were alleged only against Brown, the court also must necessarily have excluded any fees incurred in defense of the Association, in determining the amount of fees attributable to the defense of these two causes of action.^[9]

CONCLUSION

The judgment and postjudgment order awarding fees are affirmed.

We concur: SWAGER and MARGULIES, JJ.

[1] Plaintiff states that, with respect to the Association, she appeals only the postjudgment award of attorney fees. We therefore summarize only the causes of action and theories of liability advanced against Brown and Goldt Property Management and its agents or employees.

[2] The Association rules and regulations further provide: “The owner of any pet shall assure that such pet is restricted by a responsible person and monitored at all times it is upon the common areas …. [¶][and] that such pet causes no unreasonable noise, disturbance, nuisance or threat to common areas or other units. [¶] No resident shall keep a pet that psychologically or physically poses a threat to other residents, guests or pets. [¶] … [¶] SAN LEANDRO ANIMAL CONTROL regulations shall be observed by resident pet owners…. [¶] Homeowners are responsible for their guests or renters adhering to these regulations.”

[3] The court also retains the discretion to grant the motion even when the moving party relies solely upon a declarant’s statement concerning his or her state of mind. (Butcher v. Gay (1994) 29 Cal.App.4th 388, 404-405, 34 Cal.Rptr.2d 771.)

[4] The expert declared that certain characteristics of Jack Russell Terriers, as a breed, render them “not recommended for apartments or condominiums” because the dogs will try to escape confinement, “jump and leap” and be “dangerously playful.”

[5] In any event, the duty to inspect in Portillo charged the landlord with responsibility only for those matters that would have been disclosed upon reasonable inspection. (Portillo, supra, 27 Cal.App.4th at p. 1136, 32 Cal. Rptr.2d 755.) In Portillo there was evidence that even a cursory inspection would have disclosed the newspaper article and the “beware of dog” sign, which would have alerted the landlord to the presence of a dangerous guard dog on the premises, who had attacked in the past. Here, by contrast, plaintiff’s evidence that the dog was seen off-leash and urinating and defecating in public areas did not support an inference that the dog had dangerous propensities. Thus, even if we were to extend the duty to inspect, there is no evidence to create a triable issue that, had the inspection been performed, it would have revealed that the dog was dangerous.

[6] In the absence of evidence of interference with the use and enjoyment of the land, and damages based upon that injury, there is no cause of action for nuisance. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App.3d 116, 124-125, 99 Cal.Rptr. 350.)

[7] In Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 828, 23 Cal.Rptr.2d 744, the court observed that the parties assumed that the “CC&R’s formed a contract between the Association and the condominium owners” but noted that other jurisdictions had refused to treat CC&R’s as contracts between the owners and the owners association. In Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 512, 229 Cal.Rptr. 456, 723 P.2d 573, the court accepted arguendo the plaintiff’s premise that the CC&R’s could form a contract between the homeowners association and its members, but nonetheless concluded plaintiff failed to allege a breach because no provision of the CC&R’s imposed an obligation upon the association to provide additional lighting in the common area that she contended would have prevented her injury by a third party. Plaintiff cites no case holding that the CC&R’s form a contract between members.

[8] Former Civil Code section 1354, subdivision (f) is now codified in Civil Code section 1354, subdivision (c), as amended by Stats.2004, ch. 754, § 1.

[9] The court’s order does state that it “awards Defendants $6000 in attorneys’ fees [italics supplied].” We do not construe this use of the plural to mean that the court awarded any fees incurred by the Association in defending against the other causes of action. The use of the plural is explained by the fact that the motion for fees was made on behalf of both defendants, who were jointly represented by the same law firms. The motion initially sought all fees incurred by both defendants as to all causes of action, but the court stated in its order that defendants’ motion was granted only “in part.” The rest of the order clearly states the court was awarding only reasonable fees incurred in defense of the causes of action for breach of contract and declaratory relief, and since Brown was the only named defendant with respect to these causes of action, the amount of fees the court determined were attributable to the defense of these causes of action were necessarily incurred only on Brown’s behalf.

Keywords: Negligence, Premises Liability

Cadam v. Somerset Gardens Townhouse Homeowners Association

200 Cal.App.4th 383 (2011)

384*384 Alder Law, C. Michael Alder; Law Offices of John B. Richards, John B. Richards; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.

Horvitz & Levy, Mitchell C. Tilner, Wesley T. Shih; Stub, Boeddinghaus & Velasco, Gerald B. Velasco; Early, Maslach & Van Dueck and John C. Notti for Defendants and Appellants.

Summary by Mary M. Howell, Esq.:

A sidewalk separation of 3/4″ – 7/8″, with no evidence of broken pieces, jagged edges, debris, concealment, or improper lighting, is trivial as a matter of law, and association is not liable for injuries sustained by homeowner who tripped on such a separation.

**End Summary**

385*385 OPINION

GILBERT, P. J.—

A trivial defect is no less trivial when it exists on a walkway in a privately owned townhome development.

