Hoffmann v. Young 8/29/SC Case Details ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
MIKAYLA HOFFMANN,
Plaintiff and Appellant,
v.
CHRISTINA M. YOUNG et al.,
Defendants and Respondents.
S266003
Second Appellate District, Division Six
B292539
San Luis Obispo County Superior Court
16CVP0060
August 29, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Jenkins, and
Guerrero concurred.
Justice Kruger filed a concurring opinion, in which Justices Liu
and Groban concurred.
HOFFMANN v. YOUNG
S266003
Opinion of the Court by Corrigan, J.
Under Civil Code section 846, landowners generally owe
no duty of care to keep their property safe for others who may
enter or use it for recreational purposes.1 There is an exception
to that statutory negation of duty, however, when a landowner
expressly invites someone onto the property. The question here
is whether that exception applies when the invitation is
extended, not by the landowners, but by their live-at-home child
who acts without the owners’ knowledge or permission. The
trial court ruled that the exception did not apply because there
was no evidence the landowners personally invited the plaintiff
to come onto their land. The Court of Appeal reversed, holding
that an invitation by a landowner’s live-at-home child operates
to activate the exception unless the child has been prohibited
from making the invitation. (Hoffmann v. Young (2020) 56
Cal.App.5th 1021,1024 (Hoffmann).) Neither court interpreted
the statute correctly. Here, we hold that a plaintiff may rely on
the exception and impose liability if there is a showing that a
landowner, or an agent acting on his or her behalf, extended an
express invitation to come onto the property. Plaintiff did not
meet that burden below. We reverse the Court of Appeal’s
judgment and remand the matter as explained.
1
All undesignated statutory references are to the Civil
Code.
1
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
I. BACKGROUND
Defendants Donald and Christina Young lived with their
sons, Gunner and Dillon,2 on property they owned in Paso
Robles. Donald also designed and built a motocross track on the
land.
One day in 2014, 18-year-old Gunner invited Mikayla
Hoffmann (plaintiff) to go motorcycle riding. The next day, he
drove plaintiff and her bike to his parents’ property, unloaded
the motorcycle, and provided her with protective riding gear.3
He told her to ride on the driveway while he took a “warm-up”
lap on the track. Instead, plaintiff entered the track and rode in
the opposite direction from Gunner. Their bikes collided, and
both were injured.4
Plaintiff sued Donald, Christina, Gunner, Dillon, and a
business owned by Donald. She asserted claims for (1)
negligence, (2) premises liability based on negligent track
design, and (3) negligent provision of medical care.
2
To avoid confusion and repetition, we refer to the Youngs
by their given names.
3
There was no dispute that Gunner invited plaintiff onto
his parents’ property. The parties disagreed as to whether the
invitation was to ride on the motocross track. Plaintiff claimed
Gunner invited her to ride on the track. Gunner claimed the
plan was to retrieve his motorcycle from his parents’ house and
to ride in a riverbed off his parents’ property. As explained
below, plaintiff has not shown a landowner extended an express
invitation to come onto the property; thus, we need not address
the scope of any invitation.
4
Plaintiff lost tissue from one of her fingers. Gunner
suffered a broken pelvis and a knee injury.
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HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
Donald’s company settled. The Youngs were all granted
summary adjudication on the negligence and premises liability
claims, successfully arguing that those claims were barred by
the primary assumption of risk doctrine. After plaintiff
petitioned for a writ of mandamus, the Court of Appeal issued
an alternative writ concluding there were triable issues of fact
that precluded summary adjudication of those claims as to
Donald and Christina. The trial court reinstated those causes
of action against Donald and Christina alone. The provision of
medical care claim was allowed to go forward against all
remaining defendants.
On the day before trial began, defendants moved to amend
their answer to add an affirmative defense of recreational use
immunity under section 846. That section provides in relevant
part that a landowner “owes no duty of care to keep the premises
safe for entry or use by others for any recreational purpose.”5
(§ 846, subd. (a) (section 846(a)).) Plaintiff opposed the motion.
With the parties’ agreement, the court deferred ruling.
As the trial progressed, however, questions repeatedly
arose as to whether defendants would be permitted to amend
their answer and whether the recreational use immunity
defense was applicable. On the fourth day of trial, while
plaintiff was still presenting her case, the court revisited the
outstanding motion to amend. In opposition, plaintiff argued
first that the motion was untimely. Plaintiff’s counsel asserted
that “we would have pursued discovery quite a bit differently” if
plaintiff had known defendants would claim immunity under
section 846. Second, plaintiff invoked the express invitee
5
Section 846, subdivision (b) defines the term
“ ‘recreational purpose.’ ”
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HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
exception, which provides that section 846(a) “does not limit the
liability which otherwise exists for [¶] . . . [¶] [a]ny persons who
are expressly invited rather than merely permitted to come
upon the premises by the landowner.” (§ 846, subd. (d)(3)
(section 846(d)(3)).) Plaintiff argued that Gunner’s invitation
abrogated any immunity under section 846(a). The trial court
again deferred ruling.
On the sixth day of trial, the court and counsel discussed
the verdict form. Defendants argued the form should include a
question regarding recreational use immunity. Plaintiff
repeated her arguments that the motion to amend was untimely
and the defense was inapplicable. The court again postponed its
ruling.
Two days later, after plaintiff had rested, the court
granted defendants’ motion to amend, concluding the express
invitee exception of section 846(d)(3) was inapplicable as a
matter of law. It reasoned that neither Donald nor Christina
had expressly invited plaintiff onto the property. Instead, it was
Gunner, a nonowner, who had invited her. Accordingly, in the
court’s view, the general rule of section 846(a) shielded the
parents from liability.
At the close of trial, the following facts were undisputed.
Donald and Christina had never met or seen plaintiff before the
accident, and she had never been on the property before.
Neither parent personally invited plaintiff to enter their land.
Gunner did not ask his parents’ permission to invite plaintiff to
enter and did not tell them that he had done so.
Before jury deliberations, the court entered a directed
verdict for Christina on the negligence and premises liability
claims because there was no evidence she had any role in the
4
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
track’s design or maintenance. The jury returned a verdict for
the defense on all claims. The court did not ask the jury for
findings on the express invitee exception because it had
previously concluded that the exception did not apply.6
Plaintiff moved for a new trial, asserting, inter alia, that
the trial court erred by: (1) allowing defendants to amend their
answer to allege an affirmative defense under section 846(a);
(2) excluding certain evidence relevant to the application of the
express invitee exception; and (3) ruling that the express invitee
exception was inapplicable. The trial court denied the motion.
A divided Court of Appeal reversed and remanded for a
new trial on the two claims related to the immunity defense.7
The majority held that “where, as here, a child of the landowner
is living with the landowner on the landowner’s property and
the landowner has consented to this living arrangement, the
child’s express invitation of a person to come onto the property
operates as an express invitation by the landowner within the
meaning of section 846, subdivision (d)(3), unless the landowner
has prohibited the child from extending the invitation.”
(Hoffmann, supra, 56 Cal.App.5th at p. 1024, italics added.)
Because there was “no evidence that Gunner’s parents
prohibited him from inviting guests onto the property,” the
majority concluded that “Gunner’s express invitation of
[plaintiff] stripped his parents of the immunity that would
6
Though the jury was not asked for findings on the express
invitee exception, it was instructed with the full version of CACI
No. 1010, which included that exception.
7
The Court of Appeal affirmed the defense judgment on
plaintiff’s claim against all defendants for negligent provision of
medical care. (Hoffmann, supra, 56 Cal.App.5th at pp. 1024–
1025, 1029.) Plaintiff does not challenge that ruling.
5
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
otherwise have been provided to them by section 846.” (Id. at p.
1024.) The dissent would have affirmed, reasoning that only an
invitation issued by the landowner or by someone expressly
authorized by the landowner can give rise to the exception.
II. DISCUSSION
We are called upon to decide whether an invitation made
by a nonlandowner, without the landowner’s knowledge or
express approval, can satisfy the requirements of section
846(d)(3) and abrogate the landowner’s immunity under section
846(a). This is a question of statutory interpretation. Our task
is to ascertain the Legislature’s intent and effectuate the
enactment’s purpose. When a statute’s words are clear, their
plain meaning controls and “we may not add to or alter them to
accomplish a purpose that does not appear on the face of the
statute or from its legislative history.” (Burden v. Snowden
(1992) 2 Cal.4th 556, 562.) While the words of a statute provide
the most reliable indication of the Legislature’s intent, we do not
construe those words in isolation. Instead, we harmonize the
enactment’s various parts by considering the provision at issue
in the context of the whole statutory scheme. (Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73, 83.)
A. Landowner Liability and Recreational Use
Immunity Under Section 846
The general rule is that a landowner “owes certain
affirmative duties of care, as to conditions or activities on the
land, to persons who come on the land.” (6 Witkin, Summary of
Cal. Law (11th ed. 2017) Torts, § 1224, p. 474.) Section 1714
provides that every person “is responsible, not only for the result
of his or her willful acts, but also for an injury occasioned to
another by his or her want of ordinary care or skill in the
6
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
management of his or her property . . . .” (§ 1714, subd. (a).)
