Presbyterian Camp & Conference Centers, Inc. v. Superior Court

Filed 12/9/19 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PRESBYTERIAN CAMP AND 2d Civil No. B297195
CONFERENCE CENTERS, (Super. Ct. No. 18CV02968)
INC., (Santa Barbara County)
Petitioner,
ORDER MODIFYING
v. OPINION AND DENYING
REHEARING
THE SUPERIOR COURT OF
SANTA BARBARA COUNTY, [NO CHANGE IN
JUDGMENT]
Respondent;
CALIFORNIA DEPARTMENT
OF FORESTRY AND FIRE
PROTECTION,
Real Party in Interest.
THE COURT:
It is ordered that the opinion filed herein on
November 18, 2019, and certified for publication, be modified as
follows:
1. On page 2, first sentence of the third full
paragraph, the word “allegedly” is to be inserted between the
words “fire” and “started” so that the sentence reads:
The Department of Forestry and Fire Protection
(CalFire) sued Presbyterian Camp and Conference Centers
(PCCC) to recover costs arising from a fire allegedly started by a
PCCC employee.
2. On page 2, second sentence of the fourth full
paragraph, beginning “It contends” is deleted and the following
sentence is inserted in its place:
It contends the court erroneously overruled its
demurrer because sections 13009 and 13009.1 do not permit it to
be held liable for an alleged employee’s negligent or illegal acts.
3. On page 2, after section header “FACTUAL AND
PROCEDURAL HISTORY,” add as footnote 2 the following
footnote, which will require renumbering of all subsequent
footnotes:
2 The facts are taken from CalFire’s complaint, which
we accept as true in our review of the trial court’s order
overruling PCCC’s demurrer. (Blank v. Kirwan (1985) 39 Cal. 3d
311, 318 (Blank).)
4. On page 5, first partial paragraph, second citation
“(Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)” is modified to read
as follows:
(Blank, supra, 39 Cal.3d at p. 318.)
2
5. On page 8, first full paragraph, beginning “Here, it
is” is deleted and the following paragraph is inserted in its place:
Here, it is alleged that Cook started the Sherpa Fire.
And it is alleged that PCCC was his employer at that time.
Therefore, if CalFire can prove that Cook was PCCC’s employee,
that he started the fire negligently or in violation of law, and that
he did so in the scope of his employment, PCCC can, pursuant to
sections 13009 and 13009.1, be held vicariously liable for
CalFire’s fire suppression and investigation costs.
6. On page 10, first full paragraph beginning “In
1931” is deleted and the following two paragraphs are inserted in
its place:
In 1872, the Legislature enacted the first predecessor
to the fire liability statutes now codified at sections 13007, 13008,
13009, and 13009.1. (McKay v. State of California (1992) 8
Cal. App. 4th 937, 939; Gould v. Madonna (1970) 5 Cal. App. 3d
404, 406-407 (Gould).) As enacted, former Political Code section
3344 provided that “‘[e]very person negligently setting fire to
[their] own woods, or negligently suffering any fire to extend
beyond [their] own land, [was] liable in treble damages to the
party injured.’” (Haverstick, supra, 1 Cal.App.2d at p. 615.)
Thirty-three years later, the Legislature enacted Civil Code
section 3346a. (See McKay, at p. 939.) Its language was identical
to that in the Political Code. (See Haverstick, at p. 615.)
The Legislature repealed Political Code section 3344
and Civil Code section 3346a when it enacted the Fire Liability
Law in 1931. (Gould, supra, 5 Cal.App.3d at p. 406; see Stats.
1931, ch. 790, §§ 5 & 6, p. 1644.) Section 1 of the new law
provided that “‘any person who: (1) personally or through
3
another, and (2) wilfully, negligently, or in violation of law,
commit[ted] any of the following acts: (1) set[] fire to, (2)
allow[ed] fire to be set to, (3) allow[ed] a fire kindled or attended
by [them] to escape to the property, whether privately or public
owned, of another’” was liable for the damage that ensued.
(Howell, supra, 18 Cal.App.5th at p. 177, italics and alterations
omitted.) Section 2 provided that “‘any person’ who allowed a fire
burning on [their] property to escape to another’s property
‘without exercising due diligence to control such fire’” was liable
for the resulting damage. (Ibid., italics and alterations omitted.)
Section 3 “permitted recovery of the expenses of fighting such
fires ‘by the party, or by the federal, state, county, or private
agency incurring such expenses.’ [Citation.]” (Ibid.)
7. The last sentence of the paragraph commencing at
the bottom of page 12 with “The Howell majority” and ending at
the top of page 13 with “liability in Haverstick” is deleted and the
following sentence is inserted in its place:
Yet that statute’s predecessors—former Political
Code section 3344 and former Civil Code section 3346a—served
as a basis for imposing vicarious corporate liability in Haverstick.
