Case Name: Bernice Meza Berrelleza v. Cornerstone Realty, et al.
Case No.: 2014-1-CV-267329

In this negligence action, plaintiff Bernice Meza Berrelleza alleges that she was injured while riding a horse on a property in Morgan Hill. Plaintiff alleges that defendants Cornerstone Realty, Richard Ho, Humberto Rivas (who was also sued as Alberto Rivas), Yong Jin Wang (erroneously sued as Kevin Wang), Zu Hong Qu (erroneously sued as Kai Quin Wang), and E&H Fourth Family LTD Partnership were negligent in allowing horses to remain on the property; failing to supervise the horses and plaintiff’s ride; keeping the premises in a condition unsafe for a beginner to ride; and failing to follow the instructions of government agencies as to the horses. (Complaint, Cause of Action—General Negligence.) She further alleges that the horse she rode had a known dangerous propensity to misbehave. (Complaint, Cause of Action—Premises Liability.)

On July 1, 2014, plaintiff filed a form complaint alleging general negligence, premises liability, and strict liability. Currently at issue is a motion for summary judgment by Cornerstone, Ho, Wang, and Qu (the “Moving Defendants”), which plaintiff opposes. It is undisputed that Cornerstone and Ho are the property managers of the property where the accident occurred, while Wang and Qu are the property owners. (See Plaintiff’s Response to Defendants’ Statement of Undisputed Facts (“PSUMF”), no. 2.) Rivas leased the property from the Moving Defendants. (Id., no. 3.)

The Moving Defendants contend that they are entitled to summary judgment because they owed no duty to plaintiff under the primary assumption of the risk doctrine; they were unaware that their tenant kept horses on the property; none of their acts or omissions caused plaintiff’s injuries; and they are not strictly liable because they did not own, keep, or harbor the horse that injured plaintiff. The Court will address the arguments going to the general scope of the Moving Defendants’ duty to plaintiff before turning to assumption of the risk.

I. Negligence/Premises Liability

The Moving Defendants’ arguments that they were unaware horses were kept on their property and did not commit any act or omission that contributed to plaintiff’s injuries go to the issue of whether they breached any duty owed to plaintiff with respect to the property. The legal standard governing this issue, which is disputed, is discussed below.

A. Landlords’ Duties Concerning Dangerous Conditions on Their Property

“Broadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1.) “Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

Here, it is undisputed that the premises at issue were leased to and occupied by Rivas and Joe Martinez, and the horses were kept there by Rivas. (PSUMF, nos. 3, 4, 6, 7, 9.) The Moving Defendants were nonpossessory landlords. (Id., nos. 2, 7.) “Historically, the public policy of this state generally has precluded a landlord’s liability for injuries to his tenant or his tenant’s invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition.” (Bisetti v. United Refrigeration Corp. (1985) 174 Cal.App.3d 643, 647-648, quoting Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510-511.)

To this general rule of nonliability, the law has developed a number of exceptions, such as where the landlord covenants or volunteers to repair a defective condition on the premises [citations], where the landlord has actual knowledge of defects which are unknown and not apparent to the tenant and he fails to disclose them to the tenant [citation], where there is a nuisance existing on the property at the time the lease is made or renewed [citation], when a safety law has been violated [citation], or where the injury occurs on a part of the premises over which the landlord retains control, such as common hallways, stairs, elevators or roof [citation].

A common element in these exceptions is that either at or after the time possession is given to the tenant the landlord retains or acquires a recognizable degree of control over the dangerous condition with a concomitant right and power to obviate the condition and prevent the injury. In these situations, the law imposes on the landlord a duty to use ordinary care to eliminate the condition with resulting liability for injuries caused by his failure so to act. [Citation.]

(Ibid.) Where none of these exceptions apply, “before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.” (Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131-1132, disapproved in part on another ground by Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 244–250, italics added.) The rule that a landlord is not liable for a dangerous condition that came into existence during a tenancy has recently been described as a “bright line rule.” (Garcia v. Holt (2015) 242 Cal.App.4th 600, 604-605.)

