United States v. Sierra Pacific Indus.

• Decision Date: 04 June 2012
• Docket Number: No. CIV S–09–2445 KJM–EFB.,CIV S–09–2445 KJM–EFB.
• Citation: 879 F.Supp.2d 1117
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff, v. SIERRA PACIFIC INDUSTRIES; et al., Defendants.

879 F.Supp.2d 1117

UNITED STATES of America, Plaintiff,

v.SIERRA PACIFIC INDUSTRIES; et al., Defendants.

No. CIV S–09–2445 KJM–EFB.

United States District Court, E.D. California.

June 4, 2012.

Todd A. Pickles, Francis Neil MacDonald, Kelli L. Taylor, Govt, United States Attorney's Office, Sacramento, CA, Glen Frederick Dorgan, Govt, Richard M. Elias, Govt, United States Attorney's Office, Fresno, CA, for Plaintiff.

Daniel C. Kim, Katherine Elizabeth Underwood, Richard Stone Linkert, Matheny Sears Linkert and Jaime LLP, Annie Smith Amaral, William Ross Warne, Meghan M. Baker, Michael Aaron Schaps, Michael John Thomas, Downey Brand LLP, Lori J. Gualco, Gualco Law, Phillip R. Bonotto, Law Offices of Rushford & Bonotto, LLP, Sacramento, CA, Steven P. Ragland, John W. Keker, Keker & Van Nest, LLP, San Francisco, CA, Denise Jarman, The Law Office of Denise Jarman, Pasadena, CA, for Defendants.

ORDER

KIMBERLY J. MUELLER, District Judge.

This matter comes before the court upon the motion for summary judgment filed by the Landowner defendants' (“Landowners”).¹ (ECF 321.) This matter was heard on February 10, 2012; Glen Dorgan and Richard Elias appeared for plaintiff and John Keker appeared for Landowners. As explained below, Landowners' motion is generally denied.

I. FACTS AND PROCEDURAL HISTORY

On or about May 1, 1983, Landowners and W.M. Beaty and Associates, Inc. (“Beaty”) entered into a Management Contract whereby Beaty agreed to manage property owned by Landowners, including the land at issue in this case. (Statement of Undisputed Facts ¶ 1, ECF 394 (hereinafter, “ECF 394”).) On or about March 15, 2007, Sierra Pacific Industries (“SPI”) hired Howell's Forest Harvesting Company to log the timber SPI planned to purchase from Landowners. ( Id. ¶ 8.) On June 7, 2007, Landowners and SPI entered into a Timber Sales Agreement whereby SPI purchased timber from Landowners on property covered by the Cooks Creek Timber Harvesting Plan (“THP”), prepared by Beaty on October 12, 2005. ( Id. ¶¶ 13, 4.) Beaty prepared the 2007 Fire Plan on or around July 12, 2007. ( Id. ¶ 34.) The Moonlight Fire ignited on September 3, 2007. ( Id. ¶ 24.)

Plaintiff filed the original complaint in this case on August 31, 2009. (ECF 1.) On May 26, 2010, plaintiff filed the operative second amended complaint against defendants SPI; Beaty; Eunice E. Howell individually and doing business as Howell's Forest Harvesting Company (together, “Howell”); and Landowners. (ECF 53 ¶¶ 5–8.) The second amended complaint alleges seven (7) causes of action: 1) negligence against all defendants; 2) liability under the Fire Liability Law, California Health & Safety Code §§ 13007–13009.1 & Civil Code §§ 3287 & 3288 against all defendants; 3) negligence and negligence per se under 14 Cal.Code Regs. § 938.8 & the Fire Protection Plan against all defendants; 4) trespass by fire against all defendants; 5) negligent supervision against SPI, Beaty, Landowners, and Eunice Howell; 6) negligent hiring against SPI, Beaty, and Landowners; and 7) interest and penalties against all defendants. ( Id.)

Beaty and Landowners filed their answers to the second amended complaint on June 10, 2010 (ECF 54 & 55 respectively); Howell and SPI filed their answers to the second amended complaint on June 15, 2010 (ECF 56 & 57 respectively).

