Opinion
C055482
8-6-2008
MARK GREENUP et al., Plaintiffs and Appellants, v. RON GREENWOOD et al., Defendants and Respondents.
Not to be Published
Upset that a neighbor had harassed them on their own property and on an adjacent easement road, the Greenup family sued their neighbors landlords for negligence, on the theory the landlords failed to prevent the neighbor/tenant from harassing them.
The trial court sustained the defendant landlords demurrer to the second amended complaint without leave to amend, ruling that the landlords have no duty to control or prevent the tenants harassing behavior, because it neither occurred on the landlords property nor otherwise involved the property.
We agree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Our review of the trial courts actions in sustaining defendants demurrer without leave to amend is governed by well-settled principles. "`"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Our review of the legal sufficiency of the complaint is de novo, "i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.]" (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
Applying this standard of review here, plaintiffs operative (second amended) complaint alleges as follows:
Defendants Ron and Cleo Greenwood own property at 3981 Monarch Trail in Wheatland. Larry Benninger lives at 3981 Monarch Trail; somewhere nearby lives the Greenup family (plaintiffs Mark and Constance Greenup, Jessica Garcia, and minors Jason Abrams, Spencer Greenup and Macy Greenup).
An apparent dispute between 2001 and 2003 over the creation of a prescriptive easement — in which certain neighbors "placed [a] gate across Monarch Trail" and "sought to enforce a prescriptive easement by using Monarch Trail for access to their property" — caused bad blood between the parties. The precise location of this easement is not identified in the complaint which, in addition to suggesting that the easement is coextensive with a portion of Monarch Trail, also describes the easement as a right of way "crossing" or "adjoining" 3981 Monarch Trail. There is no map of the parties respective properties attached to the complaint, and the complaint does not otherwise show or describe the location of the plaintiffs property relative to 3981 Monarch Trail.
The Greenups also allege that, prior to December 2003, Benninger did "a number of things" to which his neighbors objected: he allowed a septic system to overflow into a nearby creek, collected and stored scrap metal on 3981 Monarch Trail, filled in the drainage ditch along the easement so as to force drainage water to flow across the road easement and damage the road and "harass[ed] . . . persons."
Between 2001 and 2003, Benninger allegedly harassed the plaintiffs (1) by "discharg[ing] fire arms [sic] on [the] 3981 Monarch Trail" property; (2) by spinning the wheels of his truck while driving on the 3981 Monarch Trail property, so as to stir up dust in their faces; (3) by accelerating his truck toward one of the bicycling children while on a nearby side road that services plaintiffs property; and, (4) while in a car on the plaintiffs property at night, by shining the headlights on the childrens bedrooms and revving his engine. In December 2003, a mutual restraining order was issued between Benninger and the plaintiffs.
According to plaintiffs, the restraining order did not end the harassment by Benninger. On several occasions since December 2003, when Benninger saw the plaintiffs coming toward the property "on the road easement," he would jump in one of his vehicles and drive slowly in front of them to intentionally impede their progress. He also several times parked and enlisted others to park "along the 60-foot right of way" so as "to prevent more than one lane of travel to be open for neighbors to pass across the property."
Benninger also put large rocks and ruts in the road easement where it "crossed 3981 Monarch Trail." Specifically, in July 2005, after the plaintiffs repaired the easement crossing 3981 Monarch Trail to facilitate their moving a modular home onto their property, Benninger put holes and rocks in the road.
Once, while Connie Greenup was driving with the children on the easement, Benninger drove his truck "on the right of way crossing 3981 Monarch Trial and on the right of way immediately adjoining 3981 Monarch Trail" so as to force plaintiffs car "over against the barbwire fence." On another occasion, Benninger confronted Mark Greenup on the plaintiffs property while Mark and his son were using guns for target practice, and threw Mark Greenup into a barbed wire fence "on the edge of 3981 Monarch Trail."
The complaint also alleges this event, in which Benninger assaulted Mark Greenup "after Mark Greenup discharged fire arms [sic] on the Greenup property", occurred "[b]etween October of 2001 and December of 2003."
In March 2006, the plaintiffs initiated this action against Benninger, the Greenwoods, and others.
The original and first amended complaint alleged that Benninger "has carried out a course of conduct while occupying the premises at 3981 Monarch Trail that has threatened the health of the Greenup family"; that Benninger acted "with the knowledge and consent of the rest of the defendants"; and that the defendants "failed to control the property where [Benninger] resides . . . despite notice that [Benninger] uses the property as a base operation to monitor movements of the Greenups and to carry out a continuing course of harassment."
The trial court sustained the Greenwoods demurrer to the first amended complaint with leave to amend, ruling that no cause of action is stated against the Greenwoods "since there is no duty to control a third partys behavior on property not under their control."
