Opinion
G052697
04-17-2018
WALLACE HALL et al., Plaintiffs and Appellants, v. JOY L. HIRSCHMAN et al., Defendants and Respondents.
Law Offices of Edward R. Danoff, Jr., and Edward R. Danoff, Jr., for Plaintiffs and Appellants. Morris Polich & Purdy, Pamela A. Palmer, Michael P. West, and Matthew T. Kramer for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2011-00530588) OPINION Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed. Law Offices of Edward R. Danoff, Jr., and Edward R. Danoff, Jr., for Plaintiffs and Appellants. Morris Polich & Purdy, Pamela A. Palmer, Michael P. West, and Matthew T. Kramer for Defendants and Respondents.
A postal worker sued homeowners and a housesitter after he broke his wrist trying to distance himself from the housesitter's dog. The trial court granted the homeowners' summary judgment motion on the grounds the housesitter was not acting as their agent. We affirm the judgment.
BACKGROUND
At the end of 2011, Wallace Hall and his wife, Stella J. Hall, filed a negligence and loss of consortium lawsuit against Joy L. Hirschman, her son Robert H. Hirschman, and his estranged wife Monica Hirschman. Wallace alleged he was delivering mail one afternoon to the Hirschmans' residence in Westminster, California (the Residence). As he walked towards the front door, he encountered a large German Shepard that was not on a leash. Wallace asserted he was "viciously attacked" by the dog. He retreated by walking backwards away from the home, keeping his satchel between himself and the dog. He stumbled backward off the sidewalk curb and broke his wrist. The injury required surgery. In the complaint, Stella alleged a cause of action for loss of consortium. For both claims, liability was based on the allegation Monica negligently handled her dog while she was acting on behalf of Joy and Robert as their agent.
For the sake of clarity and convenience, we will refer to the parties by their first names and intend no disrespect. The complaint also named Jeanette Demedenko, who was a tenant at Robert's home. She was dismissed from the action.
Joy and Robert filed a motion for summary judgment. They characterized the lawsuit as a trip and fall case because the dog did not bite Wallace. Rather, his injuries were caused by a fall after being "startled" by the dog. They presented evidence Joy owned the Residence through a trust, but she was not living at the Residence when the injury occurred. She lived in Florida. Robert declared he lived at the Residence, but he was not present when the injury took place. He was in Florida visiting his mother for two weeks.
They also presented evidence establishing that at the time of the incident Robert and Monica were married but separated. Robert asked Monica, as a favor, to perform several minor household chores when he was away on his trip, such as feeding his four dogs, checking the mail, and watering his plants. Robert stated he did not know Monica stayed overnight at the Residence until after he got back from his trip.
Joy played no part in asking Monica for help. Joy declared she had had no contact with Monica for the past two years (since Robert and Monica's marital separation in 2009). Monica confirmed Joy's recollection, stating in her deposition that she had not spoken with Joy for several years.
Joy and Robert declared Monica was not their employee, she did not have authority to act on their behalf, and there was no contractual agreement with Monica for her services. Robert also declared Monica did not receive any compensation for performing the housesitting and petsitting tasks. They submitted Monica's deposition testimony in which she stated Robert did not ask her to do anything more than feed his dogs. She did not agree to be controlled by Robert or Joy.
In addition, Joy and Robert provided proof the German Shepard, named Brody, was owned by Monica and neither Brody nor Monica lived at the Residence. Monica brought Brody to the Residence the day of the incident. Joy and Robert submitted portions of Wallace's deposition as evidence Brody did not actually attack him. Wallace testified he immediately started backing away when he saw the dog was barking and growling at him. He walked backwards "rapidly" approximately 20 feet before falling off the sidewalk curb. He admitted Brody never made contact with him and was one or two feet in front of him when he tripped. Wallace believed Brody was "trying to bite" him. Monica recalled the incident differently. She heard Brody bark but claimed he was tethered on a leash and never left the front porch of the Residence.
In their opposition to the motion, Wallace and Stella argued there were numerous triable issue of material fact that should be decided by a jury regarding Monica's employment or agency status. In addition, they believed there was a triable issue of fact on the issue of whether Monica was a resident covered under Robert's homeowner's insurance policy. They asserted, without providing supporting documentation, the homeowner insurance carrier denied Wallace's claim after determining there was no coverage for the conduct of a non-resident housesitter. They did not provide a copy of the insurance policy, but claimed the document did not define the term "'residing.'"
