Cody F. v. Falletti

• Decision Date: 19 October 2001
• Docket Number: No. A092552.,No. A092539.,No. A093075.,No. A091762.,A091762.,A092552.,A092539.,A093075.
• Citation: 112 Cal.Rptr.2d 593,92 Cal.App.4th 1232
• Court: California Court of Appeals Court of Appeals
• Parties: CODY F., a Minor, etc., et al., Plaintiffs and Appellants, v. Thomas J. FALLETTI, Defendant and Respondent. Cody F., a Minor, etc., et al., Plaintiffs and Appellants, v. Union Bank of California, Defendant and Respondent. CODY F., a Minor, etc., et al., Plaintiffs and Appellants, v. Charles McLaughlin, Defendant and Respondent. Cody F., a Minor, etc., et al., Plaintiffs and Appellants, v. Crystal Cloud et al., Defendants and Respondents.

112 Cal.Rptr.2d 593

92 Cal.App.4th 1232

CODY F., a Minor, etc., et al., Plaintiffs and Appellants, v. Thomas J. FALLETTI, Defendant and Respondent.

Cody F., a Minor, etc., et al., Plaintiffs and Appellants, v. Union Bank of California, Defendant and Respondent.

CODY F., a Minor, etc., et al., Plaintiffs and Appellants, v. Charles McLaughlin, Defendant and Respondent.

Cody F., a Minor, etc., et al., Plaintiffs and Appellants, v. Crystal Cloud et al., Defendants and Respondents.

No. A091762.

No. A092552.

No. A092539.

No. A093075.

Court of Appeal, First District, Division 1.

October 19, 2001.

Michael J. Trezza, Bertrand F. Ithurburn, Trezza, Ithurburn, Steidlmayer & Ithurburn, Yuba City, Attorneys for Appellants/Plaintiffs—Cody F., a Minor, etc., et al.

Mark W. Hudson, Fortune, Drevlow, Schmidt, Nakano, San Francisco, Attorney for Respondent/Defendant—Thomas J. Falletti, A091762; Attorney for Respondents/Defendants—Crystal Cloud et al, A093075.

John S. Spencer, Spencer Law Firm, Scottsdale, AZ, Attorney for Respondent/Defendant—Union Bank of California, A092552.

Andrew S. Werner, San Francisco, James J. Patrick, Cesari, Werner & Moriarty, San Francisco, Attorneys for Respondent/Defendant—Charles McLaughlin, A092539.

MARCHIANO, J.

This case arises from a dog attack resulting in tragic injuries to eleven-year-old Cody F. The attack occurred on a private road within a subdivision and was witnessed by Cody's mother and sister. The respondents, property owners and association members in the Rancho Tehama Subdivision Association (RTA), owned access easements over the road. Respondents obtained favorable dispositions on the pleadings in the trial court and Cody, his mother and sister have appealed.

Appellants ask this court to expand the scope of an easement owner's liability to cover this fact situation, even though the owner did not create the hazard, did not own the dogs, had no interest in the land from which the dogs escaped and did not own the road where the attack took place. The suggested basis for this expanded liability is the respondents' right to use the roads within the subdivision and their status as association members of a planned unit development. 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. Appellants' theory does not fit within the boundaries of the existing law because the element of control is absent from this case.

Residents of a common interest subdivision may be close neighbors, but they are not their brother's keeper when it comes to policing activities on private property.¹ We affirm the judgments because the easement owners did not have any duty of care to prevent the harm that occurred.

BACKGROUND

Because this appeal follows the granting of demurrers and motions for judgment on the pleadings, we rely only on the allegations of the complaint and matters hat were properly the subject of judicial notice in setting out the relevant facts.² (Fosgate v. Gonzales (1980) 107 Cal.App.3d 951, 957, 166 Cal.Rptr. 233.)

The Rancho Tehama Subdivision is a large planned development, managed by an incorporated property owners' association (RTA) that is responsible for maintenance of the private streets and promulgation and enforcement of rules for use and enjoyment of the streets. The powers of the nonprofit corporation are exercised by its board of directors, who are elected by the members. Every person who acquires title to a lot within the subdivision is a member of the RTA and has one vote. Each of the streets within the subdivision is a private street. The assessor's map shows ownership of each lot extends to the center of the street, so the lot owners own the portion of the street in front of their property. The declaration of restrictions states, in the paragraph entitled "Easements," that the predecessor of respondent Union Bank reserved for itself and the members of the RTA, tenants, and their invitees, an easement "for ingress and egress over each private street...."

