Opinion
2:21-cv-02391 WBS DMC
06-28-2023
UNITED STATES OF AMERICA, Plaintiff, v. MARBLE MOUNTAIN RANCH, INC.; DOUGLAS T. COLE; HEIDI A. COLE; NORMAN D. COLE; and CAROLYN T. COLE, Defendants.
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE
Plaintiff United States of America brought this action against defendants Marble Mountain Ranch, Inc., Douglas Cole, Heidi Cole, Norman Cole, and Carolyn Cole, alleging common law negligence and trespass by fire and seeking damages, interest, and penalties. (Compl. (Docket No. 1).) Individual defendants Norman Cole and Carolyn Cole now move for summary judgment on the negligence claim. (Docket No. 21.)
The instant motion initially sought summary judgment as to all four individual defendants. However, defendants' reply withdrew the motion as to Douglas and Heidi Cole because “there are triable issues of material fact regarding [their] personal involvement.” (Reply (Docket No. 24) at 2.)
I. Factual Background
Marble Mountain Ranch, Inc. operates a guest ranch in Somes Bar, Siskiyou County, California. (Defs.' Statement of Undisputed Facts (“SUF”) (Docket No. 21-2) ¶ 3.) Douglas and Heidi Cole are the sole shareholders of Marble Mountain Ranch, Inc. (Id. ¶ 4.) The ranch operates on a parcel of land owned in joint tenancy by the four individual defendants: Douglas Cole and Heidi Cole (the owners of Marble Mountain Ranch, Inc.), and Norman Cole and Carolyn Cole (Douglas Cole's parents). (Id. ¶ 5.) Norman and Carolyn Cole entered into an agreement with Douglas and Heidi Cole, allowing them to live and operate the ranch on the property. (Pl.'s Statement of Disputed Facts (“SDF”) ¶¶ 6, 11.) Norman and Carolyn Cole have never collected any rent or income from the business, nor do they have involvement in the day-to-day operations of the ranch. (See SUF ¶¶ 6, 8, 10-11; SDF ¶¶ 3, 6, 8, 10.) They have not visited the property since years prior to the Marble Fire, which allegedly ignited due to negligent burning of a debris pile on the property and burned land belonging to the United States. (SUF ¶¶ 1, 2, 11.)
II. Discussion
The United States argues that Norman and Carolyn Cole can be held directly liable for negligence because they were “aware of their son and daughter-in-law's stewardship of the property and operation of a guest ranch on the property,” and received mortgages on the property, the proceeds of which were given to Douglas and Heidi Cole for improvements to the property. (See Opp'n at 6; SDF ¶¶ 8, 10.)
The United States also points to an alleged telephone call between the Assistant United States Attorney handling this case and Carolyn Cole (which occurred prior to Carolyn Cole obtaining representation) in which Carolyn Cole allegedly “described defensive burning at the Marble Mountain Ranch and denied that the Marble Fire was caused by an escaped burn pile.” (Decl. of Emilia P. E. Morris (Docket No. 22-1) ¶ 2.) At deposition, Carolyn Cole stated that she did not remember this conversation. (Excerpt of Dep. of Carolyn Cole (Docket No. 24-3) at 5-6.) In briefing and at oral argument, plaintiff's counsel argued that this alleged call provides evidence of Carolyn Cole's general knowledge of burning practices at the ranch.
Plaintiff objects to this evidence on the ground that the Rules of Professional Conduct prevent counsel from testifying. Under California Rule of Professional Conduct 3.7(a), a lawyer may act as both an advocate and a witness with their client's informed written consent. The court need not rule upon this objection, although counsel now acknowledges that the better procedure would have been to have an investigator talk to a potential defendant.
The evidence presented by the United States in opposition to defendants' motion fails to establish that Norman and Carolyn Cole had sufficient knowledge of or control over the allegedly negligent burning activities at issue to be held directly liable for the damages caused by the fire. Mere ownership of the land, co-signing for mortgages, and general knowledge of the ranch's burning practices are not enough. See Thompson v. United States, 592 F.2d 1104, 1109 (9th Cir. 1979) (California state law does not “extend[] liability or potential liability to a landowner for dangerous conditions on his land created by the lessee after the lessee took possession, unless the landowner had knowledge of the danger or participated in some way in creating it”); Alcaraz v. Vece, 14 Cal. 4Th 1149, 1160 (Cal. 1997) (“Whoever controls the land is responsible for its safety. That is why it is normally the tenant rather than the landlord who is liable to anyone injured as a result of a dangerous condition on leased land and why this field of tort law is more accurately described as land occupiers' and possessors' liability than as landowners' liability.”).
The United States alternatively argues that Norman and Carolyn Cole, as landlords, can be held vicariously liable for the negligence of their tenant based on violation of California Health and Safety Code § 13007, which provides that any “person who personally or through another wilfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows a fire kindled or attended by him to escape to, the property of another” shall be liable. The plain language of the statute does not provide for strict liability for the actions of another, but rather requires that to be held liable an individual must have acted negligently. See id.; Presbyterian Camp & Conf. Centers, Inc. v. Superior Ct., 12 Cal. 5th 493, 506-07 (Cal. 2021) (phrase “through another” as used in § 13007 refers to “situations in which a person will be held liable because they directed another person to act,” and does not “impose liability on otherwise blameless parties because of the actions of another person”).
Neither Exact Property & Casualty Company v. Union Pacific Railroad Company, No. 2:21-cv-00928 WBS JDP, 2021 WL 2711188 (E.D. Cal. July 1, 2021), nor United States v. Sierra Pacific Industries, 879 F.Supp.2d 1117 (E.D. Cal. 2012), support the United States' argument that landlords who do not control the activities on the property can be vicariously liable for the negligence of the tenants. In Exact Property, this court indicated that a landowner has a duty to prevent hazardous natural conditions from escaping and causing injury where the landowner exercised some control over the land, for example through possession or maintenance. See 2021 WL 2711188, at *2 (citing, inter alia, Sprecher v. Adamson Companies, 30 Cal.3d 358, 369 (1981)). In Sierra Pacific, Judge Mueller held that the defendant landowners could be held directly liable for an escaped fire where they exercised control over the properties, including preapproving a contractor's fire plan and requiring the contractor to implement fire prevention programs, make periodic inspections, and investigate and report damage incidents to the landowners. See 879 F.Supp.2d at 1123-24.
Here, there is insufficient evidence to support any reasonable inference that Norman and Carolyn Cole exercised any control over the activities which allegedly resulted in the fire, or that they even had the power to do so had they known of such activities.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Docket No. 21) be, and the same hereby is, GRANTED in favor of defendants Norman Cole and Carolyn Cole on plaintiff's claim for negligence as to those defendants.