Under section 1714, landowners owe a duty to exercise ordinary
care in managing their property in light of the foreseeability of
injury to others. (Rowland v. Christian (1968) 69 Cal.2d 108,
119 (Rowland).) The Rowland court observed that section 1714,
“which has been unchanged in our law since 1872, states a civil
law and not a common law principle.” (Rowland, at p. 112.)
Before our decision in Rowland, the liability of a possessor
of land for injury to an entrant was generally based on the
entrant’s status. (See Rowland, supra, 69 Cal.2d at p. 113.)
Entrants were divided into three categories: invitees; licensees;
and trespassers. An “invitee is a business visitor who is invited
or permitted to enter or remain on the land for a purpose directly
or indirectly connected with business dealings between them.”8
(Rowland, at pp. 113–114.) A “licensee is a person like a social
guest who is not an invitee and who is privileged to enter or
remain upon land by virtue of the possessor’s consent.” (Id. at
p. 113.) A “trespasser is a person who enters or remains upon
land of another without a privilege to do so.” (Ibid.; see also
Hamakawa v. Crescent Wharf & Warehouse Co. (1935) 4 Cal.2d
499, 501 (Hamakawa).)
The general rule with respect to trespassers and licensees
was that they took “the premises as they [found] them insofar
as any alleged defective condition thereon may exist, and that
the possessor of the land owe[d] them only the duty of refraining
from wanton or willful injury.” (Rowland, supra, 69 Cal.2d at p.
8
Invitees also included persons invited to enter or remain
on land as a member of the public for a purpose for which the
land was held open to the public. (O’Keefe v. South End Rowing
Club (1966) 64 Cal.2d 729, 739.)
7
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
114.) Thus, a landowner generally owed no duty to a trespasser
or licensee to keep the premises in safe condition.9 (Palmquist v.
Mercer (1954) 43 Cal.2d 92, 102; Hamakawa, supra, 4 Cal.2d at
pp. 501–502.) As to business or other invitees, landowners owed
a duty to exercise ordinary care to render the premises safe and
to protect the invitee from injury. (Edwards v. Hollywood
Canteen (1946) 27 Cal.2d 802, 809; see also Rowland, at p. 114.)
Over time, various exceptions to these rules developed.
Confusion arose surrounding the scope of these exceptions, as
well as the definitions of invitee, licensee, and trespasser. In
Rowland, this court replaced the former concept of liability
based on an entrant’s status with the current application of
liability based on ordinary principles of negligence under section
1714. (See Rowland, supra, 69 Cal.2d at pp. 115–119.) The
Rowland court explained: “Although it is true that some
exceptions have been made to the general principle that a
person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the
absence of statutory provision declaring an exception to the
fundamental principle enunciated by section 1714 of the Civil
Code, no such exception should be made unless clearly
supported by public policy.” (Rowland, at p. 112.)
Section 846, enacted in 1963, creates “an exception in
favor of landowners as against the liability imposed by section
9
As to trespassers and licensees whom the landowner knew
or should have known were on the land, a landowner had a duty
to warn of artificial conditions constituting concealed dangers
and to exercise reasonable care in carrying on activities. (See
Fernandez v. Consolidated Fisheries, Inc. (1950) 98 Cal.App.2d
91, 97; Blaylock v. Jensen (1941) 44 Cal.App.2d 850, 852; see
also Oettinger v. Stewart (1944) 24 Cal.2d 133, 138.)
8
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
1714.” (English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d
725, 731 (English).) Section 846(a) provides: “An owner of any
estate or any other interest in real property, whether possessory
or nonpossessory, owes no duty of care to keep the premises safe
for entry or use by others for any recreational purpose or to give
any warning of hazardous conditions, uses of, structures, or
activities on those premises to persons entering for a
recreational purpose, except as provided in this section.” This
court has explained that section 846(a) “absolves California
landowners of two separate and distinct duties” that might arise
under section 1714: (1) “the duty to ‘keep the premises safe’ for
recreational users”; and (2) “the duty to warn such users of
‘hazardous conditions, uses of, structures, or activities’ on the
premises.” (Klein v. United States of America (2010) 50 Cal.4th
68, 78 (Klein).) Here, we discuss only the first of these duties.
Plaintiff does not argue in this court that defendants owed her
a duty to warn.
The “purpose of section 846 is to encourage property
owners ‘to allow the general public to recreate free of charge on
privately owned property.’ ” (Delta Farms Reclamation Dist. v.
Superior Court (1983) 33 Cal.3d 699, 707, italics omitted,
quoting Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787.) Before
the statute’s enactment, there had been a “growing tendency”
among California landowners “to withdraw land from
recreational access” because of the potential liability they faced
under section 1714. (English, supra, 66 Cal.App.3d at p. 731.)
The Legislature sought to reduce landowners’ potential
exposure by removing the specter of tort liability to most
9
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
recreational users of private property. 10 The effect of section 846
was to “ ‘negate the tort,’ ” by eliminating certain duties a
landowner would otherwise owe to recreational users. (Klein,
supra, 50 Cal.4th at p. 78.) The existence of a duty, of course, is
an essential element of tortious negligence. (Ibid.)
Section 846 immunity is broad, but it is not absolute.
There are three statutory exceptions to the general rule of
nonliability. At issue here is the express invitee exception,
which is found in section 846(d)(3). It provides that section
846(a) “does not limit the liability which otherwise exists for
[¶] . . . [¶] [a]ny persons who are expressly invited rather than
merely permitted to come upon the premises by the landowner.”
(§ 846(d)(3), italics added.)11
In summary, section 1714 imposes a duty to use ordinary
skill and care in the management of property in order to prevent
10
Section 846 was enacted before the issuance of our
decision in Rowland, supra, 69 Cal.2d 108, and thus took effect
when the pre-Rowland status-based liability framework was
still in place. Nonetheless, we concluded in Klein, supra, 50
Cal.4th 68, that “section 846 makes a plaintiff’s common law
status . . . irrelevant to the question of the defendant
landowner’s liability.” (Klein, at p. 87.)
11
Section 846, subdivision (d) provides in full that “[t]his
section does not limit the liability which otherwise exists for any
of the following: [¶] (1) Willful or malicious failure to guard or
warn against a dangerous condition, use, structure or activity.
[¶] (2) Injury suffered in any case where permission to enter for
the above purpose was granted for a consideration other than
the consideration, if any, paid to said landowner by the state, or
where consideration has been received from others for the same
purpose. [¶] (3) Any persons who are expressly invited rather
than merely permitted to come upon the premises by the
landowner.”
10
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
foreseeable injury to others. Section 846(a) eliminates an
owner’s duty to keep premises safe for entry or use by others for
recreational purposes. 12 However, under section 846(d)(3), if an
owner expressly invites someone onto the property and the
person is injured while using the land for a recreational purpose,
then the general release from liability is abrogated. The
question arises whether an express invitation to enter, made by
someone other than the landowner, can bring section 846(d)(3)’s
exception into play and abrogate the elimination of liability. If
so, who has the burden of proving the exception and how can
that burden be discharged? In answering these questions, it is
useful to review how the trial court and the Court of Appeal
majority and dissent addressed them.
B. A Nonlandowner Can Extend a Qualifying
Invitation Under Section 846(d)(3) Under Some
Circumstances
Relying on the statutory text alone, the trial court
concluded that only an invitation personally extended to
plaintiff by a landowner could give rise to the section 846(d)(3)
exception. Because there was no evidence that either Donald or
12
The concurring opinion questions “whether social guests
fall within the category of recreational entrants and users to
which the basic rule of immunity in [section 846(a)] was aimed.”
(Conc. opn., post, p. 12.) However, as the opinion recognizes, the
parties have assumed throughout much of this litigation that
the immunity provided by section 846(a) “ordinarily applies to
such persons.” (Conc. opn., at p. 11; see also id. at p. 12, fn. 7.)
Thus, we agree with the concurring opinion that “this is not the
case for us to undertake a more comprehensive look at the
threshold question whether section 846 . . . has any application
to the social guests of members of a household.” (Id. at p. 15.)
11
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
Christina had extended such an invitation, the court ruled that
the express invitee exception was inapplicable.
The majority and dissent below read the statute more
broadly. The majority ruled that the invitation issued by
Gunner, a nonlandowner, triggered the section 846(d)(3)
exception. In doing so, the majority recognized the creation of
an “implied” agency. The dissent would have concluded that an
invitation extended by a nonlandowner can qualify for the
exception, but only if the landowner “expressly authorize[d]” the
nonlandowner as an agent to make the invitation. (Hoffman,
supra, 56 Cal.App.5th at p. 1031 (dis. opn. of Perren, J.).)
We conclude that the trial court read the statute too
narrowly because it failed to consider the context provided by
other parts of the Civil Code. We also reject the Court of Appeal
majority’s “implied” agency analysis. We agree, however, with
the dissent’s general conclusion that an invitation by a
nonlandowner can, under some circumstances, trigger the
exception.