Plaintiffs second amended complaint purported to state a cause of action for "general negligence" against defendants arising from their failure to "attempt[ ] to keep [Benninger] from harassing or injuring [them]" and defendants failure to prevent Benningers "course of conduct while occupying the premises at 3981 Monarch Trail," i.e., his use of "their property at 3981 Monarch Trail . . . as a base of operation to harass" plaintiffs.
Defendants demurred to the second amended complaint. They argued that the applicable statutes of limitations bar any negligence claims by the adult plaintiffs arising from events occurring prior to November 2004; the remaining allegations fail to state a cause of action because they allege no compensable injury; and, in any event, defendants owe no duty to plaintiffs to prevent their tenant Benninger from committing any acts on an easement off their property.
In opposition to the demurrer, plaintiffs reiterated their assertion that defendants should bear responsibility for having taken "no reasonable action to prevent Benninger from using . . . their property at 3981 Monarch Trail as a base of operation to harass and injure" plaintiffs.
The court sustained the demurrer without leave to amend. In its order sustaining the demurrer, the court "found that defendants own improved real property located at 3981 Monarch [Trail]. Plaintiffs allege Benninger uses it as `a base of operations for harassing plaintiffs. Apparently, he resides there. None of the acts of which plaintiffs complain occurred on the property or resulted from Benningers use of the property. Although plaintiffs allege he does certain things at 3981 Monarch, it is apparent that he is actually engaging in the harassing conduct on the road and off the property." The allegation "Benninger uses the property as `a base of operations is insufficient" because "[d]efendants have no duty to control the behavior of [Benninger], which is not occurring on their property and does not involve the property. [¶] This is the third attempt by plaintiffs to plead a cause of action against demurring defendants. It is apparent they cannot do so and the demurrer is sustained without leave to amend."
DISCUSSION
The trial court concluded the defendants owed no duty to protect plaintiffs from the intentional harassment of their tenant, Benninger; it found that, notwithstanding allegations he engaged in certain acts on the property at 3981 Monarch Trail, other allegations made apparent that he "actually engage[d] in the harassing conduct on the road and off the property." This ruling was not error.
The existence of a legal duty of care, the breach of which may constitute negligence, is a question of law which we independently determine. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) The creation of a legal duty is fundamentally a policy determination: "The existence of a legal duty is a question of law which is simply an expression of the sum total of the policy considerations that lead a court to conclude that a particular plaintiff is entitled to protection." (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 114.)
In California, a landowner owes a duty to exercise ordinary care in the use and management of his or her land. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 119.) "`A person is liable for injuries to another only as a result of his or her own conduct. Liability is based not on responsibility for the conduct of others, but on the failure of the [land]owner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril." (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242.)
Normally, however, a landlords duty of care "do[es] not extend to persons outside the land, e.g., on adjacent land or on the highway. [Citations.]" (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 898, p. 268.) Absent a special relationship, the landowner has no duty to protect members of the public against criminal or tortious activities occurring adjacent to his land, for example, on a public sidewalk or street. (E.g., Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 719-720 [law student attacked on sidewalk while leaving defendants premises].)
"California cases which have considered a property owners duty in the context of injuries occurring off the property have imposed liability only if the harm was foreseeable and the owner controlled the site of the injury [citation], or affirmatively created a dangerous condition on the site [citation] or if there was a functional connection between the owners conduct and the injury suffered [citation]." (Rosenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1092, and cases cited therein, italics omitted.)
Thus, California courts have refused to hold property owners liable for a third partys tortious conduct occurring off the premises on nearby land. (Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1561 [sustaining demurrer to damages claim against telephone company by plaintiff alleging premises liability, negligence, and nuisance for failing to remove public telephone booth, presence of which attracted criminal element who injured nearby parking lot owner]; Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386 [grocery store not liable to customer for injury caused by a negligent motorist on an adjoining street].)
For example, in Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, gang members mistook Mr. Medina for a member of a rival gang. They attacked him as he "walked by" an apartment complex owned by the defendants. (Id. at p. 480.) The plaintiffs alleged the landlords were liable for Medinas death on theories of negligence and premises liability because they allowed the gang, which included tenants, to congregate in and around the apartment complex. (Id. at p. 480.) The Court of Appeal affirmed dismissal of the action on the ground that under the facts pled in the complaint the defendant landowners owed no duty "to protect members of the public from gang members who congregate around an apartment complex and assault individuals on adjacent public streets." (Id. at p. 481.) The court reasoned: "The negligence and premises liability causes of action fail because no facts are alleged that the decedent entered the apartment complex or was assaulted on property controlled by landowner." (Id. at p. 483.) "No court has extended [liability] to a situation where a tenant leaves the premises and shoots a pedestrian on an adjacent street." (Id. at p. 484.) Thus, even assuming that allowing the gang to congregate on the premises constituted a dangerous condition, there was an insufficient causal nexus between this condition and the independent, intentional killing of Medina off the premises. (Id. at pp. 483-484.)
