Filed 2/8/23 Esagoff v. 621 Rodeo Drive CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MOJGAN ESAGOFF et al.,

Plaintiffs and Appellants,

v.

621 RODEO DRIVE LLC et al.,

Defendants and Respondents.

B314084

Los Angeles County

Super. Ct. No. SC129395

APPEAL from a judgment of the Superior Court of Los

Angeles County, Mark A. Young, Judge. Affirmed in part, 

reversed in part, and remanded with directions.

Abir Cohen Treyzon Salo, Boris Treyzon and Sara A. 

McClain for Plaintiffs and Appellants.

Law Offices of Saul Reiss, Saul Reiss and Fay Pugh for 

Defendants and Respondents.

____________________________
2

INTRODUCTION

Under California law, when negligent excavation causes 

damage to a neighbor’s property, the property owner and the 

contractor who performed the excavation are jointly liable for the 

damage. Plaintiffs and appellants Abbey and Mojgan Esagoff, 

individually and on behalf of the Abbey and Mojgan Esagoff 

Trust (collectively “the Esagoffs”), sued defendants and 

respondents for property damage allegedly caused by excavation 

of land that provides lateral support to the Esagoffs’ property. 

Respondents are 621 Rodeo Drive LLC (621 Rodeo), a California 

limited liability company,

1 and its manager, Fred Bahari 

Moghadam.

2 The trial court sustained respondents’ demurrer to 

the second amended complaint without leave to amend, finding 

that the Esagoffs had not alleged facts personally implicating 

respondents in the allegedly negligent conduct of the contractors,

and entered a judgment of dismissal.

We conclude the Esagoffs have stated a claim against the 

property owner, 621 Rodeo, but have not established that 

1 A California limited liability company is a hybrid business 

entity formed under the California Revised Uniform Limited 

Liability Company Act (Corp. Code, § 17701.01 et seq.) consisting 

of at least one member who owns membership interests. (Corp. 

Code, § 17704.01, subd. (a); see generally 9 Witkin, Summary of 

Cal. Law (11th ed. 2017) Corporations, § 41, pp. 841–842.) 

2 Appellants also sued City Wall Builders, Inc. and City Wall 

Construction, Inc., the contractors that performed the excavation 

work. They are not parties to this appeal. We refer to them, 

collectively, as “the contractors.”
3

Moghadam also owns the property.3 Nor have they demonstrated

how they could amend their complaint to allege liability as to 

Moghadam. We therefore affirm in part, reverse in part, and 

remand for further proceedings.

BACKGROUND

In 2002, the Esagoffs purchased property in Beverly Hills.

In 2016, the adjoining lot was purchased by 621 Rodeo.

Moghadam is the company’s manager. In June 2017, contractors 

hired by 621 Rodeo performed excavation work on the property.

The Esagoffs filed a complaint on June 8, 2018. The 

operative second amended complaint, filed on March 6, 2020, 

alleged a single cause of action for negligence. On August 6, 

2020, respondents filed their operative first amended crosscomplaint against the Esagoffs and the contractors.4 

Moghadam and 621 Rodeo demurred, arguing the Esagoffs 

had failed to state a claim upon which relief could be granted.

They contended that neither 621 Rodeo nor Moghadam had 

personally excavated the land, and they could not be held liable 

for the negligence of their contractors. 

The court sustained the demurrer without leave to amend.

The court concluded that the hirer of an independent contractor 

3 The Esagoffs’ first request for judicial notice, filed on 

December 14, 2021, is denied because there is no evidence the 

permit applications were judicially noticed in the court below.

4 The Esagoffs’ second request for judicial notice, filed on 

May 11, 2022, of the first amended cross-complaint and the order 

dismissing the cross-complaint as to the Esagoffs, is granted.

(Evid. Code, § 452, subd. (d).) Discussion of the allegations in the 

cross-complaint is not necessary to this appeal.
4

is not liable for the negligence of its contractor or the contractor’s 

employees, and the Esagoffs had not alleged facts supporting

peculiar risk liability. The court also concluded that the Esagoffs 

had failed to state a claim for negligent hiring/supervision 

because they had not alleged facts to show that the contractors 

were Moghadam’s employees. 

