Filed 3/18/14 Follett v. Mulberry Mobilehome Park Assocs. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



ANTHONY FOLLETT et al.,                                              B244102

         Plaintiffs and Appellants,                                  (Los Angeles County Super. Ct.
                                                                      No. PC051053)
         v.

MULBERRY MOBILEHOME PARK
ASSOCIATES et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Randy
Rhodes, Judge. Affirmed.
         Schimmel & Parks, Alan I. Schimmel, Michael W. Parks and Stacey R. Cutting
for Plaintiffs and Appellants.
         Early, Maslach & O’Shea, Ronald R. Heard; Law Office of Priscilla Slocum and
Priscilla Slocum for Defendants and Respondents.


                                      ___________________________
       Plaintiffs and appellants Anthony and Marcela Follett1 appeal from a summary
judgment in favor of defendants and respondents Mulberry Mobilehome Park Associates,
MZL Properties, Inc., David Weiswasser, and Weiswasser D&M Trust in this action
arising out of criminal acts by third parties that targeted the Folletts’ property. The
Folletts contend: 1) defendants had a duty to take reasonable measures to secure the
premises against foreseeable criminal acts by third parties, and the arson that destroyed
the Folletts’ mobilehome was foreseeable, based on an ongoing pattern of criminal
activity; 2) their nuisance cause of action is separate and distinct from their negligence
cause of action; 3) triable issues of fact exist as to whether defendants breached the lease
agreement by failing to enforce rules of conduct against the Folletts’ neighbors; and 4)
the trial court erred by excluding the declaration of the Folletts’ property management
expert. We find the act of arson was not foreseeable, the nuisance cause of action is
resolved by the negligence determination because it is based on the same facts and duty
to act, and there was no breach of the lease agreement. The expert declaration would not
change these conclusions had it been admitted. Therefore, we affirm the judgment.


                    FACTS AND PROCEDURAL BACKGROUND


Events at the Mobilehome Park


       In August 1994, the Folletts leased a space for their mobilehome from Mulberry.
The lease required the park management to provide and maintain the common facilities
of the park in good working condition, including streets, unrestricted parking areas, and
other facilities. The lease stated that any violation of the park’s rules and regulations
would be deemed a public nuisance. The lease also stated that Mulberry was entitled to




       1 When parties or witnesses share the same last name, we will refer to them
individually by their first names.


                                              2
any legal remedy for a breach of the lease or the rules, including restraining the tenant
from continuing to breach the rules.
       The park’s rules and regulations contain several provisions governing conduct.
Section 11, subdivision (a), states: “Actions by any person, which may be construed by
management to be dangerous or create a health and safety problem or disturb others, are
not permitted. This includes, but is not limited to, any unusual, disturbing or excessive
noise, intoxication, quarreling, threatening, fighting, immoral or illegal conduct,
profanity, or rude, boisterous, objectionable or abusive language or conduct.”
       Section 11, subdivision (c), provides: “Homeowners and guests must be quiet and
orderly and shall not do anything which might be cause for complaint. Homeowners
must acquaint all guests and occupants of the mobilehome with the Park’s Rules and
Regulations.”
       Section 11, subdivision (e), states in pertinent part: “Homeowners and their guests
shall not encroach or trespass upon any other Homeowner’s homesite or upon any area
which is not open for general use by Homeowners and their guests.”
       Section 11, subdivision (h), provides: “The violation by Homeowner of any law,
regulation or ordinance of the city, county, state or Federal government will not be
tolerated. No acts or demeanor on the part of Homeowner, which would place the Owner
in violation of any law, regulation or ordinance shall be permitted.”
       The Folletts and their children lived in the mobilehome. The Folletts also rented
an RV storage area directly behind their mobilehome site. In 2000, the Weiswasser
D&M Trust purchased the park. David Weiswasser is the trustee of the trust. The trust
engaged the services of property management company MZL for daily operations. Iren
Panici has been MZL’s onsite property manager since MZL took over management of the
property in 2000.
       In 2003, when a resident was involved in an altercation that involved a knife and a
shotgun, MZL sent a warning letter to the resident that aggression would not be tolerated.
In 2004, MZL requested the mayor’s assistance to improve the response time of law