To support their argument Monica lived at the Residence, Wallace and Stella submitted the declaration of Robert's neighbor, Nancy Fitzgerald. She declared she lived two doors down from the Residence and in late May and early June 2011, she frequently saw Monica walking her dog alone or with two or three smaller dogs. Fitzgerald also saw Monica park her white pickup truck in the Residence's driveway on a daily basis, and sometimes it was parked there overnight. She stated, "It is my opinion . . . Monica . . . . was residing at [the Residence] on June 2, 2011, based upon my personally observing her numerous times at or near this residence both before and after the incident that took place on this date, her frequently walking the dogs up and down the street in front of my residence and her parking her white pickup truck in the driveway at this address at all hours of the day and night, during late May and early June, 2011."
As further support, Wallace opined in his declaration that Monica was residing at the house on the date of the incident. He stated, "It is my opinion . . . Monica . . . . was residing at [the Residence] on June 2, 2011, after seeing her numerous times at this residence both before and after the incident, noting that she parked her white pickup truck in the driveway at this address, and due to the fact she was receiving mail at this address. I would frequently just say hello to her in passing as I was delivering mail on this street whenever she was out front."
Finally, Wallace and Stella referred to several statements Monica made during her deposition as proof of her residency status. Monica testified that between April 2010 and November 2012 she stayed the night at the Residence approximately 15 times. Monica explained she would spend the night with her son only when Robert was not there. Her son and daughter, who stayed at the residence, would tell her when Robert was gone and "[t]hey wanted their mommy." She confirmed Wallace's statement that she had her mail delivered to the Residence. "All the kids did. We all did, even my son in Victorville, because we lived on Malloy for 20 years." Monica stated she started having her mail sent to the Residence after the foreclosure of her home. It was currently being delivered someplace else.
Monica's "Malloy" reference is to the street where the family lived for many years before she and Robert separated in 2009. Monica had to move out of the Malloy street residence in April 2010 when it was foreclosed upon.
On the agency issue, Wallace and Stella disputed use of the term "favors" and asserted Monica was performing "duties" for Robert. They asserted that because Monica was given the task of collecting the mail, she had authority to act for Robert by signing for any delivered packages or certified mail. They maintained it was disputed whether Monica received compensation for performing house-sitting duties because there was evidence Robert paid her $1,000 per month after their separation and allowed her to stay at the Residence whenever she wanted. In addition, they maintained there was a factual dispute regarding where Monica and Brody were residing at the time of the incident. Wallace and Fitzgerald believed Monica was living at the Residence. Robert, in his declaration, stated he did not know where Monica was living because after the foreclosure of her home in 2010, she had been "bouncing around through friends' houses in Huntington Beach."
Wallace also disputed Joy and Robert's characterization of the incident. He asserted Brody did not simply "move[] towards him." Rather, he believed the large dog was attacking and trying to bite him, and he stumbled as he retreated from an attacking dog.
Joy and Robert filed a reply and objections to much of the evidence presented in support of the opposition. They argued there was no triable issue of fact regarding the existence of an agency or employment relationship. Moreover, if there was one, there was no evidence to support a finding of vicarious liability because Monica's negligent conduct regarding her own pet would fall outside the course and scope of Robert's authority.
Wallace and Stella filed a "rebuttal brief" in further support of their opposition. They again argued agency and employment were issues that must be decided by a jury. Joy and Robert filed an objection to the rebuttal brief. They maintained there was no legal authority permitting a second motion in support of an opposition. In addition, because the motion was filed two days before the hearing, there was inadequate notice or opportunity to properly respond.
The court granted the summary judgment motion. In its minute order, the court stated there was prima facie evidence refuting an agency agreement. It concluded Wallace and Stella failed to meet their burden of creating a triable issue of fact. The following month, the court entered a judgment in Joy's and Robert's favor.
DISCUSSION
I. Standard of Review
We review the trial court's ruling on the summary judgment motion de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has met his burden of showing a cause of action has no merit if he has shown one or more elements of that cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once a defendant has met his burden of production, "he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.)
