*1 July S138104. [No. 2007.] CASTANEDA, Plaintiff
ERNEST and Appellant, al., GEORGE OLSHER et Defendants and Respondents.
Counsel
Sutherland & Gerber and Lowell F. Sutherland for Plaintiff and Appellant. (cid:127) Axelrad, Horvitz & Levy, David M. R. Kim L. Hollins Barry Levy, Nguyen; Schechter and Bruce Lee Schechter for Defendants and Respondents. Heidi Palutke for California Association as Amicus Curiae on Apartment behalf of Defendants and Respondents. Summers,
Bien & Elliot L. Bien and E. Elizabeth Summers for Western Manufactured Housing Communities Association as Amicus Curiae on behalf of Defendants and Respondents.
Fred J. Hiestand for Civil Justice Association of California as Amicus Curiae on behalf of Defendants and Respondents.
Deborah J. LaFetra for Pacific Foundation as Curiae Legal Amicus on behalf of Defendants and Respondents.
Opinion WERDEGAR, J. Olsher, Paule Olsher and P&G George Defendants Olsher) Enterprises own a mobilehome (collectively which park plaintiff Ernest Castaneda lived. Plaintiff was shot and while he was a injured to a bystander confrontation gang resident of the mobilehome involving across the street from his. He sued Olsher had contending Olsher breached not to rent to known members or to evict them when harass they other tenants. The court a defense motion for nonsuit after superior granted case, but the presentation Court of reversed. plaintiff’s Appeal Landlords, including of nonsuit was proper. We conclude grant owners, to reject have no ordinarily prospective mobilehome park believe, believe, To are members. or have reason to tenants they discrimina housing would tend to encourage arbitrary such a recognize in the untenable situation of facing potential and would landlords tion place tenant. With regard make about a whichever choice liability prospective eviction, criminal tenant’s behavior and known we that a residential agree circumstances, create such a level of foresee high in some associations may, take measures to remove that the landlord is obliged able to others danger of the legal tenant or bear portion responsibility premises case, however, the facts In the the tenant causes. subsequently present injuries these involving not make a violent confrontation known to Olsher did to undertake tenants so foreseeable as highly justify imposition eviction proceedings. Background
Factual and Procedural Centro mobilehome in El the Winterland-Westways Olsher has owned son, Hicks, at and her lived Rodney Rogers since least 1991. Beverly 9, 1996, shot, he was November On managed night 60-space park. with his old) in a mobilehome on (who space was 17 lived years and older sister. grandmother the street from plaintiff’s, across mobilehome space manager, the onsite Beverly Rogers, property Paul Levario.
occupied to Carmen 23 was leased shooting, that in the year testified prior however, there. Levario did not live Carmen Rogers, Levario. According witness, vacant, Rather, but “the son of the the home was told another Rogers out there.” (a Levario) Mr. was “hanging owner” [mobilehome] who had studying A former El Centro officer specialized police Paul Levario as a member criminal identified gangs local controlling and an eyewitness, El gang. According police report Northside Centro Viloria, Levario, fired the shot Manuel who was visiting a fellow Northsider *6 that injured plaintiff. outside the mobile- attended a of his injury, plaintiff party
On night a.m., home with three or 2:00 he drove after 1:00 home Sometime park. let his sister know mobilehome to briefly Plaintiff went inside his friends. later, there, A few minutes friends waited in the car. were while his they it, car. car, behind plaintiff’s men in pulled up another with four young time, the mobilehome across came out of two men young Around same Sandoval, friends, and, Christina to one of according plaintiff’s the street in the second car. with the men words and slurs” “exchanging started Viloria one of the men from the mobilehome as Manuel Sandoval recognized One of the men in the and saw what she was a in his hand. thought gun Centro,” Centro, while the men from second car “Westside Westside yelled, minutes, out, After a few as the mobilehome called “Northside Centro.” home, were “shots Sandoval and another friend started toward plaintiff’s area, Plaintiff, home to his front fired.” who had from his reemerged porch in the was hit back. Joyce or three months before the shooting, plaintiff’s grandmother,
Two Trow, like about Trow looked Rogers thought complained people members around the mobilehome and the bulbs in the breaking hanging park Trow, outdoor that there was “one lights. According Rogers responded more batch” across from” Trow. When asked whether she moving “right this, not; could said she could she had talked to Rogers George prevent Olsher, her, but he had “Go and them. Their as money told ahead rent to is or to that effect. good yours,” something Trow testified that for two months before the
Joyce shooting approximately she saw dressed like members at the mobilehome congregating people (and sister), across the street from Her Diana hers. granddaughter plaintiff’s Castaneda, men, encountered the mobilehome including of four five groups son, shirts, owner’s dressed in and flannel from baggy drinking pants 40-ounce over the month before bottles outside the mobilehome on space sometimes, at her she shot. Because whistled and hooted attention, felt “a small amount of fear” and tried to avoid their attracting herself between her car and her home. covering walking up quickly incidents, Diana her testified Castaneda told about the Trow grandmother she her conveyed granddaughter’s Rogers, although Rogers complaint testified she never received any about complaints occupants mobilehome on 23. space tenant,
Another Monica testified that when she walked Preciado-Langford, there, with her children out” who small past space “boys hanging wore bandanas or Pendleton would sometimes kick their bull in jackets, pit the mouth to make it asked the but growl. Preciado-Langford boys stop, her. She about this as well they ignored Rogers boys, complained group rocks, as about those at who were and about throwing lights occasion, were broke windows on broken at the On another someone park. car; another resident told her the were Preciado-Langford’s perpetrators about 23 and 24. Preciado-Langford complained Rogers spaces there was by saying incident as well. to these Rogers responded complaints do, any money she could the owner “didn’t want to more nothing invest had else to go.” no people place *7 incidents related to the Evidence was of two presented prior gunshot unknown shooter mobilehome In a bullet—fired an August park. from a to be outside the mobilehome through location estimated park—went mobilehome, but did hit what anyone. early during not occupied confrontation, Hicks, assistant, and was told was a son Rodney Rogers’s A shots were fired on a to the mobilehome who contiguous park. boy property to hide a after the was arrested gun shooting, lived at the seen park, trying and never returned to the undertook evening management park; incidents. efforts to evict his knew or was informed both family. Rogers there been sales drug Prior to the had also shooting injured plaintiff, identified Rogers members at mobilehome park. apparent gang mobilehomes, than the of the mobilehome residents of four other occupants members of gangs who she were members thought aspiring incident on the next to arrested in (including boy shooting property Centro,” was seen references to “Westside Gang graffiti, including park). it Between “every day.” at the and Hicks out regularly park. Rogers painted testified, he saw what he believed to be sales at drug Hicks Olsher of these “once or twice a week.” Hicks and both told Rogers park there could do to evict the nothing they Olsher told was problems; Rogers Hicks call the tenants problem suggested police.1 case, nonsuit, defendants moved for contending At close of plaintiff’s Plaintiff Olsher argued no was established and causation was duty unproven. in the first to “remove them had a “not to rent to place,” [the Lévanos] he the tenants that constituted an once began get complaints or, that, such to take additional measures annoyance,” failing security was shown because had Olsher not breached his hiring guards. Causation members out of the member . . “get. dangerous gang park,” would not have been on the The trial court who shot plaintiff premises. on the has failed show ground concluded nonsuit was proper “plaintiff foreseeable; herein similar incidents such that a shooting highly prior therefore, (1993) Cal.4th 666 under Ann M. v. Center Shopping Plaza Pacific the landlord owed no plaintiff.” 207] trial. In the
The Court of reversed and remanded for appellate Appeal assessment, was aware that evidence that Olsher court’s plaintiff “presented members and he was in his mobilehome renting park spaces criminal and other similar activity there had been a variety gang-related Olsher had a crimes on and near the occurring premises. [][]... [thus] nonsuit, grant it would Seeking reconsideration after the trial court indicated laundry rape in the reopen prove and offered to that there had been a asked to his case crimes, thefts, vandalism, mainly burglaries and in the variety and a of less serious room but denied reconsideration. proof The court considered the offer of period 1991-1996.