The court entered a judgment of dismissal, and the 

Esagoffs filed a timely notice of appeal. On March 24, 2022, 

respondents requested dismissal with prejudice of their crosscomplaint as to the Esagoffs only. The dismissal was entered on 

March 29, 2022.

DISCUSSION

The Esagoffs contend they have stated a claim for negligent 

failure to provide lateral support during excavation.5 Before 

deciding the merits of that issue, however, we first address our 

jurisdiction over this appeal.

1. Appellate Jurisdiction

In California, the right to appeal is statutory. (Superior 

Wheeler Cake Corp. v. Superior Court (1928) 203 Cal. 384, 386; 

5 During oral argument in this matter, respondents’ counsel 

orally moved to augment the record with various summary 

judgment documents in which, he asserted, the Esagoffs conceded 

they were not proceeding on a lateral support theory. Counsel 

has not filed those documents with this court, however, and has 

offered no legitimate explanation for why he waited months to 

bring them to our attention in the middle of oral argument, with 

no advance notice to opposing counsel. As such, the motion to 

augment is denied as untimely.
5

accord, Powers v. City of Richmond (1995) 10 Cal.4th 85, 108.) 

A civil appeal may only be taken from a final judgment, i.e., 

a judgment that disposes of all the causes of action between the 

parties. (Code Civ. Proc., § 904.1, subd. (a)(1); see 9 Witkin, Cal. 

Procedure (6th ed. 2022) Appeal, § 96, pp. 158–160 [collecting 

cases]; Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304

[a “final judgment” is one that “ ‘ “terminates the litigation 

between the parties on the merits of the case and leaves nothing 

to be done but to enforce by execution what has been 

determined” ’ ”].) The Esagoffs appeal from the judgment of 

dismissal entered after the court sustained respondents’ 

demurrer without leave to amend. Ordinarily, such a judgment 

is appealable. (Code Civ. Proc., § 904.1, subd. (a); Kong v. City of 

Hawaiian Gardens Redevelopment Agency (2002) 

108 Cal.App.4th 1028, 1032, fn. 1.) 

But here, respondents, by virtue of their cross-complaint, 

remain in the case. As respondents point out, the crosscomplaint was dismissed only as to the Esagoffs—not as to the 

contractors. Respondents do not develop the issue in their brief, 

however, and only note it in passing in their response to the 

Esagoffs’ second request for judicial notice. Ordinarily, therefore, 

we would treat the argument as forfeited. (See Benach v. County 

of Los Angeles (2007) 149 Cal.App.4th 836, 852 [failure to develop 

claim with reasoned legal argument and supporting authority 

forfeits the issue].) Nevertheless, because we have an 

independent duty to raise questions involving our own 

jurisdiction, we must address the question of appealability even if 

we are unaided by relevant briefing. (See Jennings v. Marralle

(1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 

398.)
6

We conclude the matter is appealable, as discussed below.

1.1. The Final Judgment Rule

A judgment is the final determination in the trial court of 

the rights of the parties in an action or proceeding. (Code Civ. 

Proc., § 577.) Code of Civil Procedure section 904.1, 

subdivision (a)(1), authorizes appeals “[f]rom a judgment, except 

an interlocutory judgment . . . .” Our courts have consistently 

held that this provision effectively codifies the common law “one 

final judgment rule.” (See, e.g., Griset v. Fair Political Practices 

Com. (2001) 25 Cal.4th 688, 697 (Griset); see also Otay River 

Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 

796, 803 [clarifying that the Legislature’s elimination of “final” 

from the predecessor to Code Civ. Proc., § 904.1 (Code Civ. Proc., 

former § 963, subd. 1, which then stated appeals may be taken 

“[f]rom a final judgment”), did not alter the “final judgment rule” 

itself].)

