Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Orange County, Super. Ct. Nos. 05CC11646, 06CC06705, 06CC06992 Kazuharu Makino, Judge.
Wildish & Nialis, Mark A. Nialis, N. Ramsey Barcik and Michael F. Fagiani for Plaintiffs and Appellants.
Willis Depasquale, Larry N. Willis and Stephanie N. Rachel for Defendant and Respondent N.R.L.L., Inc.
Law Offices of Robert A. Walker and Robert A. Walker for Defendants and Respondents Silverado Canyon Limited Partnership, Linda Fulton and Wayne Fulton.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiffs Sam and Chris Stoughton sued defendants N.R.L.L., Inc., Silverado Canyon Limited Partnership, and the latter entity’s general partners, Linda and Wayne Fulton, seeking damages from a rock slide that demolished plaintiffs’ home. At the completion of plaintiffs’ case-in-chief, the trial court entered judgments of nonsuit for the defendants, finding they did not owe a duty of care to plaintiffs. We conclude the trial court properly ruled for defendants on that issue, the applicability of Orange County Ordinance section 7-1-812, and in its rulings on defendant N.R.L.L., Inc’s pretrial motions in limine that are challenged by plaintiffs.
FACTS
In 1977, plaintiffs purchased a lot in Silverado Canyon on which they built a residence. The property is located at the base of a mountain slope averaging 41 degrees that rises 900 to 1, 000 feet in height. Defendants subsequently purchased undeveloped parcels upslope from plaintiffs’ property.
The slope contains chaparral vegetation and numerous outcrops of shale and ancient sandstone rock. Evidence was introduced that the canyon had experienced rock slides and debris flows resulting in loss of life and property damage at least as far back as 1969. Signs along the road leading into the canyon and markings on the road itself warn it is an area prone to slides.
A rock slide in March 2001 damaged plaintiffs’ home. Because of this incident, Orange County’s planning and development services department forced plaintiffs to vacate their residence for several days until private contractors surveyed the slope and removed rocks believed to pose an immediate threat. Plaintiffs were allowed to reoccupy the residence and make repairs to it.
On February 20, 2005, another rock slide occurred severely damaging both plaintiffs’ residence and that of their neighbors, Jennifer Oto and Stephen Carter. This slide rendered plaintiffs’ residence uninhabitable.
The county hired Goffman McCormick & Urban (GMU), a geotechnical firm, to assess the slope and to provide recommendations on how to mitigate any potential rock slide hazard. Alan Mutchnick, an engineering geologist with the firm, led the assessment team. GMU prepared a report identifying two areas on the slope believed to be the source of the February 20, 2005 rock slide. One of the areas identified by GMU as a rock slide source was on Silverado Canyon Limited Partnership’s parcel while the second possible source was on a parcel purchased by N.R.L.L., Inc. in June 2001.
Mutchnick testified his company obtained “some cost estimates” to install netting over three outcrops and to build a debris fence at the bottom of the slope. The cost for installing the netting alone ranged between $200,000 and $300,000. He acknowledged the estimates were “rough numbers” and “the cost could double.” Two months later, the county sent a copy of GMU’s report along with a cover letter to plaintiffs, N.R.L.L., Inc., and three other canyon residents. In part, the letter informed the recipients “[t]he [GMU] report identifies certain geologic conditions that have been determined to be hazardous. The [c]ounty is... notifying you as one of several owners of property affected by a hazardous geologic condition as identified in the report.”
In July, the county sent plaintiffs a letter entitled “Notice of Defects – Unsafe Dwellings and Premises.” (Some capitalization omitted.) The letter informed plaintiffs of the steps they would need to take before they could reoccupy the residence. In part, it required plaintiffs to “retain licensed geotechnical consultants... to evaluate the rock fall hazards... and provide suitable corrective measures.” Plaintiffs never attempted to make the repairs or reoccupy the home.
Plaintiffs and their neighbors sued several parties, including defendants. The third amended complaint sought recovery of damages and included causes of action for trespass, private nuisance, premises liability, and negligence. It alleged defendants failed to properly inspect, maintain, control or manage their parcels and, as a result, on February 20, 2005 “large boulders fell and caused destruction” of their home.