To be sure, the plain language of the exception refers only
to those “expressly invited . . . to come upon the premises by the
landowner.” (§ 846(d)(3), italics added.) The statute mentions
no person other than the invitee and the landowner. Read in
isolation, this language could be construed to cover only those
situations in which a landowner had personally and expressly
extended an invitation to the person seeking to rely on the
exception. However, we do “not construe statutory language in
isolation.” (Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 11.)
Rather, we construe it “as a thread in the fabric of the entire
statutory scheme of which it is a part.” (Ibid.) Section 846 is
12
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
part of the same statutory scheme as the California statutes
governing agency relationships (Civ. Code, § 2295 et seq.).
Construing the provisions together, we conclude that agency
principles apply to the interpretation of section 846.
An agent “is one who represents another, called the
principal, in dealings with third persons. Such representation
is called agency.” (§ 2295.) An agent “may be authorized to do
any acts which his principal might do, except those to which the
latter is bound to give his personal attention.” (§ 2304.)
Moreover, “[e]very act which, according to [the Civil Code], may
be done by or to any person, may be done by or to the agent of
such person for that purpose, unless a contrary intention clearly
appears.” (§ 2305.) Nothing in section 846(d)(3) suggests an
intent to preclude an agent from extending an invitation on
behalf of a landowner. Reading section 846(d)(3) in conjunction
with section 2305, there is clear statutory support for the
conclusion that an invitation communicated by the landowner’s
properly authorized agent can activate the section 846(d)(3)
exception. “ ‘The heart of agency is expressed in the ancient
maxim: “Qui facit per alium facit per se.” [He who acts through
another acts by or for himself.]’ ” (Channel Lumber Co. v. Porter
Simon (2000) 78 Cal.App.4th 1222, 1227 (Channel Lumber),
quoting Wallace v. Sinclair (1952) 114 Cal.App.2d 220, 229.)
Were we to interpret section 846(d)(3) as only applying to
those who receive an express invitation from a landowner
personally, an owner could avoid the exception by the expedient
of authorizing a third party to invite a person onto his property
13
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
in order to retain immunity under section 846(a). There is no
indication the Legislature intended to create such a loophole.13
C. Establishing Facts Sufficient To Trigger the
Section 846(d)(3) Exception
As noted, the general rule of section 846(a) provides
immunity to the landowner. Section 846(d)(3) sets out an
exception. A plaintiff seeking to rely on an exception to a
general statutory rule bears the burden of establishing the
exception applies. (Barnes v. Chamberlain (1983) 147
Cal.App.3d 762, 767; see also Simpson Strong-Tie Co., Inc., v.
Gore (2010) 49 Cal.4th 12, 23.) We conclude that one way for a
plaintiff invoking section 846(d)(3) to meet that burden would
be to rely on agency principles, and we clarify how those
principles might apply in this context. In doing so, we take a
different approach from that adopted by the Court of Appeal
majority.
Section 846, with its negation of duty, stands side by side
with the established principles of section 1714 and Rowland,
supra, 69 Cal.2d 108. Because section 846 and its exceptions
predated Rowland, some integration of the two approaches is
needed. We harmonize these threads of the law by adopting an
approach tailored to the particular framework of section 846. As
13
Some appellate opinions have suggested or held that a
“direct, personal request” from the landowner to the injured
entrant is required to bring section 846(d)(3) into play. (Johnson
v. Unocal Corp. (1993) 21 Cal.App.4th 310, 317; see also Jackson
v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1116;
Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 32.) We disapprove
of those decisions to the extent they held that a qualifying
invitation under section 846(d)(3) may only be extended by the
landowner personally.
14
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Opinion of the Court by Corrigan, J.
to the claimed exception here, the Legislature expressly referred
to an invitation “by the landowner” for the exception to apply.
We import an agency analysis to determine under what
circumstances landowners can authorize a nonlandowner to
invite others onto their property with the consequence that they
lose the immunity conferred by section 846(a). Under section
2305, any act that may be done by a person according to the Civil
Code may be done by someone the person has made their agent
for that purpose. Thus, when a landowner has properly
authorized an agent to extend, on his or her behalf, an invitation
to enter the land that invitation gives rise to the exception.
Importing an agency-derived analysis here ensures a more
formal approach to section 846(d)(3)’s exception than reliance on
a newly-created “implied agency” approach taken by the
majority below. It is particularly appropriate to require a degree
of specificity in a landowner’s intentional delegation because an
invitation by a properly authorized agent can function to strip a
landowner of the immunity the Legislature took care to confer.
Nothing we say here, in applying agency principles to section
846(d)(3), should be understood to undermine or run counter to
long-settled broad principles relating to the law of agency.
Plaintiff agrees that agency principles can guide the
determination whether an invitation extended by a
nonlandowner qualifies for the express invitee exception.
Alternatively, she suggests that section 846(d)(3) itself can be
understood to encompass an invitation by a nonlandowner. Her
reasoning depends on an overly broad reading of the term
“landowner.” She points out that other jurisdictions have
expressly, and more expansively, defined the term “owner” in
their recreational use immunity statutes to include others who
occupy or control property. (See, e.g., Haw. Rev. Stat., § 520-2;
15
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
Wis. Stat., § 895.52(1)(d)(1); Neb. Rev. Stat., § 37-729(2); Ind.
Code. § 14-22-10-2(c)(2); Or. Rev. Stat, § 105.672(4)(a); see also
Tex. Civ. Prac. & Rem. Code. Ann., § 75.002(a)–(c).)14 Plaintiff
asserts these statutes share a “similarity of purpose” with
section 846 and urges us to construe the term “landowner” in
section 846(d)(3) to cover both property owners and other
occupants. But a comparison of the language of these other
statutes with that of section 846 undermines her argument. Our
sister states have explicitly defined the term “owner” to include
owners, occupants, or controllers of the land. If the term
“owner” (or “landowner”) naturally included other occupants of
property, the explicit inclusion of others in those statutory
definitions would not have been necessary. Section 846(d)(3), by
comparison, uses only the term “landowner,” without further
elaboration. The most natural reading of this term is that it
does not inferentially include others, like occupants.
Plaintiff also relies on language in section 846.2 to support
her broad construction of “landowner.” That statute provides
general immunity for an “owner, tenant, or lessee of land or
premises” against injuries to one “who has been expressly
invited on that land or premises to glean agricultural or farm
products for charitable purposes.” (§ 846.2.) She asserts a more
“inclusive” definition of “landowner” should be applied to section
14
For example, Hawaii’s recreational use immunity statute
defines “owner” as “the possessor of a fee interest, a tenant,
lessee, occupant, or person in control of the premises.” (Haw.
Rev. Stat, § 520-2.) In Nebraska’s similar statute, the term
“[o]wner includes tenant, lessee, occupant, or person in control
of the premises.” (Neb. Rev. Stat., § 37-729(2).) Under
Wisconsin’s statute, “owner” means “[a] person, including a
governmental body or nonprofit organization, that owns, leases
or occupies property.” (Wis. Stat., § 895.52(1)(d)1.)
16
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Opinion of the Court by Corrigan, J.
846 because the two statutes relate to the same topic and have
a similar purpose. But the two statutes use different terms.
Section 846(d)(3) refers only to a “landowner,” while section
846.2 uses the phrase “owner, tenant, or lessee.” Rather than
suggesting the Legislature intended “landowner” to be more
“inclusive,” section 846.2’s use of additional terms suggests the
Legislature intended the two statutes to cover different groups
of people. (See Rashidi v. Moser (2014) 60 Cal.4th 718, 725.)
D. The Analysis and Holding of the Court of
Appeal Majority Were Flawed
We reject the analysis of the Court of Appeal majority.
The majority concluded that an invitation by a landowner’s child
“operates as an express invitation by the landowner” if: (1) the
child “is living with the landowner on the landowner’s property”;
(2) the landowner “has consented to this living arrangement”;
and (3) the landowner has not “prohibited the child from
extending the invitation.” (Hoffmann, supra, 56 Cal.App.5th at
p. 1024.)
The majority reasoned that, when parents allow a child to
live on their property, they “impliedly permit [the child] to invite
friends to the property.” (Hoffmann, supra, 56 Cal.App.5th at
p. 1026.) Thus, it concluded that, “[a]bsent very unusual
circumstances, such as an express order not to bring a friend to
the property, it is reasonable to say that, so long as they are
living together, a child may invite a guest onto the parents’
property.” (Ibid.) The majority also reasoned that section 846
“does not preclude a landowner from delegating authority to a
child to invite guests onto the property for social purposes.”
(Hoffmann, at p. 1026.) Such a delegation, according to the
majority, “creates an agency relationship.” (Ibid., citing
17
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
Channel Lumber, supra, 78 Cal.App.4th at p. 1227.) Here, the
majority found that the “existence of such a delegation” could be
“implied.” (Hoffmann, at p. 1026.) Thus, they ruled that,
“[b]ecause Gunner was acting as his parents’ agent when he
expressly invited [plaintiff] onto the property, the invitation is
deemed to have been expressly extended by his parents.” (Ibid.)
