Opinion
A148990
04-26-2018
EUGENE SPENCER, Plaintiff and Appellant, v. SAFEGUARD PROPERTIES, LLC et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. C1501614)
Plaintiff Eugene Spencer was one of several individuals who, along with two deputy sheriffs, were at a foreclosed residential property to conduct an eviction and "trash out." As the locksmith was in the process of unlocking the front door, the spouse of the former owner shot through the door. Two bullets struck Spencer. He subsequently sued 13 defendants, including the bank that purchased the foreclosed property and the realty company the bank hired to periodically check on and ultimately sell the property.
The trial court sustained demurrers by the bank and realty company without leave to amend, ruling these defendants owed no duty of care to Spencer to warn of or protect against the potentially murderous criminal conduct. We reverse as to the bank, concluding that the additional allegations Spencer has proffered on appeal, both in his briefing and at oral argument, suffice to survive a demurrer. We affirm, however, as to the realty company.
Spencer also appealed from a judgment entered in favor of the property management company the bank hired to assist with the eviction and trash out, but reached a settlement just before oral argument. We therefore do not address any issues in connection with Spencer's appeal as to Safeguard Properties Management, LLC, and Safeguard Properties, Inc., and deem his appeal as to these two defendants to have been taken off calendar and to remain pending and awaiting a request for dismissal by the parties.
BACKGROUND
Given the procedural posture of the case, we recite the facts as alleged in the operative complaint. We discuss allegations pertaining to specific defendants in more detail in the next section of our opinion.
At one time, Naoka Chiba (a named defendant) owned a residence in San Ramon and lived there with her husband, Michael Ghoneim (also a named defendant). When Chiba defaulted, the Bank of New York Mellon Corporation (Mellon) foreclosed and later commenced eviction proceedings.
Spencer additionally named "The Bank of New York Mellon FKA The Bank of New York as Trustee for the Benefit of Alternative Loan Trust 2007-J1 Mortgage Pass-Through certificates, Series 2007-J1," and Bank of America N.A. (Capitalization omitted.) Our reference to Mellon also includes these defendants.
Mellon had a "professional arrangement and/or contract" with Safeguard Properties Management, LLC (Safeguard) "to preserve, inspect, monitor, facilitate eviction and conduct 'trash out' proceedings on various bank-owned and repossessed properties." " '[T]rash out' work" involves, among other things, "cleaning out the property, performing necessary maintenance items, installing smoke detectors and other safety mechanisms, and putting the property in a condition that would enable it to go on the real estate market."
Mellon also retained a real estate company, J. Rockcliff, Inc. (Rockcliff) to "evaluate, monitor, assess, determine occupancy status, provide reports, including reports of occupancy status, market, provide access to, facilitate access to, facilitate placing the property on the market, and to facilitate and allow the 'trash out' to occur" on the property. Spencer claims to have had a prior working relationship with the realtor defendants, in that he had done trash outs of other properties, and that he "had come to trust and rely" on them, including about "occupancy and safety status" of properties.
Spencer additionally named Bonnie King & Associates, Inc. and Heidi Rivera as defendants. Our reference to "Rockcliff" also includes these defendants.
Spencer additionally alleges that at the time of the eviction, there was a " 'Cash for Keys' " offer on the table, that is, a lump sum offer by the bank to spur the former owner into vacating the premises.
Mellon "and" Safeguard allegedly prepared the work order for the trash out that was sent to Spencer, who was an independent contractor. The order allegedly stated "the subject trash out and eviction was scheduled for September 18, 2013 at 1:45 p.m." The work order "did not contain" the names or phone numbers of the real estate agents "hired to perform services at the property" and, thus, Spencer claims he was unable to confirm the occupancy status of the property.
On Spencer's arrival at the property on September 18, agents of other defendants (the homeowners association and the security service it used) "erroneously notified" him the prior occupants had moved out and the property was unoccupied. There were also two deputy sheriffs, a locksmith, and a real estate agent associated with Rockcliff at the property. When the deputies knocked and announced their presence, there was no response.
Spencer made this assertion in his opposition to Mellon's demurrer.
As the parties "were attempting to begin their work," Ghoneim fired from the inside. The rounds penetrated the front door, and two bullets struck Spencer. One grazed his skin, the other entered his thigh. The officers drew their weapons, and removed Spencer from the scene. Spencer claims he faced "imminent death."