8. On page 13, first full paragraph beginning “In
Haverstick,” is deleted and the following paragraph is inserted in
its place:
In Haverstick, supra, 1 Cal.App.2d at pages 609-611,
the court upheld liability imposed on a railroad after its
employees negligently permitted a fire to spread from a railway
car to the plaintiff’s land. Former Political Code section 3344 and
former Civil Code section 3346a were in force when the fire broke
4
out. (Id. at pp. 614-615; compare id. at p. 610 [fire started May
19, 1931] with Stats., ch. 790, p. 1644 [sections repealed August
14, 1931].) Those sections—like their successors, section 2 of the
Fire Liability Law and current section 13008—lacked the
“personally or through another” language currently found in
section 13007. (See id. at p. 615.) The railroad’s vicarious
liability thus did not hinge on the presence of that phrase: “[T]he
better reasoning supports the holding that the negligence of the
company or person setting the fire is the proximate cause of the
injury in the absence of a showing of contributory negligence on
the part of the injured person.” (Id. at p. 613, italics added.)
9. On page 13, second full paragraph beginning “We
presume” is deleted and the following paragraph is inserted in its
place:
We presume the Legislature was aware of the
Haverstick court’s interpretation of former Political Code section
3344 and former Civil Code section 3346a, and that it intended
that the same interpretation apply to the substantially similar
language in the Fire Liability Law and section 13008. (Moran,
supra, 40 Cal.4th at p. 785.) We see no reason why a different
interpretation should apply to the same language in sections
13009 and 13009.1.
There is no change in judgment.
Petitioner’s petition for rehearing is denied.
____________________________________________________________
TANGEMAN, J. GILBERT, P.J. PERREN, J.
5
Filed 11/18/19 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PRESBYTERIAN CAMP AND 2d Civil No. B297195
CONFERENCE CENTERS, (Super. Ct. No. 18CV02968)
INC., (Santa Barbara County)
Petitioner,
v.
THE SUPERIOR COURT OF
SANTA BARBARA COUNTY,
Respondent;
CALIFORNIA DEPARTMENT
OF FORESTRY AND FIRE
PROTECTION,
Real Party in Interest.
The law is replete with legal fictions. Among the best
known is that corporations are people, with many of the same
rights and responsibilities as natural persons. But corporations
cannot act on their own; they “‘necessarily act through agents.’
[Citation.]” (Snukal v. Flightways Manufacturing, Inc. (2000) 23
Cal. 4th 754, 782 (Snukal).) Thus the law draws “no distinction
between [a] corporation’s ‘own’ liability and vicarious liability
resulting from [the] negligence of [its] agents.” (Tunkl v. Regents
of University of Cal. (1963) 60 Cal. 2d 92, 103.)
In a split decision, our colleagues in the Third
Appellate District rejected this principle in the context of Health
and Safety Code 1 sections 13009 and 13009.1. (Department of
Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154
(Howell).) The Howell majority concluded that corporations
cannot be held liable for the costs of suppressing and
investigating fires their agents or employees negligently set,
allow to be set, or allow to escape. (Id. at pp. 175-182.) Justice
Robie disagreed, concluding that sections 13009 and 13009.1 do
permit vicarious corporate liability. (Id. at pp. 204-208 (dis. opn.
of Robie, J.).)
We agree with Justice Robie.
The Department of Forestry and Fire Protection
(CalFire) sued Presbyterian Camp and Conference Centers
(PCCC) to recover costs arising from a fire started by a PCCC
employee. PCCC demurred, arguing that Howell precludes
liability. The trial court disagreed, and overruled the demurrer.
PCCC challenges the trial court’s order in a petition
for writ of mandate. It contends the court erroneously overruled
its demurrer because sections 13009 and 13009.1 do not permit it
to be held liable for its employee’s negligent or illegal acts. We
disagree, and deny the petition.
FACTUAL AND PROCEDURAL HISTORY
PCCC operates a camp and conference center in rural
Santa Barbara County. Its employee, Charles Cook, was
1 All
further unlabeled statutory references are to the
Health and Safety Code.
2
responsible for maintaining the camp. In June 2016, a cabin on
the property filled with smoke after a chimney malfunctioned.
Cook removed a burning log from the fireplace and carried it
outside. Embers from the log fell onto dry vegetation, igniting
what is now known as the Sherpa Fire.
The fire spread rapidly, and ultimately burned nearly
7,500 acres. CalFire spent more than $12 million to fight the fire
and investigate its cause. The investigation revealed that PCCC:
(1) failed to clear dry vegetation near at least one of its cabins, (2)
failed to maintain the chimney that filled the cabin with smoke,
and (3) failed to inspect and maintain fire safety devices. These
omissions constituted negligence and violated several laws and
regulations. Cook’s act of carrying a smoldering log over dry
vegetation was also negligent and in violation of the law.
