Chee v. Amanda Goldt Property Management

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, Amanda Goldt 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 that it 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 Property Management was in issue. After conducting further discovery, plaintiff submitted supplemental statements of undisputed facts, and 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. 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 plaintiff 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 motions 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

Summary Judgments in Favor of Brown and the Goldt 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 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.)

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 or 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; 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

on imposition of liability on the lessor for a nuisance created by the lessee continue to be recognized in modem 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; Uccello, supra, 44 Cal.App.3d at p. 514.)

No triable issue of fact existed as to any exception to the general mle 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 “nondelegable 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 hable 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 by operation 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; 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.)

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.) 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 . . . [generally ... is nondelegable.’ ” (Cody F., supra, 92 Cal.App.4th at p. 1240; see also 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; Donchin, supra, 34 Cal.App.4th at p. 1838; Lundy, supra, 170 Cal.App.3d at p. 821; Uccello, supra, 44 Cal.App.3d at p. 507.)

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 E, supra, 92 Cal.App.4th 1232 , 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. (Id. at pp. 1236-1237.) 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.) 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 in Cody 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

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 CaI.App.4th at p. 622 [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 caused by his tenant and her dog, or to hold him liable to plaintiff on a breach of contract theory based upon these provisions of the CC&R’s, fail as a matter of law.

B. Order Granting Summary Judgment for Goldt Property 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 that 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 , 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, 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

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 [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.

Conclusion

The judgment and postjudgment order awarding fees are affirmed.

Swager, J., and Margulies, J., concurred.

A petition for a rehearing was denied November 15, 2006, and appellant’s petition for review by the Supreme Court was denied January 3, 2007, S148295. Corrigan, J., did not participate therein.