The neighbors settled but plaintiffs eventually proceeded to a jury trial against N.R.L.L., Inc., Silverado Canyon Limited Partnership, and the latter entity’s general partners. Several expert witnesses testified about the nature and cost of mitigation measures to reduce the potential for future rock slides.
Scott Johnson, an engineering geologist with a firm originally retained by N.R.L.L., Inc., inspected the slope and prepared a “conceptual plan” for mitigating rock slide damage. The plan consisted of four scenarios that varied depending on whether the mitigation measures were installed on both defendants’ parcels (scenarios 1A & 2A) or just N.R.L.L., Inc’s property (scenarios 1B & 2B), and whether the measures were intended to protect only the lots damaged in the February 2005 slide (scenarios 1A & 1B) or also help protect up to six other homes and structures at the bottom of the slope (scenarios 2A & 2B). Each scenario involved removing vegetation, drilling anchors into the rock and installing high strength netting over the upper slope, drape mesh on a lower portion of the lower slope, and a rock barrier fence at its base.
Johnson said his plan was “very preliminary, ” based on “limited information, ” and development of a final plan would entail “quite a lot of additional work.” He explained a final plan would require preparing a topographical map of the slope, a computer simulation of rock fall events, and engineering plans modeling the impact loads the barriers would need to withstand. Describing “[t]he slope [as] quite high, ... quite steep, [and] a very dangerous area, ” he also acknowledged installing the barriers would present a “challenging construction project, ” requiring “bring[ing] specialized drilling equipment onto the side of that steep slope, ” plus the implementation of an ongoing maintenance program to remove the accumulation of rocks and to ensure the anchor bolts did not become loose. He agreed the engineering necessary to declare “with certainty” whether the plan would work had not yet been performed.
Johnson also prepared a table of the quantity of material that would be necessary for each scenario of his proposal and supplied it to Ken Deppe, an engineering contractor and owner of a business named Hillside Repair and Drilling. Deppe prepared cost estimates of $4,654,900 for scenario 1A, $4,463,442 for scenario 1B, $10,900,132.75 for scenario 2A, and $9,320,420 for scenario 2B. The estimates included the cost of mobilizing the necessary equipment, establishing a staging area near the work site for a 5-month period, use of a helicopter for 10 days, plus temporary local housing. He described the number as “preliminary” and testified “[i]t would be a very difficult project to pull off.”
Plaintiffs also called David Lee, a geotechnical engineer retained to review Johnson’s plans. Lee opined each of the conceptual plan’s scenarios could be put into effect and would substantially or significantly reduce the risk of rock slides from the slope. Reviewing Deppe’s cost estimates, Lee testified the amounts of some items were a little high, but he agreed the cost estimates were not unreasonable. Lee also sought other bids for rock slide mitigation. One company, Hi-Tech Rockfall Construction, Inc., sent three bids, one for $7,054,300 to drape a 10-acre parcel, and construct a temporary rock fall barrier, plus two alternative proposals costing between $3,512,500 and $2,232,500 to drape up to 16 boulder areas and construct a 16-foot high barrier at the base of the slope. Lee received a second bid from a company named Drill Tech to install a rock fall restraint system for an estimated cost of between $3.5 and $5.5 million.
Lee admitted he had not evaluated the slope’s stability, nor prepared his own mitigation plan for the slope. He agreed GMU’s initial proposal of netting only two rock outcrops would not satisfactorily mitigate the slope’s rock slide risk. He further agreed the rock slide hazard had existed for over a century, if not for the past 1, 000 years.
At the completion of plaintiffs’ case-in-chief, both defendants moved for nonsuit on three grounds, lack of duty, statute of limitations, and no proof of an act or omission by defendants. The trial court granted the motions on the issue of duty alone.
