TROY v. VILLAGE GREEN CONDOMINIUM PROJECT

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Court of Appeal, Second District, Division 5, California.

Frances TROY, Plaintiff and Appellant, v. VILLAGE GREEN CONDOMINIUM PROJECT, an Unincorporated Association, Charles Brittin, Ella Kay Mays, Julius Kovener, Bob Lang, Kermit Dickerson, Defendants and Respondents.

Civ. 67881.

Decided: November 23, 1983

Terry Steinhart, Los Angeles, for Frances Troy. Jamoa A. Moberly, Schell & Delamer, Los Angeles, for Village Green Condominium Project. Steven J. Revitz, Raiskin & Revitz, Los Angeles, for Brittin, Mays, Kovener, Lang, and Dickerson.

This is another chapter in the turbulent history of the Village Green Condominiums.1  The issue in this case is whether the defendant condominium owners' association and the individual directors thereof can be held liable in damages resulting from a criminal act upon a resident condominium owner, where the crime allegedly resulted from defendants' failure to provide adequate exterior lighting in the vicinity of plaintiff's unit.   This appeal is from an order of dismissal after demurrers to plaintiff's First Amended Complaint were sustained without leave to amend.

The Village Green Condominium Project (“the Project”) is a 64-acre complex of over 600 condominium units located in the Baldwin Hills area of Los Angeles.   When the Village Green was converted from apartments to condominiums in 1973, the developer recorded a declaration of covenants, conditions and restrictions (CC & R's) which established the Village Green Owners Association (“the Association”) and authorized it to enforce the regulations set forth therein.   The Association is responsible for managing the Project and maintaining the common areas.   Defendants Charles Brittin, Ella Kay Mays, Julius Kovener, Bob Lang and Kermit Dickerson were the members of the Association's Board of Directors and its officers during the year 1980.   Plaintiff and appellant Frances Troy was the owner of Unit 5276 within the Project.

The Project consists of approximately 92 buildings, each containing several condominium units.   The buildings are situated in a rectangular fashion around grassy, park-like areas known as “courts.”   The unit in which appellant formerly lived fronts on the largest of these areas.   She contends that the lighting in this area was exceedingly poor, and that her unit was in the darkest portion of all.

Throughout 1980, the Project was subject to what appellant calls an “exceptional” crime wave, which included car thefts, purse snatchings and burglaries.   Security was a major concern of the Project's residents, and the monthly (or bi-monthly) Project newsletters (many of which are attached as exhibits to the Complaint) are full of helpful hints on how to prevent crime.2  (Each monthly newsletter also contains a summary of crimes occurring in the Project during the previous month.)

In the early part of 1980, respondents undertook an investigation to evaluate the lighting needs and available options for major lighting improvement within the Project.   This evaluation was entrusted to the Project's Architectural Guidelines Committee.

During April 1980, appellant's home was burglarized.   Appellant felt that the burglary would not have occurred had there been adequate lighting in the end of her court, and she made her feelings known in the April-May-June issue of the “Village Breeze,” the Project newsletter.3  On May 24, 1980, the residents of appellant's court (Court 4) held a meeting to discuss various Court problems (including the lack of adequate lighting), and on June 12, 1980 appellant, as Court representative, transmitted a formal request to the Project manager (with a copy to defendant directors) that more lighting be installed in the area as soon as possible.

Appellant did not receive any response to her request, so she submitted a follow-up memo two months later on August 18, 1980.   The memo stated in part:

“At our meeting in May, we went on record requesting certain lighting improvements, some stenciled signs, etc.   You have a copy of the action of that meeting in your files, as does the Board of Directors.  [¶] None of the requests made by Court 4 at that meeting have been acted upon, nor has there been any response, either written or verbal, to the requests, from either the site manager or the board of directors.  [¶] We are aware that there may be reasons why no action has been taken on the things we asked for, but we are mystified as to the lack of acknowledgment that you even received our communications.  [¶] We would appreciate an acknowledgment of our communications.”

In the latter part of August 1980, appellant, frustrated by respondents' inaction, took matters into her own hands and installed additional exterior lighting at her unit.   In a letter dated August 29, 1980, the Site Manager informed appellant that she would have to remove the additional lighting because it violated the CC & R's.   Appellant refused to remove the lighting and appeared at a meeting of the board on October 1st to present her views.   The next day the Board informed appellant that she would have to remove the lighting by October 6 or the Association would have it removed and bill her for the cost.   The apparent reason for the Board's action was that the lights were installed without the Board's permission, as required by the CC & R's, and were not installed by a licensed electrician nor pursuant to a City permit.

Appellant was told by the Site Manager that she could not use the lights, pending their removal.   Since the lights were installed on the building circuits and used the same switches, not using the additional lights meant using no lights at all.   However, on October 8, 1980, appellant nonetheless complied with the request, leaving her unit without any exterior lighting.   That night, an intruder entered appellant's unit and molested, raped and robbed her.

Appellant's First Amended Complaint consists of three causes of action:  negligence, breach of contract and breach of fiduciary duty.   In the first cause of action for negligence, appellant contends that respondents were on notice of the crimes occurring in the Project and knew that additional lighting would deter crime, but nonetheless “negligently and carelessly failed to reasonably carry [the lighting] investigation forward and to propose to the members of the Association what alternatives were available, at what costs, to improve the Project's lighting conditions.”   The second and third causes of action, for breach of contract and breach of fiduciary duty (based upon the Project's CC & R's and Bylaws) allege that respondents were obligated to (1) take steps to remedy the lighting situation and (2) refrain from instructing appellant to remove the additional lighting which she had installed.   We conclude that the trial court was correct in sustaining respondents' demurrers to the second and third causes of action but that their demurrer to the first cause of action should have been overruled.

