Castaneda v. Olsher

KENNARD, J., Concurring and Dissenting.

This is yet another case in which this court has had to grapple with the issue of a business owner’s obligation to undertake efforts to protect others from the criminal acts of third parties. Instead of providing much-needed clarity, this court’s decisions in this area have engendered confusion. The core of this confusion is the improper intermingling of two distinct concepts—duty, a question for the court, and breach of that duty, a question for the jury. In treating breach as if it were part of the duty analysis, and thus an issue of law for the trial court to decide, *1224the court usurps the role of the jury as trier of fact. (See Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 833-844 [59 Cal.Rptr.2d 756, 927 P.2d 1260] (dis. opn. of Kennard, J.).)

Unlike the majority here, I would have the jury, not the court, decide whether defendant mobilehome park owners breached their duty to protect tenants from gang-related criminal acts. I agree, however, with the majority that under the multifactor test this court established in Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561], policy considerations support the conclusion that landlords have no duty to refuse to rent to individuals suspected of being members of a street gang.

I

Defendants George Olsher, Paule Olsher, and P&G Enterprises own the Winterland-Westways mobilehome park in El Centro, Imperial County. On November 9, 1996, at approximately 2:00 a.m., 17-year-old plaintiff Ernest Castaneda, a resident of the mobilehome park, was standing on his front porch when he was hit by a stray bullet fired during an altercation between two rival gangs. Plaintiff was an innocent bystander. Before the shooting, a number of criminal activities had occurred at the mobilehome park, as discussed below.

Beverly Rogers and her son, Rodney Hicks, lived at and managed the 60-space mobilehome park, where, from 1993 to 1996, Hicks saw drug sales once or twice a week. The lights in the mobilehome park were constantly being broken. In August 1995, a bullet from a gun fired from outside the mobilehome park went through an occupied mobilehome but did not injure anyone. In early 1996, shots were fired on property next to the mobilehome park; Hicks was told that the shots were fired during a gang fight. A boy who lived at the mobilehome park and who tried to hide a gun after that shooting incident was arrested, and defendants attempted to evict the boy’s family. (The record does not disclose whether the family was actually evicted.) In the five years preceding the shooting of plaintiff, there were 26 reported thefts, assaults, arsons, and acts of vandalism. Managers Rogers and Hicks daily painted over gang graffiti on the premises.

Manager Rogers suspected that teenagers or young adults living in five of the spaces at the mobilehome park were gang members. Two or three months before plaintiff was shot, Joyce Trow, plaintiff’s grandmother with whom plaintiff and his older sister lived, complained to Rogers about the presence of gang members. Rogers then mentioned that another group of gang members was moving in right across from Trow’s mobilehome; Rogers said there was nothing she could do about it, explaining that when Rogers asked *1225defendants about renting to suspected gang members she was told; “Go ahead and rent to them. Their money is as good as yours.”

A few months before plaintiff was shot, Paul Levado, a member of the Northside El Centro gang, occupied space 23 in the mobilehome park, across from plaintiff’s home. Teenagers and young adults socialized with Levado in front of space 23. Manager Rogers received complaints from residents about the “gang bangers that were hanging out at space 23.” They whistled and hooted at plaintiff’s older sister Diana, frightening her. Sometimes they kicked a pit bull dog in the mouth to make it growl as Monica Preciado-Langford, another mobilehome park resident, walked by with her small children, ignoring her pleas to stop. She complained to manager Rogers about the group and about broken lights at the mobilehome park. She circulated a petition to the other tenants “to get the lights fixed, to take care of the graffiti [and] to initiate some sort of curfew.” Thereafter, the windows of her car were smashed by, according to the other tenants, “the boys in . . . Space 23.” Tenants told her that they were afraid to sign her petition. When she complained to manager Rogers, the latter repeated the response of defendant owners that nothing could be done about the situation and that she could simply move out. Defendants ignored the request of Rogers to hire security guards.

Plaintiff brought this action against defendants for premises liability. After five days of a trial before a jury, plaintiff rested his case and defense counsel made an oral motion for nonsuit. The trial court granted the motion, stating that plaintiff had “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.” (Italics added.) The Court of Appeal reversed. It noted that recently in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 [30 Cal.Rptr.3d 145, 113 P.3d 1159] (Delgado), a majority of this court held that a business owner has a duty to protect against the criminal acts of others not only when there had been “prior similar incidents” but also when there had been “other indications of a reasonably foreseeable risk of violent criminal assaults . . . .” (Id. at p. 240.) Applying Delgado, the Court of Appeal concluded that the evidence was sufficient to have the jury determine whether defendant landlords breached an obligation to take steps to protect plaintiff from the criminal acts of others.