Spencer filed the instant lawsuit in September 2015. After a number of defendants filed demurrers, he filed a first amended complaint. Mellon again filed a demurrer, as did Rockcliff. The trial court sustained the demurrers without leave to amend and ordered the case dismissed as to the bank and real estate company.
DISCUSSION
Spencer alleged three causes of action against Mellon and Rockcliff: negligence, premises liability, and negligent misrepresentation. Each of the three causes of action is a species of negligence, and, thus, rests on a duty of care owed to Spencer. (See Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1095 ["[t]he existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to establishing a claim of negligence"]; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 ["Premises liability is a form of negligence," where "[t]he owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm."]; Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864 ["As is true of negligence, responsibility for negligent misrepresentation rests upon the existence of a legal duty, imposed by contract, statute or otherwise, owed by a defendant to the injured person."].)
" 'The existence of a duty is a question of law for the court.' " (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531 (Melton), quoting Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188.)
Sharon P. v. Arman, Ltd., supra, 21 Cal.4th 1181 disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5, and in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.
Dismissal as to Mellon
The Sufficiency of the Allegations of the First Amended Complaint
Our standard of review of a judgment dismissing a complaint after a successful demurrer without leave to amend is well-settled. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Ibid.) We assume all properly pleaded or implied factual allegations are true. (Shimmon v. Franchise Tax Bd. (2010) 189 Cal.App.4th 688, 692.) " ' "The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." ' " (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975-976.) If there is a reasonable possibility a proposed amendment can cure the defect, then the trial court abuses its discretion in denying leave to amend. (City of Dinuba v. County of Tulare, at p. 865.) The plaintiff bears the burden of proving a deficiency in the pleading can be cured by amendment. (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.)
Spencer generally alleged that it "was reasonably foreseeable . . . that during 'trash outs' of properties which were, or had been, in foreclosure, occupants may be inclined to use force, including deadly force, in an effort to prevent the 'trash out' from occurring." As to Mellon, specifically, Spencer alleged the bank "owned, managed, possessed, controlled and/or monitored" the property and had a duty "to ensure that the Premises was safe, unoccupied, and suitable for the eviction" and "to warn of any dangerous or hazardous conditions on the property, including any mentally unstable individuals, or aggressive, gun-wielding occupants of which [it] had actual knowledge." He also claimed Mellon had a duty to "warn" him of an alleged outstanding " 'Cash for Keys' offer." He alleged the bank breached these duties by "negligently delegating" these tasks to Rockcliff and Safeguard, both of which allegedly failed to monitor and report occupancy status, failed to warn of "dangerous or hazardous conditions on the property, including mentally unstable individuals, aggressive, threatening, and gun-wielding occupants," and failed to ensure the property was "safe" for Spencer and other personnel at the "eviction" and " 'trash out.' "
The trial court ruled these allegations did not suffice to establish that Mellon owed Spencer a duty to warn of or protect against Ghoneim's criminal conduct.
As the trial court observed in its tentative ruling, Martinez v. Bank of America (2000) 82 Cal.App.4th 883, 890-891 (Martinez), shares considerable similarity with the instant case. In Martinez, Bank of America purchased a residential property at a foreclosure sale and subsequently filed an unlawful detainer action when the occupants refused to vacate the premises. (Id. at p. 888.) Before that action went to trial, the former owners' dogs attacked a neighbors' child when he wandered onto the property. Tragically, the child's injuries were fatal. (Ibid.) The neighbors sued the bank, alleging, among other things, negligence and premises liability. (Ibid.) The Court of Appeal concluded the bank owed no duty of care to the plaintiffs and therefore could not be sued on any negligence-based cause of action. (Id. at p. 890-897.)
The appellate court first examined landlord-tenant cases involving dog attacks, and concluded they provided a helpful analytical template. (Martinez, supra, 82 Cal.App.4th at pp. 890-893.) These cases focused on two questions: First, whether the landlord had actual knowledge the dog was vicious. Second, whether the landlord had the ability to prevent the foreseeable harm. (Id. at pp. 891-892.) Applied to the case before it, the Court of Appeal concluded there was no evidence the bank had actual knowledge the former owners' dogs were vicious or had previously attacked anyone. (Id. at pp. 891-892.) It additionally concluded that while the bank owned legal title to the property, it "did not have possession or control" of the property. (Id. at pp. 892-893.) Until the bank obtained judgment in the unlawful detainer proceeding, it "did not have the ability to directly and promptly control conditions existing on" the foreclosed property. (Id. at p. 893.)