A popular formulation of the rule defines a “final judgment” 

as one that “terminates the proceeding in the lower court by 

completely disposing of the matter in controversy.” (Henneberque 

v. City of Culver City (1985) 172 Cal.App.3d 837, 841; see also 

Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436 [“ ‘[A]n 

appeal cannot be taken from a judgment that fails to complete 

the disposition of all the causes of action between the parties

even if the causes of action disposed of by the judgment have 

been ordered to be tried separately, or may be characterized as 

“separate and independent” from those remaining’ ”]; Art Movers, 

Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645 [“optimal 

appellate review is achieved by allowing appeals only after the 

entire action is resolved in the trial court”].)
7

Multiple policy considerations underlie this rule. Piecemeal 

disposition of a matter by taking frequent trips to the Court of 

Appeal wastes judicial resources. (See Griset, supra, 25 Cal.4th 

at p. 697.) We are not referees to be consulted multiple times in a 

single litigation. And premature appeals produce uncertainty and 

delay in the trial court. (See Kinoshita v. Horio (1986) 

186 Cal.App.3d 959, 966–967 [reviewing policy considerations].)

The record on appeal will also be better developed if a single 

appeal of the entire matter is taken. (Id. at p. 967.)

1.2. Cross-Complaints

“A complaint and cross-complaint are treated as 

independent actions for most purposes, except with respect to the 

requirement of one final judgment. [Citation.] ‘Where a 

complaint and cross-complaint involving the same parties have 

been filed, there is no final, appealable judgment until both have 

been resolved. [Citation.]’ [Citation.] ‘Judgment rendered on a 

complaint alone, unaccompanied by judgment on a pending crosscomplaint, is not a final judgment, and appeal from it may be 

dismissed on motion. [Citations.]’ [Citations.] [¶] Thus, a 

judgment which resolves a complaint but does not resolve a crosscomplaint pending between the same parties, is not final and not 

appealable, even if the complaint has been fully adjudicated.” 

(Westamerica Bank v. MBG Industries, Inc. (2007) 

158 Cal.App.4th 109, 132, italics omitted.) 

Nevertheless, “where the cross-complaint seeks separate 

and independent relief by or against different parties, there can 

be a final judgment on the complaint and another on the crosscomplaint.” (City of Hanford v. Superior Court (1989) 

208 Cal.App.3d 580, 588, italics added.) Here, the judgment of 

dismissal of the Esagoffs’ complaint against respondents and 
8

respondents’ dismissal of their cross-complaint against the 

Esagoffs, taken together, resolved the issues between them. As 

such, there is a final judgment in this case notwithstanding both 

parties’ ongoing suits against the contractors.

1.3. Exception for Multiparty Cases

To the extent respondents suggest otherwise, we disagree. 

Although our Supreme Court in In re Baycol Cases I & II (2011) 

51 Cal.4th 751, 757 (Baycol Cases) reiterated that the “final 

judgment rule’s deep common law and statutory roots and the 

substantial policy considerations underlying it” demand strict 

application of the rule and a reluctance to create exceptions, it 

also observed that there are two venerable, accepted “exceptions” 

to the final judgment rule. 

The first exception permits an appeal of an “order . . .

against a party in a collateral proceeding growing out of the 

action.” (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.) This 

exception, known as the “collateral order doctrine,” applies if the 

issue underlying the order seeking to be appealed “is truly 

collateral in that it is ‘distinct and severable’ from the subject 

matter of the underlying litigation.” (Apex LLC v. Korusfood.com

(2013) 222 Cal.App.4th 1010, 1016.) The order seeking to be 

appealed must also “direct[ ] payment of money or performance of 

an act.” (Id. at p. 1015; see also Marsh v. Mountain Zephyr, Inc.

(1996) 43 Cal.App.4th 289, 297–298 [grouping these 

requirements together under the heading of the Sjoberg test]; but 

see Muller v. Fresno Community Hospital & Medical Center

(2009) 172 Cal.App.4th 887, 899 [noting a split of authority over 

whether an appealable collateral order must always involve 

payment of money or performance of an act].) That exception is 

not relevant here.
9

The second exception arises in multiparty cases like this 

one. Frequently called the “final as to a party” exception, it 

permits an appeal from a judgment that leaves no issue 

remaining to be decided as to one party. A leading practice guide 

provides the following illustration: “[I]n a single plaintiff’s suit 

against two defendants (D1 and D2), a judgment or order 

resolving all issues between plaintiff and D1 is immediately 

appealable even though the action is still pending against D2.” 

