George and Paule Olsher have owned their 60-space mobile-home park since 1991. One of their residents, Ernest Castaneda, 17, returned about 1 a.m. to the mobile home where he lived with his sister and grandmother, Joyce Trow.
After letting his sister know he was home, Castaneda went outside on the front porch. Shots were fired by alleged gang member Manuel Viloria from mobile-home space 23 across the street. Castaneda was hit in the back and severely injured.
Purchase Bob Bruss reports online.
Several months before the shooting, Joyce Trow had complained to the park manager, Beverly Rogers, about the occupants of space 23, including Viloria. Rogers said she talked to owner George Olsher about these gang-related problems and was told, “Their money is as good as yours.”
When Castaneda later sued Olsher for damages, he alleged Olsher should have refused to rent space to gang members and he should have evicted gang members living in the park.
Evidence was presented at the trial that there had been two prior incidents. One was a gang confrontation with shots fired on a property contiguous to the park. The other incident was a bullet fired from outside the park that shot through a mobile home, although nobody was injured.
Castaneda’s attorney argued at the trial that Olsher should have hired security guards and replaced the street lights, which had been shot out.
If you were the judge would you rule the park owner had a duty to his tenants to evict gang members and not to rent to them?
The judge said no!
A landlord owes a tenant a duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord’s control against foreseeable criminal acts of third parties, the judge began. But in this situation, he continued, the foreseeability had not been proven with evidence of similar violent acts within the mobile-home park, which would require the owner to take action.
Unless there is evidence of foreseeability of harm to other tenants and guests, the judge explained, a landlord does not have a duty to refuse to rent to gang members. To do so could be illegal discrimination, the judge noted.
Nor does a landlord have a duty to evict known gang members, the judge emphasized, unless there was evidence such individuals are likely to harm other residents.
“In these circumstances, a shootout between two rival gangs was not highly foreseeable, and Olsher did not have a tort duty to prevent it by evicting the alleged gang members,” the judge ruled. Although Castaneda’s injury was unfortunate, the landlord is not liable to him for damages, the judge concluded.
Based on the 2007 California Supreme Court decision in Castaneda v. Olsher, 63 Cal.Rptr.3d 99.
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