A string of other cases support the conclusion that a landowner has no legal duty to take measures to prevent even foreseeable violence, if it does not actually occur on the property he controls. (See Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243 [no duty owed restaurant patron kidnapped and assaulted outside premises]; Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273 [plaintiff wounded in drive-by shooting while standing outside roller rink; held: plaintiff "has not presented any . . . evidence that would have put [defendant] on notice that a daytime drive-by shooting of someone on his business premises was a real possibility, [let] alone a likely event"]; Gregorian v. National Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 949 [no duty on storekeeper to protect plaintiff from a "sudden attack of a ruthless youth gang" inside store]; Donnell v. California Western School of Law, supra, 200 Cal.App.3d at pp. 719-720 [school has no duty to protect plaintiff from criminal assault on sidewalk bordering building].) Some of these cases sound in premises liability, in general negligence, or both. But the rationale employed by the courts in these cases — the notion that a property owner has no duty to take steps to control events occurring off the premises — is the same.
Although the complaint at issue in this case purports to state a cause of action against defendants for general negligence only, almost all of the asserted bases for liability are equally as attenuated as the one rejected in Medina. To the extent plaintiffs allege Benninger used the 3981 Monarch Trail property "as a base of operation to harass and injure" them, plaintiffs are not alleging that either he or they were on the property when he took allegedly harassing actions against them. Medina teaches that, even if Benninger behaved badly toward plaintiffs during the time he occupied the premises at the 3981 Monarch Trail property, observed them from that location, and launched himself toward them from that spot, liability will not be imputed to defendants unless he committed those acts on property controlled by defendants.
To avoid the effect of these cases, plaintiffs insist on appeal that defendants "had knowledge of [wrongful] conduct occurring on the property and did nothing to prevent it." (Original italics.)
But the complaint does not support that conclusion. Rather, it alleges that, since 2003, Benninger has harassed plaintiffs on their own property, or in the easement, i.e., by deliberately driving so as to force the plaintiffs car against a fence; deliberately driving slowly in front of them; narrowing the easement with parked cars; and putting large rocks and ruts in the road easement. Allegations that Benninger harassed plaintiffs while both were in the easement, or while he was alone in the easement, do not amount to allegations that he harassed plaintiffs on property controlled by defendants. Although the court identified the issue of defendants control of the property in connection with defendants demurrer to the original complaint, the current complaint is bereft of any allegation that defendants controlled the easement in which Benninger is alleged to have acted. (See Cody F. v. Falletti, supra, 92 Cal.App.4th at p. 1242.) Moreover, plaintiffs allegation that the easement or right-of-way was established by prescription belies any allegation it exists on property controlled by defendants.
We address separately two allegations of acts committed by Benninger while he was on the landlords property at 3981 Monarch Trail: that (1) Benninger discharged firearms "on 3981 Monarch Trial," and (2) he drove either of two trucks "on 3981 Monarch Trail . . . [so as to] spin the wheels in the gravel in the presence of the kids and Connie [Greenup], to intentionally stir up dust in the faces of Connie and the children and/or the children only while still on 3981 Monarch Trail." The complaint alleges that both occurred between 2001 and 2003.
These acts cannot give rise to a cause of action for negligence by the adult plaintiffs, as defendants correctly point out, because such a claim is precluded by the applicable statutes of limitations.
As to the Greenup children, the minors tolling provision of the Code of Civil Procedure section 352, subdivision (a), may allow the minor plaintiffs to allege a cause of action for negligence arising from harassment occurring between 2001 and 2003. However, only one alleged act during this period includes any mention of the children: the allegation that Benninger intentionally sent dust into their faces while he was on the property at 3981 Monarch Trail. Such an intentional act is certainly rude, but the complaint fails to allege the children were injured thereby, and any harm from this act was hardly sufficiently foreseeable to justify imposing liability for the injury (if any) on defendants. (See Cody F. v. Falletti, supra, 92 Cal.App.4th at p. 1242 [no landowner liability unless he has failed to act reasonably when he "has reason to anticipate the probability of injury"]; see also Rosenbaum v. Security Pacific Corp., supra, 43 Cal.App.4th at p. 1091.)
The complaint does not allege the birthdates of the minor plaintiffs.
The current complaint does not allege the children were present or injured during the firearms incident.
Because the second amended complaint does not state a claim for negligence against the Greenwoods, the trial court properly sustained the demurrer. Furthermore, because the Greenups have not proven it is reasonably possible to amend their complaint to state a claim, the demurrer was properly sustained without leave to amend. (See Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur:
DAVIS, Acting P. J.
HULL, J.