                                              3
enforcement to the park. Between 2004 and 2006, MZL sent two letters to residents
warning them to control the disruptive behavior of a child or grandchild.
       In November 2008, a rainstorm knocked a branch from a tree in the Folletts’ yard
onto a motorcycle belonging to his neighbor Chirawat Chotikasupasanee. Chirawat’s
wife Sue Chotikasupasanee pounded on the Follett’s door and showed them the tree
branch. The Folletts took a picture. Although the tree belonged to the park, Sue
threatened to take legal action against the Folletts. However, the tree branch did not
cause any damage to the motorcycle.
       In December 2008, while the Folletts’ truck was parked in their driveway, the
tailgate and driver’s door of the Folletts’ truck was scratched with a sharp object down to
the primer paint. The Folletts did not report this vandalism.
       That same month, a heavy steel shovel was stolen from the Folletts front porch,
and shortly after, a hand truck they used to roll trash cans to the curb was stolen.
Anthony reported the thefts to Panici. Panici told him to keep items locked up and not
leave anything out, which Anthony did not believe he should have to do.
       The Folletts attended a regular meeting every Friday night. Their babysitter would
arrive shortly before 8:00 p.m., and the Folletts would go out from 8:00 p.m. to
approximately 10:30 p.m. One Friday in March 2009, Anthony came home from the
meeting and found an unwrapped, unused condom on his back porch. He thought it was
a prank of some kind and did not report it to Mulberry.
       Another Friday in March, the Folletts came home from the meeting and found
graffiti spray painted near the back door of the mobilehome. An unwrapped, unused
condom was on the back porch, along with an empty beer bottle in a brown paper bag.
The garden hose had been cut, the water turned on, and water was shooting out over the
side of the home. The children and the babysitter inside the home had not heard
anything. The Folletts called the Los Angeles County Sheriff’s Department. A deputy
came to the house and advised the Folletts to install a motion sensor light, which they
immediately did. They also reported the vandalism to Panici.




                                              4
       The following Friday, Marcela chose to stay home. Two minutes after Anthony
backed the truck out and drove away, the motion sensor light turned on. Marcela looked
out the back window and saw Sue trying to open the shed on the Folletts’ property.
Marcela opened the door and asked what she was doing. Sue ran to the end of the
driveway. She returned and tried to talk to Marcela, but Marcela threatened to call the
police. Marcela called Anthony, who came home. They called the Sheriff’s Department.
Deputies came to their home, then visited Sue. They returned and told the Folletts that
they could not arrest Sue for trespassing, because Sue said she was returning mail of the
Folletts that had been delivered to her home. The deputies gave the mail to the Folletts
and advised them to install security cameras, which they did. Anthony decided not to
make a citizen’s arrest. He hoped the discussion with the police would be enough to
change Sue’s behavior. The Folletts told Panici about the incident and wanted her to
write a letter to the Chotikasupasanees, but Panici said there was nothing she could do.
       However, Panici spoke to Sue about the incident. Panici did not find Sue’s story
believable, because the Follett’s mailbox in their front yard was open and unlocked.
There was no need for Sue to be in the back by their shed. She admonished Sue to
respect her neighbor’s property and reminded her of the rules and regulations. The
cameras that the Folletts installed were obvious, and there were no further incidents on
Friday nights after the cameras were installed.
       In May 2009, the Folletts found approximately 90 square feet of their lawn was
discolored and dying. A substance coated their children’s swing set and toys in the yard.
A gap in the fence to the Chotikasupasanees’ yard was centered on the portion of lawn
that died. The Folletts believe the substance was sprayed through the fence to their yard.
They told Panici about it, but she said there was nothing that she could do. She suggested
that the Folletts build a higher fence, which they did.
       In August 2009, Anthony saw Sue throw cat feces into the street in front of the
Folletts’ home. He was disgusted, because the neighborhood kids play there. Anthony
swept the mess into a dust pan and went to Sue’s window. He said, “Please don’t dump
these in my yard anymore.” He made sure that she saw him dumping the cat feces in her


                                              5
yard. Chirawat came out of the home and threw the cat feces back into the street.
Anthony asked why he did not throw it in the trash. Chirawat refused. Anthony
explained that the kids play in the street, but Chirawat did not care. Anthony got a push
broom and swept a pile. Chirawat tried to confront him, but Anthony refused to be
provoked. When Chirawat asked what Anthony was going to do with the cat feces,
Anthony replied that it depended on him. Chirawat came running off his front porch,
kicked the broom, and broke it in half, started swinging his fists at Anthony and scattered
the pile. Anthony defended himself by fending off blows. Chirawat called the sheriff’s
department and claimed Anthony had injured him by kicking him in the groin. Chirawat
made a citizen’s arrest of Anthony and the deputies took him to the substation. The
deputies were very apologetic, booked him, and released him. The Folletts told Panici
about the incident with the cat feces. She agreed that it was disgusting and bad behavior
but said there was nothing she could do about it.
       A few days later, deputies served Anthony with a temporary restraining order.
That day, a bushy tree in the Folletts’ yard showed discoloration and damage similar to
the incident with the lawn. The restraining order was not made permanent.
       The Folletts keep a boat with a cover on it in the RV storage space behind their
home. A new neighbor heard a tearing noise and saw a woman by the boat. He called
out to ask what she was doing and she ran. The neighbor told Anthony about the
incident. He described the woman that he saw and the Folletts believed it was Sue. They
found the boat cover had been cut. The Folletts did not discuss the incident with police,
and they do not remember discussing it with the park management.
       In October 2010, Anthony saw a red car parked against the boat and an unknown
man sleeping in the car. Anthony woke him up and told him that he needed to move. He
called the assistant manager to report the man. The man spoke to him with attitude. A
few days later, Marcela noticed a man in the RV storage space. Anthony heard her
speaking to him and saw the same man who had been sleeping in his car. He complained
to Panici about the unknown man lurking behind the home.