Together, PCCC’s and Cook’s acts and omissions caused the
Sherpa Fire and contributed to its rapid spread.
CalFire sued Cook and PCCC to recover fire
suppression and investigation costs. (§§ 13009, 13009.1.) PCCC
demurred to CalFire’s complaint, arguing that it could not be
held liable for Cook’s actions based on Howell, supra, 18
Cal.App.5th 154.
Howell involved the Moonlight Fire that burned
65,000 acres in Plumas County. (Howell, supra, 18 Cal.App.5th
at p. 162.) The fire started when a bulldozer struck a rock,
causing superheated metal fragments to splinter off and ignite
the surrounding vegetation. (Id. at p. 164.) The operator of the
bulldozer and his coworker did not timely inspect the area where
they had been working, which allowed the fire to spread. (Ibid.)
CalFire sued the two workers for the costs of
suppressing and investigating the resulting fire. (Howell, supra,
3
18 Cal.App.5th at pp. 162-163.) It also sued the timber harvester
that employed the workers, the company that purchased the
timber from the harvester/employer, the company that managed
the property, and the property owners. (Id. at p. 163.) The trial
court granted motions dismissing the property owners, property
manager, and timber purchaser from the case. (Id. at p. 165.) It
concluded that sections 13009 and 13009.1 did not provide a basis
for their liability. (Ibid.) A majority of the Court of Appeal
agreed, concluding that the statutes do not provide for vicarious
liability. (Id. at p. 182.) Only CalFire’s claims against the
workers and their employer remained. (Id. at p. 176.)
The court below determined that Howell did not bar
CalFire’s claims against PCCC. While Howell concluded that the
property owners, property manager, and timber purchaser could
not be vicariously liable for the workers’ acts, it said nothing
about the harvester/employer’s liability. Indeed, the
harvester/employer remained a defendant in the underlying case.
Because CalFire alleged that PCCC was Cook’s employer when
the Sherpa Fire started, the court concluded that Howell did not
apply to the facts of this case. It overruled PCCC’s demurrer.
DISCUSSION
PCCC argues that the trial court erroneously
overruled its demurrer because: (1) a corporation is not a
“person” for purposes of sections 13009 and 13009.1, (2) the
legislative history of these statutes shows that they do not permit
vicarious liability, and (3) permitting such liability would render
superfluous language in related fire liability statutes.
Standard of review
When a party seeks writ review of a trial court’s
order overruling a demurrer, “[t]he ‘ordinary standards of
4
demurrer review still apply.’” (Southern California Gas Leak
Cases (2019) 7 Cal.5th 391, 398, fn. 3.) We independently
determine whether the complaint states a cause of action. (Blank
v. Kirwan (1985) 39 Cal. 3d 311, 318.) We reasonably interpret
the complaint, “reading it as a whole and its parts in their
context.” (Ibid.) We deem true “‘all material facts properly
pleaded, but not contentions, deductions, or conclusions of fact or
law. [Citation.]’” (Ibid.) “‘We also consider matters which may
be judicially noticed.’ [Citation.]” (Ibid.)
Rules of statutory interpretation
Whether PCCC can be vicariously liable for Cook’s
negligent or illegal acts involves questions of statutory
interpretation for our independent review. (Western States
Petroleum Assn. v. Board of Equalization (2013) 57 Cal. 4th 401,
415.) Our fundamental task is to ascertain the Legislature’s
intent when it enacted sections 13009 and 13009.1. (Pacific
Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012)
55 Cal. 4th 783, 803 (Pacific Palisades).) We begin with the
statutes’ words, giving them their plain, commonsense meanings.
(Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal. 4th 717, 724.)
We interpret the words in the context of related statutes,
harmonizing them whenever possible. (Mejia v. Reed (2003) 31
Cal. 4th 657, 663 (Mejia).) We also interpret them in a manner
that avoids conflicts with common-law principles. (California
Assn. of Health Facilities v. Department of Health Services (1997)
16 Cal. 4th 284, 297.)
We presume the Legislature “was aware of existing
related laws” when it enacted sections 13009 and 13009.1, and
that it “intended to maintain a consistent body of rules.” (People
v. Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 199
5
(Zamudio).) We also presume the Legislature was aware of the
judicial interpretations of those laws, and that it intended that
the same interpretation apply to related laws with identical or
substantially similar language. (Moran v. Murtaugh Miller
Meyer & Nelson, LLP (2007) 40 Cal. 4th 780, 785 (Moran).) We
will follow the statutes’ plain meanings unless doing so would
lead to absurd results the Legislature did not intend. (Meza v.
Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856.)
If the meanings of sections 13009 and 13009.1 are
unclear, we may examine their legislative history to determine
the Legislature’s intent. (Pacific Palisades, supra, 55 Cal.4th at
p. 803.) We may also “consider the impact of an interpretation on
public policy” and the consequences that may flow from it.
(Mejia, supra, 31 Cal.4th at p. 663.) But we cannot insert words
into the statutes that the Legislature has omitted. (Code Civ.
Proc., § 1858.) Our job is not to rewrite statutes to conform to an
assumed intent that does not appear from their language. (Doe v.
City of Los Angeles (2007) 42 Cal. 4th 531, 545.)
Plain meanings of sections 13009 and 13009.1
CalFire’s ability to recover the costs of services it
provides is limited to the recovery provided by statute. (Howell,
supra, 18 Cal.App.5th at p. 176.) Section 13009, subdivision
(a)(1), permits CalFire to recover fire suppression costs from
“[a]ny person . . . who negligently, or in violation of the law, sets a
fire, allows a fire to be set, or allows a fire kindled or attended by
[them] to escape onto any public or private property.” Section
13009.1, subdivision (a)(1), permits CalFire to recover costs for
investigating a fire from the same classes of persons. A “person”
includes “any person, firm, association, organization,
partnership, business trust, corporation, limited liability
6
company, or company.” (§ 19. 2) Thus, under the plain language
of these statutes, CalFire can recover fire suppression and
investigation costs from a corporation, like PCCC, that
negligently or illegally sets a fire, allows a fire to be set, or allows
a fire it kindled or attended to escape. And because a corporation
“‘necessarily act[s] through agents’” (Snukal, supra, 23 Cal.4th at
p. 782), it is vicariously liable if one of its agents sets a fire in the
scope of their employment (Perez v. Van Groningen & Sons, Inc.
(1986) 41 Cal. 3d 962, 968 (Perez)).
Interpreting “person” in sections 13009 and 13009.1
to permit vicarious corporate liability is consistent with its
interpretation in other fire liability laws in the Health and Safety
Code. For example, pursuant to section 13000, no “person” may
allow a fire to escape their control. Pursuant to section 13001, no
“person” may use a device that might cause a fire without taking
precautions to ensure against the fire’s spread. In Golden v.
Conway (1976) 55 Cal. App. 3d 948, 963, the court determined
that, pursuant to these sections, a landlord may be able to
recover damages resulting from a fire that occurred in her
building “on the theory that [her tenant] or one of his employees
negligently left combustible material too close to [a] wall heater.”
(Italics added.)
Interpreting “person” in sections 13009 and 13009.1
to permit vicarious corporate liability is also consistent with
longstanding common-law and statutory rules. Vicarious liability
is “‘“a deeply rooted sentiment”’” in California. (Mary M. v. City
of Los Angeles (1991) 54 Cal. 3d 202, 208.) At common law, an
employer could be held vicariously liable for its employee’s torts if
2 The Legislature enacted section 19 in 1939. (Stats. 1939,
ch. 60, § 19, p. 484.)
7
the torts were committed in the scope of employment. (Perez,
supra, 41 Cal.3d at p. 967.) The Legislature codified this
common-law rule nearly 150 years ago. (Civ. Code, § 2338.) We
presume the Legislature was aware of Civil Code section 2338
and the common-law rules governing vicarious liability when it
enacted sections 13009 and 13009.1. (Zamudio, supra, 23 Cal.4th
at p. 199.) And we presume the Legislature did not intend to
depart from these rules since sections 13009 and 13009.1 are
silent on the issue of vicarious liability. (Big Creek Lumber Co. v.
County of Santa Cruz (2006) 38 Cal. 4th 1139, 1149.)
Here, it is undisputed that Cook started the Sherpa
Fire. And it is undisputed that PCCC was his employer at that
time. Therefore, if CalFire can prove that Cook started the fire
negligently or in violation of law, and did so in the scope of his
employment, PCCC can, pursuant to sections 13009 and 13009.1,
be held vicariously liable for CalFire’s fire suppression and
investigation costs.
Section 19’s definition of “person”
PCCC argues that sections 13009 and 13009.1 do not
apply to corporations. But section 19’s definition of “person”—
which includes a corporation—applies to all provisions of the
Health and Safety Code “[u]nless the provision or the context
otherwise requires.” (§ 5.) Neither of the provisions at issue here
explicitly restricts “person” to a natural person. And the
predecessors to sections 13009 and 13009.1 were routinely used
to recover firefighting costs from corporations—both before and
after the Legislature enacted section 19 in 1939. (See, e.g.,
County of Ventura v. So. Cal. Edison Co. (1948) 85 Cal. App. 2d
529 (Ventura County); Haverstick v. Southern Pac. Co. (1934) 1
Cal. App. 2d 605 (Haverstick); Kennedy v. Minarets & Western Ry.