Barbara Cadam appeals a judgment notwithstanding verdict (JNOV) and alternatively, a new trial order regarding damages, in favor of Somerset GardensTownhouse HOA (Somerset), a homeowners association, and Goetz Manderley (GM), a homeowners association management firm. (Code Civ. Proc., §§ 629, 657.)^[1] We affirm.

FACTS AND PROCEDURAL HISTORY

Somerset Gardens is a recently built townhome development in Santa Maria, consisting of 93 townhomes sited among four streets. In 2006, Cadam leased a Somerset Gardens townhome at 2355 Westbury Way. The townhome had a cement walkway extending from the driveway to the front door. Cadam usually entered the townhome, however, through the garage. She explained: “I had no reason to walk the walkway. It wasn’t something that I normally did. I also didn’t go out and look at the plants or anything. That was maintained by the homeowners’ association.”

On October 19, 2006, Cadam returned to her townhome during her lunch break from her bank employment. She parked her vehicle in the garage but then noticed that the gardeners were working nearby. Cadam decided to discuss a lawn sprinkler problem with them. She and a gardener subsequently walked across her lawn to discuss the irrigation.

Following the conversation, Cadam walked on the walkway toward the garage. When the gardener made an additional comment, however, she turned to look at him. At that point, her right foot caught in a walkway separation. Cadam fell forward on her hands, shoulder, elbow, and right knee. She described her fall as: “I kind of looked [at the gardener], and my right foot caught, I hit with . . . the toe of my right shoe, and I started to go forward, and I tried to catch myself with my left foot, and it also hit this rise in the cement, and I went down . . . .”

Cadam was wearing business attire, including high-heeled shoes, at the time of the accident. The cement walkway was clean and dry and it was a 386*386 bright day. As agreed by the parties, the difference in height between the two walkway segments was between three-fourths and seven-eighths inch.^[2]

Cadam suffered injuries to her hands, wrists, elbows, and right knee. She has had six surgeries, performed over a two and one-half year period, as well as physical therapy to ameliorate her pain and injuries. Cadam was 63 years old at the time of the accident and her hand injuries have caused permanent nerve damage and disability.

Prior Accident

In September 2006, James Perry, the president of Somerset, inspected the development with a gardener. During the inspection, Perry tripped over a sidewalk separation at 2326 Eastbury Way because he “wasn’t watching where [he] was going . . . . [He] was looking at a tree.” Perry “guess[ed]” that the sidewalk separation was one-half inch in depth and stated that the separation was uniform in appearance. He instructed the gardener to place a warning flag near the separation.

Perry knew of two other sidewalk separations that required repair. On October 12, 2006, he learned of the walkway separation at 2355 Westbury Way. Perry did not instruct that warning flags be placed at any of these separations.

Perry directed GM to contact the builder of the development, Inland Pacific Builders, and request that it repair various sidewalk problems immediately. On September 19, 2006, GM contacted the builder who later repaired the sidewalks pursuant to warranty.

Paragraph 5.01 of the Somerset Declaration of Covenants, Conditions and Restrictions requires Somerset to “maintain all landscaping (including trees, shrubs, grass and walks) within the individually owned Lots.” Somerset employed GM to assist it in managing the affairs of the development.

On August 8, 2007, Cadam brought an action against Somerset, GM, and Inland Pacific Builders for premises liability and negligence. The matter 387*387 proceeded to trial.^[3] At the close of Cadam’s case, Somerset and GM moved for nonsuit, asserting that the walkway separation was trivial as a matter of law. Following argument by the parties and examination of Cadam’s photographs of the walkway separation, the trial court denied the motion.

Following trial, the jury decided in favor of Cadam and awarded her $1,336,197 damages. It found that Somerset and GM were each 50 percent responsible for her injuries. Somerset and GM filed a motion for JNOV and, in the alternative, for a new trial. Following written and oral argument, the trial court granted the JNOV, ruling that “[n]o reasonable person could find this was not a trivial defect looking at the photographs, . . . the height, [and] the surrounding circumstances.”

The trial court also granted the motion for a new trial but limited it to the issue of damages “only in the sense that the jury’s verdict reflected a finding that plaintiff was not negligent in any manner or for any reason.”

Cadam appeals the JNOV and the alternative order granting the motion for a new trial regarding apportionment of fault and damages. Somerset and GM have filed a protective cross-appeal, asserting that the damages awarded Cadam are excessive.

DISCUSSION

I.

Cadam argues that the trial court erred by granting the JNOV because the walkway separation that caused her fall was not a trivial or insignificant defect. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 [78 Cal.Rptr.3d 910] [general discussion of rule that property owner is not liable for damages caused by minor or trivial defects in property].) She asserts that she seldom used the walkway and that Somerset did not exercise reasonable care in maintaining it. (Graves v. Roman(1952) 113 Cal.App.2d 584, 586-587 [248 P.2d 508] [policy underlying trivial defect rule is the impossibility of maintaining heavily travelled surfaces in perfect condition].)Cadam adds that other sidewalks had shifted or deteriorated within the SomersetGardens development (including six walkways or sidewalks on Westbury Way), but Somerset and GM did not warn residents. (Clark v. City of Berkeley (1956) 143 Cal.App.2d 11, 16 [299 P.2d 296] [city may not ignore cumulative perils presented by an “entire sidewalk crumbling and falling apart”].)