                                             6
       One night, tires were slashed on vehicles in the park, although none of the Folletts’
tires were cut. The Folletts left town to spend Thanksgiving with family in Nevada. On
November 26, 2010, the tires of several cars on the Folletts’ street were slashed, but none
of the Folletts’ tires.
       On November 27, 2010, while the Folletts were out of town, a fire destroyed their
mobilehome. Los Angeles County Sheriff’s Department Sergeant Wendy Zolkowski,
who works in the arson explosives detail, concluded that the fire started at 2:00 a.m. and
was purposely set to burn the Folletts’ property. Charcoal lighter fluid had been spread in
more than one location inside the mobilehome, which was the cause of the fire. The
identity of the arsonist is not known.


Legal Proceedings


       On June 28, 2011, the Folletts filed a complaint against Mulberry and MZL for
negligence, breach of the lease agreement, breach of the implied warranty of habitability,
nuisance, and intentional infliction of emotional distress. The Folletts alleged that they
made numerous complaints about the safety of the mobilehome park between November
2008 and November 2010, which Mulberry promised and failed to cure. The complaints
included the theft of tools, the condoms on the Folletts’ porch, vandalism, trespass by
neighbors, and the unknown man sleeping in the Folletts’ parking space. The arson that
destroyed the Folletts’ mobilehome in November 2010 resulted from defendants’ failure
to keep the premises in a reasonably safe condition as required by the lease and the rules
and regulations.
       Panici repeatedly told the Folletts that there was nothing she could do to help
them. The Folletts suggested hiring a security patrol or installing a gate, but Panici
claimed defendants had denied the requests. The failures to inspect, maintain, and keep
the mobilehome park in a reasonably safe and habitable condition contributed to the
cause of the fire. Defendants were aware of serious threats to the health and safety of the




                                             7
Folletts and other residents, including dangerous and threatening acts. The Folletts were
forced to vacate, incurred expenses, and suffered emotional distress.
       Weiswasser and the trust were substituted as Doe defendants. The defendants
filed a motion for summary judgment on May 18, 2012, on the grounds that they had no
duty to protect the Folletts from unforeseeable criminal conduct by third parties and there
was no causative link between the alleged acts and the Folletts’ injuries.
       Defendants submitted evidence of the undisputed facts set forth above. In a
declaration, MZL’s president stated MZL’s policy regarding tenant complaints. When a
manager has personal knowledge of a violation of the park rules or receives a complaint
from a tenant based on personal knowledge, the manager speaks with the offending
tenant. If the tenant is noncompliant, a warning letter is issued. The manager is not to
become involved in tenant disputes but should suggest the tenant call the police. Since
MZL assumed management of the park in 2000, there have been complaints of minor
vandalism to several home sites and common areas, as well as property thefts, but there
has never been a report of any fire to any structure or any acts which caused any
structural damage to the homes or sites. In Panici’s deposition testimony, she noted that
a subsequent fire at the mobilehome park that same year killed the occupant of the home.
Panici does not know how the second fire started.
       The Folletts opposed the motion on the ground that the numerous prior criminal
acts were sufficiently similar to arson to make arson foreseeable and warrant imposition
of a duty. In addition, there were triable issues of material fact as to whether defendants
had breached the implied covenant of quiet enjoyment by failing to investigate or resolve
the acts of vandalism and theft, or to take action against the Chotikasupasanee, resulting
in the Folletts’ losses. In addition, defendants’ failure to take action permitted a
nuisance.
       The Folletts submitted additional portions of Panici’s deposition. She stated that
she does not have any system for recording verbal complaints and most complaints are
never reduced to writing. She does not know if the Folletts reported any complaints to
the park’s assistant manager. There is no policy for investigating complaints about