Though we agree that landowners can authorize
nonowners to expressly invite others onto their property, we
reject the proposition that a landowner necessarily does so by
allowing a child to live on the property and failing to prohibit
the child from extending the invitation. The question presented
here is not whether a child can invite friends over. The legal
question is whether the circumstances establish that a parent
has authorized the child to issue an invitation on the parent’s
behalf, such that the child’s invitation strips the landowner of
immunity. The majority’s reasoning has several flaws.
First, the majority cites Channel Lumber, supra, 78
Cal.App.4th 1222, as supporting its conclusion that “delegating
authority to a child to invite guests onto the property for social
purposes . . . creates an agency relationship.” (Hoffmann, supra,
56 Cal.App.5th at p. 1026.) The majority’s citation is inapt.
Channel Lumber says nothing about whether a parent’s
delegation of that authority to a child creates an agency
relationship. Instead, it involved a malpractice suit by a
corporation against an outside law firm the corporation had
previously hired to represent it in a commercial case. The firm
prevailed against the malpractice allegations, and the court
awarded fees and costs under Corporations Code section 317.
That section permits, and sometimes requires, a corporation to
reimburse legal fees and costs incurred “by reason of the fact
that the person is or was an agent of the corporation.” (Corp.
18
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
Code, § 317, subd. (b).) Channel Lumber recognized that an
attorney retained by a corporation has the attributes of both an
independent contractor and agent. (Channel Lumber, at p.
1227.) However, agency principles demonstrated that an
outside attorney retained by a corporation to represent it at trial
was not an agent of the corporation, but instead was “an
independent contractor of his or her corporate client.” (Id. at p.
1229.) The case had nothing to do with an “implied” delegation
of authority for purposes of section 846, under the circumstances
the Court of Appeal majority recognized, nor does it stand for
the proposition attributed to it.
Second, the factors listed in support of the finding of an
agency relationship between Gunner and his parents are
insufficient to create such a relationship. “Agency exists when
a principal engages an agent to act on the principal’s behalf and
subject to its control.” (Church Mutual Ins. Co., S.I. v. GuideOne
Specialty Mutual Ins. Co. (2021) 72 Cal.App.5th 1042, 1061.)
The “essential elements necessary to establish an agency
relationship are ‘ “ ‘manifestation of consent by one person to
another that the other shall act on his [or her] behalf and subject
to his [or her] control, and consent by the other so to act.’ ” ’ ”
(Id. at pp. 1061–1062, quoting van’t Rood v. County of Santa
Clara (2003) 113 Cal.App.4th 549, 571 (van’t Rood).) “ ‘ “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.” ’ ” (van’t Rood, at p. 571, quoting
Edwards v. Freeman (1949) 34 Cal.2d 589, 592, italics added.)
Typically, an agency is created by an express contract or
authorization. (§ 2307.) However, an agency relationship may
also be created informally, based on the circumstances and the
parties’ conduct. (Brand v. Mantor (1935) 6 Cal.App.2d 126,
19
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
130.) “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.”
(Malloy v. Fong (1951) 37 Cal.2d 356, 372, italics added.) That
said, “an agency cannot be created by the conduct of the agent
alone; rather, conduct by the principal is essential to create the
agency.” (Flores v. Evergreen at San Diego, LLC (2007) 148
Cal.App.4th 581, 587–588.)
The majority’s conclusion that Gunner was acting as his
parents’ agent for purposes of section 846(d)(3) was based on
three factors: (1) that he was living on his parents’ property; (2)
that his parents had consented to the living arrangement; and
(3) that there was no evidence his parents had prohibited him
from making the invitation. Preliminarily, the mere existence
of a parent-child relationship does not create an agency. (See
Angus v. London (1949) 92 Cal.App.2d 282, 285 [“The
relationship of father and child, standing alone, does not prove
the agency of either”]; see also Van Den Eikhof v. Hocker (1978)
87 Cal.App.3d 900, 904.) There is no reason to think that simply
allowing a child to live at home changes this conclusion.
Further, Donald and Christina’s failure to prohibit Gunner from
extending the invitation does not strike us as conduct implying
that Gunner was authorized to act on their behalf in extending
an invitation, in such a manner that extinguished their
immunity.
Common social convention would indicate that parents
often permit a child, even a minor of a certain age, to invite
social guests onto the family property. However, that
convention standing alone would be insufficient to create an
agency relationship. As the case law makes clear, to constitute
20
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
an agency relationship the authority delegated must be that
“which permits the agent to act ‘not only for, but in the place of,
his principal’ in dealings with third parties.” (Channel Lumber,
supra, 78 Cal.App.4th at p. 1227, quoting People v. Treadwell
(1886) 69 Cal. 226, 236.) As applied to the context of section
846(d)(3), that would mean that an agency relationship can only
be created if a landowner delegated the authority to a
nonlandowner to invite guests on the landowner’s behalf. Mere
implied permission to invite friends over would not suffice to
trigger section 846(d)(3)’s exception. While a child may be
allowed to invite friends of their choosing, without more, the
invitation is theirs alone. Further, under the facts in this
record, Gunner cannot be said to have acted on his
parents’ “ ‘ “behalf and subject to [their] control.” ’ ” (van’t Rood,
supra, 113 Cal.App.4th at p. 571.) His parents did not know
plaintiff, nor were they aware of the invitation. The evidence
adduced at trial points to Gunner acting on his own behalf and
not under the control of his parents.
Third, the majority’s holding is inconsistent with the
statutory language. Section 846(d)(3) distinguishes those
“expressly invited” from those who are “merely permitted” to
come upon the premises. By excluding from the exception those
who are “merely permitted” to come upon the premises by the
landowner, the statute makes clear a landowner must do
something more than simply tolerate a person’s presence on the
property for the exception to apply.15 By allowing a child to
15
Section 846, subdivision (c), establishes that a landowner
“who gives permission to another for entry or use for [any
recreational] purpose upon the premises does not thereby do any
21
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
invite friends over for social purposes a parent permits those
friends to enter their land. But it goes too far to suggest that
they, as property owners, expressly extend such an invitation to
thus divest themselves of immunity.
Fourth, the majority’s holding would place the burden of
proving the exception’s application on the wrong party. As noted
above (see ante, p. 15), the general rule of section 846(a) relieves
a landowner of any duty to keep his or her premises safe for
recreational users. Section 846(d)(3) creates an exception to the
rule of section 846(a) for those persons who are expressly invited
to come upon the premises by the landowner. Plaintiff seeks the
shelter of this exception. Accordingly, she should bear the
burden of persuasion on the point. The majority improperly
placed the burden on defendants to show they had prohibited
Gunner from extending an invitation in order to retain their
immunity. (Hoffmann, supra, 56 Cal.App.5th at p. 1024.)
Finally, the majority’s reliance on Calhoon, supra, 81
Cal.App.4th 108 was misplaced. There, the plaintiff was injured
while skateboarding in his friend’s driveway. He sued his
friend’s parents for premises liability. (Id. at pp. 110–111.)
Opposing summary judgment, the plaintiff produced evidence
he was “personally invited” onto the property by the defendants’
son. (Id. at p. 113.) The trial court ruled the plaintiff’s claims
were barred by section 846(a). (Calhoon, at p. 113.) The
of the following: [¶] (1) Extend any assurance that the premises
are safe for that purpose. [¶] (2) Constitute the person to whom
permission has been granted the legal status of an invitee or
licensee to whom a duty of care is owed. [¶] (3) Assume
responsibility for or incur liability for any injury to person or
property caused by any act of the person to whom permission
has been granted except as provided in this section.”
22
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
plaintiff appealed, relying on the express invitee exception. The
defendants countered that they “did not specifically invite [the
plaintiff] onto their property for the purpose of skateboarding.”
(Id. at p. 114.) The defendants did not dispute the plaintiff was
invited, but simply argued the invitation was not for a
recreational purpose. The court found the express invitee
exception applied, reasoning the statute “does not say a person
must be invited for a recreational purpose.” (Ibid.) In light of
the failure of the Calhoon defendants to dispute that the
invitation as issued was sufficient, the court had no occasion to
delve more deeply into that question.
In the end, the majority’s holding contains no limiting
principle. The majority reasoned that Donald and Christina
impliedly delegated invitational authority to Gunner “by
allowing him to live on the property.” (Hoffmann, supra, 56
Cal.App.5th at p. 1026.) But that rationale could arguably apply
to anyone allowed to live on the Youngs’ property, whether
related to the Youngs or not. There is no indication the
Legislature intended such an expansive construction of section
846(d)(3). If the Legislature wishes to limit the scope of the
immunity it confers, or to add to the list of those who may make
a qualifying invitation, it may do so. As the Supreme Court has
observed, however, “it’s the job of Congress by legislation, not
this Court by supposition, both to write the laws and to repeal
them.” (Epic Sys. Corp. v. Lewis (2018) ___U.S.___ [138 S.Ct.
1612, 1624, 200 L.Ed.2d 889, 902.)
E. Remand Is Warranted
To recap, the trial court read section 846(d)(3) too
narrowly, in ruling that the exception could not apply because
neither Donald nor Christina personally invited plaintiff onto
23
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
their property. The majority below read section 846(d)(3) too
broadly, holding that any invitation by a landowner’s live-at-
home child impliedly operates as an express invitation by the
landowner unless the child has been prohibited from extending
the invitation. We hold that a qualifying invitation under
section 846(d)(3) may be made by a landowner’s authorized
agent who issued the invitation on the landowner’s behalf.
