Lucas v. Pollock, D013655

• Decision Date: 19 June 1992
• Docket Number: No. D013655,D013655
• Citation: 8 Cal.Rptr.2d 918,7 Cal.App.4th 668
• Court: California Court of Appeals Court of Appeals
• Parties: Esteban Raul LUCAS, et al., Plaintiffs and Appellants, v. Perry C. POLLOCK, Defendant and Respondent.

Page 918

8 Cal.Rptr.2d 918

7 Cal.App.4th 668

Esteban Raul LUCAS, et al., Plaintiffs and Appellants, v. Perry C. POLLOCK, Defendant and Respondent.

No. D013655.

Court of Appeal, Fourth District, Division 1, California.

June 19, 1992.

Rehearing Denied July 8, 1992.

Review Denied Sept. 17, 1992.

Singleton & Dean, Terry Singleton, Shirlyn Daddario and Curtis L. Cooper, Escondido, for plaintiffs and appellants.

Testa & Grady, James A. Testa and Susan J. Grady, Vista, for defendant and respondent.

HUFFMAN, Associate Justice.

After the trial court granted summary judgment in favor of defendant and respondent Perry Pollock, plaintiffs and appellants Esteban Raul Lucas, Guadalupe Reyes, and Mario Garcia Reyes (collectively plaintiffs), appeal. (Code Civ.Proc., § 437c.) Plaintiffs' action arose out of a fire in temporary migrant farmworker housing constructed on Pollock's land, in On appeal, plaintiffs argue that triable issues of fact remain as to actual or constructive knowledge on the part of Pollock as to the presence of migrant farmworker encampments on his property, either in the nature of personal knowledge or imputed knowledge through his real estate agent, non-party John Daley. These arguments are not well taken. We affirm.

which Lucas was gravely injured and plaintiffs Reyes' decedent, Jorge Reyes (Reyes), was killed. In granting Pollock's motion for summary judgment, the trial court found Pollock had breached no landowner's duties sounding in negligence that were owed to plaintiffs, and was not liable for damages for infliction of emotional distress, nuisance, or breach of the warranty of habitability.

FACTUAL AND PROCEDURAL BACKGROUND

At the time the fire occurred, October 22, 1987, Lucas and Reyes were migrant farmworkers residing in an encampment (also known as the cancha) located along a creek bed on 27 acres of undeveloped land owned by Pollock. The structure in which Lucas and Reyes lived was made out of wood and plastic and the only illumination provided was an open-flame candle. When Lucas went to sleep that night, Reyes was still up reading the newspaper. Both had had a few beers that evening. Lucas does not know how the fire started. He woke up in the hospital with grievous burn injuries and learned that Reyes had died in the fire.

The farm where Lucas and Reyes were working at the time of the fire was located adjacent to Pollock's property, which was undeveloped and not used for any purpose, including farming. Pollock acquired this land in 1968 after he foreclosed on a trust deed, and was holding it solely for investment purposes. Pollock never gave anyone permission to enter onto or live on his property, and he testified in his deposition he was unaware that anyone was present there at the time of the fire. Pollock may have looked at the property when he bought it, but he doubts that he ever walked the property.

The area on Pollock's property where the migrant encampments were made was hidden deep within a gully and was obscured by thick underbrush. The shelters were invisible and inaccessible from the single paved road in the area, or from the southern portion of the adjoining ranch, where Lucas and Reyes worked. The owners of that farm denied that they had ever seen shelters near the Pollock property. Pollock never discussed his property with anyone who worked for the adjoining farms.

In Pollock's deposition, he testified that although there was only one road accessing the property, he surmised there was another access used by the workers because he found that a fence dividing his property from the north had been completely flattened for quite some time, and other fences were also down. However, as to other vehicular access, there really wasn't any except for a rough roadway which would be difficult to drive.

For several years before the fire, Pollock had been attempting to sell the land, and had entered into listing agreements with John Daley, a real estate broker. Between 1976 and 1982, Daley lived on a portion of Pollock's property which he purchased. In the late 70's or early 80's, Daley, with Pollock's approval, prepared several preliminary and tentative maps for proposed subdivision of the property. He does not believe that he walked the property in connection with those proposed development plans, and did not see any migrants living along the creek beds during the period that he was living in the house on the property. After he no longer lived on the land, Daley continued his attempts to sell Pollock's land for him in his capacity as a leasing or real estate agent.