The court cited “the basic factors of... the location of the property, the likelihood of harm, the probable seriousness of the harm, whether defendant[s] knew or should have known of the condition that created the risk[, ] the difficulty of protecting against the risk, [and] the extent of defendants[’] control over the condition that created the risk of harm....” It noted that, after the 2001 incident “none of the[] propert[y owners]... d[id] anything to reduce the risk of damage from a rock slide” because “it would just change the whole nature of the area. The whole point of why people live there is for the natural surroundings, no structures... that interfere[] with the nature of the surroundings.” The court also cited the burden imposed on defendants “to abate the risk, ” including the difficulty of implementing mitigation measures, the “exorbitant” cost of doing so, again acknowledging it would change the “inherent nature” of the “mountainside, ” plus the fact that removing vegetation to implement such a project could “create[ a] whole new risk” of “run-off.”
DISCUSSION
1. Standard of Review
Code of Civil Procedure section 581c, subdivision (a) allows a defendant to make a motion for nonsuit in a jury trial after the plaintiff completes the presentation of his or her case. “A motion for nonsuit is tantamount to a demurrer to the evidence and presents a question of law: whether the evidence offered in support of the plaintiffs’ case could justify a judgment in the plaintiffs’ favor. [Citation.]” (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 98.)
“On review of a judgment of nonsuit, ... we must view the facts in the light most favorable to the plaintiff. ‘[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant’s motion for nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s favor. [Citations.] [¶] In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor....”’ [Citation.]” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215; see also O’Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 733.)
“Since motions for a nonsuit raise issues of law, the granting of a nonsuit is reviewed de novo on appeal, using the same standard as the trial court. [Citation.]” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458; see also Castaneda v. Olsher, supra, 41 Cal.4th at 1215.) Furthermore, in this case the trial court granted defendants’ nonsuit motions on the ground they did not owe a duty of care to plaintiffs, and “[t]he existence of a duty is a question of law for the court. [Citations.]” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.)
2. Background
Duty has been defined as “‘an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ [Citation.]” (Dillon v. Legg (1968) 68 Cal.2d 728, 734; see also Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279.)
Civil Code section 1714, subdivision (a) declares, “Everyone 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 management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself....” In Rowland v. Christian (1968) 69 Cal.2d 108, the California Supreme Court held “[t]he proper test to be applied to the liability of the possessor of land in accordance with section 1714... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others....” (Id. at p. 119.)
In so doing, Rowland declared “in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714..., no such exception should be made unless clearly supported by public policy. [Citations.]” (Rowland v. Christian, supra, 69 Cal.2d at p. 112.) Rowland further noted “[a] departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]” (Id. at pp. 112-113.)
In Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, the Supreme Court extended Rowland’s holding to reject the distinction drawn by the common law between natural and artificial conditions in determining a land possessor’s liability for injuries to persons outside of the property. “[A]fter Rowland, the duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises. [Citations.]” (Id. at p. 368.) Thus, “[t]he question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.” (Id. at p. 372, fn. omitted.)
Sprecher involved a negligence action. In Lussier v. San Lorenzo Valley Water Dist., supra, 206 Cal.App.3d 92, the appellate court extended Sprecher’s holding to actions for nuisance and trespass against an adjoining land owner for damaged allegedly caused by a natural condition of the property. “[W]here one’s negligence concerning a natural condition of his land injuriously invades another’s right to the use and enjoyment of his property, nuisance liability may arise” (id. at p. 101), and concluded, while “it may appear that our analysis blurs the distinction between negligence and nuisance and contradicts the often-stated proposition that one may be liable for a nuisance even in the absence of negligence[, ]... upon closer inspection, what emerges clearly is but confirmation of a long recognized fact: under certain circumstances, the worlds of nuisance and negligence overlap and the two become merely alternative legal theories for redressing what is really the invasion of a single primary right: the right to the undisturbed enjoyment of one’s property and land [citation]” (id. at pp. 103-104). The Lussier court also applied this analysis to a trespass cause of action. (Id. at p. 107.)
3. The Existence of a Duty of Care
Plaintiffs contend that, in ruling for defendants, the trial court committed several legal errors, all regarding its conclusion defendants did not owe them a duty of care. We find all of plaintiffs’ claims lack merit.