                                              8
tenants, including a tenant trespassing on a neighbor’s property. They do not keep track
of incidents like vandalism or theft where they advise tenants to contact the police. When
they have a problem with a tenant violating the rules and regulations, they send a warning
letter. The most recent letter was sent in 2006. Tenants have suggested that the park
install gates or hire security, but MZL has never considered these measures or consulted
with a security firm. A security service would cost between 18 and 25 dollars per hour.
       The Folletts also submitted the declaration of residential property management
expert Michael Chulak. He declared the following was unreasonable: 1) not providing
the property manager with training on landlord-tenant law and relationships; 2) not
having written policies for tenant conflicts, vandalism, loitering and other issues; 3) not
having written policies to enforce compliance with the rules and regulations; 4) not
reducing verbal reports to writing; and 5) not promptly investigating tenant complaints
of destructive and unlawful behavior.
       Chulak declared that property managers are obligated to make reasonable
investigations into reports of theft, vandalism, trespass, and other criminal activity.
Based on the size of the mobilehome park and the frequency of the criminal activity
directed at the Folletts, Panici should have investigated the source of the activity and
contacted law enforcement for guidance as to the repeated vandalism and trespass
suffered by the Folletts.
       Mulberry is expected to maintain the premises pursuant to its contractual
obligations and in a safe manner where residents are free from repeated acts of criminal
conduct. In Chulak’s opinion, MZL recklessly disregarded the Folletts’ safety by failing
to document, investigate, or take remedial measures as to their complaints of crimes
against them. MZL did not follow basic standard of care and did not adequately maintain
the safety of the park with respect to documentation, investigation, and resolution of
complaints about the Chotikasupasanees and criminal activity directed at the Folletts.
MZL did not adequately maintain and manage the security of the park, as shown by the
failure to contact law enforcement for guidance and to request nightly patrols, and failing
to consult professional security firms. MZL did not follow basic standards of care of a


                                              9
property management company when provided notice that a resident is subject to a
concerted criminal effort. MZL and Weiswasser did not manage the park within the
standard of care for property managers owed to tenants and did not manage the safety and
security of the tenants within the custom and practice for property managers.
       Defendants filed a reply on the grounds that the arson was unforeseeable and the
suggestion that security measures would have prevented the crime was pure speculation.
Both parties filed objections to evidence submitted with the pleadings. The trial court
sustained defendants’ objection to Chulak’s entire declaration.
       A hearing was held on August 1, 2012. The trial court concluded the arson was
not foreseeable as a matter of law from the types of criminal acts that the park was aware
had occurred. On September 11, 2012, the trial court entered an order granting summary
judgment and a judgment in favor of Mulberry, MZL, Weiswasser, and the trust. The
Folletts filed a timely notice of appeal.


                                       DISCUSSION


Standard of Review


       “We review the grant of summary judgment de novo. [Citation.] We make ‘an
independent assessment of the correctness of the trial court’s ruling, applying the same
legal standard as the trial court in determining whether there are any genuine issues of
material fact or whether the moving party is entitled to judgment as a matter of law.’
[Citation.] A defendant moving for summary judgment meets its burden of showing that
there is no merit to a cause of action by showing that one or more elements of the cause
of action cannot be established or that there is a complete defense to that cause of action.
[Citation.] Once the defendant has made such a showing, the burden shifts back to the
plaintiff to show that a triable issue of one or more material facts exists as to that cause of
action or as to a defense to the cause of action. [Citation.]” (Moser v. Ratinoff (2003)
105 Cal.App.4th 1211, 1216–1217.)


                                              10
         “In performing our de novo review, we view the evidence in the light most
favorable to plaintiffs as the losing parties. [Citation.] In this case, we liberally construe
plaintiffs’ evidentiary submissions and strictly scrutinize defendants’ own evidence, in
order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Wiener v.
Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
         In Reid v. Google, Inc. (2010) 50 Cal.4th 512, the Supreme Court declined to
address whether the trial court’s evidentiary rulings in connection with a summary
judgment motion are reviewed de novo or for an abuse of discretion (id. at p. 535). We
do not consider the proper standard of review, because under either standard, there is no
error.


Negligence


         The Folletts contend defendants were required to take certain steps to ensure the
premises were secure against foreseeable criminal acts. They further contend that arson
was foreseeable from the ongoing pattern of criminal activity against the Folletts’
property. We disagree.
         To establish negligence, the plaintiffs must show that the defendants owed them a
duty, breached the duty, and the breach was a proximate or legal cause of the plaintiffs’
injuries. (Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291, 1299-1300
(Ericson).) Although there is generally no duty to protect others from criminal acts by
third parties, one exception is the “special relationship doctrine.” (Ibid.)
         “A landlord generally owes a tenant the 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. [Citations.] In each case, however, the
existence and scope of a property owner’s duty to protect against third party crime is a
question of law for the court to resolve. [Citations.]” (Castaneda v. Olsher (2007) 41
Cal.4th 1205, 1213 (Castaneda).)