Because the landlord-tenant cases offered "only a partial analogy," the Court of Appeal next examined the factors set forth in Rowland v. Christian, which typically guide a court's legal analysis of duty. (Martinez, supra, 82 Cal.App.4th at pp. 894-897, citing to and quoting from Rowland v. Christian (1968) 69 Cal.2d 108 ; see generally Melton, supra, 183 Cal.App.4th at p. 530 [Rowland "remains 'the gold standard against which the imposition of common law tort liability in California is weighed by the courts in this state,' " quoting Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 401].)
Rowland v. Christian, supra, 69 Cal.2d 108 was superseded by statute on other grounds as stated in Perez v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 462, 467.
The Martinez court, accordingly, first considered "foreseeability," which in the context of determining whether a duty of care exists, asks "whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately imposed on the negligent party." (Martinez, supra, 82 Cal.App.4th at p. 895; see Melton, supra, 183 Cal.App.4th at p. 530, quoting Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 (Castaneda) [" 'Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations,' " although " 'in a given case one or more of the other Rowland factors may be determinative of the duty analysis.' "].)
Observing that a "duty to take affirmative action to control a third party's wrongful acts will be imposed only where such conduct can be reasonably anticipated," the court pointed out there was no evidence of prior vicious conduct by the dogs. (Martinez, supra, 82 Cal.App.4th at p. 895.)
The court also observed that determining the scope of duty "involves balancing the foreseeability of the harm against how burdensome, vague, and efficient the duty to be imposed would be. Where preventing future harm imposes a great burden, the law may require a high degree of foreseeability. On the other hand, where strong policy reasons justify preventing the harm or simple means can prevent the harm, the law may require a lesser degree of foreseeability." (Martinez, supra, 82 Cal.App.4th. at pp. 895-896.) Given that the bank had no knowledge of a vicious dog on the premises and did not yet have possession of the property, the court was "unable to determine" what measures the bank could or should have taken "to correct a defect on the property of which it was not aware or to prevent an injury which had never occurred." (Id. at p. 896.) Accordingly, the "foreseeability" factor weighed against a duty of care. (Ibid.)
As to certainty of injury, there was no question, said the Martinez court, that the plaintiffs had suffered a grievous loss. (Martinez, supra, 82 Cal.App.4th at p. 896.)
As for the "closeness of connection" between the bank's conduct in purchasing the foreclosed property and the harm suffered, there was virtually none, said the court, as the bank had neither any knowledge there were vicious dogs on the property, nor had possession and control of the property. (Martinez, supra, 82 Cal.App.4th at p. 896.) The court said the same about the degree of "moral blame" associated with the bank's purchase of the foreclosed property—it was "unable to perceive any moral blame on the Bank's part." (Ibid.) Generally, this factor asks whether the defendant " '(1) intended or planned the harmful result [citation]; (2) had actual or constructive knowledge of the harmful consequences of [his or her] behavior [citation]; (3) acted in bad faith or with a reckless indifference to the results of [his or her] conduct [citations]; or (4) engaged in inherently harmful acts [citation].' " (Ibid., quoting Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 270.) There was no evidence the bank had engaged in such enumerated conduct. (Martinez, at p. 897.)
As for the policy of "preventing future harm," the appellate court considered whether imposing liability on the bank would advance that policy "in any concrete or practical way." (Martinez, supra, 82 Cal.App.4th at p. 897.) Other than seeking to remove the former owners through the legal process, the court had "difficulty articulating what steps the Bank should or could take" to prevent a risk as to which it had no knowledge and no legal means to control. (Ibid.) Finally, there was likely to be a "burden" if a duty of care were imposed under the circumstances, including increased costs in insurance. (Ibid.)
Accordingly, the Court of Appeal concluded the pertinent Rowland factors also weighed against imposing a duty of care on the bank. (Martinez, supra, 82 Cal.App.4th at p. 897.)
Based on the allegations of the first amended complaint, alone, we are hard pressed to conclude Spencer alleged a case much different than Martinez. We agree with the trial court that his allegations are largely conclusory and do not sufficiently allege that the bank should have reasonably foreseen that Ghoneim might engage in serious assaultive conduct, presenting a risk to those entering the property at the time of the eviction.
Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608 (Stone), which Spencer cites, is distinguishable. In that case, the lessee of space in a retail mall, which operated as a restaurant, failed to vacate the premises after the mall owner issued a five-day notice to pay rent or quit. (Id. at p. 611.) The mall owner obtained a partial judgment for possession and a writ of possession, and shortly thereafter was " 'restored [to] possession' " of the premises. (Ibid.) The restaurant, however, continued to operate, and about a week after the mall owner regained possession, an individual who rented the premises for a party slipped on water on the floor and broke her ankle, which required serious medical treatment, including multiple surgeries. (Ibid.) She sued both the owner of the mall and the owner of the restaurant, which had gone out of business shortly after the accident. (Ibid.) The Court of Appeal reversed a jury verdict in favor of the injured patron, concluding the jury had not been properly instructed on when the mall owner's duty to inspect the premises arose. (Id. at pp. 613, 615.)
The mall owner knew its tenant was violating its lease by operating an after-hours nightclub, and "[d]espite knowing of the restaurant's lease violations and being aware of possible neglect of the premise's physical condition, [the mall owner] did not inspect its property." It is one thing, said the appellate court, "for a landlord to leave a tenant alone who is complying with its lease." (Stone, supra, 163 Cal.App.4th at p. 613.) "It is entirely different, however, for a landlord to ignore a defaulting tenant's possible neglect of property." (Ibid.) The court held "that [the mall owner's] duty to inspect attached upon entry of the judgment of possession in the unlawful detainer action and included reasonable periodic inspections thereafter." (Ibid.) "Upon entry of judgment, a tenant's incentive to maintain a property dissipates because continued maintenance likely benefits only the landlord." (Ibid.) Thus, it was the court's view that "[e]ntry of judgment provides a workable bright line for the parties to know where responsibility lies, and aligns that responsibility with the parties' reordered incentives." (Ibid.) "[U]pon entry of a judgment of possession, the property owner has both the right and duty to inspect." (Id. at p. 614.) Concluding the jury had not been given proper instruction as to when the mall owner's duty to inspect arose, and observing it may have erroneously concluded it arose before the judgment of possession, the court reversed and remanded for a retrial on the issue of liability. (Id. at pp. 614-615.)
While Spencer claims the duty analysis in which the Stone court engaged, and specifically the "bright line" rule the court set in that case, should control, that analysis is inapposite here. Stone involved a commercial retail space that was readily accessible to both the general public and the mall owner. The mall owner had, in fact, been " 'restored [to] possession.' " (Stone, supra, 163 Cal.App.4th at p. 611.) Stone also involved the readily observable, physical condition of the commercial property. Thus, it is no surprise the Court of Appeal concluded the mall owner owed a duty of care to inspect the condition of the premises when it regained possession and had ready access to the property. The instant case involves a markedly different set of circumstances. Here, we are concerned with a private, residential property. While the bank may have had a legal right to full possession of the premises and, in fact, had access to the yard, it did not yet have access to the house; on the contrary, the bank was in the process of attempting to gain entry. This case also does not involve the observable, physical condition of the residential property. Rather, it involves serious criminal conduct by one of the individuals who was subject to the eviction order.
However, in his briefing and at oral argument, Spencer proffered amendments that he claims cure any deficiencies in his first amended complaint and suffice even under Martinez. He acknowledges he did not ask the trial court for leave to amend to add these allegations, but claims he is entitled to propose amendments for the first time on appeal. The courts do recognize that a party who has suffered a dismissal following a demurrer can advance new theories on appeal as to why they can state a claim. (See Simpson v. The Kroger Corp. (2013) 219 Cal.App.4th 1352, 1367 [an appellate court may consider new theories on appeal from the sustaining of a demurrer"]; see also Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259 ["The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt 'to state facts which give rise to a wholly distinct and different legal obligation against the defendant.' "].) We therefore turn to whether Spencer's belatedly proffered amendments are sufficient to cure the pleading deficiencies of his amended complaint. (See City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865 [if there is a reasonable possibility an amendment can cure the deficiencies of the complaint, the trial court abuses its discretion in dismissing without leave to amend].)
Spencer claims he can add the following allegations to his complaint: (1) that two months before the shooting, contractors hired to mow the lawns on the property notified defendants that " 'death threatening notices' " were " 'posted everywhere on the property' "; (2) that he asked that the originally scheduled trash-out date be changed because he had been to the property and saw signs it remained occupied, and it was rescheduled; and (3) that the cash-for-keys offer remained open until September 22, 2013, thus "entitl[ing]" Chiba and Ghoneim to remain on the property until that date, that they acknowledged receipt of the offer and said they were seeking advice of counsel, and that although this suggested Chiba and Ghoneim were still on the property, defendants did not notify them of the eviction and trash-out, thus "increas[ing] the risk that Ghoneim would commit violent and intentional misconduct."