II

One of the more difficult questions in negligence law is determining the existence and scope of the duty of a business owner to protect others from the criminal acts of third parties. (Delgado, supra, 36 Cal.4th at pp. 250-251 *1226(dis. opn. of Kennard, J.).) As I noted in Delgado, the law has developed two basic approaches to this question: the totality of circumstances test and the prior similar incident test. “The totality of circumstances test applies general principles of negligence; it takes into account such things as the nature, condition, and location of the premises; it views foreseeability as a question of fact that turns on the evidence. The second approach takes the view that a business owner has no duty in the absence of a prior similar incident on the premises; in other words, it views foreseeability as requiring the occurrence of a prior similar event before a duty to take precautionary measures can be imposed on the business owner. (2 Dobbs, The Law of Torts (2001) § 324, pp. 877-878.)” (Delgado, supra, 36 Cal.4th at p. 253 (dis. opn. of Kennard, J.).)

Before this court’s 1985 decision in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 [211 Cal.Rptr. 356, 695 P.2d 653] (Isaacs), our state Courts of Appeal were divided on which of those two tests to apply. (Id. at pp. 125-129.) Isaacs rejected the prior similar incident test in favor of the totality of the circumstances test. (Id. at pp. 125-127, 130.) But in 1993, in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666 (Ann M.), which involved a rape by an unknown assailant at a store, this court changed course, and held that in the absence of a prior similar incident a business owner had no duty to provide security guards (id. at p. 679).

In 2005, I pointed out in my dissenting opinion in Delgado: “Anyone reading this court’s decisions in Ann M., supra, 6 Cal.4th 666, Sharon P. v. Arman, Ltd. [(1999)] 21 Cal.4th 1181 [91 Cal.Rptr.2d 35, 989 P.2d 121], and Wiener v. Southcoast Childcare Centers, Inc. [(2004)] 32 Cal.4th 1138 [12 Cal.Rptr.3d 615, 88 P.3d 517], would conclude that (1) the prior similar incident rule applies to premises liability claims against business owners for failing to take precautions against possible future criminal conduct of third parties when the conduct is a criminal assault by a third party .. ..” (Delgado, supra, 36 Cal.4th at p. 255 (dis. opn. of Kennard, J.).) The Court of Appeal here made the same point when it stated that “prior to Delgado, there was no clear authority that anything other than a prior similar incident occurring on the property would be sufficient to indicate a ‘reasonably foreseeable risk of violent criminal assaults.’ (Delgado, supra, 36 Cal.4th at p. 239.)”

But in Delgado, supra, 36 Cal.4th 224, a majority of this court stated that the “plaintiff was required to demonstrate heightened foreseeability in the form of prior similar incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults . . .)” that is to be balanced against the burden imposed (id. at p. 244, original italics; see maj. opn., ante, at p. 1222). The reference in Delgado to “other indications of a reasonably foreseeable risk of violent criminal assaults” balanced against the burden imposed on the *1227defendant business owner is just another way of describing the totality of circumstances test. Thus, Delgado purports to recognize both tests at the same time. But both tests cannot be applied simultaneously. Why? Because the totality of circumstances test necessarily includes the prior similar incident test. Under the totality of circumstances test—in essence the general rule in negligence that everyone has an obligation to act as a reasonable person in similar circumstances—the existence or nonexistence of a prior similar incident is just one of many possible “indications” of foreseeability of a violent criminal assault. (Isaacs, supra, 38 Cal.3d at p. 135.)

Thus, the crux of the majority’s holding in Delgado, supra, 36 Cal.4th 224, is that a business owner owes a legal duty to protect others from the criminal acts of third parties and that the scope of that duty is to act as a reasonable person in similar circumstances. Deciding the existence of a duty and its scope or “ ‘the standard of conduct to which the duty requires the defendant to conform’ ” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167]) are questions of law for the court (ibid.; Ann M., supra, 6 Cal.4th at p. 674; Isaacs, supra, 38 Cal.3d at p. 124). But “[o]nce the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant’s conduct has conformed to the standard.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p. 546; see Rest.2d Torts, § 328C, subd. (b); see also Rest.2d Torts, § 328B, com. g, p. 154.) Stated differently, whether there has been a breach of the duty is a question for the jury, not the court.