Here, the record does not show that Gunner was so authorized;
therefore, we reverse the Court of Appeal’s judgment. 16
Plaintiff here did not make the required showing, but that
fact does not end the matter. The trial court’s ruling on
defendants’ motion to amend was based on its conclusion that
the express invitee exception did not apply as a matter of law.
In her new trial motion, plaintiff argued both that the express
invitee exception did apply and that the trial court erred in
allowing defendants to amend their answer to allege an
affirmative defense under section 846(a) in the first place. When
questioned about the possibility of a remand at oral argument,
defendants’ counsel claimed that the Court of Appeal already
held that plaintiff’s “new trial argument [was] forfeited.”
That assertion misreads the Court of Appeal’s opinion.
The Court of Appeal’s forfeiture finding went only to plaintiff’s
cause of action for negligent provision of medical care.
(Hoffmann, supra, 56 Cal.App.5th at p. 1028.) The court did not
16
As emphasized by the concurring opinion, we do not
foreclose other ways that a plaintiff might “make the showing
that a nonlandowner’s invitation operates as an invitation by
the landowner.” (Conc. opn., post, p. 16.) Rather, we “conclude
that one way for a plaintiff invoking section 846(d)(3) to meet
[the burden of showing the exception applies] would be to rely
on agency principles.” (See ante, p. 15, italics added.)
24
HOFFMANN v. YOUNG
Opinion of the Court by Corrigan, J.
address plaintiff’s argument that the trial court erred by
denying her new trial motion as to her other causes of action.
Other arguments supporting and opposing remand were
raised before, but not addressed by, the Court of Appeal in light
of its holding which we now reverse. Plaintiff’s argument that
the trial court erred by denying her motion for a new trial on the
negligence and premises liability claims remains outstanding.
We remand the matter to the Court of Appeal for it to address
those arguments in the first instance.
III. DISPOSITION
The Court of Appeal’s judgment is reversed. The matter
is remanded to the Court of Appeal for it to address plaintiff’s
claim that the trial court erred by denying her motion for a new
trial and for further proceedings consistent with this opinion.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
JENKINS, J.
GUERRERO, J.
25
HOFFMANN v. YOUNG
S266003
Concurring Opinion by Justice Kruger
More than half a century ago, the Legislature enacted
Civil Code section 846 (section 846) to immunize property
owners from liability for injuries suffered by individuals who use
or enter their property for fishing, hiking, or various other
recreational purposes. The purpose of the law was “to encourage
property owners ‘to allow the general public to recreate free of
charge on privately owned property’ ” without facing lawsuits
for their trouble. (Delta Farms Reclamation Dist. v. Superior
Court (1983) 33 Cal.3d 699, 707, italics omitted.)
Today this court considers how that same law applies
when the injured party is not a member of the general public,
but a household guest — a friend asked to come over by the child
of the property owners. Given the way the parties have litigated
the case, I agree with the majority’s decision to remand for
further consideration.
I write separately for two main reasons. First, the parties’
focus on how section 846 immunity applies in this situation
skips over the question whether the statute applies at all. As
the majority correctly recognizes, that critical threshold
question remains open (maj. opn., ante, at p. 12, fn. 12); I write
to explain why the question is, in my view, a substantial one.
Second, even assuming section 846 immunity applies unless the
injured guest falls within the exception for persons “expressly
invited . . . by the landowner” (§ 846, subd. (d)(3)), the majority’s
1
HOFFMANN v. YOUNG
Kruger, J., concurring
holding on this point is limited. The majority concludes that, as
the parties themselves have suggested, “one way” for the guest
to overcome section 846 immunity would be to prove that the
child acted as his parents’ agent for purposes of issuing the
invitation. (Maj. opn., ante, at p. 15.) But the majority does not
hold this is the only possible way for an injured guest to
overcome section 846 immunity; it leaves other possibilities
open for exploration. (Maj. opn., ante, at p. 25, fn. 16.) I write
to suggest a possible alternative path, more fitting for this
context, that can be considered in an appropriate case.
In the end, the narrow questions that have been litigated
and decided so far in this proceeding are insufficient to resolve
the broader issue at stake: whether the recreational use
immunity law bars compensation for household guests who are
injured because of a property owner’s carelessness. Any firm
conclusions on this subject will have to await further litigation.
In the meantime, however, the Legislature may wish to cut to
the chase by amending section 846 to more clearly specify the
limits of the immunity it confers.
I.
Under modern tort law, the general rule is that
“ ‘[e]veryone 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 or person,’ ” unless a
statutory exception applies or a court recognizes an exception
based on relevant policy considerations. (Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 771, citing Rowland v.
Christian (1968) 69 Cal.2d 108 (Rowland).)
Section 846 is one such statutory exception. First enacted
in 1963, subdivision (a) of the statute reads in its current form:
2
HOFFMANN v. YOUNG
Kruger, J., concurring
“An owner of any estate or any other interest in real property,
whether possessory or nonpossessory, owes no duty of care to
keep the premises safe for entry or use by others for any
recreational purpose or to give any warning of hazardous
conditions, uses of, structures, or activities on those premises to
persons entering for a recreational purpose, except as provided
in this section.” (§ 846, subd. (a).) This provision sets out a
general no-duty rule — effectively, an immunity from tort
claims — for “ ‘owner[s]’ ” of “ ‘any’ ” interest in real property
facing a premises liability claim from someone who used or
entered that property “ ‘for any recreational purpose.’ ” (Klein
v. United States of America (2010) 50 Cal.4th 68, 77; see id. at
p. 78.)
There are, however, a handful of exceptions to the
statutory no-duty rule. “Broadly speaking,” these exceptions
“relate to (a) victims of wilful or malicious conduct by the owner,
(b) persons who have paid consideration for permission to enter,
and (c) express invitees.” (Delta Farms Reclamation Dist. v.
Superior Court, supra, 33 Cal.3d at p. 708 (Delta Farms); § 846,
subd. (d).)
As they argued the case below, both sides assumed
plaintiff Mikayla Hoffmann counts as a recreational user or
entrant to whom the general rule of immunity in subdivision (a)
applies. They therefore focused their attention on whether she
falls within the only potentially applicable exception to
recreational use immunity: the exception for persons “expressly
invited . . . by the landowner” set out in section 846, subdivision
(d)(3). Both sides further assumed that the phrase “expressly
invited” bears the meaning a casual reader would ascribe to that
phrase in 2022: a direct, person-to-person invitation to a social
guest, as to a birthday celebration or dinner party. Their
3
HOFFMANN v. YOUNG
Kruger, J., concurring
dispute, to date, has primarily revolved around whether Gunner
Young’s invitation to Mikayla can be ascribed to his parents —
the landowners — for purposes of the subdivision (d)(3)
exception.
This series of assumptions is understandable, given the
way we ordinarily use the relevant statutory terms in everyday
speech. But the issues are more complicated than the parties
here have assumed. Section 846 was written to adjust the rules
of landowner recreational liability at a time when those rules —
and the terminology used to describe them — were very
different than they are today, and the statute’s terms may bear
meanings that are neither obvious nor intuitive to a modern
reader. To definitively decide how, and whether, section 846
applies in this situation would require exploring a number of
additional, threshold questions about the proper interpretation
of section 846 in its historical context. I start by describing that
context and those threshold interpretive questions, as I see
them, before turning to the separate, follow-on questions framed
by the parties’ litigation in this particular case.
A.
Although section 846 constitutes an exception to the
modern rule imposing a general duty of reasonable care, section
846 antedates the rule by several years. At the time the
Legislature wrote section 846 in 1963, California courts still
employed a common law status-based framework that divided
visitors to land into three categories — trespassers, licensees,
and invitees — with different tort duties owed to each. Some
five years later, in our seminal 1968 decision in Rowland, we
would discard that framework in favor of the modern approach
4
HOFFMANN v. YOUNG
Kruger, J., concurring
we apply today. But before discarding that framework,
Rowland helpfully summarized it as follows:
“Generally speaking a trespasser is a person who enters or
remains upon land of another without a privilege to do so; a
licensee is a person like a social guest who is not an invitee and
who is privileged to enter or remain upon land by virtue of the
possessor’s consent, and an invitee is a business visitor who is
invited or permitted to enter or remain on the land for a purpose
directly or indirectly connected with business dealings between
them. [Citation.] [¶] Although the invitor owes the invitee a
duty to exercise ordinary care to avoid injuring him [citations],
the general rule is that a trespasser and licensee or social guest
are obliged to take the premises as they find them insofar as any
alleged defective condition thereon may exist, and that the
possessor of the land owes them only the duty of refraining from
wanton or willful injury.” (Rowland, supra, 69 Cal.2d at
pp. 113–114, italics added.)