Contrary to the rule established by these authorities, plaintiff contends that the Moving Defendants had a legal duty to inspect the premises, giving them constructive knowledge of the horses sufficient to support liability. Plaintiff cites Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325 and DiMare v. Cresci (1962) 58 Cal.2d 292 in support of her argument. However, in Swanberg, the landlords had a nondelegable, statutory duty to ensure foliage on their property did not obstruct a public roadway. (See Swanberg v. O’Mectin , supra, 157 Cal.App.3d at p. 332 [landlord may be liable as an “exception” to the general rule “where there is a nuisance existing on the property at the time the lease is made or renewed” or “when a safety law has been violated”; “were it to be established that defendants should have anticipated that plant growth from their property could or would pose a potentially serious danger to travelers off the land, in violation of a municipal ordinance prohibiting said overgrowth [citation], the act of renting the premises and putting another party in possession does not relieve defendants of their duty”], italics added, citing Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 511.) Similarly, in DiMare, the landlord had retained control of the stairway outside the apartment building where the accident occurred. (DiMare v. Cresci, supra, 58 Cal.2d at p. 297.) Thus, both of these cases fell within one of the exceptions to the general rule that landlords are not liable for dangerous conditions arising after a tenant takes possession. Where no such exception applies, “[t]he obligation to inspect arises ‘only if [the landowner] had some reason to know there was a need for such action.’ ” (Garcia v. Holt , supra, 242 Cal.App.4th at p. 605; see also Lundy v. California Realty (1985) 170 Cal.App.3d 813, 821 [“a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise”], quoting Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 514.)

Here, plaintiff does not allege or argue that the Moving Defendants had a nondelegable statutory duty to ensure no horses were kept on their property or retained control over any portion of the property. Nor does she raise any other exception to the general rule governing a landlord’s liability for dangerous conditions. Consequently, the Moving Defendants are entitled to summary judgment if they can show that there is no triable issue of fact as to their actual knowledge that the horses created a dangerous condition on the property. (See Garcia v. Holt, supra, 242 Cal.App.4th at p. 603 [residential landlords entitled to summary judgment where it was undisputed that they had no actual knowledge of the dangerous condition at issue].)

B. The Parties’ Evidence

Ho, Wang, and Qu all declare that they were unaware Rivas kept horses on the premises. (Decl. of Richard Ho ISO Mot., ¶ 5; Decl. of Yong Jin Wang ISO Mot., ¶ 6; Decl. of Zu Hong Qu ISO Mot., ¶ 6.) Ho, the property manager, declares that Rivas never inquired about keeping horses on the property. (Ho Decl., ¶ 5.) He visited the property on two occasions while Rivas was leasing it and did not see any horses. (Ibid.) Ho received the rent for the property when the tenants delivered it to his home (id., ¶ 4), and consequently did not regularly visit the property.

This evidence shifts the burden to plaintiff to raise a triable issue of material fact as to the Moving Defendants’ actual knowledge of horses on the property. In meeting this burden,
actual knowledge may be shown, not only by direct evidence, but also by circumstantial evidence. … However, actual knowledge can be inferred from the circumstances only if, in the light of the evidence, such inference is not based on speculation or conjecture. Only where the circumstances are such that the defendant “must have known” and not “should have known” will an inference of actual knowledge be permitted.
(Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 514, fn. 4.)