Appellants' judicial council form complaint for general negligence and premises liability alleges that James Wick, not a party to these appeals, occupied lot number 1398 of the Rancho Tehama Subdivision, where he kept and trained over 20 vicious dogs, used for commercial boar hunting and guarding purposes in violation of the recorded declaration of restrictions of the subdivision. On September 6, 1998 in front of Wick's lot, Cody F. was badly mauled by Wick's dogs.³

The alleged basis for the liability of the respondents to this appeal, who did not own the dogs, the property they escaped from, or the road where the attack occurred, is alleged as follows in the causes of action for negligence and premises liability.⁴

"Defendants' negligence included the creation and maintenance of an unreasonably dangerous private street, open to the use of persons such as plaintiffs and their invitees, due to the allowance of a unit owner, and association member James Byron Wick, to keep over twenty (20) nonhousehold dogs that he commercially trained to be vicious guard dogs to attack persons, and commercially trained them to attack wild boar in packs; and, to keep such dogs unsecured and adjacent to said street for a prolonged period of time, and even after other owners and associate members were attacked and bit by the dogs, to create and maintain a nuisance and create the dangerous street condition, and cause the said risks to be activated in plaintiff Cody F.....

"Defendants ... owner and association members, ... and d/b/a a joint venture or enterprise called Rancho Tehama Association, so negligently and fully managed their Association rights and the private streets especially Laramie Point in front or about Lot No. 1398, a lot owned by Association member defendant Wick, as to cause the street to be in an unreasonably dangerous condition for any pedestrian to use....

"Defendants' negligence also included the deliberate neglect in enforcing the restriction prohibiting the keeping of dogs on the subdivision and excepting only dogs which would constitute a household pet so long as such dog did not become a nuisance to other members ... which neglect concurred with the willful and tortious conduct of James Byron Wick who was keeping, for commercial purposes over twenty (20) viciously trained dogs on his unsecured subdivision lot, immediately adjacent to defendants' street...."

The cause of action for premises liability alleges:

"[P]laintiff was injured on the following premises in the following fashion ... [t]he private street, owned and reserved for use by the Union Bank of California National Association ... on Rancho Tehama Subdivision and maintained by The Rancho Tehama Association, by delegation, in front of Lot 1398 on Laramie Point occupied by association member JAMES BYRON WICK and where he kept over twenty (20) vicious dogs ... and kept for a prolonged period after being commonly known to be a nuisance to other occupants and in violation of recorded declaration of restrictions for the welfare of other property residents, ... and resulted in causing the street to be in an unreasonably dangerous condition to result in the dogs mauling the passerby and harming plaintiffs...."⁵

The viability of appellants' claim of spoliation of evidence has been resolved by the decisions in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17, 74 Cal.Rptr.2d 248, 954 P.2d 511 (no tort remedy for the intentional spoliation of evidence by a party to the cause of action); Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 466 84 Cal.Rptr.2d 852, 976 P.2d 223 (no tort cause of action for intentional spoliation against person who is not a party to lawsuit), and Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1083, 95 Cal.Rptr.2d 884 (no tort remedy for negligent spoliation). Appellants raise no issue on appeal regarding that claim.

On November 16, 1999, respondent Thomas Falletti demurred to the complaint, arguing that neither his association membership nor his interest in an access easement over the private road where the attack occurred supported creation of a duty to appellants. On April 26, 2000, the court entered a judgment dismissing the action against Falletti after sustaining his demurrer without leave to amend.

Other respondents followed Falletti's lead. On April 17, 2000, Charles McLaughlin moved for judgment on the pleadings, arguing that, assuming for purposes of his motion that he was a property owner, such an owner has no duty under the facts alleged in the complaint. Union Bank joined in McLaughlin's motion, and subsequently filed its own motion for judgment on the pleadings. On May 4, 2000, respondents Robert Wysocki, John and Dorothy Kilgore and Crystal Cloud filed separate motions for judgment on the pleadings and Mr. and Mrs. James T. Hixon filed a demurrer, asserting essentially the same arguments as were contained in the Falletti demurrer.

On May 10, 2000, the court granted the various motions of the respondents without leave to amend. Judgments were subsequently entered. Appellant appealed separately from each decision. Upon stipulation of the parties, we consolidated these appeals for purposes of decision and oral argument.

DISCUSSION

The complaint alleges that Cody's injuries occurred in the private street in front of Wick's lot number 1398. Appellants argue that respondents are liable for their injuries because the subdivision's recorded declaration of restrictions states that residents have easements for ingress and egress over the private streets within the subdivision, and because they are members of the RTA, which is alleged to be responsible for enforcing restrictions on dog ownership. After reviewing these contentions, we conclude that the respondents owed no duty to appellants in this case.

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