Rosales v. Stewart

Citation113 Cal.App.3d 130,169 Cal.Rptr. 660
CourtCalifornia Court of Appeals
Decision Date11 December 1980
PartiesSaul ROSALES and Rosa Rosales, Plaintiffs and Appellants, v. Thelma STEWART, Defendant and Respondent. Civ. 57709.

Lorenzo Martin Campbell, Watsonville, for plaintiffs and appellants.

Halde, Thomas, Kallman & Hulse and Jeffrey Evan Thomas, Santa Barbara, for defendant and respondent.

STEPHENS, Associate Justice.

Appellants, Saul and Rosa Rosales, initiated this wrongful death action in their capacity as the parents and only heirs of Noemi Rosales who was ten years old at the time of her death.

While in the backyard of her home, on the afternoon of June 6, 1978, Noemi was struck by a bullet fired by one Steven Boyer (hereinafter Boyer) while standing in the backyard of a dwelling which he was renting from respondent Thelma Stewart. Two days later Noemi died as a result of the injuries she suffered when struck by the bullet. The backyard of the dwelling owned by Thelma Stewart, from which her tenant had fired the fatal shot, adjoined that of decedent.

Appellants alleged in the first amended complaint that "From at least May, 1978, defendants (Stewart and Does) were aware that their tenant ... occasionally discharged a firearm in the backyard of the rented dwelling .... (P) Defendants (Stewart and Does) knew that such conduct had occurred and that such conduct was likely to occur in the future and was likely to constitute a threat to the lives and safety of persons, ... (P) On June 6, 1978, defendants (Stewart and Does) negligently failed to exercise ordinary care in management of their property and to prevent defendants from constituting a physical threat to other persons."

This appeal is taken from an order of dismissal entered after respondent's demurrer to appellants' first amended complaint was sustained without leave to amend.

I.

The primary issue on this appeal is whether a landlord may be liable for the acts of her tenant committed on the leased premises which injure persons on the adjoining premises.

Regarding the elements of a cause of action for negligent injury to person or property, the complaint "must allege (1) defendant's legal duty of care toward plaintiff; ... (2) defendant's breach of duty-the negligent act or omission; ... (3) injury to plaintiff as a result of the breach-proximate or legal cause; ... (and) (4) damage to plaintiff ...." (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 450, p. 2103.)

Although the legal conclusion that "a duty" exists is neither necessary nor proper in a complaint, facts which cause it to arise (or from which it is "inferred") are essential to the cause of action. (Palmer v. Crafts (1936) 16 Cal.App.2d 370, 374, 60 P.2d 533.)

It is a general principle that one owes a duty of care only to those who are foreseeably endangered by one's own conduct, with respect to all risks which make the conduct unreasonably dangerous. (Civ.Code, § 1714; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.) As this court stated in J. A. Meyers & Co. v. Los Angeles County Probation Dept. (1978) 78 Cal.App.3d 309, 312-313, 144 Cal.Rptr. 186: "Under the common law, as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct absent some special relationship to either the person whose conduct needs to be controlled or to the foreseeable victim of that conduct. (Tarasoff v. Regents of University of California, 17 Cal.3d 425, 435 (131 Cal.Rptr. 14, 551 P.2d 334) ...)"

Appellants claim they have pleaded such a special relationship, that of landlord-tenant, and therefore the court below abused its discretion in sustaining the demurrer to the first amended complaint without leave to amend. They rely primarily on three cases they believe are controlling: Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 [113 Cal.App.3d 134] P.2d 561; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 118 Cal.Rptr. 741; Brennan v. Cockrell Investments, Inc. (1973) 35 Cal.App.3d 796, 111 Cal.Rptr. 122.

In Rowland v. Christian, supra, the court, in its determination of whether a possessor of land owes a duty to injured victims, stated that the following considerations must be balanced: the foreseeability to harm to the plaintiff; the closeness of the connection between defendant's conduct and the injury suffered; the moral blame attached to the defendant's conduct; the extent of the burden to the defendant and the consequences to the community of imposing a duty with resulting liability for breach; and the availability, cost and prevalence of insurance for the risk involved. (Id. at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

In the instant case, the tenant was alleged to have engaged in an activity which was both dangerous to others than...

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20 cases
  • Becker v. IRM Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • June 24, 1983
    ...negligent act or omission, (3) injury to plaintiff as the result of the breach, and (4) compensable damages. (Rosales v. Stewart (1980) 113 Cal.App.3d 130, 133, 169 Cal.Rptr. 660; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 450, p. 2103.) Liability for negligent conduct may only be i......
  • Becker v. Irm Corp.
    • United States
    • California Supreme Court
    • April 29, 1985
    ...negligent act or omission, (3) injury to plaintiff as the result of the breach, and (4) compensable damages. (Rosales v. Stewart (1980) 113 Cal.App.3d 130, 133, 169 Cal.Rptr. 660; 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 450, p. 2103.) Liability for negligent conduct may only be im......
  • Robertson v. Wentz
    • United States
    • California Court of Appeals Court of Appeals
    • December 16, 1986
    ...negligent act or omission, (3) injury to plaintiff as the result of the breach, and (4) compensable damages. (Rosales v. Stewart (1980) 113 Cal.App.3d 130, 133, 169 Cal.Rptr. 660.) The case before us presents the issue of whether respondent, in her role as parent, had a legal duty to preven......
  • Baldwin v. Zoradi
    • United States
    • California Court of Appeals Court of Appeals
    • August 31, 1981
    ...of prior conduct (shooting pellet guns in a dangerous way) that might result in injury. To the same effect, see Rosales v. Stewart (1980) 113 Cal.App.3d 130, 169 Cal.Rptr. 660 a landlord may be liable for a tenant's activity in firing guns from his property if the landlord could eliminate t......
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3 books & journal articles
  • Negligence
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...191 Cal. App. 4th 1298. §1:24 Damage Damage must be pled and proved as an essential element of negligence. Rosales v. Stewart (1980) 113 Cal. App. 3d 130, 169 Cal. Rptr. 660. The phrase “injury occasioned to another” as used in Civil Code §1714 is the economic and non-economic injury to the......
  • Animal torts
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...Cal. App. 4th 1298 (2011). §6:24 Damages Damage must be pleaded and proved as an essential element of negligence. Rosales v. Stewart, 113 Cal. App. 3d 130 (1980). 16-15 Animal Torts §16-6:33 §6:30 AUTHORITIES §6:31 Duty While the general rule of law is that a defendant’s duty is to the pet,......
  • Mcle Self-study Article: Recognition of Hostile Housing Environment Claims Under the Federal Fair Housing Act and the California Fair Employment and Housing Act
    • United States
    • California Lawyers Association California Real Property Journal (CLA) No. 33-1, March 2015
    • Invalid date
    ...of eviction or lesser incrementally protective measures, such as a security camera may inhibit problem tenant); Rosales v. Stewart, 113 Cal. App. 3d 130, 135 (1980) (landlord's persuasion or threats may dissuade tenant).29. Donchin v. Guerrero, 34 Cal. App. 4th 1832, 1838-48 (1995).30. Id.3......

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