TIMOTHY O‘SHEA, Plаintiff and Appellant, v. CLAUDE C. WOOD COMPANY, Defendant and Respondent.
Civ. No. 17356
Third Dist.
Oct. 22, 1979.
97 Cal. App. 3d 903
Donald D. Boscoe and Marvin Marks for Plaintiff and Appellant.
Albert E. Cronin, Jr., for Defendant and Respondent.
OPINION
REYNOSO, J.—We are called upon to interpret provisions of
Timothy O‘Shea (plaintiff) appeals from an order granting a summary judgment in favor of Claude C. Wood Company (defendant).
Plaintiff‘s complaint2 for personal injuries alleges that defendant owned a pile of dirt which it had placed upon land belonging to Grupe Development Company (Grupe), with the permission of Westmont Development Company (Westmont), Grupe‘s predecessor in interest. While plaintiff was riding his motorcycle across the land he drove off a “blind sheer end” of the pile of dirt and sustained severe bodily injuries. Defendant, according to the complaint, negligently and carelessly maintained the pile of dirt so that a dangerous condition was created to those who used the land.
In support of the motion for summary judgment defendant submitted two declarations by H. E. Baker, a vice president of the Claude C. Wood Company. Baker declared that defendant and Westmont had entered into an agreement whereby defendant agreed to remove dirt from property which Westmont was developing. As part of thе agreement defendant was to have exclusive possession of sufficient property in the tract in which to
In fact, by the written agreement defendant agreed to remove dirt from the “Beckman” property, where ponding basins were being excavated, and to pay a royalty per cubic yard of material removed. Westmont agreed tо provide a temporary stockpile area on the property adjacent to the ponding area for excess dirt if defendant was not able to dispose of all of the dirt. Westmont agreed to provide routes for the necessary hauling. Defendant, in turn, agreed to hold Westmont harmless from any actions arising out of the transaction.
At the hearing on the motion for summary judgment counsel stipulated thаt the complaint be amended to state that defendant willfully and maliciously failed to guard or warn against a dangerous condition on the property. The court, in granting the motion for summary judgment, found that defendant was an owner of an estate in real property within the meaning of
1. An Estate in Real Property—Civil Code Section 846
Since it was enacted in 1963, the courts have had occasion to consider
The parties agree, as do we, that
The test in determining whether an agreement for the use of land is a lease or a license is this. If the contract gives exclusive possession of the premises against all the world, including the owner, it is a lease. If it merely confers a privilege to occupy under the owner it is a license. We deаl with a question of law arising from the construction of the instrument. (Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 429 [150 P.2d 278].) “‘A tenancy involves an interest in the land passed to the tenant and a possession exclusive even of the landlord except as the lease permits his entry, and saving always the landlord‘s right to enter to demand rent or to make repairs. A mere permission to use land, dominion over it remaining in the owner and no interest in or exclusive possession of it being given, is but a license. . . . Such a person has not the possession of the land, this remaining in the licensor, and he has not, it seems, any interest in the land which he can assert as against a third person, that is, he has no rights in rem.‘” (Nahas v. Local 905, Retail Clerks Assn. (1956) 144 Cal.App.2d 808, 820-821 [301 P.2d 932, 302 P.2d 829], quoting 1 Tiffany on Real Property (3d ed.) § 79, p. 117.)
The written agreement we consider was insufficient to establish a tenancy rather than a license. No particular legal terminology is required in the making of a lease, but it is essential that the instrument show an intention to establish the relationship of landlord and tenant. (Beckett v. City of Paris Dry Goods Co. (1939) 14 Cal.2d 633, 636 [96 P.2d 122].) A lease must include a definite description of the property leased
The agreement provides only for temporary stockpiling of the dirt defendant was to remove from Westmont‘s property. While a tenancy at will may be created without the reservation of rent, the absence of a prоvision for rent in the agreement tends to support plaintiff‘s contention that the use of the property by defendant was under a license and not under a tenancy. We must also consider that the specific area in which the dirt was to be stored is not specified in the agreement. Nor does the agreement purport to give defendant exclusive possession of the property. Further, the agreement does not indicate the intention to establish the relationship of landlord and tenant between defendant and Westmont. Quite to the contrary, the agreement provides that Westmont will furnish a temporary stockpile area only in the event defendant was unable to dispose of the dirt on removal from Westmont‘s adjacent property. The agreement expressly declares that “It is the intent of Claude C. Wood Co. to excavate and remove the dirt from the property at the earliest possible date.” The agreement indicates only an accommodation by Westmont in return for having defendant remove the dirt from the adjacent property which Westmont was in the process of developing. A license, not a leasehold interest, was thereby created.