Because of the elasticity of the concept of duty, it is always possible for a court to characterize and analyze every issue in a negligence case in terms of duty. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th at p. 839 (dis. opn. of Kennard, J.); 1 Dobbs, The Law of Torts (2001) § 226, p. 578, § 230, pp. 584-585; Prosser & Keeton on Torts (5th ed. 1984) § 53, p. 356.) But doing so is improper because it conflates the legal standard applicable to conduct (a decision for the court) with the factual question of whether that standard has been breached (a decision for the jury). (See, e.g., Kentucky Fried Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th at pp. 837-838 (dis. opn. of Kennard, J.); 1 Dobbs, The Law of Torts, supra, § 226, p. 577; see Rest.2d Torts, §§ 328B, 328C.)

In determining the nature and scope of the duty owed, the court formulates a rule of general applicability as to what conduct is required in a wide variety of similar circumstances, that is, it states a rule of law applicable to a category of cases. (See, e.g., Rest.2d Torts, § 328C & com. b, pp. 155-156; Rest.3d Torts, Liability for Physical Harm (Proposed Final Draft No. 1) § 8 & com. b, pp. 114-115; 1 Dobbs, The Law of Torts, supra, § 226, pp. 577-578; Prosser & Keeton on Torts, supra, § 37, pp. 236-237; see Esper & Keating, *1228Abusing “Duty” (2006) 79 So.Cal. L.Rev. 265, 324-327.) But whether the defendant’s specific acts or failures to act satisfied that standard, that is, whether there was a breach of the duty owed to the plaintiff, is a question of “fact” for the jury to decide. “Put more broadly, the difference between the doctrines comes to this. ‘Breach/No breach’ involves the evaluation of a specific defendant. . . . ‘No duty,’ however, is not a matter of making an evaluation of the specific facts of this case. Rather, it is a global determination that, for some overriding policy reason, courts should not entertain causes of action for cases that fall into certain categories.” (Sugarman, Assumption of Risk (1997) 31 Val.U. L.Rev. 833, 843.) Or as others have explained: “When reasonable people might disagree over whether the defendant exercised reasonable care in the circumstances at hand, long-settled doctrine holds that it is for juries—not judges—to decide the issue. Articulation of the law is for judges; application of the law is for juries.” (Esper & Keating, Abusing “Duty,” supra, 79 So.Cal. L.Rev. at p. 269, fn. omitted.)

The justification the majority here offers for intermingling the two different concepts—duty and breach—is that “foreseeability” is an element of the duty determination and that therefore it is for the court to determine the foreseeability of a specific event and evaluate the burden that would be imposed by a “duty.” (Maj. opn., ante, at pp. 1213-1215.)

But foreseeability serves several functions in negligence law. “The foreseeability of a particular kind of harm plays a very significant role in this [duty] calculus (see Dillon v. Legg [(1968)] 68 Cal.2d 728, 739 [69 Cal.Rptr. 72, 441 P.2d 912]), but a court’s task—in determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. [1] The jury, by contrast, considers ‘foreseeability’ in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant’s conduct was negligent in the first place. Second, foreseeability may be relevant to the jury’s determination of whether the defendant’s negligence was a proximate or legal cause of the plaintiff’s injury.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624], 1st & 4th italics added; see generally Rest.3d Torts, Liability for Physical Harm (Proposed Final Draft No. 1) § 7, com. j, pp. 97-99 [rejecting approach that foreseeability has any role in determining whether a duty exists].)

The majority here goes astray in treating the separate elements of duty and breach as if they were one and the same. (See Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 495 [63 Cal.Rptr.2d 291, 936 P.2d 70] (dis. opn. of *1229Kennard, J.); Kentucky Fried Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th 814, 837-838 (dis. opn. of Kennard, J.).) According to the majority, “duty analysis” is for the court, whether trial or appellate, to determine the specific measures a plaintiff asserts the business owner defendants should have taken to protect a plaintiff from harm, followed by the court’s analysis of financial and social burdens flowing from those specific measures, followed by the court’s identification of the nature of third party conduct and the court’s assessment of how foreseeable the conduct was. Then, according to the majority, it is for the court to compare the burden and foreseeability to determine the existence of duty in each case. (Maj. opn., ante, at pp. 1213-1215.) No! Although, as I noted earlier, it is for the court to determine the existence of duty and to articulate the scope of that duty as a rule of general applicability, it is for the jury, as trier of fact, to decide whether the defendant’s specific conduct breached the legal duty imposed. Under the majority’s approach, duty is “a live issue in every case,” making it “impossible to draw a principled line between the provinces of judge and jury.” (Esper & Keating, Abusing “Duty,” supra, 79 So.Cal. L.Rev. at p. 269.) This introduces “a pervasive instability into negligence law, placing the standard governing legal conduct perpetually up for grabs.” (Id. at p. 272.)