II. Residency
Wallace's negligence action was based on the theory of agency. He devotes the first six pages of the argument section in his opening brief discussing the facts he believes raises a triable issue regarding whether Monica resided at Robert's home. Noticeably missing is any legal discussion or explanation regarding how Monica's residency status is relevant to the question of agency or a negligence cause of action.
This glaring omission was pointed out in respondents' brief. In his reply brief, Wallace claims the residency issue "is quite relevant, but not to prove agency." He maintains Monica's residency "has no bearing on the agency relationship" and he "never made that argument." He explains, "Rather, residency is relevant because the . . . insurance carrier, Allstate Insurance, limits their coverage as follows: '"Insured person(s)"—means you and, if a resident of your household: a) any relative; and b) any dependent person in your care.'" (Bold omitted.) Wallace concludes Monica was related to Robert by marriage and was a resident at the time of the incident.
In his reply brief, Wallace cites several insurance coverage cases to support his theory Monica was a resident. (See, e.g., Utley v. Allstate Ins. Co. (1993) 19 Cal.App.4th 815, 822 (Utley); Reserve Insurance Co. v. Apps (1978) 85 Cal.App.3d 228, 231-232 (Reserve Insurance).) Ironically, these cases highlight the dispositive reason why Wallace's argument lacks merit. Both Utley and Reserve Insurance involved appeals from adverse judgments in actions for declaratory relief against an insurance company, not a homeowner. (Utley, supra, 19 Cal.App.4th at p. 818; Reserve Insurance, supra, 85 Cal.App.3d at p. 230.) Robert's homeowner's insurance carrier was not a party in this lawsuit. Wallace did not request declaratory relief on an insurance coverage question. We cannot fathom how arguments regarding coverage and the interpretation of insurance policy language have any relevance to Wallace's negligence cause of action, or Stella's loss of consortium action, against Joy and Robert.
Based on our ruling Monica's residency status is irrelevant to maintaining a viable negligence cause of action, we need not address Wallace's additional argument the court erred in sustaining 13 evidentiary objections to the evidence he submitted to prove Monica lived at the Residence, i.e., his and the neighbor's declarations, stating their opinion Monica was a resident. In any event, this argument was waived because Wallace did not present relevant legal authority or cite record references to support his claim the court erroneously granted the evidentiary objections on the grounds the testimony lacked foundation, lacked personal knowledge, called for speculation, contained improper legal argument and conclusions, and was in essence improper and unqualified expert opinion on the issue of legal residency status. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].) Moreover, it is well settled, a lay witness's opinion must cite evidentiary facts, not legal conclusion or speculative opinions, which was the case here. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120.) --------
It is worth noting we found a published opinion (not cited by Wallace) that held a housesitter living temporarily at a relative's home was not considered a "resident" covered by the homeowners' policy. (California Casualty Indemnity Exchange v. Frerichs (1999) 74 Cal.App.4th 1446.) In that case, the homeowners' adult son was staying at his parents' home for a few weeks while they were on vacation. (Id. at p. 1448.) One day while riding his bike to his parents' home he collided with a pedestrian, injuring her wrist. (Ibid.) A few months before the incident, he had moved out of his parents' home, but he did not have a new permanent residence and was "couch surfing" at various friends' houses. (Id. at p. 1449.) The insurance company filed a complaint for declaratory relief and the appellate court held the housesitting son was not a resident as defined in the policy, and therefore, the insurance company could refuse to provide coverage for the pedestrian's injuries. (Id. at p. 1453.)
III. Agency
Wallace's negligence cause of action was based on the theory the homeowners were vicariously liable for Monica's negligence in handling her dog. On appeal, he maintains there was a triable issue of fact as to whether Monica was Joy's or Robert's agent. Wallace argues there were many facts suggesting an agency relationship, such as the evidence Robert arranged to have Monica perform daily duties, gave her instructions, and maintained control over her by (1) paying her $1,000 per month, and (2) having the right to terminate her. We conclude the material facts are undisputed, and Wallace's factually unsupported inferences are insufficient to meet his burden of proving there was a triable issue regarding agency.