While Sprecher v. Adamson Companies, supra, 30 Cal.3d 358 held a landowner is no longer completely immune for injury to others caused by a natural condition of the property, there is a dearth of case authority applying this rule. Sprecher involved a summary judgment entered for the defendant for damages resulting from a landslide. After rejecting the common law rule of no duty for injury caused by a natural condition, the Supreme Court reversed, concluding the evidence presented by the parties supported “a rational inference... that effective measures for the control of the slide were within respondents’ reach[, ] and [while] such measures would have entailed a substantial expense, ... the evidence does not conclusively establish that no rational inference of negligence can be drawn under the circumstances of this case.” (Id. at p. 373.) The only other relevant case, Lussier v. San Lorenzo Valley Water Dist., supra, 206 Cal.App.3d 92, involved a judgment of nonsuit on the plaintiff’s nuisance, and trespass causes of action and a negligence claim rejected by a jury. Declaring Sprecher’s holding applied to nuisance and trespass claims, the appellate court affirmed because “the District’s liability for [these causes of action] could only have arisen from its alleged negligence, and since the jury found that the District was not negligent, any error in granting nonsuit... was harmless. [Citations.]” (Id. at pp. 106-107.)
As noted, Rowland v. Christian, supra, 69 Cal.2d 108 listed several factors for a court to consider in deciding whether a defendant owes a duty of care. (Id. at pp. 112-113.) Sprecher mentioned additional relevant factors, including “[t]he likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.” (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 372, fn. omitted.)
Cases have recognized the first Rowland factor, foreseeability of harm, is a primary consideration in establishing the existence of a duty of care. (Dillon v. Legg, supra, 68 Cal.2d at p. 739; Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6; Ludwig v. City of San Diego (1998) 65 Cal.App.4th 1105, 1112.) While, at trial, all parties denied any awareness of the potential for rock slides in Silverado Canyon, the mere topography of the area and the road signs erected by the county reflect the potential for injury, death, and property damage from such an event was clearly foreseeable to anyone entering the canyon. Nor was there any dispute that plaintiffs suffered injury from rock slides originating on defendants’ property. But, in the context of determining the existence of a duty of care, foreseeability means “‘whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed....’” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 476, quoting Ballard v. Uribe, supra, 41 Cal.3d at pp. 572-573, fn. 6.)
Here, the alleged negligent conduct involved defendants’ failure to take steps to limit naturally occurring rock slides from causing injury and damage on down slope parcels. Case law involving a landowner’s duty to others in different contexts have declared “[t]he duty analysis... requires the court in each case (whether trial or appellate) to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. ‘Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed....’ [Citation.]” (Castaneda v. Olsher, supra, 41 Cal.4th at pp. 1214, 1216 [landlord no duty to refuse to rent to gang members]; see also Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1460 [landowner no duty to install intersection warning signs on private road].) While there was some conflict in the testimony concerning the ability to construct the proposed mitigation measures and their effectiveness, plaintiffs presented expert testimony supporting a finding the measures could be implemented and would be effective.
But even though the evidence, viewed most favorably towards plaintiffs, reflects it was possible to install netting along the slope’s rock outcrops and barriers at the base of slope that would have significantly mitigated the potential for injury or damage resulting from a rock fall, the expense, both financially and socially, of doing so was enormous. The most cost effective proposal presented at trial involved netting only the outcrops believed to be the source of the February 2005 event and installing a barrier at the base of the slope. The cited expense of $200,000 to $300,000 for the netting alone, was a very preliminary estimate. Plaintiffs’ own expert agreed a plan of this scope would not reasonably mitigate the potential hazard.
The remaining mitigation proposals, each of which again involved only preliminary plans, were estimated to cost between $2.2 million and nearly $11 million for installation alone. No showing was made any of these plans had advanced beyond the initial planning stage. Nor did estimated costs include maintenance of the mitigation measures.