1213 undertake additional measures in the Park to security residents from violence on the potential occurring Castaneda sufficient property. presented evidence that Olsher’s breach of this was a substantial factor in duty bringing about his for injuries this case to be decided the jury.”
We Olsher’s granted for review. petition
Discussion A landlord owes a tenant the generally out of their duty, arising to take special reasonable measures to secure relationship, areas under the landlord’s control against foreseeable criminal acts of third parties. (Delgado v. Trax Bar & Grill 224, 145, (2005) 36 Cal.4th 235 Cal.Rptr.3d [30 Center, Ann M. v. 113 P.3d Shopping supra, (Delgado); Plaza 6 1159] Pacific (Ann Investments, M); v.Residential Vasquez Inc. Cal.4th at 674 p. (2004) 118 269, case, however, Cal.App.4th 846].) each Cal.Rptr.3d In the [12 existence and of a scope owner’s property duty third protect against party (Delgado, crime is a 237-238; of law for the court question to resolve. at pp. M., Ann 674, at 678-679.) pp. determining existence and duty’s our call for scope, precedents “ consideration of several factors: of harm to the foreseeability plain ‘[T]he tiff, the of degree that the certainty suffered injury, closeness of the connection between suffered, the defendant’s conduct and the injury moral conduct, blame attached defendant’s policy preventing harm, future the extent of the burden to the defendant and consequences community to exercise care with imposing resulting liability breach, cost, and the availability, of insurance for the risk prevalence ” M., (Ann supra, 5, Rowland v. involved.’ fn. Cal.4th quoting Christian (1968) Cal.2d 443 P.2d Cal.Rptr. 561] (Rowland).) and the extent Foreseeability of the burden to the defendant are considerations, ordinarily crucial but in a case one given or more of the other Rowland factors determinative of the duty analysis. (Delgado, be may Arman, supra, Sharon 15; P. v. Ltd. 36 Cal.4th at fn. 21 Cal.4th 1181, 1189-1190, fn. 2 121].)
“Turning of the of a question landlord’s scope provide crime, from foreseeable third protection ... have party we recognized is scope determined part by balancing foreseeability ‘ the harm the burden of the against to be imposed. [Citation.] “[I]n cases where the burden of future harm is preventing great, high degree hand, foreseeability be may On the other in cases required. where [Citation.] harm, there are strong reasons for policy or the harm can be preventing means, prevented by a lesser simple be re degree foreseeability may ” M., (Ann 6 Cal.4th at quired.” 678-679.) We recently [Citation.]’ pp. balancing reaffirmed this which we described analysis, “sliding-scale *9 243.) 36 Cal.4th at (Delgado, supra, formula.” p. court in each
The we have the case duty analysis developed requires (whether the or actions trial or action the appellate) identify specific the after the “Only scope claims defendant had a undertake. plaintiff duty defined under a under may meaningfully the consideration is court take and burdens in a case to balancing analysis given the of the risks present determine be the should should not obligations imposed whether specific Investments, Inc., on the landlord.” Residential (Vasquez v. 280.) The in described accurately at Court of Appeal Vasquez
Cal.App.4th “First, the the must determine full in this court the analytical process way: the the have taken to measures asserts defendant should specific plaintiff the harm. This the issue for court’s determination by the frames prevent Second, the the court the under consideration. must defining scope burdensome how and these measures analyze financially socially proposed landlord, to a could burden range minimally would be which measures from Third, the some to burdensome under the facts of the case. court significantly must the nature the third conduct that the claims identify party plaintiff measures, taken could have been had the landlord the and prevented proposed (on foreseeable a continuum from a mere a assess how possibility it the reasonable was that this conduct would occur. Once burden probability) assessed, and have been can be in foreseeability compared independently the the court on a defendant. determining scope imposes given harm, court The certain the the burden a will higher more likelihood it; harm, a landlord to the less foreseeable the the lower on impose prevent (Id. 285, omitted.) court will a landlord.” at fns. burden a on place case, into a but the other Rowland factors come in Again, may play given to the analysis. balance of burdens is foreseeability generally primary 10.) fn. (Vasquez, p. background against is a factual
Although duty legal question, it a On which we decide is function of case’s particular procedural posture. here, nonsuit, the light we must the facts in review of a as view judgment “[Cjourts have taken traditionally very most favorable plaintiff. The under which nonsuit is rule restrictive view of circumstances proper. for nonsuit if is a trial court not a defendant’s motion may grant verdict favor. evidence would jury plaintiff’s plaintiff’s support [Cita sufficient, the evidence is court determining whether plaintiff’s tions.] [I] Instead, of witnesses. not the evidence or consider may weigh credibility true must be accepted evidence most favorable to plaintiff ‘to must must give evidence be court conflicting disregarded. entitled, it is . .. indulging evidence all value to which legally plaintiff[’s] evidence be drawn from the inference which may every legitimate (1982) 32 Cal.3d ....’” General Motors Corp. favor v. (Campbell plaintiff[’s] 224].) P.2d The same rule Cal.Rptr. applies (Carson Facilities Co. Development from the of a nonsuit. grant appeal 656].) 36 Cal.3d Cal.Rptr. We action or actions claims begin by identifying specific plaintiff him defendants were to take to obliged shot. being courts, As he did in the lower contends Olsher owed him and, it, not to rent 23 to the Levarlos once rented evict them having disturbing other residents. what harassing Asking rhetorically *10 him, Olsher should have done to answers: “When told by plaintiff Mrs. that a bunch of Rogers new wanted to move in across from gangsters Trow, Mrs. a reasonable for the seeking of his person provide safety ” tenants, would ‘no.’ Plaintiff that in just say of the argues light danger violence that accompanies street and illicit presence gangs drug dealing, him was foreseeable to shooting injured sufficiently justify to, evict, members, of a to decline to rent or to known imposition gang duties he characterizes as burden on the placing only “slight” landlord. also Secondarily, contends that rented to plaintiff having members and gang them, to evict Olsher failing should have hired trained security guards at the suppress gang activity mobilehome and should have and improved maintained the park’s lighting. contend,