"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295.) "'Agency is ordinarily an issue of fact, and in resolving it the trial court may draw inferences from the conduct of the parties as shown by the evidence.' [Citations.] But it may not be held '. . . that one who performs a mere favor for another, without being subject to any legal duty of service and without assenting to any right of control, can be an agent. This is not the law. "Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." [Citation.] "The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control." [Citation.]' [Citation.] However, it is true that: 'An agency relationship may be informally created. No particular words are necessary, nor need there be consideration. All that is required is conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the latter's direction. [Citations.]' [Citation.]" (Hanks v. Carter & Higgins of Cal., Inc. (1967) 250 Cal.App.2d 156, 161 (Hanks).) "'Control may not be inferred merely from the fact that one person's act benefits another. [Citation.]' [Citation.]" (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 572.) Moreover, "'The fact that parties had a preexisting relationship is not sufficient to make one party the agent for the other[.]'" (Ibid.)
Here, the undisputed evidence does not establish any type of relationship from which an agency could be inferred. The parties agree Robert asked Monica to help with several simple and ordinary household tasks, i.e., watering plants, emptying the mailbox, feeding the dogs. Robert presented evidence Monica undertook these tasks as a gratuitous favor. He did not pay for her help or exert control over the way to carry out the chores. Monica testified she did not assent to any right of control or agree to be Robert's agent in any capacity. The burden, therefore, shifted to Wallace to raise a triable issue of material fact.
In his appeal, Wallace argues he met his burden of proof because there was evidence the household tasks at issue should not be called "favors" but rather "duties." He suggests that because there exists a true dispute regarding terminology, he created a triable issue of fact. He focuses on several "facts" to support his opinion the tasks should be called "duties."
First, Wallace makes the inference chores repeated on a daily basis cannot be viewed as simply doing "one little favor." Second, he states that because Robert instructed Monica on what needed to be done the tasks should be called duties. Third, he finds significant the fact that when Monica and Robert were asked about "duties" in their depositions, they discussed the household tasks and did not object to the terminology. Wallace makes a leap of logic to conclude the failure to object to his counsel's use of the term "duty" meant it was adopted by the parties and agreed upon. Fourth, Wallace mentions Monica received a key to the Residence, however, he does not explain why he believes a person receiving a key would be performing duties not favors. Fifth, he suggests Robert's $1,000 monthly payment to Monica implies an employment relationship. And finally Wallace refers to evidence Monica often stayed at the Residence when Robert was absent. This last assertion is puzzling because Wallace conceded residency was not relevant to the issue of agency. He does not explain why residency matters in defining the household tasks as duties rather than favors.
Wallace fails to appreciate a dispute about terminology does not create a material triable issue of fact on the question of agency. A person performing household duties does not necessarily have a "legal duty of service" with respect to those tasks. (Hanks, supra, 250 Cal.App.2d at p. 161.) One can perform a duty gratuitously, absent an agency relationship. As mentioned earlier, there is no agency relationship when "one who performs a mere favor for another, without being subject to any legal duty of service . . . ." (Ibid.)
To meet his burden of proof, Wallace needed to provide evidence Robert's and Monica's conduct "'manifest[ed] acceptance of a relationship whereby one of them is to perform work for the other under the latter's direction. [Citations.]' [Citation.]" (Hanks, supra, 250 Cal.App.2d at p. 161.) It does not matter if feeding the dogs should be called a favor, a chore, a task, or a duty. To prevail, Wallace needed facts from which it could be inferred Monica's conduct in feeding Robert's dogs was carried out because she consented or indicated she would be willing to act on his behalf, subject to his control and consent. He failed to do so.
We therefore turn to Wallace's claim he presented sufficient evidence to raise a triable issue of material fact on the element of "control." Contrary to his contentions, we conclude it cannot be inferred Robert had the legal right to control Monica's activities simply because she possessed a house key, occasionally stayed the night, and performed more than one household task. "An agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency." (Hutcheson v. Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937, 958.) Monica's agreement to undertake various household tasks as a favor do not indicate she also agreed to act on Robert's behalf, subject to his control. To the contrary, evidence she stayed overnight without his knowledge or permission suggests a lack of control.
Alternatively, Wallace argues Robert's power to "terminate" Monica from her household duties is evidence he controlled her activities and she was acting on his behalf. He cites numerous employment law cases, where the "right to control" distinguishes employees from independent contractors. (See Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531 (Ayala).) It is well settled, "Under the common law, '"[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired."' [Citations.] . . . . Perhaps the strongest evidence of the right to control is whether the hirer can discharge the worker without cause, because '[t]he power of the principal to terminate the services of the agent gives him the means of controlling the agent's activities.' [Citations.]" (Ayala, supra, 59 Cal.4th at p. 531.)