m

The general rule is that all persons owe a duty to exercise reasonable care towards others unless there is a statutory provision declaring an exception or unless public policy considerations support recognizing an exception. (Rowland v. Christian, supra, 69 Cal.2d at p. 112.) Thus, to determine whether a landlord may be liable to a plaintiff, three questions need to be answered. First, do policy considerations justify holding that the landlord defendant owed no duty to the plaintiff? Second, if not, what is the scope of that legal duty? Third, did the plaintiff present sufficient evidence such that reasonable persons could differ as to whether the defendant breached that duty?

I agree with the majority that policy considerations support its conclusion that landlords do not have a duty to refuse to rent to persons suspected of being members of a street gang. As the majority points out, the landlord’s inability to ascertain with certainty a prospective tenant’s background, the risk that landlords attempting to screen out gang members may use arbitrary or discriminatory selection methods, and the landlord’s potential liability to prospective tenants erroneously suspected of gang associations (maj. opn., ante, at pp. 1216-1217) together warrant recognizing an exception to the landlord’s general duty to act as a reasonable person.

*1230But I disagree with the majority on its other holdings. No policy considerations or statutory provisions warrant an exception to the duty of a business owner to act reasonably to protect others from the criminal acts of third parties. The pertinent inquiry is whether plaintiff produced evidence sufficient to warrant submitting to the jury the question of whether defendant landlords failed to act as reasonable persons in similar circumstances. As I have observed in the past, if reasonable persons might differ as to whether a defendant’s conduct has conformed to that standard, then the matter should be submitted to the jury. (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p. 546.) “ ‘If there is any doubt, it is the duty of the court to let the case go to the jury.’ ” (Golceff v. Sugarman (1950) 36 Cal.2d 152, 153 [222 P.2d 665].)

Here, plaintiff’s evidence is sufficient to warrant submission to the jury. As mentioned on pages 1210-1211, ante, in the five years before plaintiff was shot, there had been 26 reported thefts, assaults, arsons, and acts of vandalism at defendants’ mobilehome park. The lights in the mobilehome park were constantly being broken and in need of repair. Defendants’ property managers received several complaints from tenants about harassment and intimidation by gang members on the property. The teenagers and young adults that congregated in front of the mobilehome at space 23, including gang member Paul Levado, harassed plaintiff’s sister and kicked a pit bull dog in the mouth to make it growl at resident Monica Preciado-Langford as she passed by with her small children. Daily, the property managers were painting over gang graffiti. And there had been two shootings in or near the mobilehome park, one of which was associated with gang activity involving a park resident. In my view, this evidence is such that reasonable minds could conclude that defendant landlords breached their duty to act reasonably by failing to remove dangerous gang members from the mobilehome park or take other security measures.

I also do not agree with the majority that plaintiff failed to produce sufficient evidence of causation. (Maj. opn., ante, at p. 1222.) Legal cause requires only that the act or failure to act be one of the causes, not the only cause, of the injury and it does not require that the exact means of causation be known or capable of precise prediction. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1240 [135 Cal.Rptr.2d 629, 70 P.3d 1046]; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 783-784 [107 Cal.Rptr.2d 617, 23 P.3d 1143] (dis. opn. of Kennard, J.); Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049 [1 Cal.Rptr.2d 913, 819 P.2d 872].)

*1231Accordingly, like the Court of Appeal, I conclude that defendant landlords “ha[d] a duty to take reasonable and appropriate measures to attempt to protect residents from potential gang violence” and that the evidence is sufficient to submit to the jury the question of whether defendants breached this duty. I would affirm the judgment of the Court of Appeal.1

Appellant’s petition for a rehearing was denied October 17, 2007, and the opinion was modified to read as printed above. George, C. J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.

The judgment of the Court of Appeal did not address the question of whether defendants could be held liable for refusing to rent to suspected gang members. It reversed the trial court’s judgment and remanded the case with directions that the trial court “instruct the jury that a property owner who is aware of ongoing criminal gang activity occurring on his property has a duty to take reasonable and appropriate measures to attempt to protect residents from potential gang violence.” I agree with the judgment of the Court of Appeal as so stated.