Both Daley and Pollock testified at their depositions that the first time they learned of the fire was in the summer of 1988, when Lucas's investigator questioned them about it. The summer after the fire occurred, Pollock wrote a letter to the Oceanside Police Department asking it to assist him in removing the migrant encampments from his property, and described Daley as his agent in the area for that purpose.

Approximately a year after the fire, Lucas's and Reyes's survivors filed their complaint for personal injury and wrongful death against Pollock, as well as numerous other defendants representing the farmers who had employed the plaintiffs and, by amendment, a security service which had patrolled the property. As against Pollock, the causes of action fell into three groups: first, negligence, including premises liability, negligence, and negligence per se. A second group involved allegations of negligent and intentional infliction of emotional distress. Nuisance and breach of the warranty of habitability were also pled.

After the action had been on file for some 18 months and discovery had been conducted, Pollock filed his motion for summary judgment. (Code Civ.Proc., § 437c.) He argued he was entitled to judgment as a matter of law on each of the theories pled, on the reasoning that he owed no legal duty of care to the plaintiffs, even if the incident did in fact occur on land which he owned (which he admitted for purposes of pursuing the motion). Citing Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561, Pollock argued he had acted reasonably in the management of his property in view of the probability of injuries to others, even trespassers.

After a short continuance was granted to allow plaintiffs to conduct further discovery and after further papers were submitted (including Pollock's evidentiary objections--granted in part and overruled in part--to the supplemental declaration submitted by plaintiffs' attorney), the motion was granted. At oral argument, the trial court commented that plaintiffs had made no showing other than speculation about the extent of Pollock's knowledge as a landowner of the conditions on the property. With respect to the extent of Daley's knowledge as an agent of Pollock, the trial court stated:

"But all of the rest of it, with regard to making that quantum leap from Daley to the land owner, is based on speculation. That's where it all failed. I don't care what Daley knew. Pollock didn't know. And that's what I found. And that's the end of it. And the telephonic [granting the motion] stands. Thank you very much."

Plaintiffs timely appealed the summary judgment. ¹

DISCUSSION

A prerequisite to the granting of summary judgment is:

" '... all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' [Citations.] [Where] a defendant seeks summary judgment, his declarations and evidence must either establish a complete defense to plaintiff's action or demonstrate an absence of an essential element of plaintiff's case. If defendant establishes the foregoing, and the plaintiff's Even if a trial court's ruling granting summary judgment is based on one particular theory, "its judgment may nonetheless be upheld if it is 'right upon any theory of the law applicable to the case....' [Citation.]" (Farron v. City and County of San Francisco (1989) 216 Cal.App.3d 1071, 1074, 265 Cal.Rptr. 317.)

declaration in reply does not show that there is a triable issue of fact with respect to that defense or that an essential element exists, the summary judgment should be granted. [Citation.]" (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266, 241 Cal.Rptr. 706, italics omitted.)

Here, plaintiffs' opposition to Pollock's motion for summary judgment focused upon allegations of Pollock's actual knowledge of conditions on the property, or imputed knowledge on the basis of Daley's familiarity with the property as a former resident of the area and as a real estate agent attempting to sell the property. We first discuss the issue of the extent of knowledge which Pollock had, as shown by this record, and then discuss the implications of any such knowledge: whether it gave rise to a particular duty to do something, and to whom any such duty was owed.

Plaintiffs contend the trial court misapplied basic rules of agency when it commented at the hearing on the motion, "I don't care what Daley knew. Pollock didn't know.... And that's the end of it...." On the issue of Pollock's constructive knowledge, plaintiffs state the general principle that an agent's knowledge is considered and imputed as the knowledge of the principal "only when the former acquires it in the course of his agency." (Redman v. Walters (1979) 88 Cal.App.3d 448, 454, 152 Cal.Rptr. 42; Civ.Code, § 2332.) ² Plaintiffs then rely on the general rule that it is normally a factual question whether certain facts concern the subject matter of the agency and were within its scope. (Maron v. Swig (1952) 115 Cal.App.2d 87, 90, 251 P.2d 770.) Citing section 2079, ³ plaintiffs argue that Daley, as Pollock's real estate agent, was under a duty to inform Pollock of matters in connection with the agency which would affect the marketability or value of Pollock's real property. The presence of a migrant farm worker...