Defendants and amici curiae their supporting position response, on residential imposing landlords to exclude members gang by refusal to rent or eviction would on landlords a place burden heavy screening and force them to make rental decisions according about stereotypes gang members’ and ethnicity of such a burden and creation appearance. Imposition of such incentives for housing discrimination are not justified, argue, they by the known risk of violence members or posed by apparent gang generally the risks foreseeable to Olsher in this case. examine, first,
We the asserted to refuse to rent to members housing second, tenants; of street gangs; the asserted to evict member gang last, other measures security asserts should have been taken. The first conclude, we cannot be duty, under where imposed circumstances except second, conclude, violence is foreseeable. The we exists extraordinarily foreseeable, where violence member tenants is involving existing gang highly but we also conclude the facts of this case do not create that level of measures, With to other foreseeability. regard we conclude the security evidence is insufficient to show their absence contributed legally causally plaintiff’s injury.
1216 Rent Members Gang Not to Duty
I. and associated gangs threat violent street Plaintiff emphasizes Californians and argues safety peaceful illicit drug dealing pose to rent to on landlords not a duty extent of this warrants danger imposing most serious dimensions the threat is of the members. We agree much, has said as its alleviation. The Legislature seeks urgently state policy Code, (Pen. with problem. the Official are Reports replete examples 763, 400 v. Advanced Group 186.21; see, (2001) 25 Cal.4th Saelzler e.g., § Gardeley People 617, 1143]; (1996) 14 Cal.4th 23 P.3d 770 Cal.Rptr.2d [107 Atlantic Claxton v. 356, 713]; 927 Cal.Rptr.2d 610-613 [59 Richfield Zuniga v. 425]; Co. (2003) Cal.Rptr.2d 108 Cal.App.4th [133 353]; Housing Authority (1995) 41 Cal.Rptr.2d Cal.App.4th [48 v. Hillshore Partners Medina (1995) Cal.App.4th 202].) Thai v. Stang 871]; Cal.Rptr. Cal.App.3d building can residents of subject apartment Street often gang activity not and risk. But we are levels of fear to unacceptable mobilehome park rental units from on landlords to withhold a duty persuaded imposing to this a fair or workable solution to be members is those believe as a whole. Absent with our state’s public policy or one consistent problem, *11 decline to recognize we foreseeability, showing extraordinary circumstances a such duty. note, their gang do not . . . announce members “Gang
As defendants for liability face regularly If landlords affiliations on housing applications.” to tend rental deny will they members cause on premises, injuries gang or, might broadly, any family even more who be a member anyone in would many in a The result cases gang. members be might one of whose race, family composition, the basis of ethnicity, be discrimination on arbitrary are, least some All of these or dress and reputation. appearance, circumstances, and could themselves subject and illegal against public policy Code, 12920, Fair (See Gov. liability. [California the landlord §§ and stating against, prohibit Act Housing provisions policy Employment status, race, or familial ancestry the basis of discrimination on ing, housing Point, Ltd. v. Marina (1982) 30 Cal.3d bases]; other among Wolfson Code, 51) (Civ. Act Rights § P.2d Civil Cal.Rptr. 115] [Unruh [180 families with excluding in a large housing complex a landlord prohibits an entire to exclude a business enterprise the act “does not permit children: ‘as class of individuals that the class a on the basis of generalized prediction of the other class misconduct than some to commit likely a whole’ is more In re Cox 474 P.2d (1970) Cal.3d Cal.Rptr. public”]; unconven on the basis of discrimination Civil Act bars Rights 992] [Unruh Club Angeles Los (1951) 36 Cal.2d dress and tional appearance]; Turf Orloff v. of criminal or [same, as to suspicion reputation 741 449] and alleged reputed conduct based past tendencies: “mere suspicion activities ... or on conversations . . . with considered persons questionable” did not from a justify establishment].)2 business Landlords expulsion would make, thus risk whichever choice liability and families whose ethnicity, children, could, some, or mode of teenage dress or personal appearance a suggest gang association would face an additional obstacle finding housing. looks,
Plaintiff maintains that when faced with a rental who applicant member, dresses or talks like a a landlord should obtain the applicant’s record, criminal which asserts would be plaintiff available readily through commercial investigative service. But not to rent resting members on the of such availability would shift the for screening merely trap landlords to different The ground. landlord would face for potential liability record, if he or she failed personal injuries to seek out an criminal applicant’s conducted an or insufficiently searching the record as not inquiry, misjudged reflecting strong for propensity gang violence and such violence later addition, ensued. In liability for discrimination could arise if the landlord treated applicants differently, on their depending ethnicity, family composi- tion, or either in appearance, whether to deciding obtain criminal history what deciding prior convictions and arrests would disqualify applicant. families, full histories on all alternative—obtaining and their applicants to rent to refusing anyone with arrests or convictions for crime that any could have involved a gang—would involve significant expense delay the landlord and unfairly deprive many Californians of Nor housing. is effective; records, proposed to be screening likely court especially juvenile are Code, which (Welf. confidential generally 827), law & Inst. are § recommends, not available presumably through services and even adult criminal records do not reflect necessarily circumstances crime from which a landlord could decide whether reliably renting *12 a threat applicant poses of gang violence. We decline to such a impose burdensome, dubiously effective and socially on questionable obligation landlords, at least absent circumstances violence making gang extraordinarily foreseeable. 2 places greater California law even restrictions on mobilehome park owners. For the owner,
protection of a mobilehome park whose home could be rendered unmarketable if the arbitrarily owner could to space refuse rent the which it the on is installed to home’s prospective buyer, Residency park grounds Mobilehome Law limits owners to two for refusing buyer: to approve ability lack of pay park charges, rent and and a reasonable determination, tenancies, purchaser’s “based on the prior comply he or she will not with [that] Code, 798.74, regulations (Civ. (a).) park.” the rules and of the Withholding subd. approval § (Ibid.) any subjects for other park liability. reason owner to civil 1218 case, difficulty we do not face issue any argues,
