Chee v. Amanda Goldt Property Management

• Decision Date: 16 October 2006
• Docket Number: No. A107918.,No. A108822.,A107918.,A108822.
• Citation: 143 Cal.App.4th 1360,50 Cal.Rptr.3d 40
• Court: California Court of Appeals
• Parties: Lila CHEE, Plaintiff and Appellant, v. AMANDA GOLDT PROPERTY MANAGEMENT et al., Defendants and Respondents.

50 Cal.Rptr.3d 40

143 Cal.App.4th 1360

Lila CHEE, Plaintiff and Appellant, v. AMANDA GOLDT PROPERTY MANAGEMENT et al., Defendants and Respondents.

No. A107918.

No. A108822.

Court of Appeal, First District, Division 1.

October 16, 2006.

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, Amanda Goldt, and John Sellars.

STEIN, Acting P.J.

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 the condominium from Jerome Brown, who had hired Amanda Goldt Property Management to find a tenant and collect rents. Chee filed 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 Brown¹ 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 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, 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 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 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...