In other words, landowners owed a duty of reasonable care
only to “invitee[s],” which we described in Rowland as meaning
“business visitor[s].” (Rowland, supra, 69 Cal.2d at pp. 113–
114.) Licensees, by contrast — including social guests — were
owed only a duty to refrain from “wanton or willful injury.” (Id.
at p. 114.) The general idea was that invitees whose entrance
benefited the landowner in some way — patrons at a grocery
store, for example — could reasonably expect that the
landowner would take precautions to protect them from
dangerous conditions of the premises. But not so for social
guests. The Second Restatement described the usual
explanation for the rule: “[T]he guest is expected to take the
premises as the possessor himself uses them, and does not
expect and is not entitled to expect that they will be prepared
5
HOFFMANN v. YOUNG
Kruger, J., concurring
for his reception, or that precautions will be taken for his safety”
that the possessor himself does not take for his own safety or the
safety of his family. (Rest.2d Torts, § 330, com. h, subd. (3),
p. 175 (Second Restatement).)1
Although we didn’t specifically mention it in Rowland,
over time courts had expanded the category of invitees beyond
business visitors to include certain other members of the public,
sometimes termed “public invitees.” (See, e.g., O’Keefe v. South
End Rowing Club (1966) 64 Cal.2d 729, 737 (O’Keefe).) We
would explicitly adopt this understanding of the term “invitee”
in O’Keefe, quoting the Second Restatement’s definition with
approval:
“ ‘Invitee Defined. (1) An invitee is either a public invitee
or a business visitor. (2) A public invitee is a person who is
invited to enter or remain on land as a member of the public for
a purpose for which the land is held open to the public. . . .’ . . .
‘It is not enough, to hold land open to the public, that the public
at large, or any considerable number of persons, are permitted
to enter at will upon the land for their own purposes. As in other
instances of invitation, there must be some inducement or
encouragement to enter, some conduct indicating that the
premises are provided and intended for public entry and use,
1
On this point see also Rowland, supra, 69 Cal.2d at
page 114: “the guest should not expect special precautions to be
made on his account” and “if the host does not inspect and
maintain his property the guest should not expect this to be done
on his account.” As we noted in Rowland, courts invented
various exceptions to mitigate the harshness of these rules,
including liability for “active negligence” in the treatment of
licensees. (Id. at p. 115; see id. at pp. 114–116.) Those
exceptions are not directly relevant here.
6
HOFFMANN v. YOUNG
Kruger, J., concurring
and that the public will not merely be tolerated, but is expected
and desired to come.’ ” (O’Keefe, supra, 64 Cal.2d at pp. 737–
738.)
Case law offered illustrations of the duties owed to public
invitees. For instance, in Smith v. U.S. (N.D.Cal. 1953) 117
F.Supp. 525 (Smith) — a case we cited with approval in
O’Keefe — the court found a landowner (there, the federal
government) was responsible for injuries suffered by a camper
when a tree limb fell on him in a designated campsite in a
national forest. The landowner was responsible, the court
explained, because “[u]nder the law of California the plaintiff
was an invitee.” (Smith, at p. 526.) There was, the court
reasoned, a public invitation to use the campsite because “[a]
booklet issued by the Forest Service of the Department of
Agriculture says ‘Public Use of National Forests is Invited’ ” and
because “the uses to which the campsites were put by the
plaintiff were in accord with their design and purpose.” (Id. at
p. 527.) As to this latter point, the court explained that
“California follows the rule that a person on the land of another
is an invitee if the owner or occupant held out an invitation or
allurement which led the visitor to believe that the use made by
him of the premises was in accordance with intention and
design.” (Ibid., citing Barker v. Southern Pacific Co. (1931) 118
Cal.App. 748, 751.)
As this passage suggests, at common law an invitation to
enter or remain on land could be either “express” or “implied.”
(See e.g., Neil v. Feather River Lumber Co. (1928) 203 Cal. 502,
503 [deciding whether the plaintiff was an “express or implied
invitee of defendant”]; Hall v. Southern Cal. Edison Co., Ltd.
(1934) 137 Cal.App. 449, 453 [“expressly invited”]; Stewart v.
Lido Cafe (1936) 13 Cal.App.2d 46, 50 [“expressly invited”];
7
HOFFMANN v. YOUNG
Kruger, J., concurring
Gastine v. Ewing (1944) 65 Cal.App.2d 131, 141 [“expressly is
invited”]; Street v. Glorence Bldg. Co. (1959) 176 Cal.App.2d 191,
196 [“expressly invited”]; Farrier v. Levin (1959) 176 Cal.App.2d
791, 797–798 [“expressly invited” vs. “impliedly invited” (italics
omitted)]; Speece v. Browne (1964) 229 Cal.App.2d 487, 494
[“expressly invited”].) An “express” invitation was essentially
what it sounds like: an explicit solicitation of entry. But the
invitation did not need to be individually or personally extended,
so long as it was for a qualifying purpose; express invitations
could be (and often were) issued to the public at large, via an
advertisement, sign, or other public encouragement to enter.
(See Borgnis v. California-Oregon P. Co. (1927) 84 Cal.App. 465,
468 [“All are invitees who are expressly invited, regardless of any
question of benefit or advantage to the inviter, even though the
invitation be not individual, but to the public generally” (italics
added)].) An “implied” invitation, by contrast, could be extended
by acts of the landowner, or features of the property, that a
reasonable person would understand as indicating an
encouragement to enter for an invitee-qualifying purpose.
(Stewart, at pp. 50–51; see, e.g., Smith, supra, 117 F.Supp. at
p. 527 [finding an implied invitation to use campsite areas in the
arrangement of the campsites, maintenance of roads leading to
the sites, and other indicia of openness to the public].) Whether
express or implied, an invitation to enter the land served to
distinguish invitees from persons merely “permitted to enter at
will upon the land for their own purposes,” to whom no duty of
8
HOFFMANN v. YOUNG
Kruger, J., concurring
care was ordinarily owed. (Second Restatement, supra, § 332,
com. d, p. 178.)2
It was against this backdrop that the Legislature enacted
section 846 in 1963. The general rule of section 846, subdivision
(a) provided that no duty was owed to persons entering or using
the property for certain recreational purposes. 3 But together
with the exceptions, the overall effect of the immunity, as it
would have interacted with the common law rules in place at the
time, was less than sweeping. “Willful or malicious failure to
guard or warn” any user or entrant (§ 846, subd. (d)(1)) would
continue to subject a landowner to liability, just as at common
law. (See Rowland, supra, 69 Cal.2d at p. 114 [landowner
generally owed all persons, including trespassers and licensees,
a “duty of refraining from wanton or willful injury”].) Section
846, subdivision (d)(2) specified that nothing in the immunity
statute affected the duties owed to business invitees who had
paid to enter for a recreational purpose. And the same was true
of other invitees — including, presumably, public invitees —
under subdivision (d)(3), so long as the invitation was “express[]”
2
The Restatement offered an illustration of this distinction:
“When a landowner tacitly permits the boys of the town to play
ball on his vacant lot they are licensees only; but if he installs
playground equipment and posts a sign saying that the lot is
open free to all children, there is then a public invitation, and
those who enter in response to it are invitees.” (Second
Restatement, supra, § 332, com. d, p. 179.)
3
As drafted in 1963, the statute was originally written
without numbered, lettered subdivisions. (See Sen. Bill No. 639
(1962–1963 Reg. Sess.) as amended June 21, 1963, § 1.) Section
846 was later reorganized without undergoing any substantive
changes relevant here; I use the modern lettering and
numbering of the statute’s subdivisions for clarity.
9
HOFFMANN v. YOUNG
Kruger, J., concurring
rather than implied. (§ 846, subd. (d)(3); see Rowland, at p. 114
[“the invitor owes the invitee a duty to exercise ordinary care to
avoid injuring him”].) In other words, it seems paying customers
and many other invitees were generally owed the same duty of
care under the statute that they were already owed at common
law — except that no duty would extend to invitees where the
invitation was merely implied, rather than express. 4
The main effect of the statute, then, would have been to
bar a tort suit under conditions similar to those cited in the
Smith case, in which the court found an implied invitation based
on the maintenance of facilities suggesting openness to the
general public. (Smith, supra, 117 F.Supp. at p. 527.) In other
words, a landowner would bear no responsibility for injuries
suffered by nonpaying campers, hikers, and similar
adventurers, simply because the landowner maintained roads,
campsites, or other similar facilities implying openness to public
recreational use.
This understanding lines up with what this court has long
acknowledged to be the purpose of section 846: “ ‘to allow the
general public to recreate free of charge on privately owned
property.’ ” (Delta Farms, supra, 33 Cal.3d at p. 707, italics
omitted.) Various interested actors described the bill in just this
4
As the majority observes, section 846, subdivision (d)(3)
“distinguishes those ‘expressly invited’ from those who are
‘merely permitted’ to come upon the premises.” (Maj. opn., ante,
at p. 22.) As noted above (ante, at pp. 8–9 & fn. 2), the common
law likewise distinguished between members of the public
“permitted to enter at will upon the land for their own purposes”
(licensees) and members of the public who “will not merely be
tolerated, but [are] expected and desired to come” (invitees).
(Second Restatement, supra, § 332, com. d, pp. 178–179.)