In this knew—having because Olsher gang membership, landlords in discerning for (the Levados) for space told his manager—that applicants been did not claim any Rogers, particular members. But the manager, were gang She testified only of members. gang in her identification or certainty expertise the mobilehome residing some of the young people that she “suspected” members, identify gang gangs; she could not gang though were park “wannabes,” not necessarily were meaning they characterized as others she evidence only with a gang. to be associated members but gang aspired of the testimony the Levados was told Olsher about anything that Rogers Trow, Rogers she that when complained grandmother, Joyce plaintiff’s members, said Rogers were thought gang in the Trow about people in, and that when Levados) was moving (inferentially, another “batch” this, could they prevent Olsher whether George she had asked (Rogers) is as as money good because her to rent to them anyway Olsher told “[t]heir all legitimate as true and drawing evidence Even yours.” accepting plaintiff’s nonsuit, it, review of a grant as is usual on inferences from appellate time of their that at the showing application not come close to evidence does them, Levados, were violent street or some of knew the Olsher members, likely themselves participate much less that he knew were Moreover, acted on Rogers’s had Olsher activities at the in violent park. of the mobile- the Levados’ withholding purchase information by approval liability civil himself to subjected potential he have might home on space Law, Residency suspicion violation of the Mobilehome for that law. under the allowed bases disapproval is not one of membership 798.74, Code, ante.)3 extraordinarily Given the (a); see fn. (Civ. subd. § social likely and its seeks impose nature of duty plaintiff burdensome here cost, than that demonstrated foreseeability much greater we conclude members. not to rent housing the duty be to recognize would required burden high requires 36 Cal.4th (See Delgado, supra, [imposition Rowland, Cal.2d at [“conse foreseeability]; heightened consider].) factors to among a duty” community imposing quences occupant of the mobilehome attorney suggested argument, plaintiff’s At oral subject only guest-approval and hence “guest” of the homeowner rent-paying 23 was a *13 lease, in the Mobilehome buyer-approval the restrictions rather than to space in the provision however, Levario leased indicated that Carmen point, Residency Law. The evidence on this was, Levario, space, on that occupied the home that Paul who 23 from Olsher and witness, also testified that Rogers the owner.” “the son of Rogers told another The record owned the trailer.” guy that plaintiff was “the son member whose friend shot or parents, or parent home from his age, he rented the Paul Levario’s whether does not show tenancy separately disapprove Paul Levario’s approve or was ever called on whether Olsher parents. or parent that of his
II. Duty to Evict Member Tenants Gang Levarios, rented to the obliged Plaintiff contends Olsher was having evict them once to harass and other residents of began annoy park. This asserted a different of burden and analysis foreseeability requires than above. A landlord has more the behavior ordinarily opportunity judge of an tenant than a rental existing In applicant. assessing danger tenant the landlord can on his or her own observations or existing rely poses, and, those of a where the circumstances make these property manager reliable, on of the other The will tenants. risk landlords feel complaints bases, to make decisions on social as compelled discriminatory costs creating well as thus legal liability, is lessened. potential hand,
On the other eviction of a tenant cannot be considered a undertaking trivial, minimal burden. The a tenant is not expense evicting necessarily and eviction results in the unit typically vacant for some sitting period. some more to the under the municipalities—and, Mobilehome present point, Law—the Residency landlord must have to may cause provide, prove, tenant, for the eviction.4 Finally, undertaking eviction of a hostile especially one involved in a violent street could the landlord or gang, subject property manager harassment or violence. retaliatory involved, Not of the burden surprisingly light courts this and other states have a tort to evict a recognized vicious or tenant dangerous in cases where the only tenant’s behavior made violence toward or neighbors foreseeable. In Madhani v. Cooper others on the premises highly 778], Cal.App.4th example, plaintiff’s neighbor shoved, in the defendant’s blocked apartment building bumped physically occasions, and her mother on several well plaintiff as them. berating Despite plaintiff’s frequent defendant’s man complaints property assailant, no action was taken ager, who against ultimately pushed (Id. stairs, down the 413—415.) her. The building’s injuring pp. Court of held the landlord had had a to evict the assaultive Appeal case, As relevant Residency tenancy to this the Mobilehome permits Law termination of a Code, 798.56, (Civ. for conduct annoyance” constitutes a “substantial to other residents § (b)), (id., (c)), specified occurring subd. conviction of offenses in the mobilehome subd. (id., (d)). and failure to comply agreement with a reasonable rule included in the rental subd. park management must include in the notice of termination a statement of the reasons date, witnesses, specific “with permit place, facts to determination of the and circumstances” Code, 798.56, (Civ. 798.57.) (d), supporting the termination. Under section subdivision § moreover, management give days must the tenant notice and seven to cure a rule violation period. must have cited the tenant for the same three or more in a violation times 12-month *14 1220 a case in is difficult to which imagine