Landowners filed their present motion for summary judgment on November 16, 2011. (ECF 321.) Plaintiff filed its opposition on January 27, 2012. (ECF 381.) Landowners filed their reply on February 3, 2012. (ECF 393.)

II. ANALYSISA. Standard

A court will grant summary judgment “if ... there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The “threshold inquiry” is whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).²

The moving party bears the initial burden of showing the district court “that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party, which “must establish that there is a genuine issue of material fact ....” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In carrying their burdens, both parties must “[cite] to particular parts of materials in the record [or show] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (“[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts”). Moreover, “the requirement is that there be no genuine issue of material fact .... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505.

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587–88, 106 S.Ct. 1348;Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.2008). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

B. Application

Landowners contend plaintiff must prove they were negligent as there is no basis for holding them strictly liable for the Moonlight Fire. (Mot. at 5.) They contend plaintiff does not allege that Landowners themselves were negligent. ( Id. at 7.) Moreover, they cannot be held vicariously liable because neither SPI nor Howell was their agent and while Beaty was their independent contractor, its alleged negligence cannot be imputed to them. ( Id.) Specifically, neither the peculiar risk doctrine nor the doctrine of non-delegable duties is applicable. ( Id. at 8–10.) Landowners further contend they cannot be held liable for SPI's or Howell's alleged negligence because Landowners were vendors and servient tenement owners. ( Id. at 10–15.)

Plaintiff contends Landowners are liable for direct negligence as owners of the land. (Opp'n at 6–7.) Plaintiff also contends Landowners are vicariously liable for Beaty's negligence. ( Id. at 8–9.) Even if Beaty was Landowners' independent contractor, Landowners are vicariously liable for its negligence through the inherent risk, peculiar risk, trespass and nondelegability exceptions. ( Id. at 9–14.) Plaintiff further contends Landowners' characterization of their relationship with SPI as vendor/vendee or servient tenement owner/easement owner is irrelevant. ( Id. at 15.)

1. Direct Liability

The elements of negligence are “duty, breach of duty, causation, and damages.” Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278 (1989). “Liability for negligent conduct may only be imposed where there is a duty of care owed by the defendant to the plaintiff or to a class of which the plaintiff is a member. A duty of care may arise through statute or by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society. Whether a duty is owed is simply a shorthand way of phrasing what is the essential question—whether the plaintiff's interests are entitled to legal protection against the defendant's conduct.” J'Aire Corp. v. Gregory, 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60 (1979) (internal quotations and citations omitted). Criteria for determining whether defendants owe plaintiffs a duty of care include: “(1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct and (6) the policy of preventing future harm.” Id. at 804, 157 Cal.Rptr. 407, 598 P.2d 60 (citing Biakanja v. Irving, 49 Cal.2d 647, 650, 320 P.2d 16 (1958)); see also Marlene F., 48 Cal.3d at 588, 257 Cal.Rptr. 98, 770 P.2d 278 (“ ‘Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy consideration for and against imposition of liability.’ ” (quoting Slaughter v. Legal Process & Courier Serv., 162 Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189 (1984))). “Although foreseeability is most often a question of fact for the jury, when there is no room for a reasonable difference of opinion it may be decided as a question of law.” Hedlund v. Superior Court, 34 Cal.3d 695, 705, 194 Cal.Rptr. 805, 669 P.2d 41 (1983).

“[A] duty to exercise due care can arise out of possession alone.” Sprecher v. Adamson Companies, 30 Cal.3d 358, 367, 178 Cal.Rptr. 783, 636 P.2d 1121 (1981) (also holding “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act”) ( id. at 370, 178 Cal.Rptr. 783, 636 P.2d 1121). “The law is well settled that an owner or occupier of land is required to exercise ordinary care in the management of his property and the breach of such duty constitutes actionable negligence.” Davert v. Larson, 163 Cal.App.3d 407, 410, 209 Cal.Rptr. 445 (1985)....