(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs 

(The Rutter Group 2021) ¶ 2:91, pp. 2-66 to 2-67.) 

This illustration supports the appealability of the trial 

court’s judgment of dismissal in respondents’ favor. The Esagoffs 

sued respondents and the contractors; respondents crosscomplained against the Esagoffs and the contractors; the order 

under review dismissed respondents; the cross-complaint against 

the Esagoffs was dismissed as well. Although the Esagoffs and 

respondents both have outstanding issues remaining as to the 

contractors, they do not have any remaining issues as to each 

other. But, the “final as to a party” exception is not automatically 

applicable every time fewer than all parties are dismissed from 

an action.

Witkin summarizes the “final as to a party” limitation as 

follows: “It is well settled that where parties have distinct 

interests, there can be a separate, final, and appealable judgment 

for each.” (9 Witkin, Cal. Procedure, supra, § 109, p. 174.) “The 

[‘final as to a party’] exception only applies . . . where the 

interests of the otherwise uninvolved party are separate and 

distinct from the interests of parties whose rights have not been 

finally determined.” (Fleuret v. Hale Constr. Co. (1970) 

12 Cal.App.3d 227, 230.)
10

Recent cases do not explain this “distinct interests” 

prerequisite for applying the “final as to a party” exception. 

Instead, they point to a pair of Supreme Court opinions from the 

last century: Howe v. Key System Transit Co. (1926) 198 Cal. 525 

(Howe) and Rocca v. Steinmetz (1922) 189 Cal. 426 (Rocca). (See, 

e.g., Baycol Cases, supra, 51 Cal.4th at p. 759 [citing Rocca and 

Howe as the source of the “final as to a party” exception].) 

Because our research has not revealed an explanation of the 

“distinct interests” prerequisite to the “final as to a party” 

exception, we briefly examine these leading cases to see why this 

exception was created in the first place.

In Howe, supra, 198 Cal. 525, railroad passengers who had 

been injured in a train collision sued the railroad and multiple 

railroad personnel in a single action. The individual defendants 

cross-complained against the railroad, attempting to shift 

liability onto their employer. The trial court dismissed the crosscomplaints, and the individual defendants appealed. Although 

the primary action between the injured passengers and the 

railroad remained pending after dismissal of the crosscomplaints, the Supreme Court held that the individual 

defendants could nevertheless appeal dismissal of their crosscomplaints. It reasoned: “The circumstance that a particular 

judgment may not be binding upon all the parties to the action 

does not prevent it from being a final judgment within the code 

provisions relating to appeals. [Citation.] In the present case, 

the issues tendered by the cross-complaints, which were stricken 

from the files, are entirely severable from the issues made by the 

complaints and answers.” (Id. at p. 533.) Thus, in Howe, the 

court was comfortable lifting the “final judgment” rule that would 
11

otherwise bar interlocutory appellate review because the “issues” 

underlying the claims were “severable.”

Next, in Rocca, supra, 189 Cal. 426, a father and son were 

sued as joint tortfeasors when the car the son was driving was 

involved in an accident that killed a passenger. The plaintiff

sued the father on a negligent-entrustment theory and sued the 

son for simple negligence. The trial court dismissed the case 

against the father, and the case against the son went to trial. 

The plaintiff appealed dismissal of its case against the father 

even though the case against the son remained pending. The

appeal was dismissed because no final judgment had yet been 

rendered in the case as a whole. The Supreme Court reversed. 

The court explained: “The fact that the defendant [father] is sued 

as the owner of the automobile and [the son] is sued as the 

perpetrator of the tort does not make either of them any the less 

liable to have a judgment rendered against him while the action 

is allowed to continue as to the other defendant.” (Id. at p. 428.)

