Castaneda v. Olsher

• Court: California Supreme Court
• Writing for the Court: Werdegar
• Citation: Castaneda v. Olsher, 162 P.3d 610, 63 Cal.Rptr.3d 99, 41 Cal.4th 1205 (Cal. 2007)
• Decision Date: 30 July 2007
• Docket Number: No. S138104.,S138104.
• Parties: Ernest CASTANEDA, Plaintiff and Appellant, v. George OLSHER et al., Defendants and Respondents.

63 Cal.Rptr.3d 99

41 Cal.4th 1205

162 P.3d 610

Ernest CASTANEDA, Plaintiff and Appellant, v. George OLSHER et al., Defendants and Respondents.

No. S138104.

Supreme Court of California.

July 30, 2007.

Sutherland & Gerber and Lowell F. Sutherland, El Centro, for Plaintiff and Appellant.

Horvitz & Levy, David M. Axelrad, Barry R. Levy, Kim L. Nguyen, Encino; Hollins • Schechter and Bruce Lee Schechter, Santa Ana, for Defendants and Respondents.

Heidi Palutke, Sacramento, for California Apartment Association as Amicus Curiae on behalf of Defendants and Respondents.

Bien & Summers, Elliot L. Bien and E. Elizabeth Summers, Novate, for Western Manufactured Housing Communities Association as Amicus Curiae on behalf of Defendants and Respondents.

Fred J. Hiestand, Sacramento, for The Civil Justice Association of California as Amicus Curiae on behalf of Defendants and Respondents.

Deborah J. LaFetra, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Defendants and Respondents.

WERDEGAR, J.

Defendants George Olsher, Paule Olsher and P & G Enterprises (collectively Olsher) own a mobilehome park in which plaintiff Ernest Castaneda lived. Plaintiff was shot and injured while he was a bystander to a gang confrontation involving a resident of the mobilehome across the street from his. He sued Olsher contending Olsher had breached a duty not to rent to known gang members or to evict them when they harass other tenants. The superior court granted a defense motion for nonsuit after presentation of plaintiffs case, but the Court of Appeal reversed.

We conclude the grant of nonsuit was proper. Landlords, including mobilehome park owners, ordinarily have no duty to reject prospective tenants they believe, or have reason to believe, are gang members. To recognize such a duty would tend to encourage arbitrary housing discrimination and would place landlords in the untenable situation of facing potential liability whichever choice they make about a prospective tenant. With regard to eviction, we agree that a residential tenant's behavior and known criminal associations may, in some circumstances, create such a high level of foreseeable danger to others that the landlord is obliged to take measures to remove the tenant from the premises or bear a portion of the legal responsibility for injuries the tenant subsequently causes. In the present case, however, the facts known to Olsher did not make a violent gang confrontation involving these tenants so highly foreseeable as to justify imposition of a duty to undertake eviction proceedings.

Factual and Procedural Background

Olsher has owned the Winterland-Westways mobilehome park in El Centro since at least 1991. Beverly Rogers and her son, Rodney Hicks, lived at and managed the 60-space park. On the night he was shot, November 9, 1996, plaintiff (who was 17 years old) lived in a mobilehome on space 10 with his grandmother and older sister.

The mobilehome on space 23, across the street from plaintiffs, was occupied by Paul Levario. Beverly Rogers, the on-site property manager, testified that in the year prior to the shooting, space 23 was leased to Carmen Levario. According to Rogers, however, Carmen Levario did not live there. Rather, Rogers told another witness, the home was vacant, but "the son of the [mobilehome] owner" (a Mr. Levario) was "hanging out there."

A former El Centro police officer who had specialized in studying and controlling local criminal gangs identified Paul Levario as a member of the Northside El Centro gang. According to the police report and an eyewitness, a fellow Northsider who was visiting Levario, Manuel Viloria, fired the shot that injured plaintiff.

On the night of his injury, plaintiff attended a party outside the mobilehome park. Sometime after 1:00 or 2:00 a.m., he drove home with three friends. Plaintiff went inside his mobilehome briefly to let his sister know they were there, while his friends waited in the car. A few minutes later, another car, with four young men in it, pulled up behind plaintiffs car. Around the same time, two young men came out of the mobilehome across the street and, according to one of plaintiffs friends, Christina Sandoval, started "exchanging words and gang slurs" with the men in the second car. Sandoval recognized one of the men from the mobilehome as Manuel Viloria and saw what she thought was a gun in his hand. One of the men in the second car yelled, "Westside Centro, Westside Centro," while the men from the mobilehome called out, "Northside Centro." After a few minutes, as Sandoval and another friend started toward plaintiffs home, "shots were fired." Plaintiff, who had reemerged from his home to his front porch area, was hit in the back.

