1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 UNITED STATES OF AMERICA, No. 2:21-cv-02391 WBS DMC 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE:

DEFENDANTS’ MOTION FOR

15 MARBLE MOUNTAIN RANCH, INC.; SUMMARY JUDGMENT

DOUGLAS T. COLE; HEIDI A. COLE;

16 NORMAN D. COLE; and CAROLYN T.

COLE,

17 Defendants. 18

19 ----oo0oo---- 20 Plaintiff United States of America brought this action 21 against defendants Marble Mountain Ranch, Inc., Douglas Cole, 22 Heidi Cole, Norman Cole, and Carolyn Cole, alleging common law 23 negligence and trespass by fire and seeking damages, interest, 24 and penalties. (Compl. (Docket No. 1).) Individual defendants 25 Norman Cole and Carolyn Cole now move for summary judgment on the 26 negligence claim. (Docket No. 21.)1 27

28 1 The instant motion initially sought summary judgment as 1 I. Factual Background 2 Marble Mountain Ranch, Inc. operates a guest ranch in 3 Somes Bar, Siskiyou County, California. (Defs.’ Statement of 4 Undisputed Facts (“SUF”) (Docket No. 21-2) ¶ 3.) Douglas and 5 Heidi Cole are the sole shareholders of Marble Mountain Ranch, 6 Inc. (Id. ¶ 4.) The ranch operates on a parcel of land owned in 7 joint tenancy by the four individual defendants: Douglas Cole and 8 Heidi Cole (the owners of Marble Mountain Ranch, Inc.), and 9 Norman Cole and Carolyn Cole (Douglas Cole’s parents). (Id. ¶ 10 5.) Norman and Carolyn Cole entered into an agreement with 11 Douglas and Heidi Cole, allowing them to live and operate the 12 ranch on the property. (Pl.’s Statement of Disputed Facts 13 (“SDF”) ¶¶ 6, 11.) Norman and Carolyn Cole have never collected 14 any rent or income from the business, nor do they have 15 involvement in the day-to-day operations of the ranch. (See SUF 16 ¶¶ 6, 8, 10-11; SDF ¶¶ 3, 6, 8, 10.) They have not visited the 17 property since years prior to the Marble Fire, which allegedly 18 ignited due to negligent burning of a debris pile on the property 19 and burned land belonging to the United States. (SUF ¶¶ 1, 2, 20 11.) 21 II. Discussion 22 The United States argues that Norman and Carolyn Cole 23 can be held directly liable for negligence because they were 24 “aware of their son and daughter-in-law’s stewardship of the 25 property and operation of a guest ranch on the property,” and 26 to all four individual defendants. However, defendants’ reply 27 withdrew the motion as to Douglas and Heidi Cole because “there are triable issues of material fact regarding [their] personal 28 involvement.” (Reply (Docket No. 24) at 2.) 1 received mortgages on the property, the proceeds of which were 2 given to Douglas and Heidi Cole for improvements to the property. 3 (See Opp’n at 6; SDF ¶¶ 8, 10.) 4 The United States also points to an alleged telephone 5 call between the Assistant United States Attorney handling this 6 case and Carolyn Cole (which occurred prior to Carolyn Cole 7 obtaining representation) in which Carolyn Cole allegedly 8 “described defensive burning at the Marble Mountain Ranch and 9 denied that the Marble Fire was caused by an escaped burn pile.” 10 (Decl. of Emilia P. E. Morris (Docket No. 22-1) ¶ 2.)2 At 11 deposition, Carolyn Cole stated that she did not remember this 12 conversation. (Excerpt of Dep. of Carolyn Cole (Docket No. 24-3) 13 at 5-6.) In briefing and at oral argument, plaintiff’s counsel 14 argued that this alleged call provides evidence of Carolyn Cole’s 15 general knowledge of burning practices at the ranch. 16 The evidence presented by the United States in 17 opposition to defendants’ motion fails to establish that Norman 18 and Carolyn Cole had sufficient knowledge of or control over the 19 allegedly negligent burning activities at issue to be held 20 directly liable for the damages caused by the fire. Mere 21 ownership of the land, co-signing for mortgages, and general 22 knowledge of the ranch’s burning practices are not enough. See 23