                                              11
       We consider several factors to determine the existence and scope of the landlord’s
duty: “‘[T]he foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the defendant’s conduct
and the injury suffered, the moral blame attached to the defendant’s conduct, the policy
of preventing future harm, the extent of the burden to the defendant and consequences to
the community of imposing a duty to exercise care with resulting liability for breach, and
the availability, cost, and prevalence of insurance for the risk involved.’” (Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5 (Ann M.), quoting
Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)
       “[F]oreseeability is a critical factor in the analysis. When foreseeability is
analyzed to determine the existence or scope of a duty, foreseeability is also a question of
law. [Citation.]” (Ericson, supra, 162 Cal.App.4th at p. 1300, fn. omitted.)
       In Ann M., the Supreme Court explained that “the scope of the duty is determined
in part by balancing the foreseeability of the harm against the burden of the duty to be
imposed. [Citation.] ‘“[I]n cases where the burden of preventing future harm is great, a
high degree of foreseeability may be required. [Citation.] On the other hand, in cases
where there are strong policy reasons for preventing the harm, or the harm can be
prevented by simple means, a lesser degree of foreseeability may be required.”
[Citation]’ [Citation.] Or, . . . duty in such circumstances is determined by a balancing
of ‘foreseeability’ of the criminal acts against the ‘burdensomeness, vagueness, and
efficacy’ of the proposed security measures.” (Ann M., supra, 6 Cal.4th at pp. 678-679.)
       “The plaintiff in Ann M. was raped at her place of employment, a business located
in a secluded area of the defendant’s strip mall. (Ann M., supra, 6 Cal.4th at p. 670.) The
court held violent criminal assaults were not sufficiently foreseeable to impose a duty on
the defendant to provide security guards in the mall’s common areas, as the defendant
had no notice of prior similar incidents on the premises. (Ann M., supra, 6 Cal.4th at p.
679.) The court concluded that ‘[n]either the evidence regarding the presence of
transients nor the evidence of the statistical crime rate of the surrounding area is of a type




                                              12
sufficient to satisfy this burden.’ (Id. at p. 680.)” (Ericson, supra, 162 Cal.App.4th at pp.
1300-1301.)
       “The Ann M. court concluded that while certain circumstances may require an
owner to hire security guards to satisfy the duty of care, that measure will almost always
be considered a significant burden, given the financial and social costs, and the
uncertainty that patrols will deter crime. The court explained, ‘[u]nfortunately, random,
violent crime is endemic in today’s society,’ and ‘“[n]o one really knows why people
commit crime, hence no one really knows what is ‘adequate’ deterrence in any given
situation.”‘ (Ann M., supra, 6 Cal.4th at pp. 678-679.) Accordingly, when the measure
at issue is the hiring of security guards, evidence of prior similar incidents of crime on the
owner’s premises is ordinarily required to prove the requisite degree of foreseeability,
although criminal incidents at a nearby similar business may help establish foreseeability.
(Id. at p. 679 & fn. 7.)” (Ericson, supra, 162 Cal.App.4th at p. 1301.)
       If the burden of preventing harm from third party criminal conduct is high, the law
requires “‘heightened foreseeability[,] shown by prior similar criminal incidents or other
indications of a reasonably foreseeable risk of violent criminal assaults in that location
. . . .’ [Citation.]” (Ericson, supra, 162 Cal.App.4th at p. 1302.) “‘By contrast, in cases
in which harm can be prevented by simple means or by imposing merely minimal
burdens, only “regular” reasonable foreseeability as opposed to heightened foreseeability
is required.’ [Citation.]” (Ibid.)
       The Castaneda court explained the steps required in the duty analysis: “‘First, the
court must determine the specific measures the plaintiff asserts the defendant should have
taken to prevent the harm. This frames the issue for the court’s determination by defining
the scope of the duty under consideration. Second, the court must analyze how
financially and socially burdensome these proposed measures would be to a landlord,
which measures could range from minimally burdensome to significantly burdensome
under the facts of the case. Third, the court must identify the nature of the third party
conduct that the plaintiff claims could have been prevented had the landlord taken the
proposed measures, and assess how foreseeable (on a continuum from a mere possibility