8
Co. (1928) 90 Cal. App. 563.) Had the Legislature wanted to alter
this well-established understanding of “person,” it would have
done so in the ensuing 80 years. (Cf. Foodmaker, Inc. v. Alcoholic
Bev. etc. Appeals Bd. (1974) 10 Cal. 3d 605, 609 [definition of
“person” in Business and Professions Code section 23008 applied
in Business and Professions Code section 24071 where
Legislature did not specify “natural person”].)
The context of sections 13009 and 13009.1 similarly
does not require restricting their applicability to natural persons.
“The clear intent of [these sections] is to require reimbursement
by the wrongdoer for expenses incurred in the suppression of
fire.” (Ventura County, supra, 85 Cal.App.2d at p. 533.) It would
be contrary to the Legislature’s intent if we were to conclude that
corporations are not among the wrongdoers required to pay for
fire suppression and investigation costs. They are.
Legislative history of sections 13009 and 13009.1
PCCC next argues that, even if sections 13009 and
13009.1 do apply to corporations, the legislative history shows
that they do not permit vicarious liability. The Howell majority
agreed with this argument. (Howell, supra, 18 Cal.App.5th at pp.
175-182.) It concluded that sections 13009 and 13009.1 do not
“clearly delineate the impact of the inclusion of the term
‘negligently,’” and thus examined the statutes’ legislative history
to determine whether the Legislature intended that they provide
for vicarious liability. (Id. at p. 177.)
We do not believe the use of the term “negligently”
renders sections 13009 and 13009.1 unclear. Whether the
statutes permit corporations to be vicariously liable for the acts of
their agents and employees hinges on the definition of “person,”
not “negligently.” And “person” is clearly defined in section 19.
9
In any event, an examination of the statutes’ legislative history
confirms that the Legislature intended that they provide for
vicarious liability.
In 1931, the Legislature enacted the Fire Liability
Law. Section 1 of the law provided that “‘any person who: (1)
personally or through another, and (2) wilfully, negligently, or in
violation of law, commit[ted] any of the following acts: (1) set[]
fire to, (2) allow[ed] fire to be set to, (3) allow[ed] a fire kindled or
attended by [them] to escape to the property, whether privately
or public owned, of another’” was liable for the damage that
ensued. (Howell, supra, 18 Cal.App.5th at p. 177, italics and
alterations omitted.) Section 2 provided that “‘any person’ who
allowed a fire burning on [their] property to escape to another’s
property ‘without exercising due diligence to control such fire’”
was liable for the resulting damage. (Ibid., italics and alterations
omitted.) Section 3 “permitted recovery of the expenses of
fighting such fires ‘by the party, or by the federal, state, county,
or private agency incurring such expenses.’ [Citation.]” (Ibid.)
Twenty-two years later, the Legislature codified the
Fire Liability Law in the Health and Safety Code. (Howell,
supra, 18 Cal.App.5th at p. 177.) Section 1 of the Fire Liability
Law was codified at section 13007. (Ibid.) As codified, section
13007 permitted a property owner to recover from “‘any person
who personally or through another wilfully, negligently, or in
violation of law set[] fire to, allow[ed] fire to be set to, or allow[ed]
a fire kindled or attended by [them] to escape to the [owner’s]
property.’” (Ibid., italics and alterations omitted.) Section 2 was
codified at section 13008. (Ibid.) Section 13008 made liable “‘any
person’ who allowed a fire burning on [their] property to escape to
another’s property ‘without exercising due diligence to control
10
such fire.’ [Citation.]” (Id. at p. 178, alterations omitted.)
Section 3 was codified at section 13009. (Ibid.) Section 13009
permitted the recovery of “‘the expenses of fighting any fires
mentioned in [s]ections 13007 and 13008 against any person
made liable by those sections for damages caused by such fires.’
[Citation.]” (Id. at p. 177, alterations omitted.)
The Legislature amended section 13009 in 1971.
(Howell, supra, 18 Cal.App.5th at p. 178.) This amendment
expanded section 13009 to permit recovery of firefighting
expenses for fires that burned only one’s own property. (Ibid.) It
also deleted section 13009’s references to sections 13007 and
13008. (Ibid.) As amended, section 13009 permitted recovery of
firefighting costs from “‘[a]ny person who negligently, or in
violation of the law, set[] a fire, allow[ed] a fire to be set, or
allow[ed] a fire kindled or attended by [them] to escape onto any
forest, range[,] or nonresidential grass-covered land.’” (Ibid.)