Further motivating the court in Rocca was a policy 

consideration applicable here: “[T]o hold the [plaintiff] bound to 

wait until the final judgment against the other party before 

taking an appeal from the judgment against the first party 

already rendered is wholly unreasonable.” (Rocca, supra, 

189 Cal. at p. 428.) Parties to a judgment rendered in multiparty 

cases should be given the finality of appellate review unless there 

is a compelling reason to defer review until the entire action has 

been disposed of. Indeed, when our Supreme Court cited Rocca in 

Baycol Cases, it cited this principle as “[u]nderlying this original 

settled rule” (Baycol Cases, supra, 51 Cal.4th at p. 759), viz., the 

“final as to a party exception.”
12

Thus, the final judgment rule isn’t always clear. On the 

one hand, we must be cognizant of the substantial policy 

considerations underlying the rule, such as reducing uncertainty 

in the underlying litigation, avoiding (and deterring) piecemeal 

litigation, and conserving the resources of the appellate courts. 

Yet we must grant appellate review when the conditions for an 

exception have been met lest we arbitrarily delay an appeal until 

final judgment has been rendered as to every party. (See Shah, 

Increase Access to the Appellate Courts: A Critical Look at 

Modernizing the Final Judgment Rule (2014) 11 Seton Hall Cir. 

Rev. 40, 58 [“[T]he final judgment rule is a rule, designed to 

balance the underlying competing policy interests of finality—the 

inconvenience and costs of piecemeal review on the one hand, and 

the danger of denying justice by delaying appellate review on the 

other”].)

Here, respondents have been dismissed from the Esagoffs’ 

action. Paraphrasing the Supreme Court in Rocca, now “[n]o 

other judgment can be entered against” respondents, as they “will 

go free if the case goes no further against” them. (Rocca, supra, 

189 Cal. at p. 428.) That would seem to authorize the instant 

appeal. Likewise, unless there is a compelling reason to defer 

review, it is “wholly unreasonable” for us to force the parties here 

to “wait until the final judgment against the” contractors “before 

taking an appeal from the judgment . . . already rendered.” 

(Ibid.)

The only question remaining is to determine whether 

respondents and the contractors have the requisite “distinct 

interests” our cases insist must apply before this exception is 

met. Although our cases do not explain this “distinct interests” 

requirement, we are not wholly without guidance. There is a 
13

class of cases in which the interests between a dismissed and 

remaining defendant are never distinct as a matter of law: those

against sureties and the principal obligor. 

The leading case is Call v. Alcan Pacific Co. (1967) 

251 Cal.App.2d 442, in which the plaintiff was a subcontractor 

who agreed to perform drywall work on a construction project. 

The subcontractor walked away with the job unfinished, and the 

general contractor threatened suit. The subcontractor responded 

by filing for an accounting and injunctive relief against the 

general contractor. The general contractor cross-complained 

against the subcontractor for breach of contract and named an

insurance company who was surety on the subcontractor’s 

performance bond as an additional defendant. The trial court 

entered judgment in favor of the surety insurance company, and,

several months later, entered judgment in favor of the principal 

subcontractor. The general contractor appealed dismissal of its 

case against the surety and the subcontractor seriatim.

The Court of Appeal considered whether the “exception [to 

the final judgment rule] where several parties have distinct 

interests” applied where a surety was dismissed before its 

principal. (Call v. Alcan Pacific Co., supra, 251 Cal.App.2d at 

p. 449.) It found the exception did not apply because the general 

contractor’s suits against the subcontractor and its surety were 

suits against parties who had “a unity of interest between them 

[such] that a judgment in favor of the [surety] alone is not a final 

judgment from which an appeal lies.” (Ibid., italics added; see 

also Fleuret v. Hale Constr. Co., supra, 12 Cal.App.3d at p. 230 

[also a surety case, holding: “The (‘final as to a party’) exception 

only applies . . . where the interests of the otherwise uninvolved 
14

party are separate and distinct from the interests of parties 

whose rights have not been finally determined”].) 

To better determine the impact of these surety cases upon 

the instant appeal, we review what a surety is and why its 

interests overlap with those of its principal obligor. The Civil 

Code defines a “surety” as “one who promises to answer for the 

debt, default, or miscarriage of another.” (Civ. Code,6 § 2787.)

Moreover, if the principal obligor is found liable to a third party, 

the surety “is liable to the creditor immediately upon the default 

of the principal, and without demand or notice.” (§ 2807.)

