Hess v. Mosqueda

Filed 9/18/07 Hess v. Mosqueda CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Austin Stephen Hess subleased a room from Derek Morgan. He was bitten by Morgan's dog. He alleges that respondents Abel and Celia Mosqueda (the Mosquedas), the property owners and Morgan's lessors, are liable under the doctrine of respondeat superior.[1]

Hess's complaint for negligence and strict liability against the Mosquedas was resolved by summary judgment in their favor on the grounds that the Mosquedas had no agency or employment relationship with the dog owner and had no vicarious liability for Hess's injuries.

We conclude that summary judgment was properly granted because, as we shall explain, simply permitting a lessee to sublease does not thereby make the lessee the agent of the lessor. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hess was bitten by Marley, a bull mastiff owned by Morgan. Morgan rented a house from the Mosquedas. The lease agreement permitted him to sublet rooms in the house with the Mosquedas' consent. Morgan sublet a room in the house to Hess. On September 12, 2005, Marley escaped from the yard of the rental property and was running loose in the neighborhood. Morgan was not home at the time. In Morgan's absence, Hess brought him back to the rental property. In the course of retrieving the dog, Hess was bitten on the face and suffered serious injuries requiring surgery.

Hess filed a complaint against the Mosquedas and Morgan alleging strict liability under the dog bite statute (Civ. Code,  3342) and negligence.[2] The Mosquedas sought summary judgment alleging that their lack of actual knowledge of the dog's propensity for violence relieved them of any liability for Hess's injuries and that Morgan was neither their agent nor employee.

The trial court granted summary judgment finding there was no evidence either that the Mosquedas had prior knowledge of Marley's dangerous propensities or that Morgan was a "property manager" for them.

In this appeal, Hess admits that the Mosquedas had no actual knowledge of Marley's dangerous propensities prior to his injury.

DISCUSSION

Standard of Review

Summary judgment is appropriate when there is no material issue of fact or where the record establishes as a matter of law that a cause of action has no merit. "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists . . . ." (Code Civ. Proc.,  437c, subd. (p)(2).) On appeal, we independently review an order granting summary judgment. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 159.)

Applicable Law

"Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . ." (Civ. Code,  1714, subd. (a).) However, "[t]he 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." (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369; see also Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514 ["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"].)

Hess admits that the Mosquedas had no actual knowledge that Marley had vicious tendencies before the dog bite occurred. Undaunted by this fact, Hess argues that actual knowledge is not required because the Mosquedas and Morgan were in an agency or employment relationship. He contends that if such relationship exists, the Mosquedas are vicariously liable under the doctrine of respondeat superior. (See, e.g., Chee v. Amanda Goldt Property Management, supra, 143 Cal.App.4th 1360, 1375 ["'Vicarious liability "means that the act or omission of one person . . . is imputed by operation of law to another,"' without regard to fault. . . . [V]icarious 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"].)

Hess argues that, because the lease agreement authorized Morgan to sublet rooms in the house to other tenants, and he collected rents, paid utilities and took care of minor maintenance on the property, a triable issue of fact arises whether Morgan was the Mosquedas' "property manager" and, as such, was their agent or employee. He also argues the trial court erred in placing on him the burden of producing evidence of agency. These arguments are without merit.

"'"The law indulges in no presumption that an agency exists but instead presumes that a person is acting for himself and not as agent for another."' [Citation.] [T]he burden of proving agency, as well as the scope of the agent's authority, rests upon the party asserting the existence of the agency and seeking to charge the principal with the representation of the agent." (Inglewood Teachers Assn. v. Public Employee Relations Bd. (1991) 227 Cal.App.3d 767, 780.)[3]

The question whether one is an agent is ordinarily a question of fact. (Trane Co. v. Gilbert (1968) 267 Cal.App.2d 720, 726.) Where, as here, however, the facts are undisputed, the issue is one of law. (See, e.g., Emery v. Vista Internat. Service Assn. (2002) 95 Cal.App.4th 952, 960.)

We agree with the trial court that the lease provision authorizing Morgan to sublet rooms, and collecting rents, paying utilities and performing minor maintenance do not convert a tenant into a "property manager." The undisputed evidence shows that Morgan's agreement with the Mosquedas, as shown by the rental agreement, was that he was to pay a specified rent and pay for utilities. Morgan sublet rooms in the house and collected rents from these subtenants, not as an agent or employee of the Mosquedas, but solely to lessen his financial obligation under the lease. As such, Morgan was a mere tenant whose liability cannot be imputed to the landlord. (Chee v. Amanda Goldt Property Management, supra, 143 Cal.App.4th at p. 1375, citing Mundt v. Nowlin (1941) 44 Cal.App.2d 414, 415; O'Leary v. Herbert (1936) 5 Cal.2d 416, 418; Anderson v. Souza (1952) 38 Cal.2d 825, 831.)

The judgment is affirmed. Respondents are to recover costs.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Roger T. Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

Miles, Sears & Eanni and William J. Seiler for Plaintiff and Appellant.

Richardson, Bambrick, Cermak & Fair; Law Offices of Richardson & Fair, William P. O'Kelly for Defendants and Respondents.

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Analysis and review provided by Chula Vista Property line Lawyers.

[1] Hess also alleged that the Mosquedas were negligent. He has abandoned that claim.

[2] Morgan is not a party to this appeal.

[3] In his reply brief, Hess asserts that he was not required to provide evidence of an agency relationship because the Mosquedas "did not dispute the existence of such an agency." This argument is factually and legally incorrect.