The Legislature added section 13009.1 in 1984 to
permit recovery of fire investigation costs against the same
persons described in the 1971 version of section 13009. (Howell,
supra, 18 Cal.App.5th at p. 178.) Three years later, the
Legislature amended sections 13009 and 13009.1 to extend
liability for fire suppression and investigation costs: Liability
against the persons who set fires, allowed fires to be set, or
allowed fires to escape was recodified at subdivision (a)(1) of the
statutes. Subdivision (a)(2) extended liability to “[a]ny person . . .
other than a mortgagee, who, being in actual possession of a
structure, fails or refuses to correct, within the time allotted for
correction, despite having the right to do so, a fire hazard
prohibited by law, for which a public agency properly has issued a
notice of violation respecting the hazard.” (§§ 13009, subd. (a)(2),
11
13009.1, subd. (a)(2).) Subdivision (a)(3) extended liability to
“[a]ny person . . . including a mortgagee, who, having an
obligation under other provisions of law to correct a fire hazard
prohibited by law, for which a public agency has properly issued a
notice of violation respecting the hazard, fails or refuses to
correct the hazard within the time allotted for correction, despite
having the right to do so.” (§§ 13009, subd. (a)(3), 13009.1, subd.
(a)(3).)
The 1992 and 1994 amendments to section 13009 did
not reincorporate the “personally or through another” language
into the statute. Nor has the language been included in section
13009.1. The “personally or through another” language remains
in section 13007, however, which has not been amended since its
1953 enactment. It remains absent from section 13008, which,
like section 13007, has not been amended since 1953.
The Howell majority determined that “the presence of
the ‘personally or through another’ language in section 13007 and
its absence in sections 13009 and 13009.1 [was] indicative of [the
Legislature’s] intent to preclude application of vicarious liability
concepts in the latter sections.” (Howell, supra, 18 Cal.App.5th
at p. 179, citing Los Angeles County Metropolitan Transportation
Authority v. Alameda Produce Market, LLC (2011) 52 Cal. 4th
1100, 1108 [where statute contains a provision, the omission of
that provision from a statute on a related subject “‘“is significant
to show that a different legislative intent existed with reference
to the different statutes”’”].) But this determination ignores that,
prior to 1971, section 13009 permitted recovery of firefighting
costs from any person liable under either section 13007 or 13008.
Section 13008 did not—and still does not—contain the
“personally or through another” language. Yet that statute’s
12
predecessor—section 2 of the 1931 Fire Liability Law—served as
a basis for imposing vicarious liability in Haverstick.
In Haverstick, supra, 1 Cal.App.2d at pages 609-611,
the court upheld liability imposed on a railroad after its
employees negligently permitted a fire to spread from a railway
car to the plaintiff’s land. The Haverstick court did not state
explicitly that the statutory basis for the railroad’s liability was
section 2 of the Fire Liability Law, but it is apparent from the
facts of the case: There was “[n]o . . . explanation” for how the
fire started on board the train. (Id. at p. 610.) The employees did
not set it, allow it to be set, or kindle it. (See ibid.) Section 1 of
the Fire Liability Law was thus inapplicable. But the employees
did allow the fire to escape from the train car onto the plaintiff’s
land (id. at pp. 607-608), permitting the railroad’s liability under
section 2. That section lacks the “personally or through another”
language of section 1. The railroad’s vicarious liability was thus
necessarily based on the phrase “any person.”
We presume the Legislature was aware of the
Haverstick court’s interpretation of section 2 of the Fire Liability
Law, and that it intended that the same interpretation apply to
the identical language it codified at section 13008. (Moran,
supra, 40 Cal.4th at p. 785.) We see no reason why a different
interpretation should apply to the same language in sections
13009 and 13009.1.
The Legislature’s addition of section 19 in 1939—five
years after the Haverstick decision—reinforces our conclusion.
Pursuant to section 19, the term “person” includes a corporation.
That definition applies throughout the Health and Safety Code.
(§ 5.) Thus, when the Legislature codified section 2 of the Fire
Liability Law at section 13008 in 1953, corporations, by
13
definition, could be liable for fires that escaped onto others’
properties. As it was widely understood that corporations could
act only though their agents and employees (see, e.g., Jeppi v.
Brockman Holding Co. (1949) 34 Cal. 2d 11, 17; Brown v. Central
Pacific R. R. Co. (1885) 68 Cal. 171, 174 (dis. opn. of McKee, J.)),
it was also understood that any corporate liability under section
13008 was vicarious (Haverstick, supra, 1 Cal.App.2d at pp. 607-
611). With its reference to section 13008, section 13009 also
incorporated vicarious liability principles. Nothing in the
legislative history suggests that the Legislature sought to change
that when, in 1971, it deleted section 13009’s reference to section
13008 but continued its use of the phrase “any person.”