388*388 Cadam also contends that the height of the walkway separation is a factual issue, asserting that photographs admitted into evidence at trial do not fairly depict the separation height. She also relies upon the testimony of Somerset’s president Perry that any defect over one-half inch in height was, in his opinion, “probably” dangerous. (Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 812 [155 P.2d 633] [city inspector’s testimony that sidewalk defect as depicted in photographs was hazardous precludes finding that defect trivial as a matter of law].)

Cadam adds that the danger presented by the walkway separation must be viewed in light of the circumstances surrounding the accident. (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 397 [237 Cal.Rptr. 413] [depth of walkway depression is but one factor in determining whether defect trivial]; Aitkenhead v. City & County of S. F. (1957) 150 Cal.App.2d 49 [51, 309 P.2d 57] [“[I]t is incumbent upon the appellate court in each case to review the evidence adduced in the trial court and determine whether in the light of all of the surrounding circumstances the defect was minor or trivial as a matter of law.”].) The aggravating circumstances on which she relies include the irregular shape of the separation, lack of color differential, newness of the walkway, and her unfamiliarity with the walkway.

II.

The trial court may grant a JNOV only if the evidence, viewed most favorably to the prevailing party, is insufficient to support the verdict. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138 [76 Cal.Rptr.3d 585].) As a general rule, an appellate court reviewing a JNOV also considers whether sufficient evidence supports the verdict. (Ibid.) “If the appeal challenging the denial of the motion for judgment notwithstanding the verdict raises purely legal questions, however, our review is de novo.” (Ibid.)

(1) It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [19 Cal.Rptr.3d 254] [sidewalk crack less than one-half inch in depth].) This principle is sometimes referred to as the “trivial defect defense,” although it is not an affirmative defense but rather an aspect of duty that a plaintiff must plead and prove. (Ibid.) Persons who maintain walkways—whether public or private—are not required to maintain them in absolutely perfect condition. (Ibid.) “The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d 394, 398.) The rule is no less applicable in a privately owned townhome development. Moreover, what constitutes a minor defect may be a 389*389 question of law. (Id. at p. 397 [raised edge of three-fourths inch trivial as a matter of law]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4 [139 Cal.Rptr. 876] [citing decisions finding trivial defects ranging from three-fourths inch to one and one-half inches].)

In our de novo review of the evidence, the walkway defect here was trivial as a matter of law. (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th 559, 569[court properly may determine whether defect is trivial if evidence is not in conflict].) The parties agreed that the walkway separation was three-fourths to seven-eighths inch in depth. Cadam testified that the accident occurred at noon on a sunny day.Cadam’s photographs of the separation do not reflect a jagged separation, shadows, or debris obscuring the separation. (Caloroso v. Hathaway, supra, 122 Cal.App.4th 922, 927 [court should consider whether walkway had broken pieces, jagged edges, debris or water concealing the defect, and the lighting of the area, among other things].) There were no protrusions from the separation and other persons had not fallen there. The crack in the sidewalk does not appear to be on a slant as Cadam’scounsel suggests. The walkway was newly constructed and the view of the separation was not obstructed. Moreover, Cadam testified that she did not see the separation because she “wasn’t looking at [it].” Nor does she show where on the sidewalk she fell.

Although other sidewalk or walkway separations existed in the Somerset Gardensdevelopment of 93 townhomes, Cadam’s accident did not occur on those separations. We do not consider the circumstances or nature of them for that reason.

(2) The opinion of Somerset’s president that a defect of one-half inch or more is “probably” dangerous does not preclude our conclusion that the defect on whichCadam stumbled is trivial. (Fielder v. City of Glendale, supra, 71 Cal.App.3d 719, 732 [“For in this area there is no need for expert opinion.”].) “It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.” (Ibid.)

(3) Moreover, the duty of care imposed on a property owner, even one with actual notice of a defect, does not require the repair of minor or trivial defects. (Caloroso v. Hathaway, supra, 122 Cal.App.4th 922, 929.) “Minor defects such as the crack in [the plaintiff’s] walkway inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable. Thus, [the defendant] is not liable for this accident irrespective of the question whether he had notice of the condition.” (Ibid.)

390*390 III.

In view of our discussion, we do not resolve Cadam’s arguments regarding the trial court’s alternative grant of a new trial regarding apportionment of fault and damages. We also need not resolve Somerset and GM’s protective cross-appeal regarding asserted excessive damages awarded Cadam.

The judgment is affirmed. Somerset and GM shall recover costs on appeal.

Coffee, J., and Perren, J., concurred.

[1] All further statutory references are to the Code of Civil Procedure.

[2] We have examined the six photographs depicting the separation, admitted into evidence asCadam’s exhibit No. 35.

[3] At the beginning of trial, Cadam and Inland Pacific Builders agreed to settle the lawsuit for $155,000. The trial court subsequently found the settlement to be in good faith. Cadam then dismissed Inland Pacific Builders from the action.

Keywords: Sidewalks