tenant if necessary, observing “[i]t (Id. 415.)5 be more clear.” at p. of harm could foreseeability Estates, 578, Aire supra, Andrews v. Mobile a stands as 125 Cal.App.4th There, resident’s held one mobilehome the court contrasting example. mud onto the toward another behavior harassing annoying (splashing room, cars, a video camera at his living washed aiming newly plaintiff’s make his of the abuse) battery other did not racial verbal using epithets it did not for of a tort duty; “put foreseeable neighbor sufficiently imposition (Id. violence.” at for defendants on notice of propensity [the assailant’s] 596.)6 look, then, case to see if Olsher was to the circumstances this We an involving occupant of facts a making gang shooting on notice 5 936, (2006) Cal.Rptr.3d Cal.App.4th 1] 144 944-945 [51 See also Hawkins v. Wilton tenant, knowing “he (landlord security guard frequented to remain as a who allowed a former may have by methamphetamine,” carrying a firearm and while intoxicated premises while Lambert v. Doe dangerous premises); a tenant from the duty violated tort to exclude 844, (where 1984) known to a landlord showed 453 So.2d 848 information (Fla.Dist.Ct.App. bomb,” duty of a “time the landlord violated young an molester of children was adolescent Depot evicting family); Dean v. St. Paul Union by to other tenants not the molester’s care 360, (1889) railway depot a breached (operator N.W. Company 41 Minn. 362-363 [43 54] “savage and allowing employ a man of duty passengers by lessee to keep depot to safe (Cf. lawfully the premises). those on propensities” frequently who had assaulted vicious 578, (2005) Cal.Rptr.3d Cal.App.4th [22 832] Aire Estates 125 588-593 Andrews v. Mobile duty preserve to may implied landlord’s contractual disruptive to evict tenant breach [failure (1994) 20 Superior Lew v. Court enjoyment premises]; of leased quiet other tenants’ 866, management property, of rental Cal.Rptr.2d 870-874 Cal.App.4th 42] [owner’s [25 liability to nuisance to drug dealing, subjected the owner allowing it to become a haven for neighbors].) property’s evict, that a generally more duty other courts have found Apart question from the them from foreseeable duty protect owed tenants or other business invitees landowner Co., (E.g., v. Atlantic drug premises. on the Claxton by gangs attacks dealers Richfield 335-339; Authority, at Housing supra, Cal.App.4th 41 Zuniga v. Cal.App.4th pp. 108 at 1112, (2002) 95, County Angeles Cal.4th Zelig Los 27 questioned grounds other v. 709, (1997) 1171]; IV Condominiums 45 P.3d v. Woodmar 1138-1139 Martinez 218, 223-224].) Ariz. 206 [941 189 6 (1989) Cal.Rptr. Cal.App.3d 743] 1403-1406 [255 also Davis v. 207 See Gomez loudly herself and acting grumbling (although gun “peculiar,” and had been tenant had shooting of a by,” unprovoked “casting who walked her gesturing spells on those as if 1989) foreseeable); (D.C. A.2d sufficiently Morton v. Kirkland neighbor was not a cane did not (tenant’s threatening plaintiff with brandishing gun of a and his wife’s (1987) N.Y.S.2d foreseeable); City Auth. 130 A.D.2d Gill v. NY Hous. make assault tenant, no mentally ill as to whom authority no to evict a (housing had 371] (Cf. Cal.App.3d authority). Anaya Turk reported to violent actions had been prior him guest protect owe lessee did not Cal.Rptr. [apartment 187] 1100-1101 [199 ex-convict, where to be guest merely because shooter known shooting by another shooter].) from the Apart acts of violence” presented prior “specific no evidence was (roller evict, page rink Stang, supra, Cal.App.3d see Thai v. of a question shooting). “unforeseeable” customer from had no
1221 mobilehome on whether the facts foreseeable. space highly assessing crimes, show of third our have “heightened foreseeability” precedents party focused on whether there the were similar incidents from which prior occur, owner have the third crime would likely could property predicted party we have that indications of a though “other recognized possibility foreseeable risk of violent criminal assaults” could the same reasonably play Arman, Ltd., 240; (Delgado, supra, see also Sharon P. v. role. Cal.4th M., 1197-1198; Ann supra, 7.) Cal.4th at 6 Cal.4th at fn. pp. Evidence of two incidents related to the mobilehome was shooting park first, In the about the shooter was known—not presented. nothing identity, location; motive or even connection to the was that the bullet only park hit a mobilehome located there. Such an occurrence would not Olsher on put incident, notice of at the In the second a any particular danger park. young man at the a living park a confronta- apparently discharged handgun gang event, on an tion adjacent Olsher’s of that property. knowledge through Hicks, reminder, Rogers could be to serve as a if expected any were needed, about the general of escalation involved in confronta- danger gang involved, tions. But as no of the mobilehome on 23 was occupant space incident did little to establish that violence those a gun by was occupants Levados, occurrence. likely To establish a to evict must them or their by show that violence foreseeable. guests highly evidence, According to plaintiff’s Olsher was aware of belief that Rogers’s one or more members of Levado was in a family as we have gang; however, Olsher did explained, not have a to rent to refuse applicants his were manager thought members. The that heightened foreseeability would found, a justify to evict the Levados be if imposing must tenants, in their behavior anywhere, as to Olsher or his reported agent, resident, The evidence in Rogers. this was that another Monica regard had Preciado-Langford, complained Rogers mobile- occupants home on 23 or their had her her space guests harassed children by bull causing at them and that a pit growl or she had been person persons both, told lived at 23 or or had broken space windows her car. There was also evidence that four or five men at the mobilehome on space sister, fearful, whistled and hooted at her somewhat plaintiff’s making that these incidents were Even with reported Rogers. coupled Rogers’s members, belief that the of the mobilehome on 23 were occupants violence established this evidence possibility gun does not rise to a level of heightened to evict. No one foreseeability necessary impose used, had the Levados or their reported had guests displayed at the mobilehome possessed gun Although Rogers park. suspected so, members of the Levado to a and told Olsher she family belonged gang, Thus, did not as Northside Centro identify Centro. while Westside graffiti have members of that might suggested group frequented park, Levarios, confrontation, involving had no reason to expect Olsher the two rival gangs. between circumstances, two rival was not gangs a shoot-out
In these between foreseeable, it a tort *16 prevent and Olsher did not have highly to institute eviction “A landlord is not obliged proceed the Levarios. evicting (Morton tenant of harassment.” accuses another whenever tenant ings Kirkland, 695.) A.2d at supra, p. Maintain Brighter Lighting Hire Guards and Duty Security to
HI. court, this as an alternative At attorney urged oral argument, plaintiff’s above, of to affirm the Court Appeal’s the asserted landlord duties discussed security guards had a to hire and deploy determination that Olsher maintain brighter lights mobilehome and to violence in the park prevent gang in the common areas. foreseeability necessary impose
To establish the heightened
we have explained,
such as
hiring security guards,
burdensome
heavily
similar
incidents on
must show the existence
prior
the plaintiff
foreseeable
“indications of a reasonably
or other
serious
sufficiently
premises
240.)