In support of her opposition, plaintiff provides a declaration by Trina Hineser, who lives directly across the street from the property at issue. (Ex. 5 to Opp., Decl. of Trina Hineser, ¶ 2.) Hineser declares that she has never seen a barn, stable, or corral on the property. (Id., ¶ 8.) However, within weeks after Rivas moved in, a fence made of irrigation poles and chicken wire was erected along the roads bordering the property. (Id., ¶ 9.) Within two weeks after Rivas moved in in January 2012, horses began appearing on the property. (Ibid.) From early February 2012 to the date of the incident in July 2012, Hineser would observe approximately 10 to 20 horses there at any one time. (Ibid.) The horses were present every day, and were allowed to roam through an orchard on the property, where plaintiff was ultimately injured. (Ibid.) The horses were in plain view from Murphy Road, Maple Road, and Hineser’s home across the street, and horse manure was spread around the property, which Hineser constantly smelled at her home. (Ibid.)

Between January 16 and July 3, 2012, Hineser observed an Asian male on the property on several occasions. (Id., ¶ 12.) This individual looked identical to an individual identified as Ho in a picture on Cornerstone’s web site. (Ibid.) Hineser has viewed this web site, and at one point sent Ho an email concerning the condition of the property (although she is not sure whether she sent the email before or after plaintiff’s accident). (Ibid.)

Plaintiff also provides a declaration by David Saldivar, an ostensible expert regarding standards of care for real property ownership and management. (Ex. 2 to Opp., Decl. of David Saldivar, ¶¶ 9-10.) Mr. Saldivar has visited the property and describes it as “an orchard property almost entirely covered by rows of trees growing near one another. From Murphy Avenue Maple Avenue [sic.] you have unobstructed views of the property.” (Id., ¶ 14.) “Looking at the property from the road you can see through the rows of trees far back into the property and it appears to me more probable than not that [even] a drive by inspection would have disclosed the presence of a herd of 10-15 horses on the property.” (Id., ¶ 20.)

This evidence raises a triable issue of fact regarding Ho’s actual knowledge of horses on the property, which the other Moving Defendants do not contest is imputed to them. Based on these declarations, a jury could reasonably conclude that a herd of horses was continuously and obviously present on the property during Rivas’s tenancy, and that Ho must have seen the horses when he visited the property on several occasions.

The Moving Defendants do not contend that it was not dangerous to keep horses on the property, that it was not foreseeable that individuals would ride horses on the property, or that they did not have the right to exclude horses from the property. Consequently, their arguments regarding duty and causation must fail, since plaintiff has satisfied her initial burden to raise a triable issue of fact concerning the Moving Defendants’ actual knowledge of the horses.

Given this conclusion, the Court need not address the Moving Defendants’ arguments regarding strict liability.

II. Primary Assumption of the Risk

The Moving Defendants also contend that plaintiff’s claim is barred by the doctrine of primary assumption of the risk, which arises in the context of sports and other inherently risky recreational activities. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1158.) The doctrine embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk associated with such an activity, and acts as a complete bar to the plaintiff’s cause of action. (Morgan v. Fuji Country USA, Inc., supra, 34 Cal.App.4th at p. 132.) Consequently, the Moving Defendants are entitled to summary judgment if they can establish that the doctrine applies to the facts here, and plaintiff fails to raise a triable issue of fact on this point.

A. Primary Assumption of the Risk and Horseback Riding

In evaluating whether a case comes within the doctrine of primary assumption of the risk, a court must examine both the nature of the activity and the defendant’s role in, or relationship to, the activity. (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 178-179.) “Judges deciding inherent risk questions … may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Nalwa v. Cedar Fair, L.P., supra, 55 Cal.4th at p. 1158; see also Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1083 [whether a particular risk is an inherent part of an activity “is necessarily reached from the common knowledge of judges, and not the opinions of experts”].)

In general, California courts consider horseback riding to be a dangerous activity: “being thrown off a horse is an inherent risk of horseback riding, indeed … it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse.” (Guido v. Koopman (1991) 1 Cal.App.4th 837, 842.)

Another person does not owe a duty to protect the rider from injury by discouraging the rider’s vigorous participation in the sport or by requiring that an integral part of horseback riding be abandoned. And the person has no duty to protect the rider from the careless conduct of others participating in the sport. The person owes the horseback rider only two duties: (1) to not “intentionally” injure the rider; and (2) to not “increase the risk of harm beyond what is inherent in horseback riding” by engaging in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. With respect to increasing the risk of harm, the duty “may vary according to the role played by particular [persons] involved in the sport” and the nature of the particular riding activity at issue.
(Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545-1546, internal citations omitted.)