Neither of these features of suretyship is present in the 

instant case. If the contractors lose to the Esagoffs, respondents 

are not automatically liable for the resulting judgment.

Likewise, the Esagoffs have not adduced any evidence of an 

agreement between respondents and the contractors that would 

make the respondents responsible for the contractors’ debts and 

liabilities. Respondents and the contractors thus do not have a 

“unity of interest” that would prevent application of the “final as 

to a party” exception and that would delay appellate review until 

the entire action is resolved.

Accordingly, we conclude we have jurisdiction over this 

matter under the “final as to a party” exception and turn to the 

merits of the appeal.

2. Standard of Review

“ ‘When reviewing a judgment dismissing a complaint after 

the granting of a demurrer without leave to amend, courts must 

assume the truth of the complaint’s properly pleaded or implied 

6 All undesignated statutory references are to the Civil Code.
15

factual allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Courts must also consider judicially noticed matters. (Ibid.) In 

addition, we give the complaint a reasonable interpretation, and 

read it in context. (Ibid.) If the trial court has sustained the 

demurrer, we determine whether the complaint states facts 

sufficient to state a cause of action. If the court sustained the 

demurrer without leave to amend, as here, we must decide 

whether there is a reasonable possibility the plaintiff could cure 

the defect with an amendment. (Ibid.) If we find that an 

amendment could cure the defect, we conclude that the trial court 

abused its discretion and we reverse; if not, no abuse of discretion 

has occurred. (Ibid.) The plaintiff has the burden of proving that 

an amendment would cure the defect. (Ibid.)’ [Citation.] ‘If a 

complaint is insufficient on any ground specified in a demurrer, 

the order sustaining the demurrer must be upheld even though 

the particular ground upon which the court sustained it may be 

untenable.’ ” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 584.)

3. The Esagoffs have stated a claim for negligent denial of 

lateral support by the property owner.

Although a landowner may make proper and usual 

excavations to his property, it must be done using ordinary care 

and skill. (§ 832.) Where a contractor performs the work, the 

contractor and landowner are jointly liable for any negligence in 

the excavation that proximately causes damage to an adjoining 

landowner. (Wharam v. Investment Underwriters (1943) 

58 Cal.App.2d 346, 349–351 (Wharam).) The Esagoffs contend 

they stated a claim for negligent denial of lateral support against 

the owner of the adjoining property. We agree.
16

3.1. Common Law Rule

At common law, a landowner had a right to have his land,

in its natural state, supported by the adjoining land. (6 Miller & 

Starr, Cal. Real Estate (4th ed. 2022) § 17:19.) An adjoining 

landowner who excavated his property was strictly liable for 

collapse or other damage to his neighbor’s land, regardless of 

whether he exercised due care, because the liability was for 

invasion of the damaged owner’s property rights. (Ibid.) Strict 

liability only applied to the land in its natural condition, without 

the added weight of buildings or other improvements. (Ibid.; 

Wharam, supra, 58 Cal.App.2d at p. 349.) But if the excavator 

acted negligently, he would be liable for damage to the 

improvements as well. (Green v. Berge (1894) 105 Cal. 52, 58.)

3.2. Section 832

Section 832 modified the common law rule by eliminating 

absolute liability in specified circumstances. (Holtz v. Superior 

Court (1970) 3 Cal.3d 296, 301, fn. 3 [“At common law a 

coterminous owner was strictly liable for damages resulting from 

the withdrawal of lateral support of land in its natural, 

unimproved state, but section 832 modified that rule by providing 

that ‘lateral support’ liability for damage to both land and 

improvements would generally result only if the excavator were 

negligent. (Civ. Code, § 832, subd. 2; Comment (1931) 

20 Cal.L.Rev. 62, 63)”].)

The statute reaffirms the right of landowners to the lateral 

support of the adjoining land and the right of an adjacent owner 

to “make proper and usual excavations on the same for purposes 

of construction or improvement” under the conditions in the 

section. (§ 832 [“Each coterminous owner is entitled to the lateral 
17

and subjacent support which his land receives from the adjoining 

land”].) Those conditions include giving notice of the excavation 

to the adjoining owner (id., subd. 1), using ordinary care and skill 

in excavating (id., subd. 2), and taking reasonable precautions to 

sustain the adjoining land (id., subds. 2, 3). In addition, if the 

depth of the excavation exceeds nine feet, and the depth of the 

foundation or wall of an adjoining building equals this depth, the 

excavating owner has substantial obligations to protect the 

adjoining property from damage. (Id., subd. 4.)