We consider first the second and third proffered amendments. That Spencer allegedly saw signs of occupation months earlier and asked that the eviction and trash-out be rescheduled, and it was, does not establish that Ghoneim's violent assault was reasonably foreseeable by the bank. Likewise, that the cash-for-keys offer allegedly remained open and allegedly "entitled" Chiba and Ghoneim to remain on the property does not rectify the deficiency in the allegations as to the foreseeability of Ghoneim's serious criminal conduct. These proffered allegations simply assume it is reasonably foreseeable that an individual facing eviction will attempt to inflict grave bodily injury on, or even murder, those carrying out the eviction order. While we agree those enforcing an eviction order can reasonably expect to confront anger and hostility, we do not agree they must also reasonably expect to confront a would-be killer. (See Castaneda, supra, 41 Cal.4th at pp. 1219-1220 [observing that eviction "cannot be considered a minimal burden" and can subject owner to "retaliatory harassment or violence," and reiterating heightened foreseeability is required in cases involving a third party's criminal conduct]; Melton, supra, 183 Cal.App.4th at pp. 532-538 [holding property owner could not have reasonably foreseen assaults by third parties attending party owner publicized on internet].) Thus, these proffered allegations do not suffice to meet the heightened foreseeability required to establish a duty of care to warn of or protect against third party criminal conduct.
However, we conclude Spencer's first proffered allegation—that two months prior to the eviction and "trash out," the yard service reported that " 'death threatening notices' " were " 'posted everywhere on the property' "—augmented with his counsel's claim at oral argument that Spencer can additionally allege that this report by the yard service was put into a repository of information about the property which the bank accessed, gets Spencer by the low pleading threshold required to survive a demurrer. The bank has cited no case where the owner of property had actual notice of explicit death threats by an occupant, at or near the time of a scheduled entry onto the property that could foreseeably trigger "retaliatory harassment or violence" by that occupant (see Castaneda, supra, 41 Cal.4th at p. 1219), but nevertheless owed no duty of care to others participating in the scheduled entry onto the property.
We therefore reverse the judgment of dismissal as to the bank with directions to allow Spencer to file a second amended complaint.
Dismissal as to the Realtor Defendants
Spencer generally alleged Rockcliff "managed, possessed, controlled, monitored, represented, brokered, negotiated, secured, and/or accessed the property." He claimed the realtor had a duty "to asses[s] and competently and accurately disclose and report on the occupancy status" of the property, to "disclose any pending offers . . . that would affect the occupancy status," and to ensure that the premises were "safe, unoccupied, and suitable for the eviction and 'trash out.' " He also asserted the realtor had communicated a " 'Cash for Keys' " offer to the former owner and was aware she was still on the property. He additionally asserted Rockcliff had a duty "to disclose information about concealed, dangerous conditions," including "the potential presence of mentally unstable individuals, and aggressive, threatening, gun-wielding occupants" of which it "had actual or constructive knowledge." He further alleged the realtor "had been accessing and monitoring the subject Premises for months" and was "aware of the fact that there were still occupants in the residence on the date of the incident who had displayed odd, mentally unstable, aggressive, and threatening behavior." He also alleged "the Realtor Defendants had actual and constructive knowledge of the dangerous nature of the Premises in the form of Defendant MICHAEL GHONEIM's aggressive, threatening, unstable and unusual behavior, and the propensity to go to extraordinary measures, including resorting to the use of force, to prevent the eviction and 'trash out' from taking place."
Rockcliff emphasizes that, unlike Mellon, it had no ownership interest in the property, and unlike Mellon and Safeguard, it had no contractual relationship whatsoever with Spencer. Nor did it prepare or issue the work order, allegedly prepared by the bank "and" Safeguard, which directed Spencer to appear at the property. Rather, Rockcliff was hired directly by the bank to periodically check on and ultimately sell the repossessed property, and at the bank's request, one of its agents was at the property on the scheduled eviction date. In short, Rockcliff was retained by the bank to provide it with professional real estate services.
As such, the analysis of whether Rockcliff owed a duty of care to Spencer differs from the duty analysis applicable to the bank, which was the title owner of the property. To the extent Spencer is claiming that the professional services the realty company agreed to provide to the bank are also "tort" duties the realty company owed to him, he is mistaken. As our Supreme Court explained in Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370 (Bily), " '[t]he determination whether in a specific case the defendant [service provider] will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff' " and " 'the foreseeability of harm to him,' " along with the Rowland factors. (Id. at p. 397, quoting Biakanja v. Irving (1958) 49 Cal.2d 647, 650-651.)