                                             13
to a reasonable probability) it was that this conduct would occur. Once the burden and
foreseeability have been independently assessed, they can be compared in determining
the scope of the duty the court imposes on a given defendant. The more certain the
likelihood of harm, the higher the burden a court will impose on a landlord to prevent it;
the less foreseeable the harm, the lower the burden a court will place on the landlord.’
[Citation.]” (Castaneda, supra, 41 Cal.4th at p. 1214, citing Vasquez v. Residential
Investments, Inc. (2004) 118 Cal.App.4th 269, 285.)
       “When a ‘“regular” reasonable foreseeability’ [citation] test is applicable, the
court must determine whether ‘“the degree of foreseeability is high enough to charge the
defendant with the duty to act on it. If injury to another ‘“is likely enough in the setting
of modern life that a reasonably thoughtful [person] would take account of it in guiding
practical conduct”‘ [citations], we must label the injury ‘reasonably foreseeable’ and go
on to balance the other Rowland[, supra, 69 Cal.2d 108] considerations.” [Citation.]’
[Citation.]” (Ericson, supra, 162 Cal.App.4th at p. 1303, fn. omitted.)
       “To establish the heightened foreseeability necessary to impose a heavily
burdensome duty such as hiring security guards, we have explained, the plaintiff must
show the existence of prior similar incidents on the premises or other sufficiently serious
‘indications of a reasonably foreseeable risk of violent criminal assaults.’ [Citation.]
Criminal incidents at an ‘immediate[ly] proximat[e] . . . substantially similar business
establishment’ can help to show the requisite foreseeability. [Citations.]” (Castaneda,
supra, 41 Cal.4th at p. 1222.)
       “‘A landlord is not obliged to institute eviction proceedings whenever a tenant
accuses another tenant of harassment.’ [Citation.]” (Castaneda, supra, 41 Cal.4th at p.
1222.) “[U]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.” (Id. at p. 1219.)
       “[T]he Mobilehome Residency Law permits termination of a tenancy for conduct
that constitutes a ‘substantial annoyance’ to other residents (Civ. Code, § 798.56,
subd. (b)), conviction of specified offenses occurring in the mobilehome park (id., subd.


                                              14
(c)), and failure to comply with a reasonable rule included in the rental agreement (id.,
subd. (d)). The park management must include in the notice of termination a statement of
the reasons ‘with specific facts to permit determination of the date, place, witnesses, and
circumstances’ supporting the termination. (Civ. Code, § 798.57.) Under section 798.56,
subdivision (d), moreover, the management must give the tenant notice and seven days to
cure a rule violation or must have cited the tenant for the same violation three or more
times in a 12-month period.” (Castaneda, supra, 41 Cal.4th at p. 1219, fn. 4.)
       “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.” (Castaneda, supra, 41 Cal.4th at pp. 1219-1220.) “In Madhani v. Cooper
(2003) 106 Cal.App.4th 412 [(Madhani)], the court held the defendant landlords owed a
duty of care to protect the plaintiff/tenant from foreseeable future assaults by Moore, a
fellow tenant and neighbor. (Id. at p. 415.)” (Andrews v. Mobile Aire Estates (2005) 125
Cal.App.4th 578, 595 (Andrews).) “[Moore] shoved, bumped and physically blocked the
plaintiff and her mother on several occasions, as well as berating them. Despite the
plaintiff’s frequent complaints to the defendant’s property manager, no action was taken
against the assailant, who ultimately pushed the plaintiff down the building’s stairs,
injuring her. ([Madhani, supra,] at pp. 413-415.) The Court of Appeal held the landlord
had had a duty to evict the assaultive tenant if necessary, observing that ‘[i]t is difficult to
imagine a case in which the foreseeability of harm could be more clear.’ (Id. at p. 415.)”
(Castaneda, supra, 41 Cal.4th at pp. 1219-1220, fn. omitted.) “There, the evidence
showed ‘the landlords knew or should have known Moore had engaged in repeated acts
of assault and battery against Madhani as well as her mother.’ ([Madhani, supra, at p.
415].) Therefore, ‘it was foreseeable Moore’s violent outbursts and physical assaults
would eventually result in serious injury to Madhani.’ (Id. at p. 416.)” (Andrews, supra,
at p. 595.)
       In the instant case, none of the incidents prior to November 27, 2010, involved
arson. The Folletts complained of isolated incidents of petty theft, vandalism,


                                              15
harassment, and annoyances. The acts took place outside their home several months
apart. In response to each of the Folletts’ complaints, defendants or law enforcement
recommended a security measure that was completely effective in preventing similar
harassment or criminal activity. None of the activities the Folletts complained of to
defendants were inherently dangerous felonies like arson and there were no prior
incidents of arson. As a matter of law, it was not foreseeable from the minor grievances
and confrontations that an intruder would break into the Folletts’ mobilehome and
commit arson. There was an insufficient showing to put defendants on notice of the risk
of arson.