The statute did not change the rule where the excavator 

acts negligently, however. Under section 832, a coterminous 

landowner remains jointly liable with a negligent excavating 

contractor. (Wharam, supra, 58 Cal.App.2d at p. 351, citing 

Aston v. Nolan (1883) 63 Cal. 269, 270; Green v. Berge, supra, 

105 Cal. at pp. 58–59.) Thus, the statute provides that under 

certain circumstances, a landowner is permitted “to excavate, 

freed from the absolute common law right of lateral support in 

his neighbor, provided certain conditions in the code section are 

complied with, and always provided that negligence of the 

excavator is not the proximate cause of damage to the property of 

the adjoining land owner.” (Wharam, at p. 349, italics added.)

3.3. Elements of Negligence

The elements of negligence are: (1) duty of care, (2) breach,

(3) causation, and (4) damages. (County of Santa Clara v. 

Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

As discussed, landowners and their contractors have a joint 

duty to use reasonable care when excavating to maintain lateral 

support for their neighbors. The Esagoffs alleged that 621 Rodeo 

owns the property adjoining theirs. They also alleged that 621 

Rodeo retained the contractors to excavate the property, that the 
18

contractors did so negligently, and that in so doing, the

contractors damaged improvements to the Esagoffs’ land. Taken 

together, these allegations are sufficient to state a claim against 

621 Rodeo for negligent failure to provide lateral support.

4. The Esagoffs have not established that they can amend

the complaint to state a claim against Moghadam.

Although the Esagoffs have stated a claim for negligence 

against property owner 621 Rodeo, that claim does not extend to 

Moghadam. Moghadam does not own the property; he is the 

manager of 621 Rodeo. And, while the Esagoffs claim Moghadam

owed them a duty of care as a “reputed owner,” they offer no 

authority for the proposition that the rules applying liability to 

landowners extend to “reputed” property owners, however the 

Esagoffs are defining that term.

Nor have the Esagoffs presented any theory under which 

Moghadam may be liable as a non-owner. For example, they 

propose to amend the complaint to assert strict liability for 

failure to provide the required notice under section 832. But they 

present no authority—or argument—for the premise that 

section 832’s reference to a property “owner” can be construed to 

include the manager of an LLC. (See § 832.)

To the extent the Esagoffs seek to assert liability against 

Moghadam as a supervisor rather than an owner, they neither 

develop the argument nor allege facts demonstrating that 

Moghadam had reason to believe the contractors were 

incompetent. (See Federico v. Superior Court (1997) 

59 Cal.App.4th 1207, 1213–1214 [elements of negligent 

hiring/supervision are: (1) hiring and supervision of an employee; 

(2) the employee is incompetent or unfit; (3) the employer has 
19

reason to believe undue risk of harm would exist because of the 

employment; and (4) harm occurs].)

In short, the Esagoffs have not met their burden of 

demonstrating a reasonable probability that by amending their 

complaint a third time, they could cure the defect as to 

Moghadam. 

5. We need not decide whether the peculiar risk doctrine 

applies to property damage.

“At common law, a person who hired an independent 

contractor generally was not liable to third parties for injuries 

caused by the contractor’s negligence in performing the work. 

[Citations.] Central to this rule of nonliability was the 

recognition that a person who hired an independent contractor 

had ‘ “no right of control as to the mode of doing the work 

contracted for.” ’ [Citations.] The reasoning was that the work 

performed was the enterprise of the contractor, who, as a matter 

of business convenience, would be better able than the person 

employing the contractor to absorb accident losses incurred in the 

course of the contracted work. This could be done, for instance, 

by indirectly including the cost of safety precautions and 

insurance coverage in the contract price. [Citations.]