36 Cal.4th at p.
(Delgado, supra,
risk of violent criminal assaults.”
. . .
similar
substantially
incidents at an “immediate[ly] proximat[e]
Criminal
M.,
(Ann
foreseeability.
establishment” can
to show the requisite
business
help
7; accord,
Delgado,
16.)
at
fn.
Plaintiff
fn.
supra,
6 Cal.4th at
lot,
incident of
on
gang gunplay
adjacent empty
that here the 1996
argues
with the
together
gang
involved a resident of the mobilehome park,
which
“wannabes”
at the
living
members and
park,
graffiti, complaints
that gang
Olsher on notice
crimes
there was sufficient
occurring
put
other
were taken.
at the
if no
measures
violence was
likely
erupt
park
protective
Defendants,
hand,
no
shooting
that until
the other
emphasize
plaintiff’s
confrontations had
violence or hostile
gun
known incidents of gang
members, defendants
mere
of gang
at the
itself.
presence
occurred
park
foreseeable.
did
make
violence
highly
not
argue,
guards, plaintiff’s
should have hired security
While
defendants
insisting
counsel,
would have
claim that
any
guard
oral
also disavowed
at
argument,
confrontation
late-night
the quickly developing
been able to break up
quell
Instead,
existence
counsel argued,
simple
in which
was injured.
gangs
have
likely
discouraged
would
mobilehome park
of guard patrols
did not arise
in this case
injury
there. Be that as it may,
from congregating
to the only testifying eyewitness,
According
out of a
gang gathering.
public
Sandoval,
the Northside
Paul Levario and one
other member of
Christina
inside the Levario home
Viloria,
when the car with
were
Manuel
gang,
Plaintiff
and the confrontation began.
members drove up
Westside gang
at the that having security guards
no evidence to suggest
presented
an individual
entertaining
guest
deterred Levarlo from
would
have
likely
home,
such effect
any
common
suggest
inside his
nor does
experience
have
be shown to
might
effect security guards
Whatever
likely.
protective
v. Advanced
crime in other circumstances (compare
violent
against
Saelzler
(dis.
with id. at
783-784
The same is park’s their mobile- testified the street in the area of lights While sister plaintiff’s *17 did Sandoval testified that during home not work or were inadequate, see that one of the she could argument leading shooting occupants up that looked like a and gun, of the mobilehome across the street had an object Given that the of she from school. recognized gunman occupants mobilehome on 23 were in an armed confrontation willing engage rival where allowed their to be seen lighting with members weapon shown that the absence themselves to be has not recognized, plaintiff simply confronta- of was a substantial factor in brighter lights likely producing tion and ensuing gunshot.
Even viewed in a favorable to the record contains insuffi- light plaintiff, cient evidence for a to find the absence of security guards inadequate jury was therefore were substantial factors Nonsuit lighting causing injury. proper.
Disposition of the Court of is reversed. judgment Appeal J., Baxter, J., Chin, J., Moreno, J., J., C. concurred. George, Corrigan, and Dissenting. another case in KENNARD, J., is Concurring yet This the issue of a business owner’s which this court has had with grapple from the criminal acts of third to undertake efforts to others obligation protect this court’s decisions clarity, Instead of much-needed providing parties. is the im this area have confusion. The core of this confusion engendered court, for the of two distinct concepts—duty, question proper intermingling breach as if it were treating and breach of that for the duty, jury. question decide, law for the trial court to and thus an issue of duty analysis, part Fried Kentucky (See the court the role of fact. as trier usurps jury Cal., Chicken Inc. Court (1997) Superior 14 Cal.4th Kennard, (dis. J.).) opn. 1260] here, court, Unlike the I have the not the would decide majority jury, whether defendant breached their mobilehome owners park however, tenants from I criminal acts. with the gang-related agree, majority test this court established in Rowland v. Christian that under the multifactor 561], Cal.2d 443 P.2d consider Cal.Rptr. policy ations the conclusion that landlords have no to refuse to rent to support individuals members of a street suspected being gang.
I Olsher, Olsher, Defendants Paule and P&G own George Enterprises Centro, mobilehome in El On Winterland-Westways County. Imperial 9, 1996, a.m., November 2:00 Ernest approximately 17-year-old plaintiff Castaneda, a resident mobilehome on his front park, standing when he was hit bullet fired an altercation between stray during porch two rival Plaintiff was an innocent Before the gangs. bystander. shooting, number of criminal at the activities had occurred mobilehome park, discussed below. *18 son, Hicks, and her lived at and the
Beverly Rogers Rodney managed where, mobilehome from to Hicks saw sales 60-space drug park, once or twice a week. The in the mobilehome lights park constantly were In broken. a bullet from a fired from outside the being August gun mobilehome went mobilehome but did not through injure park occupied fired on next to shots were the mobilehome anyone. early property told that the were fired A Hicks was shots who park; during gang fight. boy lived at the mobilehome and who tried to hide a after that gun shooting park arrested, incident was and defendants to evict the attempted boy’s family. (The evicted.) record does whether the was In the actually not disclose family thefts, of there were 26 five the years preceding shooting plaintiff, reported arsons, assaults, daily and acts of vandalism. and Hicks Managers Rogers over the gang graffiti on painted premises. adults in five of young living
Manager Rogers suspected teenagers the at the mobilehome were members. Two or three months spaces park shot, Trow, with whom before was plaintiff Joyce plaintiff’s grandmother lived, and his older sister to about the complained Rogers presence plaintiff members. then mentioned that another Rogers group mobilehome; members was in across from Trow’s said moving right Rogers it, there she could do about that when asked nothing Rogers was explaining told; “Go ahead members she was renting suspected gang defendants about is as good yours.” rent to them. Their money Levado, shot, the a member of Paul A few months before plaintiff mobilehome across 23 in the park, El Centro occupied space Northside gang, with Levado adults socialized Teenagers young from home. plaintiff’s residents 23. received Manager Rogers complaints in front of space whistled They out at 23.” that were bangers hanging about “gang Diana, her. Sometimes sister frightening and hooted at older plaintiff’s it as Monica in the mouth to make growl kicked a bull dog they pit resident, with her walked by another mobilehome Preciado-Langford, children, manager Rogers She small her ignoring pleas stop. complained the mobilehome She and about broken lights park. about group fixed, to take care lights to the other tenants “to get circulated petition Thereafter, windows some sort curfew.” to initiate graffiti [and] tenants, . . . “the boys of her car were smashed to the other by, according were afraid to her When sign petition. 23.” Tenants told her Space she the latter manager Rogers, repeated response complained the situation and that she defendant owners that could be done about nothing to hire out. Defendants ignored request Rogers could move simply security guards. After defendants for liability.