24 2 Plaintiff objects to this evidence on the ground that the Rules of Professional Conduct prevent counsel from 25 testifying. Under California Rule of Professional Conduct 3.7(a), a lawyer may act as both an advocate and a witness with 26 their client’s informed written consent. The court need not rule 27 upon this objection, although counsel now acknowledges that the better procedure would have been to have an investigator talk to 28 a potential defendant. 1 Thompson v. United States, 592 F.2d 1104, 1109 (9th Cir. 1979) 2 (California state law does not “extend[] liability or potential 3 liability to a landowner for dangerous conditions on his land 4 created by the lessee after the lessee took possession, unless 5 the landowner had knowledge of the danger or participated in some 6 way in creating it”); Alcaraz v. Vece, 14 Cal. 4th 1149, 1160 7 (Cal. 1997) (“Whoever controls the land is responsible for its 8 safety. That is why it is normally the tenant rather than the 9 landlord who is liable to anyone injured as a result of a 10 dangerous condition on leased land and why this field of tort law 11 is more accurately described as land occupiers’ and possessors’ 12 liability than as landowners’ liability.”). 13 The United States alternatively argues that Norman and 14 Carolyn Cole, as landlords, can be held vicariously liable for 15 the negligence of their tenant based on violation of California 16 Health and Safety Code § 13007, which provides that any “person 17 who personally or through another wilfully, negligently, or in 18 violation of law, sets fire to, allows fire to be set to, or 19 allows a fire kindled or attended by him to escape to, the 20 property of another” shall be liable. The plain language of the 21 statute does not provide for strict liability for the actions of 22 another, but rather requires that to be held liable an individual 23 must have acted negligently. See id.; Presbyterian Camp & Conf. 24 Centers, Inc. v. Superior Ct., 12 Cal. 5th 493, 506–07 (Cal. 25 2021) (phrase “through another” as used in § 13007 refers to 26 “situations in which a person will be held liable because they 27 directed another person to act,” and does not “impose liability 28 on otherwise blameless parties because of the actions of another 1 person”). 2 Neither Exact Property & Casualty Company v. Union 3 Pacific Railroad Company, No. 2:21-cv-00928 WBS JDP, 2021 WL 4 2711188 (E.D. Cal. July 1, 2021), nor United States v. Sierra 5 Pacific Industries, 879 F. Supp. 2d 1117 (E.D. Cal. 2012), 6 support the United States’ argument that landlords who do not 7 control the activities on the property can be vicariously liable 8 for the negligence of the tenants. In Exact Property, this court 9 indicated that a landowner has a duty to prevent hazardous 10 natural conditions from escaping and causing injury where the 11 landowner exercised some control over the land, for example 12 through possession or maintenance. See 2021 WL 2711188, at *2 13 (citing, inter alia, Sprecher v. Adamson Companies, 30 Cal. 3d 14 358, 369 (1981)). In Sierra Pacific, Judge Mueller held that the 15 defendant landowners could be held directly liable for an escaped 16 fire where they exercised control over the properties, including 17 preapproving a contractor’s fire plan and requiring the 18 contractor to implement fire prevention programs, make periodic 19 inspections, and investigate and report damage incidents to the 20 landowners. See 879 F. Supp. 2d at 1123–24. 21 Here, there is insufficient evidence to support any 22 reasonable inference that Norman and Carolyn Cole exercised any 23 control over the activities which allegedly resulted in the fire, 24 or that they even had the power to do so had they known of such 25 activities. 26 IT IS THEREFORE ORDERED that defendants’ motion for 27 summary judgment (Docket No. 21) be, and the same hereby is, 28 GRANTED in favor of defendants Norman Cole and Carolyn Cole on enn nn nen en en ne EO I EEE I NOD EE

1 plaintiff’s claim for negligence as to those defendants. 2 | Dated: June 28, 2023 bet¢ □ 4h. □□□ □ 3 WILLIAMB.SHUBB ©.

UNITED STATES DISTRICT JUDGE

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