“Over time, the courts have, for policy reasons, created so 

many exceptions to this general rule of nonliability that ‘ “ ‘the 

rule is now primarily important as a preamble to the catalog of 

its exceptions.’ ” ’ [Citation]; Rest.2d Torts, §§ 410–429 and § 409, 

com. b, at p. 370 [describing the nonliability rule as ‘ “general” 

only in the sense that it is applied where no good reason is found 

for departing from it’].)” (Privette v. Superior Court (1993) 

5 Cal.4th 689, 693 (Privette).)
20

One exception to the general rule that owners are not 

responsible for the negligence of their contractors pertains to 

contracted work that poses some inherent risk of injury to others. 

This exception is commonly referred to as the doctrine of peculiar 

risk. (Privette, supra, 5 Cal.4th at p. 693.) Yet though the parties 

spill much ink on the matter, they have not persuaded us that 

the peculiar risk doctrine is relevant to this case.7 

The peculiar risk doctrine applies when the person who 

hires an independent contractor knows or should know that the 

contractor’s work is likely to create a peculiar risk of physical 

harm to others unless special precautions are taken. (Privette,

supra, 5 Cal.4th at p. 695.) One purpose of the doctrine is “to 

ensure that innocent third parties injured by the negligence of an 

independent contractor hired by a landowner to do inherently 

dangerous work on the land would not have to depend on the 

contractor’s solvency in order to receive compensation for the 

injuries.” (Id. at p. 694.) Another purpose is to promote 

workplace safety by spreading the risk of loss to the person who

primarily benefited from the hired work. (Ibid.)

But the peculiar risk doctrine is primarily a personal-injury 

rule. Neither party has cited any authority in which the doctrine

was applied to cases involving property damage—and our 

research has revealed none. For example, construction projects 

to which the peculiar risk doctrine has been applied include 

cement work on a 20-foot-high bridge undertaken without 

7 As discussed above, negligent excavation is also a 

longstanding exception to the general rule that property owners 

are not liable for the negligence of their contractors. (See, e.g., 

Green v. Berge, supra, 105 Cal. at pp. 58–59.)
21

scaffolding or a railing to keep the worker from falling off 

(Fonseca v. County of Orange (1972) 28 Cal.App.3d 361), erecting 

a 30-foot steel column for a water tower without safety 

equipment to keep the worker from falling off (Stilson v. 

Moulton–Niguel Water Dist. (1971) 21 Cal.App.3d 928), and 

building a bridge over high-voltage wires, causing injury to a 

worker whose crane touched a wire (Walker v. Capistrano Saddle 

Club (1970) 12 Cal.App.3d 894). 

In Hughes v. Atlantic Pacific Construction Co. (1987) 

194 Cal.App.3d 987, 998, the court emphasized that the doctrine 

applies only when the risk is “something other than an ordinary 

and customary danger which may arise in the course of the work 

or of normal human activity.” In Hughes, therefore, the doctrine 

did not apply even though “the building plans envisioned a 

seismic joint of over 24-1/2 inches in width, running the length of 

the fifth floor of the west and central towers of this high rise 

project.” (Id. at p. 999.) Noting that “seismic joints are quite 

common in earthquake-prone California,” the court held the 

construction project that caused injury to the subcontractor’s 

employee did not pose a peculiar risk and did not come within the 

ambit of the doctrine. (Id. at pp. 994, 1000.)

In any event, because the lateral support doctrine is 

dispositive here, we need not, and do not, address whether the 

peculiar risk doctrine may apply to damage to property as well as 

people—and, if so, whether it applies in this case.
22

DISPOSITION

The judgment is affirmed as to Moghadam. The judgment 

is reversed as to 621 Rodeo and the matter is remanded to the 

trial court with directions to vacate its order sustaining 621 

Rodeo’s demurrer to the second amended complaint without leave 

to amend and to enter a new order overruling the demurrer. 

Appellants shall recover their costs on appeal.

HARUTUNIAN, J.*

We Concur:

GRIMES, Acting P. J.

WILEY, J.

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.