Plaintiff this action brought against premises rested his case and defense counsel five of a trial before a days jury, plaintiff motion, stating made an oral motion for nonsuit. The trial court granted similar incidents such that a shooting prior had “failed to show therefore, under Ann M. v. foreseeable; herein was highly Plaza Pacific Center Shopping Cal.4th 863 P.2d Cal.Rptr.2d 207] (Italics added.) The Court of landlord owed no plaintiff.” Appeal Trax Bar & Grill (2005) 36 Delgado v. reversed. It noted that recently (Delgado), majority of this Cal.4th 113 P.3d 1159] criminal court held that a owner has a against business *19 but also of others not there had been similar incidents” acts when only “prior risk of when there had been “other indications of a foreseeable reasonably (Id. Delgado, 240.) the Court violent criminal assaults . . . .” at p. Applying the to have jury of concluded that the evidence was sufficient Appeal to take obligation steps determine whether defendant landlords breached the criminal acts of others. protect plaintiff
II the determining in law is negligence One of the more difficult questions others from the the of a business owner to existence and of scope supra, criminal 36 Cal.4th at (Delgado, pp. acts of third parties. 1226 Kennard,
(dis.
J.).)
of
As I noted in
the law has
two
opn.
Delgado,
developed
basic
to this
the
of circumstances test and the
totality
approaches
question:
similar incident test. “The
test
general
circumstances
prior
totality
applies
nature,
it
into
takes
account such
as the
principles
negligence;
things
condition, and location
the
it
views
as a
premises;
foreseeability
question
of fact that turns on the
The second
takes the view that a
evidence.
approach
business owner has no
in
absence of a
similar incident on
prior
words,
in other
it views
the occurrence
foreseeability as
premises;
requiring
of a
similar event before a
to take
measures can
prior
precautionary
Dobbs,
(2
(2001)
be
on the business owner.
The Law of Torts
imposed
324,
877-878.)”
(dis.
Before this court’s
decision in
Isaacs v.
Memorial
Huntington
356,
(1985)
(Isaacs),
reading
Sharon
supra,
Arman,
121],
[(1999)]
Ltd.
1227
of
way
describing
totality
another
of
defendant business owner is just
both tests at the
Thus,
Delgado purports
recognize
test.
circumstances
Why? Because
simultaneously.
But both tests cannot be applied
same time.
includes
similar
necessarily
prior
of circumstances
test
totality
the general
circumstances
essence
test. Under the
of
test—in
incident
totality
a
to act as
reasonable
obligation
rule
has
negligence
everyone
in
nonexistence of a
existence or
prior
in similar circumstances—the
person
of
of
foreseeability
one
“indications”
similar incident is
of
just
many possible
(Isaacs,
135.)
supra,
a
criminal assault.
38 Cal.3d at
p.
violent
224,
Thus,
holding Delgado, supra,
crux of the
in
36 Cal.4th
majority’s
from the
is that a business owner owes a
others
criminal
legal duty
of that
is to act as
reasonable
acts of third
that the
parties
scope
the existence of a
and its
Deciding
in similar circumstances.
person
“
‘the standard of conduct
to which the
defendant
duty requires
scope
”
539,
(Ramirez
Inc.
(1993)
Cal.4th
546
Plough,
conform’
6
v.
(ibid.;
97,
167])
law for the court
863
are
of
questions
Isaacs,
M.,
674;
supra,
Ann
124).
But
supra,
Because of elasticity concept duty, possible in court to characterize issue case terms of analyze every negligence Cal., Court, Inc. supra, Fried Chicken v. duty. (Kentucky Superior 14 of Kennard, Dobbs, (dis. J.); Law Cal.4th at of Torts p. opn. 226, 578, 584-585; (5th Keeton on Torts ed. Prosser & p. § pp. § 1984) 356.) But so is it conflates the legal because doing improper § (a court) standard decision for the with factual conduct applicable (a for the of whether standard has been breached decision question jury). Court, Cal., supra, Inc. (See, Kentucky Superior Fried Chicken e.g., Kennard, Dobbs, Torts, (dis. J.); The Law of Cal.4th at pp. opn. 577; Torts, 328B, 328C.) supra, see Rest.2d § §§ owed, the court formulates the nature and determining scope a wide to what general applicability variety rule of conduct is required is, circumstances, to a it states a rule of law applicable similar Torts, b, 155-156; (See, com. of cases. Rest.2d 328C & category e.g., pp. § Torts, 1) Final Draft No. 8 & Harm Liability Physical (Proposed § Rest.3d 577-578; 114-115; Torts, b, Dobbs, supra, The Law of pp. com. § pp. 236-237; Torts, & Keating, & Keeton on see pp. Esper Prosser § *21 1228 265,
Abusing “Duty” (2006) 324-327.) 79 So.Cal. L.Rev. But whether the standard, is, defendant’s specific acts or failures to act satisfied that whether there was a breach of the owed to the is plaintiff, question “fact” for the to decide. “Put more the jury difference between the broadly, doctrines comes to this. ‘Breach/No breach’ involves the evaluation of a however, defendant. . . . ‘No specific is not a matter of duty,’ making Rather, evaluation of the facts of this case. it is a determina- specific global that, reason, tion for some courts should not entertain overriding policy causes of action for fall cases that into certain categories.” (Sugarman, 833, Assumption Risk (1997) 843.) 31 Val.U. L.Rev. Or as others have “When reasonable over explained: might whether defend- people disagree hand, ant exercised reasonable care in the circumstances at long-settled doctrine it holds that is for decide the issue. Articula- juries—not judges—to tion of the law is for of the law is for & judges; application juries.” (Esper 269, Keating, Abusing “Duty,” supra, 79 omitted.) So.Cal. L.Rev. at fn. The here for different justification majority intermingling offers two and breach—is that is an element of the concepts—duty “foreseeability” determination and that it is therefore for the court to determine the foresee- of a event and evaluate the ability burden that would be specific imposed by ante, “duty.” 1213-1215.) (Maj. opn., pp.