Indeed, the 1971 amendment of section 13009 was
wholly unrelated to corporations’ vicarious liability. 3 In 1963, the
court in People v. Williams (1963) 222 Cal. App. 2d 152 held that
state agencies could not, pursuant to section 13009, recover costs
for fighting fires that remained on the properties of those who
started them. (Id. at p. 155.) This “create[d] an inequality in
favor of the very large property owner.” (Dept. of Conservation,
Enrolled Bill Rep. on Assem. Bill No. 1247 prepared for Governor
Reagan (Oct. 1971), p. 1; see also Sen. Com. on Judiciary,
Background Information on Assem. Bill No. 1247, p. 1.) The
Department of Conservation requested that the Legislature
amend section 13009 to remedy this inequality and permit public
agencies to recover fighting fires costs regardless of whether a
fire escaped the property of origin. (Dept. of Conservation,
3 We grant CalFire’s unopposed request to take judicial
notice of the legislative history materials cited herein. (In re J.W.
(2002) 29 Cal. 4th 200, 211-212; see Evid. Code, §§ 452, subd. (c),
459, subd. (a).)
14
Enrolled Bill Rep. on Assem. Bill No. 1247 prepared for Governor
Reagan (Oct. 1971), p. 2.) The Legislature did so by adopting
Assembly Bill No. 1247. (See Stats. 1971, ch. 1202, § 1, p. 2297.)
The bill amended section 13009 to provide that liability could no
longer be imposed “only where the fire damages the property of
another” (Legis. Counsel’s Dig., Assem. Bill No. 1247 (1971 Reg.
Sess.)), a direct response to the Williams decision (see People v.
Southern Pacific Co. (1983) 139 Cal. App. 3d 627, 637).
This legislative history makes clear that the
Legislature adopted Assembly Bill No. 1247 “to address a very
specific problem”: recovery of costs for fighting fires that do not
escape a landowner’s property. (Apple, Inc. v. Superior Court
(2013) 56 Cal. 4th 128, 146-147.) Given this narrow, specific
focus, it is “not surprising” that there was no discussion of
continuing or eliminating vicarious corporate liability under
section 13009. (Id. at p. 147.) The Legislature simply “was not
presented with that issue.” (Ibid.)
Moreover, the legislative history materials show that
the Legislature made no distinction between “persons” subject to
liability under section 13007 and those subject to liability under
section 13008. An analysis of Assembly Bill No. 1247 stated that,
pursuant to the version of section 13009 then in effect, a person
was liable for firefighting costs if they violated either section
13007 or section 13008:
Under existing law, a person is liable for the expense
in fighting a fire if [they do] either of the following:
(a) Willfully, negligently, or in violation of law, sets
fire to, allows fire to be set to, or allows a fire kindled
15
or attended by [them] to escape to, the property of
another.
(b) Allows any fire burning upon [their] property to
escape to the property of another without exercising
due diligence to control the fire.
(Dept. of Conservation, Fire Fighting Expenses Liability,
Analysis of Assem. Bill No. 1247, July 19, 1971, p. 2, italics
added.) The amended version of section 13009 would:
Impose[] liability for such expense upon a person who
negligently, or in violation of the law, does any of the
following:
(1) Sets a fire.
(2) Allows a fire to be set.
(3) Allows a fire kindled or attended by [them] to
escape onto any forest, range, or nonresidential
grass-covered land.
(Id. at p. 1, italics added.)
The Legislature’s consistent use of “a person”—not
qualified by “personally or through another”—when discussing
sections 13007, 13008, and 13009 reinforces our conclusion that it
did not seek to eliminate vicarious liability when it amended
section 13009 in 1971. As the Howell majority recognized (and as
PCCC concedes), section 13007 has always permitted vicarious
16
corporate liability. (Howell, supra, 18 Cal.App.5th at pp. 178-
180.) Why sections 13008 and 13009 would not, despite the
Legislature’s use of the same descriptors, is left unanswered in
Howell. “The Legislature [was] not required to use the same
language to accomplish the same ends.” (Niles Freeman
Equipment v. Joseph (2008) 161 Cal. App. 4th 765, 783.)
Rule against surplusage
PCCC argues that basing its liability for the Sherpa
Fire on sections 13009 and 13009.1 would render the phrase
“personally or through another” surplusage in section 13007.
(See Howell, supra, 18 Cal.App.5th at p. 179, citing Tuolumne
Jobs & Small Business Alliance v. Superior Court (2014) 59
Cal. 4th 1029, 1038 [courts should avoid interpretations that
render provisions superfluous].) That may be true. But “[w]e are
not required to assume that the Legislature [chose] ‘the most
economical means of expression’” when it wrote every statute.