Two or three months before the shooting, plaintiffs grandmother, Joyce Trow, complained to Rogers about people Trow thought looked like gang members hanging around the mobilehome park and breaking the bulbs in the outdoor lights. According to Trow, Rogers responded that there was "one more batch" moving in "right across from" Trow. When asked whether she could prevent this, Rogers said she could not: she had talked to George Olsher, but he had told her, "Go ahead and rent to them. Their money is as good as yours," or something to that effect.

Joyce Trow testified that for approximately two months before the shooting she saw people dressed like gang members congregating at the mobilehome across the street from hers. Her granddaughter (and plaintiffs sister), Diana Castaneda, encountered groups of four or five men, including the mobilehome owner's son, dressed in baggy pants and flannel shirts, drinking from 40-ounce bottles outside the mobilehome on space 23 over the month before plaintiff was shot. Because they whistled and hooted at her sometimes, she felt "a small amount of fear" and tried to avoid attracting their attention, covering herself up and walking quickly between her car and her home. Diana Castaneda told her grandmother about the incidents, and Trow testified she conveyed her granddaughter's complaint to Rogers, although Rogers testified she never received any complaints about the occupants of the mobilehome on space 23.

Another tenant, Monica Preciado-Langford, testified that when she walked with her small children past space 23, the "boys hanging out" there, who wore bandanas or Pendleton jackets, would sometimes kick their pit bull in the mouth to make it growl. Preciado-Langford asked the boys to stop, but they ignored her. She complained to Rogers about this group of boys, as well as about those at space 24, who were throwing rocks, and about lights that were broken at the park. On another occasion, someone broke windows on Preciado-Langford's car; another resident told her the perpetrators were from spaces 23 and 24. Preciado-Langford complained to Rogers about that incident as well. Rogers responded to these complaints by saying there was nothing she could do, the owner "didn't want to invest any more money and that the people in the park had no place else to go."

Evidence was presented of two prior gunshot incidents related to the mobilehome park. In August 1995, a bullet— fired by an unknown shooter from a location estimated to be outside the mobilehome park—went through an occupied mobilehome, but did not hit anyone. In early 1996, during what Rodney Hicks, Rogers's son and assistant, was told was a gang confrontation, shots were fired on a property contiguous to the mobilehome park. A boy who lived at the park, seen trying to hide a gun after the shooting, was arrested that evening and never returned to the park; the management undertook efforts to evict his family. Rogers knew or was informed of both incidents.

Prior to the shooting that injured plaintiff, there had also been drug sales and apparent gang members at the mobilehome park. Rogers identified residents of four mobilehomes, other than the occupants of the mobilehome on space 23, whom she thought were members or aspiring members of gangs (including the boy arrested in the shooting incident on the property next to the park). Gang graffiti, including references to "Westside Centro," was seen regularly at the park. Rogers and Hicks painted it out "every day." Between 1993 and 1996, Hicks testified, he saw what he believed to be drug sales at the park "once or twice a week." Hicks and Rogers both told Olsher of these problems; Olsher told Rogers there was nothing they could do to evict the problem tenants and suggested Hicks call the police.¹

At the close of plaintiffs case, defendants moved for nonsuit, contending no duty was established and causation was unproven. Plaintiff argued Olsher had a duty "not to rent to [the Levarios] in the first place," to "remove them once he began to get complaints from the tenants that they constituted an annoyance," or, failing that, to take additional security measures such as hiring guards. Causation was shown because had Olsher not breached his duty to "get ... dangerous gang members out of the park," the gang member who shot plaintiff would not have been on the premises. The trial court concluded nonsuit was proper on the ground "plaintiff has failed to show prior similar incidents such that a shooting herein was highly foreseeable; therefore, under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 the landlord owed no duty to plaintiff."

The Court of Appeal reversed and remanded for trial. In the appellate court's assessment, plaintiff "presented evidence that Olsher was aware that he was renting spaces in his mobilehome park to gang members and that there had been a variety of gang-related criminal activity and other similar crimes occurring on and near the premises, [¶] ... Olsher [thus] had a duty to undertake additional security measures in the Park to protect residents from potential violence occurring on the property. Castaneda presented sufficient evidence that Olsher's...