Nuisance


       The Folletts contend their cause of action for nuisance is distinct from their cause
of action for negligence. We disagree.
       “In California, it is settled that where negligent conduct, i.e., conduct that violates
a duty of care toward another, also interferes with another’s free use and enjoyment of his
property, nuisance liability arises. [Citations.]” (Lussier v. San Lorenzo Valley Water
Dist. (1998) 206 Cal.App.3d 92, 101 (Lussier).) “Given ‘the broad definition of
nuisance,’ the independent viability of a nuisance cause of action ‘depends on the facts of
each case.’ [Citation.] ‘Where negligence and nuisance causes of action rely on the
same facts about lack of due care, the nuisance claim is a negligence claim.’ [Citation.]
The nuisance claim ‘stands or falls with the determination of the negligence cause of
action’ in such cases. [Citation.]” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542
(Melton).)
       Since defendants in this case did not commit the criminal acts that caused the
Folletts harm, liability is based on failing to prevent the acts and thereby prevent the harm
it caused. “In general, however, the failure to protect another person is not tortious unless
this failure violated a preexisting duty of care. [Citations.]” (Luisser, supra, 206
Cal.App.3d at p. 103.) “[U]nder certain circumstances, the worlds of nuisance and


                                              16
negligence overlap and the two become merely alternative legal theories for redressing
what is really the invasion of a single primary right: the right to the undisturbed
enjoyment of one’s property and land. [Citation.]” (Id. at p. 104.)
       “Thus, in Calder v. City etc. of San Francisco (1942) 50 Cal.App.2d 837, 839, the
court observed, ‘While it is true that “a nuisance and liability for injuries occasioned
thereby may exist without negligence” [citation], it is likewise true that “The torts of
negligence and nuisance may be, and frequently are, coexisting and practically
inseparable. . . . A nuisance in many, if not in most, instances, especially with respect to
buildings or premises, presupposes negligence.” [Citations.]’ [Citation.]” (Luisser,
supra, 206 Cal.App.3d at p. 104.)
       “This view -- that proof of negligence may be essential to a claim of nuisance
where the alleged nuisance involves a failure to act -- is not unique. Elsewhere it has
been noted that ‘[t]he duty of defendant with respect to a dangerous condition which he
did not intentionally originate is not absolute, but only to exercise such a degree of care
and diligence as the danger demands[]’ and that ‘where liability for the nuisance is
predicated on the omission of the owner of the premises to abate it, rather than on his
having created it, then negligence is said to be involved.[]’ [Citations.]” (Luisser, supra,
206 Cal.App.3d at pp. 104-105, fn. omitted.)
       In this case, the Folletts claim defendants’ failure to take certain actions created a
nuisance. Unless defendants had a duty to take the actions, they have not committed any
act to support the nuisance claim. The nuisance claim relies on the same facts as the
negligence claim and there are no additional facts to support it. Since the criminal acts
which caused the Folletts’ harm are not attributed to defendants, the basis for nuisance
liability has to be the negligent failure to take preventative measures. The Folletts’ cause
of action for nuisance has no independent viability, “because it merely restates their
negligence claims ‘using a different label.’ [Citation.]” (Melton, supra, 183 Cal.App.4th
at p. 543.)




                                             17
Breach of the Lease Agreement


       The Folletts contend defendants breached the lease agreement, including the
implied covenant of quiet enjoyment, by failing to enforce park rules regulating the
conduct of residents. The actions that the Folletts contend violated park rules were: the
theft of tools, the vandalism to the Folletts’ truck, the vandalism of their house, Sue’s
trespass near their tool shed, the destruction of lawn, the destruction of trees, the
throwing of cat feces, the physical attack by Chirawat, and the vandalism of their boat
cover. The Folletts contend defendants should have enforced the park rules by
investigating their complaints about Sue, deterring her conduct through cease and desist
letters threatening legal action, enjoining her conduct, instituting eviction proceedings
against the Chotikasupasanees, and calling on law enforcement for advice and
cooperation with respect to the Chotikasupasanees’ conduct. We disagree with the
Folletts’ analysis.
       “A mobile home park owner cannot disregard conduct by a tenant upon the park
premises that constitutes a substantial annoyance to other homeowners or residents. (Civ.
Code, § 798.56, subd. (b).) Faced with such a situation, the covenant of quiet enjoyment
requires a reasonable response by the landlord, which may include conducting an
investigation and thereafter, taking appropriate action, which may include, inter alia, the
issuance of a warning to the offending party, the pursuit of injunctive relief against the
tenant to enjoin the violation (id., § 798.88), or, if necessary, the commencement of
eviction proceedings (id., § 798.56).” (Andrews, supra, 125 Cal.App.4th at p. 597.)
       “Minor inconveniences and annoyances are not actionable breaches of the implied
covenant of quiet enjoyment. To be actionable, the landlord’s act or omission must
substantially interfere with a tenant’s right to use and enjoy the premises for the purposes
contemplated by the tenancy. (Petroleum Collections Inc. v. Swords [(1975)] 48
Cal.App.3d [841,] 846; see, e.g., Pierce v. Nash (1954) 126 Cal.App.2d 606, 614,
[landlord breached tenant’s right to quiet enjoyment by installing interior building
supports which unnecessarily interfered with tenants billiards business]; Sierad v. Lilly