10
HOFFMANN v. YOUNG
Kruger, J., concurring
way. For instance, the Department of Fish and Game explained
in a memorandum to the Governor that the basic rule of
immunity in section 846, subdivision (a), would encourage
landowners to “open up” land “now closed to public access.” (Cal.
Resources Agency, Dept. of Fish and Game, mem. to Governor
Edmund G. Brown, July 10, 1963.) Senator Stephen P. Teale,
the bill author, similarly explained that the purpose of section
846 was to alleviate the concerns of landowners who had become
reluctant to “grant permission to trespass” because of the
potential for tort liability.5 (Sen. Stephen P. Teale, letter to
Governor Edmund G. Brown, June 20, 1963.) But he went on to
explain: “The owner’s liability remains unchanged when a fee
is charged or where an owner owes a duty to, or has granted the
legal status of, an invitee.” (Ibid.)6
B.
At the time section 846 was enacted, Mikayla would not
have been considered an “invitee” for purposes of the law fixing
the liability of owners of land; she would instead have been
considered a social guest. (See, e.g., Rowland, supra, 69 Cal.2d
at pp. 113–114 [discussing this confusing bit of terminology]; see
5
The phrase “permission to trespass” is admittedly
something of a contradiction in terms, but it does connote
concern with access by members of the public, as opposed to, for
example, dinner guests.
6
The same or similar statements of purpose appear in
several other memoranda in the Governor’s bill file. An internal
memorandum to the Governor, for instance, repeated that the
purpose of the statute was to encourage landowners to grant
“permission to trespass” and repeated the bill author’s
statement about the meaning of the exceptions in what is now
subdivision (d) of section 846. (Paul D. Ward, Legis. Secretary,
bill mem. to Governor Edmund G. Brown, July 16, 1963.)
11
HOFFMANN v. YOUNG
Kruger, J., concurring
generally Second Restatement, supra, § 332, com. a, p. 176.) As
this case was litigated at trial and in the Court of Appeal, the
parties assumed subdivision (a) ordinarily applies to such
persons, if they were injured while engaged in recreational
activities on their hosts’ property.7 The parties have further
assumed — both in the Court of Appeal and in their briefing
before our court — that the “express invitee” exception
preserves the ability of some social guests to sue — but only so
long as those social guests can be said to have been invited (in
the colloquial sense) “expressly . . . by the landowner.” (§ 846,
subd. (d)(3).)
It is, however, at least questionable whether social guests
count as persons “expressly invited” within the meaning of
section 846, because social guests were not “express invitees” —
or, indeed, invitees of any kind — under the common law that
formed the backdrop to section 846’s enactment. (See People v.
Lopez (2003) 31 Cal.4th 1051, 1060 [terms known to the common
law are presumed to have their common law meaning]; Arnett v.
Dal Cielo (1996) 14 Cal.4th 4, 19–20 [same is true even where
term also has colloquial meaning in everyday speech].) And this
question about the scope of the (d)(3) exception naturally leads
to a more fundamental question about the scope of the statute’s
general rule: whether social guests fall within the category of
7
In this court, Mikayla has for the first time briefly alluded
to a “social guest exception” to section 846 immunity — but
without developing any argument for reading such an
“exception” into the terms of section 846, subdivision (a), as
opposed to relying on the “express invitation” exception in
section 846, subdivision (d)(3). I agree with the majority’s
decision to decline to address any argument about subdivision
(a) in the first instance, and to instead allow the parties to
litigate the question on remand, as appropriate.
12
HOFFMANN v. YOUNG
Kruger, J., concurring
recreational entrants and users to which the basic rule of
immunity in subdivision (a) was aimed in the first place.
Indeed, given the background common law in place at the time,
it is unclear why the Legislature would have intended either the
statute’s general immunity provision or its “expressly invited”
exception to include social guests. The basic rule of section 846,
subdivision (a) operates to bar tort lawsuits by relieving
landowners of any duty of care they might otherwise owe to
recreational users. At common law, social guests were not owed
a general duty of reasonable care. (Rowland, supra, 69 Cal.2d
at p. 114.) Why would the Legislature have written subdivision
(a) to eliminate a duty of care that did not otherwise exist? And
why would the Legislature have created a special exception in
section 846, subdivision (d)(3) specifically to allow tort lawsuits
by a class of persons — social guests of the landowner — who
were not entitled to sue in the first place?
It is true that some appellate courts have made the same
assumptions the parties now make about the meaning of section
846. But at least until now, section 846 has not been the focus
of a great deal of judicial scrutiny. Indeed, no California court
cited section 846 in any decision until 1977 — 14 years after
section 846 was enacted, and nine years after Rowland
recognized the duties of care a landowner owes to all persons,
including social guests and other licensees. (Rowland, supra, 69
Cal.2d at pp. 119–120.)8 It was not until 1993 — 30 years after
8
The first California case to cite section 846 was English v.
Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725. Two federal
cases and one out-of-state case had mentioned section 846
earlier, but in passing and without any substantive discussion
or analysis. (See Garfield v. U.S. (W.D.Wis. 1969) 297 F.Supp.
13HOFFMANN v. YOUNG
Kruger, J., concurring
the statute’s enactment — that the Court of Appeal, in Johnson
v. Unocal Corp. (1993) 21 Cal.App.4th 310, first had occasion to
interpret the “expressly invited” exception. But the Johnson
court engaged in no significant analysis of the question; its brief
discussion of the issue simply assumed the phrase bore the
colloquial meaning it would have had in 1993 — a “direct,
personal” invitation, as for afternoon coffee or a dinner party —
without ever acknowledging the different meaning it might have
carried when enacted. (Id. at p. 317.) Since then, Johnson’s
language has been often repeated, but never analyzed. (See
Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 113 (Calhoon);
Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th
1110, 1116; Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 32.)
In short, California case law to date has neither
recognized the common law meaning of the (d)(3) exception —
under which social guests, as noninvitees at common law, would
fail to qualify — nor considered the possibility that the personal
social guests of household members were never intended to fall
within the category of recreational users or entrants to whom
section 846, subdivision (a) applies in the first place. Instead,
the Courts of Appeal have generally proceeded on the
assumption that some personal, social invitations to enter
property qualify for the (d)(3) exception, but only invitations
extended in some form by the technical owner of the estate or
other real property interest. In the very few cases in which the
issue has concerned a social invitation issued by a child or other
member of the landowner’s household, courts have sought to
891, 896, fn. 3; Copeland v. Larson (Wis. 1970) 174 N.W.2d 745,
749, fn. 4; Gard v. U.S. (N.D.Cal. 1976) 420 F.Supp. 300, 302,
fn. 1.)
14
HOFFMANN v. YOUNG
Kruger, J., concurring
avoid the seeming arbitrariness of the “by the landowner”
limitation either by ignoring it (Calhoon, supra, 81 Cal.App.4th
at p. 114) or by invoking a background “agency law” principle
under which a child’s invitation may be imputed to his
landowner parents (this case).
Admittedly, section 846 now exists within the landscape
of modern tort law, and it is unclear what the effects would be
of interpreting the statute to apply as it did at the time it was
enacted, before the significant changes wrought by Rowland.
Because of the way the parties have litigated the issues, this is
not the case for us to undertake a more comprehensive look at
the threshold question whether section 846 — a statute
designed to encourage private landowners to open their property
to public recreational users — has any application to the social
guests of members of a household. I therefore agree with the
majority’s decision to leave that question open. (See maj. opn.,
ante, at p. 12, fn. 12.) For reasons I’ve explained, however, the
issue is a substantial one, and it warrants further exploration in
an appropriate case.
C.
With that said, I turn to the question the parties have
raised here. The parties’ core dispute at all stages of this
litigation has been whether Gunner’s personal invitation to
Mikayla can be attributed to his property-owning parents on
some form of agency-law theory, thereby bringing his invitation
within the (d)(3) exception for persons invited to the property
“by the landowner.” The Court of Appeal ruled that it could,
resting that conclusion on the invention of a new “implied
agency” relationship between landowner parents and their live-
15
HOFFMANN v. YOUNG
Kruger, J., concurring
at-home children. (Hoffmann v. Young (2020) 56 Cal.App.5th
1021, 1029.)
Today’s majority reverses on the ground that the Court of
Appeal’s agency holding has no basis in actual agency law. (Maj.
opn., ante, at pp. 19–24.) The majority acknowledges that “one
way” for an invitation by a nonlandowner to operate as an
invitation by the landowner is if the nonlandowner is the
landowner’s actual agent under properly understood “agency
principles.” (Id. at p. 15.) But the majority also explicitly leaves
open the possibility of other ways to make the showing that a
nonlandowner’s invitation operates as an invitation by the
landowner. (Id. at p. 25, fn. 16.)
I agree with the majority on each of these points. But the
last point, in particular, may benefit from further attention.
While I agree that agency law — the theory upon which the
parties have briefed this case to date — is indeed “one way” to
show that a nonlandowner’s invitation operates as an invitation
“by the landowner,” it is not one particularly well-suited to
scenarios like the one we confront in this case: scenarios
involving invitations by live-at-home members of the
landowner’s household. Agency principles do, of course, have
their place in understanding section 846, subdivision (d)(3), just
as they have long had a place in understanding the common law
landowner duties that preceded and shaped it. (See, e.g., Neil v.