B. Analysis

The general circumstances of plaintiff’s accident are undisputed. Plaintiff was invited to the property at issue by Martinez, her co-worker, for a birthday party. (PSUMF, no. 12.) At the party, Martinez asked plaintiff if she would like to ride a horse owned by Rivas. (Id., no. 13.) Plaintiff mounted the horse and rode it for approximately seven to ten minutes, when it began galloping out of control. (Id., no. 17.) Plaintiff was unable to maintain control of the horse and fell off. (Id., no. 18.)

Given these facts, Levinson v. Owens (2009) 176 Cal.App.4th 1534, cited by the Moving Defendants, is indeed instructive. Levinson affirmed summary judgment in favor of ranch owners whose social guest was injured while riding one of their horses. The court found that there was no duty to inquire regarding the guest’s experience in horseback riding, warn her regarding the horse’s behavior due to its training as a cattle horse, instruct her how to ride the horse, or supervise her ride, given that defendants were “social hosts who did not organize a horseback riding event, who were not commercial operators whose services and horses were for hire by Levinson, and who simply granted Levinson’s request to ride one of their horses while she was at a gathering of friends for a barbeque.” (At p. 1547.) Levinson contrasted those facts with those at issue in Luna v. Vela (2008) 169 Cal.App.4th 102, where the “alleged tortfeasor organized a volleyball game on a makeshift court in his front yard and invited the 13–year–old plaintiff to play.” (Id. at p. 1546.)

While Levinson holds that the duties owed by individuals to their social guests are more limited than the duties owed by a commercial operation to its customers, it does not suggest that social guests are owed no duties. The opinion specifically notes that the defendants in that case “did not direct Levinson to ride in any particular way, or in any particular place, that could increase the risk beyond that inherently involved in doing what Levinson asked to do—ride a cattle horse in the field of a cattle ranch.” (Id. at p. 1549.)

Here, the facts are more akin to those in Luna than those in Levinson, since Martinez invited plaintiff to ride the horse that injured her. Particularly in light of that invitation, there was a duty to ensure that the premises were in a reasonably safe condition for plaintiff’s ride, an issue on which the Moving Defendants present no evidence despite plaintiff’s allegations that the premises were unsafe for this purpose and were unsafe to keep horses on at all. Since the Moving Defendants do not even address the condition of the premises, they fail to meet their initial burden to show that primary assumption of the risk would apply. (See Luna v. Vela, supra, 169 Cal.App.4th at p. 112 [on summary judgment, it was the defendant’s burden to demonstrate that the way he set up the volleyball court did not increase the risk of harm to participants]; Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1060 [although falling off a stage is an inherent risk in performing on a stage, country club owner did not meet its initial burden to show that it did nothing to increase the risk of a fall].) Plaintiff, for her part, introduces evidence that it was unsafe to ride horses on the property since there was nothing to prevent them from running into the orchard, where the trees and uneven ground create dangerous conditions for riding. (See Ex. 1 to Opp., Decl. of Linda Rubio.)

The Moving Defendants contend that they owed no duty to ensure the premises were safe for riding since they did not even know horses were kept there. As already discussed, however, there is a triable issue of fact on this point. While the scope of the duty owed by these defendants with regard to plaintiff’s ride will ultimately depend upon issues like whether it was dangerous merely to keep horses on the property and whether it was foreseeable that individuals would ride the horses, the Moving Defendants do not address these issues. Since they also fail to show that plaintiff assumed the risk of riding in unsafe conditions as a matter of law, they are not entitled to summary judgment.

III. Conclusion and Order

The motion for summary judgment is accordingly DENIED.

The Court will prepare the order.