In Bily, the high court declined "to permit all merely foreseeable third party users of audit reports to sue the auditor on a theory of professional negligence." (Bily, supra, 3 Cal.4th at p. 398.) The court based its conclusion on several "other pertinent factors" (id. at p. 399)—(1) whether liability is likely to be out of proportion to the professional service provider's fault, given that its client will have a far greater hand in the nature and use of the information given to the client by the provider, (2) whether third parties not in privity with the service provider can take reasonable steps to avoid blind reliance on the information the provider gives to its client, and (3) the negative ramifications of expanding the professional servicer provider's duties beyond those owed to its client. (Id. at pp. 399-404.)
Here, Spencer has not alleged that Mellon entered into a real estate services agreement with Rockcliff with any intent to benefit Spencer. Nor do any of the three "other pertinent factors" identified in Bily weigh in favor of imposing a duty on Rockcliff based on its professional service agreement with the bank. First, finding such a duty could result in liability on the part of Rockcliff out of proportion to any fault on its part since Mellon had control over the scope of Rockcliff's services and control over how the information provided to it by Rockcliff was used. Second, Spencer had the ability to look at the property and make his own assessment as to the occupancy status of the property. In fact, he claims he could amend to add allegations that he, in fact, did so months earlier, asked that the eviction and trash out be postponed at that time because he thought there were signs of occupancy, and that the eviction and trash out were postponed. There are no proffered allegations as to what he then observed, or how the circumstances differed on the day of the rescheduled eviction and trash out from what he had previously observed. While he complains the work order did not identify and provide contact information for the real estate company, he could have contacted Safeguard and told it he would not appear without express assurance the property was unoccupied. Third, as we have discussed above, expanding Rockcliff's duties beyond those owed to its client, would add to the costs of rehabilitating and returning foreclosed properties to the market. (See Martinez, supra, 82 Cal.App.4th at p. 897.)
Spencer claims he has sufficiently alleged under Rowland that Rockcliff had actual acknowledge "of the dangerous nature of the Premises in the form of Defendant MICHAEL GHONEIM's aggressive, threatening, unstable and unusual behavior, and the propensity to go to extraordinary measures, including resorting to the use of force, to prevent the eviction and 'trash out' from taking place." Even overlooking the conclusory nature of this allegation and that it does not allege that Rockcliff was aware of prior criminal conduct by Ghoneim of the extreme sort that occurred, it assumes Rockcliff owed a duty directly to Spencer in connection with the real estate services it was providing to the bank and pursuant to which it allegedly learned of Ghoneim's allegedly violent nature. But not one of the factors identified in Bily support transforming Rockcliff's contractual obligations to the bank into tort duties owed to Spencer. And while Spencer also generically alleged that Rockcliff "managed, possessed, controlled" the residential property, his other, specific allegations make clear the realty company did not possess or control the residence. To the extent Rockcliff had any right to "manage" or access the property, it was solely by virtue of its service agreement with the bank.
While we have concluded Spencer's proffered amendments in his brief, as augmented at oral argument, are sufficient for pleading purposes as to the bank, they do not rectify the fundamental problem with his allegations as to Rockcliff—namely, that under Bily there is no basis for concluding the professional services Rockcliff provided to the bank also gave rise to a tort duty owed to Spencer. Thus, even assuming Rockcliff was aware that two months prior to the eviction and trash out, the yard service reported that " 'death threatening notices' " were " 'posted everywhere on the property,' " that does not mean that, in addition to its contractual obligation to the bank to make periodic reports as to the condition of the property, it also owed a tort duty directly to Spencer to supply that information to him. Indeed, Spencer has cited no case involving remotely similar circumstances where a professional services provider was held to owe a tort duty to a third party.
We therefore affirm the judgment of dismissal as to the realtor defendants.
DISPOSITION
The judgment as to Bank of New York Mellon Corporation, The Bank of New York Mellon fka The Bank of New York as Trustee for the Benefit of Alternative Loan Trust 2007-J1 Mortgage Pass-Through certificates, Series 2007-J1, and Bank of America N.A. is reversed with directions to allow Spencer to file a second amended complaint. The judgment as to J. Rockcliff, Inc., Bonnie King & Associates, Inc. and Heidi Rivera is affirmed. Parties to bear their own costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.