Plaintiffs note the trial court cited the appraised value of their home before the February 2005 rock slide and found “you cannot reasonably expect anyone to do something.” The value of plaintiffs’ parcel was not an appropriate measure of defendants’ duty of care. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1222 [in nuisance action “considering the relative benefits and burdens of remediation... must be between the costs of remediation and the actual detriment to the plaintiff from a failure to remediate”].) Nonetheless, “the location of the land, ... the possessor’s degree of control over the risk-creating condition, ” plus “the burden of reducing or avoiding the risk” (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 372) are relevant and appropriate factors to consider in determining the scope of defendants’ duty for a hazard created by a natural condition and, as the trial court also noted, “the cost” of each of the proposed mitigation measures alone was “just exorbitant.” (See Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103 [in nuisance action “‘abatable’ means that the nuisance can be remedied at a reasonable cost by reasonable means”].)
The implementation of these proposals would also seriously disrupt the canyon residents’ lifestyle during the months of construction and dramatically alter the nature of the landscape in the canyon. Each involved removing a large amount of the natural vegetation, installing netting over several acres of the slope behind plaintiffs’ home, plus construction of 16-foot or higher barriers at the base of the slope. Even plaintiffs acknowledged they did not take the limited step of installing bars on the rear windows of their house after the 2001 rock fall because “we wanted to preserve the view.” Furthermore, the proposed measures would, at best, provide some protection for only eight improved parcels at the base of the slope. (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1214 [a “‘court must analyze how financially and socially burdensome the[] proposed measures would be’”].)
Plaintiffs argue the trial court erroneously employed an assumption of the risk analysis when it noted they had chosen to live in the canyon with knowledge of the potential for rock slides. First, the record does not support this argument. The court acknowledged “plaintiffs know much better than the defendants of the nature of the conditions and the lack of safety or the risk in living in those conditions, ” but concluded their knowledge was “more in the nature of a defense, not a duty on the part of the defendants.” Second, under Rowland a court may consider “the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care....” (Rowland v. Christian, supra, 69 Cal.2d at p. 113.) Here, it was appropriate to consider the propriety of imposing on an upslope landowner the costly burden of constructing and maintaining rock slide mitigation measures solely to protect a down slope landowner against the dangers of a clearly obvious natural condition that existed when the latter party acquired and improved its parcel.
Plaintiffs next claim the trial court erroneously held no duty would exist unless the proposed mitigation measures were absolutely effective. Again, the record does not support their argument. While plaintiffs did present evidence the more costly mitigation proposals could significantly reduce the rock fall risk, the court recognized the cost of these proposals were exorbitant and would have so changed the nature of the area as to destroy the reason why people chose to move in the canyon. As noted, factors such as “the consequence to the community of imposing a duty” (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 371), “the burden of reducing or avoiding risk, [and] the location of the land” (id. at p. 372) are appropriate factors to consider in determining a landowner’s duty for injury resulting from a natural condition of the property.
Plaintiffs’ reliance on Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583 is unavailing. It involved an agricultural concern’s action for trespass against an energy company that conducted oil drilling operations on a neighboring parcel which resulted in the migration of wastewater into the aquifer under plaintiff’s land. The issues addressed were the applicable statute of limitations and calculation of damages, not whether the energy company owed the agricultural concern a duty of care. A case is not authority for a point not considered and decided by it. (Fairchild v. Adams (1957) 170 Cal.App.2d 10, 14.)
Applying the principles set forth in Rowland v. Christian, supra, 69 Cal.2d 108 and Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, we conclude the trial court properly held defendants did not owe plaintiffs a duty under Civil Code section 1714 or the common law to implement the proposed mitigation measures for the naturally occurring rock slide hazards existing on their property.
4. Orange County Ordinance Section 7-1-812
Arguing Orange County Ordinance section 7-1-812 “was designed to protect persons in the same group or class, ” plaintiffs alternatively claim it created an “express duty of care” that defendants “breached... by failing to mitigate... the rock fall hazard” after being notified of it by the county in May 2005. This argument lacks merit as well.