But serves several in foreseeability functions law. “The foresee- negligence of a kind of harm in ability significant role this particular plays very [duty] 72, Dillon v. (see Legg [(1968)] calculus 68 Cal.2d Cal.Rptr. [69 but a court’s task—in 912]), P.2d not decide determining ‘duty’—is particular whether a in foreseeable of a plaintiff’s injury reasonably light conduct, particular defendant’s but rather to evaluate more whether generally conduct at category negligent issue is to result in the sufficiently likely kind of harm that liability be on the experienced may appropriately imposed negligent party. [1] The jury, contrast, considers ‘foreseeability’ in two focused, First, more settings. consider the likeli- fact-specific jury may whether, fact, hood or in in foreseeability injury determining particular Second, defendant’s conduct was in the first negligent foreseeability place. be relevant may determination of whether the defendant’s jury’s (Ballard negligence was cause of proximate legal plaintiff’s injury.” 564, 573, Uribe (1986) 624], 41 Cal.3d fn. 6 715 P.2d Cal.Rptr. added; Torts, 1st & 4th italics see Rest.3d generally Liability Physical 1) Harm Final Draft No. com. j, [rejecting (Proposed pp. approach § exists].) has role whether a foreseeability any determining here elements of majority goes astray treating separate Parsons v. Disposal Crown Co. (See breach as if were one and the same. (dis. 15 Cal.4th opn. 70] *22 Court, Kennard, Cal., J.); Chicken v. Superior Fried Inc. Kentucky of Kennard, Cal.4th (dis. J.).) of to the opn. According majority, court, the is for the whether trial or to determine “duty analysis” appellate, measures a asserts the owner defendants should specific business harm, have taken to from the by analysis a followed court’s protect plaintiff measures, of financial and burdens those fol social flowing specific the of third lowed court’s identification of the nature conduct party Then, the court’s how according assessment of foreseeable the conduct was. to the the it is for court to the burden and to majority, foreseeability compare ante, determine the of case. at duty (Maj. existence each opn., earlier, 1213-1215.) it No! as I noted is for the court to pp. Although, determine the of a existence to articulate the of that as duty scope duty fact, rule of it for as trier general is the of to decide applicability, jury, whether the the defendant’s conduct breached specific legal duty imposed. case,” Under the is “a it majority’s duty every making live issue approach, to draw a line “impossible between principled provinces judge & at jury.” (Esper Keating, Abusing 79 So.Cal. L.Rev. “Duty,” supra, 269.) law, This “a introduces into p. pervasive instability negligence placing the standard conduct legal (Id. governing up grabs.” perpetually 272.)
m The all general rule is that owe to care persons exercise reasonable towards others unless there is an or statutory provision declaring exception unless public considerations an policy recognizing support exception. (Rowland Christian, Thus, 112.) supra, 69 Cal.2d at to determine whether a be landlord liable to a three be may need to plaintiff, questions First, answered. do considerations that the policy justify holding landlord Second, not, defendant owed no to the if what is the plaintiff? scope Third, legal that sufficient that duty? did evidence such plaintiff present reasonable could differ as to that persons whether defendant breached duty?
I with agree considerations its conclusion majority policy support that landlords do not have to rent to refuse to persons suspected out, members being of a street As the gang. landlord’s majority points to inability ascertain with tenant’s certainty prospective background, risk landlords to screen out members use attempting may arbitrary methods, or selection discriminatory liability and the landlord’s potential tenants prospective erroneously associations suspected (maj. opn., ante, at 1216-1217) pp. together warrant recognizing exception act landlord’s as a general duty reasonable person. its other No consider disagree holdings. policy
But I with majority warrant an to the of a business statutory exception ations provisions criminal third acts to act others from the reasonably owner parties. is evidence sufficient whether pertinent inquiry plaintiff produced of whether defendant landlords jury warrant submitting question I have to act as in similar circumstances. As persons failed reasonable in the whether a if reasonable differ persons might observed past, standard, then the matter should defendant’s conduct has conformed to *23 Inc., (Ramirez Plough, v. 546.) be 6 Cal.4th at submitted jury. “ doubt, is the ‘If there is it of court to let case any go ” (Golceff v. 152, Sugarman 665].) (1950) 36 Cal.2d P.2d jury.’ [222 Here, As evidence is sufficient to warrant submission to the jury. plaintiff’s 1210-1211, ante, before was mentioned on in the five pages years plaintiff assaults, shot, thefts, arsons, there had and acts of vandalism been 26 reported were at defendants’ The the mobilehome park. lights park mobilehome and in need of Defendants’ constantly being property managers broken repair. several about harassment and intimidation received from tenants complaints adults that young members on by gang property. teenagers 23, at member including front of the mobilehome congregated Levado, bull in the mouth dog Paul harassed sister and kicked a pit plaintiff’s with it as she passed by make at resident Monica growl Preciado-Langford managers her children. were over Daily, painting small property And there two in or near the mobilehome shootings park, had been graffiti. which was with resident. activity involving park one of associated view, could that this evidence is such that reasonable minds conclude my reasonably failing defendant landlords breached their act or take other remove members from mobilehome dangerous gang measures. security that do not with the failed majority produce
I also agree ante, 1222.) cause Legal evidence of causation. (Maj. opn., sufficient causes, be one of the not the only the act or failure to act only requires cause, means causation it does the exact not injury require (Viner v. Sweet (2003) 30 Cal.4th be known or capable precise prediction. Advanced 629, 1046]; Saelzler P.3d v. Cal.Rptr.2d 1239-1240 Group 23 P.3d 25 Cal.4th Cal.Rptr.2d Mitchell Kennard, J.); (1991) 54 Cal.3d (dis. Gonzales opn. 1143] 872].) 1049 [1 like the Court
Accordingly, I conclude that defendant Appeal, landlords to take reasonable and “ha[d] measures to appropriate attempt residents violence” potential gang the evidence is sufficient to submit to the of whether jury defendants breached question this I would affirm the duty. judgment Court of Appeal.1
Appellant’s 17, 2007, for a petition was denied rehearing October and the opinion J., modified to read as above. C. did printed George, not Kennard, J., therein. participate was of the that the should opinion petition be granted. *24 judgment Appeal Court of did not question address the of whether defendants could be held refusing liable for suspected gang to rent to members. It reversed the trial court’s
judgment and remanded the case with directions that the trial court jury “instruct the that a property owner who is ongoing aware of gang activity criminal occurring on property his has a duty to take appropriate reasonable and measures attempt potential residents from agree violence.” I judgment with the of the Court of Appeal as so stated.