Feather River Lumber Co., supra, 203 Cal. at p. 504 [submitting
to jury question whether managing agents of lumber corporation
authorized or ratified a train conductor’s conduct in inviting the
plaintiff to ride on a train on a logging railroad, leading to the
plaintiff’s injury].) As applied to ordinary business
relationships, agency law gives us a framework for concluding
that, for example, a landowner should not escape liability for a
16
HOFFMANN v. YOUNG
Kruger, J., concurring
plaintiff’s injury caused by a dangerous condition of the property
simply because she has hired a party planner to send out
invitations rather than posting the envelopes herself. But as the
majority notes, and I agree, agency law is an uneasy fit for the
relationship between parent and child. (See maj. opn., ante, at
pp. 20–22; Angus v. London (1949) 92 Cal.App.2d 282, 285 [“The
relationship of father and child, standing alone, does not prove
the agency of either”].) To employ the language of agency law in
the context of filial relations raises questions to which
traditional agency principles can supply no clear answers: What
does it mean to say a child is the “authorized agent” of his
parent? When can a child’s invitation to a friend be said to have
been made on “behalf” of a parent, who derives no personal gain
from the invitation — aside, that is, from the gain that comes
from the social benefits to her child?
There are, I think, other possible paths here. As the
majority explains, we generally read statutes in light of the
common law principles in place at the time of their enactment.
(See maj. opn., ante, at p. 15; see, e.g., McMillin Albany LLC v.
Superior Court (2018) 4 Cal.5th 241, 249; Presbyterian Camp &
Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493,
504.) Agency law is one such principle, but it is not the only one.
Under another principle, well settled by the time section 846
was enacted, invitations by legitimate occupants of property
often were considered invitations “by the landowner.” Courts in
the pre-Rowland period considered it clear, for example, that
“generally, . . . the landlord bears the relationship of an invitor
to the invitees of his tenant.” (Street v. Glorence Bldg. Co.,
supra, 176 Cal.App.2d at p. 196.) We applied that rule in
Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394,
in which we explained that “invitees of the tenant are regarded
17
HOFFMANN v. YOUNG
Kruger, J., concurring
as being invitees of the owner while on passageways which
invitees of the tenant have a right to use and which are under
the owner’s control.” (Id. at p. 399.) In other words, for portions
of shared property “used in common by all, the landlord owe[d]
a duty to those visiting the premises . . . to visit a tenant or at
his invitation,” since such visitors “are invitees of both landlord
and tenant.” (Spore v. Washington (1929) 96 Cal.App. 345, 350;
see, e.g., Bellon v. Silver Gate Theatres, Inc. (1935) 4 Cal.2d 1,
14 [“even if the invitation was made by [the tenant],” rather
than the managing agent of the landlord, the landlord was
“under a duty to use reasonable care in protecting the premises
still under its control” when invitees of the tenant “might
reasonably be expected to enter”]; see id. at p. 4.)9 The rationale
for treating invitations by the tenant as invitations by the
landlord was that a landlord reasonably and ordinarily expects
her tenants to invite visitors to their shared property, and
should not be heard to complain about legal liabilities flowing
from invitations she reasonably expects her tenants to issue in
the ordinary course of social and economic life.
Essentially all the same things can be said about social
invitations issued by children to their friends — which is, as the
majority observes, an ordinary, accepted, and commonplace
feature of our society. (Maj. opn., ante, at p. 21.) Rather than
asking whether a child or other household member acts as a
landowner’s “authorized agent” when he invites a friend over to
play — the sort of question we might ask if this were a corporate
9
The typical scenario involved commercial landlords and
commercial tenants, since before Rowland was decided in 1968,
only “invitees” — most commonly, business visitors — were
generally owed a duty of reasonable care in the first place.
18
HOFFMANN v. YOUNG
Kruger, J., concurring
merger or a real estate deal rather than an ordinary social
visit — the common law background to section 846 suggests we
might ask, more simply, whether the child was authorized to
invite friends over.
A contrary reading of section 846 — one in which only
invitations by a landowner or her agent, in the technical,
business-oriented sense, suffice for the (d)(3) exception — would
generate quite unusual results. The most obvious, and perhaps
most troubling, would be that children ordinarily would be
without any remedy for injury when friends invite them over to
play. We should not lightly attribute that intent to the
Legislature, particularly given California’s “strong public policy
to protect children of tender years” (People v. Olsen (1984) 36
Cal.3d 638, 646), and particularly when everything we know
about the statute suggests it was directed to quite different
concerns. By insisting on too exacting and technical a notion of
what it means for a social guest to be invited “by the landowner,”
we would risk creating an expansive immunity the Legislature
did not likely intend: one that could leave many children like
Mikayla without a remedy if they are injured by dangers on the
property when they visit a friend’s house to play.
The oddities presumably would not stop there. Consider a
large multigenerational family occupying property to which just
one or two members of the family — say, a daughter and her
spouse — formally hold title. The family hosts a backyard social
gathering. Two guests — one invited by the daughter and one
by a different member of the family — fall onto the same
unreasonably dangerous lawn sprinkler while playing a
recreational game of soccer, sustaining equally serious injuries.
A narrow understanding of what it means for an invitation to be
issued “by the landowner” could grant the daughter’s guest the
19
HOFFMANN v. YOUNG
Kruger, J., concurring
right to sue for recreational injury, while the other, identically
situated guest is left without a remedy — though no obvious
reason appears for the difference. Or say a tenant invites guests
to the common area of her apartment complex for a recreational
swim. A guest is injured and sues the landlord for negligent
maintenance of the swimming pool. The landlord did not
personally invite the guest. Is the guest left without any remedy
for her injury? (Cf. Johnson v. Prasad (2014) 224 Cal.App.4th
74, 76.) No other state high court has interpreted its state’s
analogous recreational immunity statute in this way, 10 and it
seems unlikely our Legislature intended for section 846 to
achieve these sorts of results.
II.
Ultimately, I agree with the majority that definitive
answers about the application of section 846 in this context must
await further litigation. (See maj. opn., ante, at p. 12, fn. 12; id.
at p. 25, fn. 16.) But in the meantime, the Legislature may wish
to revisit the statute to clarify the limits of recreational use
immunity. Section 846 was enacted against the backdrop of a
set of common law rules that have not played any substantial
role in California tort law for more than 50 years, and it
continues to use language bound to confuse modern readers (and
courts). As we have previously noted, “section 846 preserves” in
recreational activity cases a set of long-vanished common law
categories: the “distinction between trespassers, licensees and
10
See LePoidevin by Dye v. Wilson (1983) 111 Wis.2d 116;
Loyer v. Buchholz (1988) 38 Ohio St.3d 65; Perrine v. Kennecott
Mining Corp. (Utah 1996) 911 P.2d 1290; Brown v. Wilson
(1997) 252 Neb. 782; Estate of Gordon-Couture v. Brown (2005)
152 N.H. 265; Bucki v. Hawkins (R.I. 2007) 914 A.2d 491;
Crogan v. Pine Bluff Estates (Vt. 2021) 257 A.3d 247.
20
HOFFMANN v. YOUNG
Kruger, J., concurring
invitees” that governed premises liability cases in California
prior to Rowland. (Delta Farms, supra, 33 Cal.3d at p. 706.) But
in Rowland, as the majority notes, “this court replaced the
former concept of liability based on an entrant’s status with the
current application of liability based on ordinary principles of
negligence under [Civil Code] section 1714.” (Maj. opn., ante, at
p. 9.) So long as section 846 remains written as it is — built,
framed, and structured around a set of common law terms — the
effect will be to require courts perpetually to refer back to a set
of common law rules that neither comport with modern tort law
nor the realities of modern social and family life. (See Rowland,
supra, 69 Cal.2d at p. 118.) And for that reason, it will
inevitably continue to generate confusion about whether
household guests can seek compensation when they are injured
because of dangerous conditions on the land they visit.
Although the Legislature has several times expanded the
list of activities covered by the section 846, subdivision (a)
immunity, it has not changed the basic structure of the
statute — nor the basic list of three exceptions now contained in
subdivision (d) — since 1963. This was a statute written for a
different time, and the Legislature may wish to update it for
ours.
KRUGER, J.
We Concur:
LIU, J.
GROBAN, J.
21
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Hoffmann v. Young
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 56 Cal.App.5th 1021Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S266003
Date Filed: August 29, 2022
__________________________________________________________
Court: Superior
County: San Luis Obispo
Judge: Linda D. Hurst
__________________________________________________________
Counsel:
Andrade Law Offices and Steven R. Andrade for Plaintiff and
Appellant.
Horvitz & Levy, Dean A. Bochner, Joshua C. McDaniel, Christopher D.
Hu; Henderson & Borgeson, Jay M. Borgeson and Royce J. Borgeson
for Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Steven R. Andrade
Andrade Law Offices
211 Equestrian Avenue
Santa Barbara, CA 93101
(805) 962-4944
Christopher D. Hu
Horvitz & Levy LLP
505 Sansome Street, Suite 375
San Francisco, CA 94111-3175
(818) 995-5887