Section 7-1-812 defines a “[h]azardous condition.” Its definition includes “any... natural slopes” that exist on private property” which are “a menace to life or limb, or a danger to public safety” or “endanger[] or adversely affect[] the safety, usability or stability of adjacent property....” (Orange County Ord., § 7-1-812, subd. (a).) The ordinance allows building officials to examine property conditions (Orange County Ord., § 7-1-812, subd. (b)) and issue a notice of hazardous condition to “owners of the property affected by the hazardous condition, ... of [such required] corrective work” (Orange County Ord., § 7-1-812, subd. (c)). It also authorizes hearing procedures to determine the existence of the condition and to order any necessary corrective work, and permits the county to issue notices requiring vacation of the premises. (Orange County Ord., § 7-1-812, subds. (b)-(i).) The ordinance further provides the county may order corrective action if an owner fails or refuses to comply. (Orange County Ord., § 7-1-812, subds. (g) & (h).)
Plaintiffs cite no legal authority to support their claim this ordinance creates “an express duty of care.” It appears they are attempting to rely on a negligence per se theory. (Evid. Code, § 669.) But “[t]he presumption of negligence created by Evidence Code section 669 concerns the standard of care, rather than the duty of care. [Citation.]” (Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 430.) “[T]he doctrine of negligence per se does not establish tort liability, ” but “merely codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation. [Citation.] Even if the four requirements of Evidence Code section 669, subdivision (a), are satisfied, this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action. [Citations.] [¶] Accordingly, to apply negligence per se is not to state an independent cause of action.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286.)
Furthermore, plaintiffs fail to show defendants breached the county ordinance. Although county officials sent a notice of hazardous condition to plaintiffs and N.R.L.L., Inc., there was no issuance of a notice to either defendant ordering them to take corrective action on their Silverado Canyon parcels. Only plaintiffs received a notice of defect requiring corrective action. We find no merit in plaintiffs’ reliance on the county ordinance.
5. The Motions in Limine Rulings
Before trial, the court ruled on the numerous motions in limine filed by the parties. N.R.L.L., Inc.’s motions included requests to exclude evidence of: (1) Prior attempted sales, including rescinded sales of its two upslope parcels (No. 9); (2) photographs relating to the death and memorial of Jennifer Oto’s daughter, Caitlin Oto, and the damage caused to the Oto/Carter’s residence (No. 16); and (3) the damages sustained by Jennifer Oto and Stephen Carter, including the wrongful death claim for Caitlin Oto (No. 22).
On motion No. 9, the court limited plaintiffs to introducing prior attempted sales where a prospective buyer chose not to purchase because of the potential for a rock slide hazard. But it ruled “we’re not going to go through... people contracted to buy this, ... people backed out, isn’t that suspicious, what do you think is the reason why” evidence. On the latter two motions (Nos. 16 & 22), the court ruled plaintiffs could present photographs and testimony concerning the physical damage caused to the Oto/Carter property, but excluded any reference to Caitlin Oto’s death.
Appellate review of motion in limine rulings as to particular items of evidence is governed by an abuse of discretion standard. (Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 338.) Here, no abuse of discretion has been shown.
On motion No. 9, plaintiffs claim the court erroneously “excluded evidence of the transactions... through which... [N.R.L.L., Inc.] gained actual or constructive knowledge of the hazards existing on their property.” This argument misstates the record. The trial court expressly ruled plaintiffs could present evidence of “people who... were going to buy and then... said... we’re not buying it because it looks like those rocks are going to fall....” It simply excluded prior attempted sales where the reason for a prospective buyer’s decision not to proceed was either unknown or for a reason other than the potential rock fall hazard.
The exclusion of evidence concerning Caitlin Oto’s death was based on Evidence Code section 352. Again, no abuse has been shown in the court’s finding the prejudice arising from evidence of her death outweighed its relevance. The issue on appeal is whether defendants owed plaintiffs a duty of care concerning the rock slide hazard from their upslope parcels. Photographs and testimony concerning the size of the boulders that crashed into plaintiffs’ home and Oto/Carter’s residence and the significant property damage they caused sufficed to show the foreseeability that serious injury or death could also result from such an event.
We conclude the trial court properly ruled on all three in limine motions.
DISPOSITION
The judgments are affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: MOORE, J. FYBEL, J.