2. Right of Possession as Against Plaintiff and Third Parties.
The applicability of
Section 846 was enacted against the background of the common law of tort liability. At the time it was enacted, the courts were placing increased
A possessor of land is one who is in occupation of the land with the intent to control it. (Rest.2d Torts, § 328E.) The limitation of liability provided to possessors of land under common law principles was not limited to the holder of legal title, but depended on the possessor‘s right to the property as compared with the injured party‘s right. Thus, the California Supreme Court, quoting from 45 Corpus Juris, at page 786, stated: “‘But ownership of the property trespassed upon is not an absolute test, for the rule of nonliability may be successfully invoked by one who, although not the owner of the property on which the injury occurred, had rights therein superior to those of the trespasser who was injured. . .‘” (Hamakawa v. Crescent Wharf etc. Co. (1935) 4 Cal.2d 499, 503-504 [50 P.2d 803]; see also Palmquist v. Mercer (1954) 43 Cal.2d 92, 101 [272 P.2d 26].)
We believe that in enacting
Defendant, however, has failed to establish its right to possession against third persons. The trial court erred in determining that defendant was entitled to the protection of
3. Willful or Malicious Failure to Guard or Warn
In ruling on the motion for summary judgment, the trial court stated that based upon the declaration filed by defendant there was no factual basis upon which a finding of willful or malicious failure to guard or warn against a dangerous condition could be supported. Under
Plaintiff concedes that if defendant is entitled to rely upon
Willful misconduct or malice are not to be presumed. Baker‘s declaration that defendant did not know that рlaintiff was using the property and that defendant did not willfully or maliciously fail to guard or warn plaintiff of danger was sufficient to negate willful or malicious conduct. In order for plaintiff to defeat the summary judgment motion it was necessary that he show only that there is some evidence which tends to show willful or malicious conduct. Plaintiff failed to make such a showing. On remand the trial court may properly enter an order that thеre is no substantial controversy on that issue, i.e., partial summary judgment.
The order of the San Joaquin County Superior Court granting summary judgment in favor of Claude C. Wood Company is reversed and the cause is remanded for further proceedings consistent with this opinion.3
Paras, Acting P. J., concurred.
PARAS, Acting P. J., Concurring.—I have joined in the lead opinion and in its reasoning, but wish to point out a supplemental matter in connection with the comments contained in the last paragraph of section 2 thereof.
Two motions for summary judgment were filed concurrently, one by defendant Grupe Development Company (Grupe) and the second by defendant Claude C. Wood Company (Wood). Both were heard and granted at the same time. Grupe was the owner of the property, having purchased it from Westmont Development Company sometime after the agreement wаs made for the property‘s use by Wood. The Grupe motion was supported by two declarations of Douglas Unruh, a company officer, in which he expressly states that no permission was given to plaintiff to enter the property, and Grupe knew of no dangerous condition of the
The Wood motion states that it is based upon its own points and authorities as well as the points and authorities offered in support of the Grupe motion. But it does not state that it is based upon the declarations which support the Grupe motion, and thus does not establish the exclusiveness of Wood‘s possession as against plaintiff. If the Unruh declarations had been incorporated (assuming no factual contradiction), that exclusiveness would have been established, for Unruh clearly states that Grupe gave no рermission to plaintiff to be on the property, or to any third person except Wood; since Wood also negates any such permission to plaintiff, the declarations of both, considered together, establish that Wood‘s right to occupy was exclusive as against plaintiff who had no such right at all.
I point out the foregoing in order perhaps to shorten these proceedings, if the totality of the facts is indeed as contained in the referenced declarations. Obviously a further motion for summary judgment by Wood containing the missing information, unopposed (like the one before us) by contradictory factual matter, will result in a resolution of the case without trial.
EVANS, J., Concurring and Dissenting.—I concur in the result and agree that a question of fact exists as to the nature of the contract between defendants, Claude C. Wоod Company and Grupe Development Company. The facts presented do not indicate what possessory rights defendant Wood had.
I dissent from that portion of the opinion that holds a licensee entitled to possession of land upon which an accident involving injury results is not entitled to the protection of
A petition for a rehearing was denied November 20, 1979. Evans, J., was of the opinion that the petition should be granted.
Notes
“A ‘recreational purpose,’ as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, winter
sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientifiс sites.“An owner of any estate in real property who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) 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, оr (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.
“This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for 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; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
“Nothing in this section creates a duty of cаre or ground of liability for injury to person or property.”