                                              18
(1962) 204 Cal.App.2d 770, 775 [landlord breached covenant of quiet enjoyment by
denying retail tenant use of adjoining parking spaces which were essential to tenant’s use
and enjoyment of the property]; Friedman et al., Cal. Practice Guide: Landlord-Tenant
(The Rutter Group 2003) § 4:8, pp. 4-5.)” (Andrews, supra, 125 Cal.App.4th at pp. 589-
590.)
        In this case, defendants’ response to each of the Folletts’ complaints was
reasonable as a matter of law under the facts. When the Folletts’ tools were stolen in
December 2008, they had no idea who took them. The park management recommended
the Folletts keep items locked up. This is an objectively reasonable recommendation and
was sufficient to prevent any further thefts. The security measures that the Folletts
contend should have been taken were not required in response to the complaint of
missing tools. There is no evidence the Folletts reported the vandalism to their truck that
occurred around the same time.
        When the Folletts reported the increasingly destructive vandalism of their home in
March 2009, they had no idea who the perpetrator was. Law enforcement recommended
the installation of motion sensor lighting. The following week, the motion sensor
lighting caught Sue trespassing in the back yard. The Folletts complained about Sue’s
trespass to park management and installed cameras. Panici investigated the incident by
speaking with Sue and admonished her about the park rules. There were no further
incidents of nighttime vandalism of the Folletts’ home. The measures recommended and
undertaken were entirely effective. None of the measures the Folletts contend should
have been taken would have been appropriate based on one incident of trespass. Sue had
the excuse that she was returning misdelivered mail, and she would have had seven days
to cure a rule violation, which she clearly would have done.
        Two months later, the Folletts complained that a portion of their lawn had died
and accused the Chotikasupasanees of spraying a poisonous substance into their yard.
Defendants’ suggestion to build a higher fence was reasonable and solved the problem
better than a security patrol, a gated entry, or the Folletts’ other suggested measures. If
the park management had investigated the Folletts’ complaint and sent a cease and desist


                                             19
letter, the outcome would have been no different, because there were no further incidents
of damage to the back yard. Three months later, the Folletts found a tree in their front
yard was damaged and had similar suspicions about their neighbors’ conduct. However,
there is no evidence they reported the later damage to park management for additional
investigation and enforcement of the park rules.
       In August 2009, Anthony was disturbed by the fact that Sue threw cat feces into
the street. He chose to handle it by trespassing on the Chotikasupasanees’ property,
confronting Sue and throwing the feces on their property. There is no evidence that Sue
intended to annoy the Folletts when she tossed her refuse in the street, and she was not
involved in the incident otherwise. The confrontation escalated to a physical attack by
Chirawat. The Folletts have not explained how a security gate, patrol, or an investigation
by park management were required with respect to the circumstances of this incident. If
a cease and desist letter had been sent to the Chotikasupasanees, the outcome would have
been no different than it was. This is the sole incident between Anthony and Chirawat
and the Folletts had no further complaints about Chirawat’s conduct. Apparently, Sue
disposed of cat feces appropriately following the incident, because Anthony did not
complain again to park management about cat feces in the street.
       For more than a year after this confrontation, the Folletts did not report any acts of
harassment, vandalism, or criminal activity. They experienced one incident of vandalism
to their boat cover in the spring of 2010, which they believe Sue committed, but they do
not remember reporting it to the park management. Therefore, the Folletts did not report
having any incidents with either of the Chotikasupasanees for the 15 months before their
home was destroyed by arson in November 2010. Based on these facts, as a matter of
law, defendants did not breach express or implied covenants of the lease agreement by
failing to take the actions suggested by the Folletts.
       If the trial court had overruled the objection to Chulak’s declaration, our
conclusion would not be different. The expert declaration does not change any of the
facts of this case from which our conclusions are derived. The Folletts have not raised




                                              20
any issues on appeal with respect to any other causes of action alleged in the complaint.
Therefore, the judgment must be affirmed.


                                     DISPOSITION


       The judgment is affirmed. Respondents Mulberry Mobilehome Park Associates,
MZL Properties, Inc., David Weiswasser, and Weiswasser D&M Trust are awarded their
costs on appeal.




              KRIEGLER, J.




We concur:




              TURNER, P. J.




              MINK, J.*




*      Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.


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