We conclude Wallace's reliance on employment law is misplaced because, unlike the workers in those cases, there was no evidence Monica was being compensated for performing her housesitting tasks. The right to terminate a paid employee creates the reasonable inference of a right to control because of the serious financial implications. Wallace does not suggest why a similar inference would be created by the ability to terminate a volunteer, having no financial stake in continuing the relationship.
We are also not persuaded by Wallace's attempt to treat Monica's monthly alimony payments as compensation for a few weeks of housesitting. Spousal support is a legal obligation unrelated to any future promises to help the paying spouse. (See generally Fam. Code, §§ 4300 & 4320 [relevant factors in determining spousal support].) Wallace provides no case authority suggesting alimony can be made conditional on Monica's agreement to perform housesitting tasks. Similarly, there is also no merit to the argument Monica's payment was in the value of staying overnight at Robert's house. Robert testified he was unaware Monica was spending the night, and there was no evidence he agreed this would be a form of payment.
In his reply brief, Wallace suggests the jury should decide if Monica received "$1,000 per month for no reason at all" because Robert's payment was gratuitous or whether it was compensation. This argument ignores that Robert presented undisputed evidence on this issue. Robert declared he did not provide compensation to Monica for performing a few favors related to housesitting tasks. In his deposition, he confirmed Monica was not paid for housesitting. He testified, "I give her $1,000 a month alimony" and clarified this payment was made whether she went over to the house or not. He testified he had been paying alimony since they separated in July 2009 (two years before Wallace was injured). This evidence was sufficient to shift the burden of proof to Wallace to raise a triable issue of fact on whether the $1,000 represented alimony or something else. He presented nothing but speculation on this point, which is an insufficient reason to have it considered by a jury.
Because there are no factual disputes regarding Robert's relationship with Monica, and the evidence was insufficient to supporting the finding there was an agency relationship, we conclude the trial court did not error in concluding Wallace and Shelly could not prevail on their vicarious liability theory. Monica did not have any legal duty of service to Robert or Joy. The undisputed facts established she performed beneficial gratuitous favors for her ex-spouse. Robert merely entrusted a few household tasks to Monica in his absence, which did not create an agency relationship.
IV. Independent Contractor
As an alternative argument to agency, Wallace asserts liability can be imposed because Robert and Monica "shared an implicit independent contractor relationship under the nondelegable duty doctrine." Generally, a person who hires an independent contractor is not liable to third parties for injuries caused by the contractor's negligence. One of the exceptions to this rule is the doctrine of nondelegable duties. "Under this doctrine, a landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor. [Citations.]" (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726.) "Thus, for example, a landlord's duty to maintain elevators in a safe condition is nondelegable [citation], as is the owner's duty to maintain a water heater which is a fixture [citation], and the duty to maintain and repair a roof or other portions of the premises over which the landlord retains possession and control. [Citation]." (Ibid.) Wallace maintains this doctrine applies because Robert knew Monica would bring Brody with her to perform household tasks because she was known to take the dog everywhere with her. He concludes Robert therefore ratified Monica's decision to bring a dangerous dog onto the premises.
Robert and Joy correctly point out this argument was not raised in the trial court and a new theory of recovery cannot be decided in this appeal. In addition, they note this new legal theory is not factually supported in Wallace's response to the separate statement. "'Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments. [Citation.] An argument or theory will . . . not be considered if it is raised for the first time on appeal. [Citation.] Specifically, in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal.' [Citation.] 'A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.' [Citation.]" (Expansion Pointe Properties Limited Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 54-55.)
Even absent waiver, we would find against Wallace and Shelly. In this case, Joy is the homeowner and she did not know Monica was at the Residence performing household tasks. It was undisputed Joy had not spoken to Monica for several years. There is no evidence Monica was an independent contractor for the same reasons there is no evidence suggesting she was Robert's employee. And finally, there is no evidence indicating Joy or Robert knew Brody was vicious or had a history of attacking people.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
O'LEARY, P. J. WE CONCUR: MOORE, J. THOMPSON, J.