Octobert 19th Newsletter

In Castaneda v. Olsher 2007 Daily Journal D.A.R 11551, the California Supreme Court held that 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.”

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 confrontation between members of the Northside Centro and Westside Centro gangs. A former El Centro police officer who had specialized in studying and controlling local criminal gangs identified Paul Levario, a resident of the mobilehome park in space 23, 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.

Plaintiff sued Olsher, contending that 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 plaintiff’s case; the Court of Appeal reversed, but the California Supreme Court reinstated the judgment.

The Supreme Court first examined the asserted duty to refuse to rent housing to members of street gangs; and second, the asserted duty to evict gang member tenants. “The first duty, we conclude, cannot be imposed except under circumstances where gang violence is extraordinarily foreseeable. The second, we conclude, exists where violence involving existing gang member tenants is highly foreseeable, but we also conclude the facts of this case do not create that level of foreseeability. . . .”

Plaintiff emphasized the threat that violent street gangs and associated illicit drug dealing pose to the safety of peaceful Californians and argued the extent of this danger warrants imposing a duty on landlords not to rent to gang members. “We agree the threat is of the most serious dimensions and state policy urgently seeks its alleviation. The Legislature has said as much, and the Official Reports are replete with examples of the problem. . . . Street gang activity can often subject residents of an apartment building or mobilehome park to unacceptable levels of fear and risk. But we are not persuaded that imposing a duty on landlords to withhold rental units from those they believe to be gang members is a fair or workable solution to this problem, or one consistent with our state’s public policy as a whole. Absent circumstances showing extraordinary foreseeability, we decline to recognize such a duty.”

As defendants note, “Gang members do not . . . announce their gang affiliations on housing applications.” If landlords regularly face liability for injuries gang members cause on the premises, they will tend to deny rental to anyone who might be a gang member or, even more broadly, to any family one of whose members might be in a gang. The result in many cases would be arbitrary discrimination on the basis of race, ethnicity, family composition, dress and appearance, or reputation. All of these are, in at least some circumstances, illegal and against public policy and could themselves subject the landlord to liability. . . . Landlords would thus risk liability whichever choice they make, and families whose ethnicity, teenage children, or mode of dress or personal appearance could, to some, suggest a gang association would face an additional obstacle to finding housing.

Plaintiff next contended that having rented to the Levarios, Olsher was obliged to evict them once they began to harass and annoy other residents of the park. “This asserted duty requires a different analysis of burden and foreseeability than above. A landlord ordinarily has more opportunity to judge the behavior of an existing tenant than of a rental applicant. In assessing the danger an existing tenant poses, the landlord can rely on his or her own observations or those of a property manager and, where the circumstances make these reliable, on complaints of the other tenants. The risk that landlords will feel compelled to make decisions on discriminatory bases, creating social costs as well as potential legal liability, is thus lessened. . . . On the other hand, undertaking eviction of a tenant cannot be considered a minimal burden. The expense of evicting a tenant is not necessarily trivial, and eviction typically results in the unit sitting vacant for some period. In some municipalities—and, more to the present point, under the Mobilehome Residency Law—the landlord must provide, and may have to prove, cause for the eviction. Finally, undertaking eviction of a hostile tenant, especially one involved in a violent street gang, could subject the landlord or property manager to retaliatory harassment or violence. Not surprisingly in light of the burden involved, courts in this and other states have recognized a tort duty to evict a vicious or dangerous tenant only in cases where the tenant’s behavior made violence toward neighbors or others on the premises highly foreseeable.”

The Court then looked to the circumstances of this case to see if Olsher was on notice of facts making a gang shooting involving Levario highly foreseeable. “In assessing whether the facts show ‘heightened foreseeability’ of third party crimes, our precedents have focused on whether there were prior similar incidents from which the property owner could have predicted the third party crime would likely occur, though we have recognized the possibility that ‘other indications of a reasonably foreseeable risk of violent criminal assaults’ could play the same role. . . . Evidence of two shooting incidents related to the mobilehome park was presented. In the first, nothing about the shooter was known—not identity, motive or even location; the only connection to the park was that the bullet hit a mobilehome located there. . . . But as no occupant of the mobilehome on space 23 was involved, the incident did little to establish that gun violence by those occupants was a likely occurrence. To establish a duty to evict the Levarios, plaintiff must show that violence by them or their guests was highly foreseeable.”

. . . The heightened foreseeability that would justify imposing a duty to evict the Levarios must be found, if anywhere, in their behavior as tenants, as reported to Olsher or his [manager], Rogers. The evidence in this regard was that another park resident, Monica Preciado-Langford, had complained to Rogers that occupants of the mobilehome on space 23 or their guests had harassed her and her children by causing a pit bull to growl at them and that a person or persons she had been told lived at space 23 or 24, or both, had broken windows on her car. There was also evidence that four or five men at the mobilehome on space 23 whistled and hooted at plaintiff’s sister, making her somewhat fearful, and that these incidents were reported to Rogers. Even coupled with Rogers’s belief that the occupants of the mobilehome on space 23 were gang members, the possibility of gun violence established by this evidence does not rise to a level of heightened foreseeability necessary to impose a duty to evict. No one had reported that the Levarios or their guests had used, displayed or possessed a gun at the mobilehome park.

----Andrea Lynn Rice