(People v. Martinez (1995) 11 Cal. 4th 434, 449.) Our job is to
determine the Legislature’s intent. (Pacific Palisades, supra, 55
Cal.4th at p. 803.) Where surplus language is absent in one
statute but present in another, we will not ignore that intent
simply so we can give special meaning to the surplus words.
(People v. Cruz (1996) 13 Cal. 4th 764, 782-783.)
Here, both the plain meanings of sections 13009 and
13009.1 and their legislative history show that the Legislature
intended that the statutes provide for vicarious corporate
liability. To conclude that the “personally or through another”
language of section 13007 alone permits such liability would
require us to ignore that intent. We will not subordinate the
Legislature’s intent simply to avoid surplusage in section 13007.
(People v. Townsend (1998) 62 Cal. App. 4th 1390, 1399.)
17
Moreover, as Justice Robie noted, interpreting
“person” in sections 13009 and 13009.1 to prohibit vicarious
corporate liability “would result in corporations . . . never being
held liable for fire suppression costs.” (Howell, supra, 18
Cal.App.5th at p. 206 (dis. opn. of Robie, J.).) In Ventura County,
supra, 85 Cal.App.2d at pages 532-533, the Court of Appeal
determined that an electric utility could be liable for firefighting
costs pursuant to section 3 of the Fire Liability Law based on its
negligent construction and maintenance of power lines, a
violation of the second prong of section 1 of the Fire Liability
Law. The Howell majority distinguished that case because: (1)
liability was imposed under a law that incorporated liability
against a person who acted “personally or through another,” and
(2) the utility was a direct actor. (Howell, at p. 180.)
Corporations are never direct actors. (Snukal, supra,
23 Cal.4th at p. 782.) The electric utility did not negligently
construct and maintain its power lines; its employees did. The
Howell majority’s assertion that sections 13009 and 13009.1
permit corporate liability when corporations are “direct actors” is
a legal impossibility.
PCCC also asserts that interpreting subdivision (a)(1)
of sections 13009 and 13009.1 to permit vicarious corporate
liability would render meaningless subdivisions (a)(2) and (a)(3)
of those statutes because the latter would no longer serve any
purpose. (See Howell, supra, 18 Cal.App.5th at pp. 181-182.) Not
true. Consider a person who received notice of a fire hazard and
had the right or obligation to correct it. Pursuant to subdivisions
(a)(2) and (a)(3), that person could be liable if they did not correct
the hazard and that hazard allowed a fire to grow. (See City of
Los Angeles v. Shpegel-Dimsey, Inc. (1988) 198 Cal. App. 3d 1009,
18
1015-1016, 1019, fn. 2.) But that same person could not be liable
pursuant to subdivision (a)(1) because they did not allow the fire
to be set. (Id. at pp. 1019-1020.) Conversely, if the person did
correct the hazard, yet nevertheless allowed the fire to be set,
they could only be liable pursuant to subdivision (a)(1). The
actions of the person responsible for the fire, not whether that
person can be vicariously liable for it, are what differentiate
subdivisions (a)(1), (a)(2), and (a)(3). Because subdivisions (a)(2)
and (a)(3) provide for liability where none exists under
subdivision (a)(1), they are not meaningless if the latter permits
vicarious liability.
We thus conclude that sections 13009 and 13009.1
include principles of vicarious corporate liability. They expressly
permit the recovery of fire suppression and investigation costs
from a corporation, like PCCC, when one of its agents or
employees “negligently, or in violation of the law, sets a fire,
allows a fire to be set, or allows a fire kindled or attended by
[them] to escape onto any public or private property.” (§§ 13009,
subd. (a)(1), 13009.1, subd. (a)(1).) The trial court correctly
overruled PCCC’s demurrer to CalFire’s complaint. 4
4 Given our conclusion, we need not decide whether the
court successfully distinguished this case from Howell. (See
Gentry v. eBay, Inc. (2002) 99 Cal. App. 4th 816, 824-825
[appellate court will uphold trial court’s ruling on a demurrer if
correct on any legal theory].)
19
DISPOSITION
The order to show cause is discharged. PCCC’s
petition for writ of mandate is denied. CalFire shall recover its
costs in this writ proceeding.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
20
Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Daley & Heft, Lee H. Roistacher, Robert W.
Brockman, Jr,. and Garrett A. Marshall, for Petitioner.
No appearance for Respondent.
Xavier Becerra, Attorney General, Robert W. Bryne,
Assistant Attorney General, Gary E. Tavetian, Ross Hirsch,
Jessica Barclay-Strobel and Caitlan McLoon, Deputy Attorneys
General, for Real Party in Interest.