Respondents' demurrer to the first cause of action was based upon the theory that they had no duty to appellant to increase the lighting in her area.   Since there are no reported California cases dealing with the liability of condominium homeowners' associations and/or individual directors in a situation such as the one presented here, both appellant and respondents have analogized this case to four landlord/tenant cases involving similar facts.   In two of the cases, the courts have held the landlord liable and in the other two cases they have declined to do so.

Appellant relies primarily on O'Hara v. Western Seven Trees, 75 Cal.App.3d 798, 142 Cal.Rptr. 487, and Kwaitkowski v. Superior Trading Company, 123 Cal.App.3d 324, 176 Cal.Rptr. 494.

In O'Hara, the plaintiff charged that the owners and operators of the apartment complex where she lived failed to provide adequate security in the building, misrepresented the security measures which were in effect, concealed information concerning a man who had raped several female tenants, and failed to warn plaintiff of the danger of rape.   The court first summarized the applicable law as follows:

“Generally, a person is liable for injuries caused by his failure to exercise reasonable care under the circumstances.  [Citations.]  Traditionally, a landlord had no duty to protect his tenants from the criminal acts of others, but an innkeeper was under a duty to protect his guests.  [Citations.]  But in recent years, the landlord-tenant relationship, at least in the urban, residential context, has given rise to liability under the circumstances where landlords have failed to take reasonable steps to protect tenants from criminal activity.  [Citations.]  It has been held that since only the landlord is in a position to secure common areas, he has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure.   Liability does not make the landlord an insurer of the tenants' safety;  the duty is merely to exercise reasonable care.   [Citations.]”  (75 Cal.App.3d at pp. 802–803, 142 Cal.Rptr. 487;  citations omitted.)

The O'Hara court held that the landlords' failure to take reasonable precautions to safeguard the common areas under their control could have contributed substantially to the plaintiff's injuries, as she had alleged in her complaint, and therefore the trial court erred in sustaining the landlords' demurrer.

In Kwaitkowski, the plaintiff was accosted, raped and robbed in the lobby of her apartment building which was owned by defendants.   A similar incident had occurred approximately two months before, and the defendant landlord had been notified that strangers had been coming into the building lobby because the front door did not lock properly.   Despite the fact that the landlord knew about the prior assault and the defective condition of the front door, it did nothing to repair the door, nor did it properly maintain adequate lighting in the common entrance of the lobby.   The court held that the landlords' knowledge of the prior incident and failure to repair the lobby door affirmatively placed the plaintiff in danger of injuries of the same type that had previously occurred.

The plaintiff in Kwaitkowski relied on O'Hara, which the defendant landlords argued was factually distinguishable as the O'Hara landlord was aware of prior incidents of rape by a particular suspect, and had composite drawings of the suspect as well as a general description of his modus operandi, but failed to inform plaintiff of the potential danger.   The Kwaitkowski court was unpersuaded:  “The landlords' contention overlooks the fact that they had prior notice of a tenant who was assaulted and robbed two months before Ms. Kwaitkowski was assaulted, robbed and raped.   The landlords had notice that their apartment building was in a high crime area and that the lock of the lobby entrance door was defective.   They also had notice that with the defective door, strangers had easy access to the premises and that the tenants were in fear of their personal safety.   Under these circumstances, the danger to Ms. Kwaitkowski's personal safety was foreseeable.”  (123 Cal.App.3d at pp. 328–329, 176 Cal.Rptr. 494.)

Respondents rely substantially on two cases in support of their position that they were under no duty to increase the lighting at the project.

In 7735 Hollywood Boulevard Venture v. Superior Court, 116 Cal.App.3d 901, 172 Cal.Rptr. 528, the plaintiff was raped by an intruder who forced entrance into her apartment at 4:30 in the morning.   The landlord's liability for such injury was alleged to have been based on (1) knowledge that violent crime, including burglary and rape, had occurred in the “general area, vicinity and neighborhood” within the previous six months;  and (2) negligent failure to replace a burned out light bulb outside of the plaintiff's apartment.

The court rejected both arguments, primarily on the grounds that (1) it was speculative that “lighting” in and of itself could deter crime, and (2) a landlord's duty to control the acts of third persons is a duty of reasonable care to protect against only known or reasonably foreseeable risks.   The court held that the defendant landlord had no reason to foresee such attacks against the plaintiff.

In Riley v. Marcus, 125 Cal.App.3d 103, 177 Cal.Rptr. 827, we followed 7735 Hollywood Boulevard Venture, and affirmed a summary judgment for the defendant landlord in a case where the plaintiff had alleged that defendant's failure to provide adequate lighting 4 and adequate door locks resulted in the entry into plaintiff's apartment of an intruder who raped her.  (The intruder had removed two louvers from the window adjacent to plaintiff's front door, thereby making it easy for him to unlatch the chain lock, turn the front door knob, and enter plaintiff's apartment through the front door.)   We distinguished both O'Hara and Kwaitkowski on the basis that in the case presented “there was no history of any rapes or similar acts of violence which had occurred on the premises and which, unless adequate steps were taken, would likely reoccur.   Moreover, defendants were not aware of any risks attendant to the premises which they concealed from plaintiff.   The manner of the installation of the locks on plaintiff's doors did not constitute a representation that the doors were secure against intruders, or that the premises were safe against such risks.”  (125 Cal.App.3d at p. 109, 177 Cal.Rptr. 827.)

Several of the factors which moved the O'Hara and Kwaitkowski courts to impose liability are present in this case.   Foremost among these is the fact that respondents were aware of the number of crimes committed in the Project, knew that appellant's unit had been burglarized, and agreed that additional lighting would help deter crime.   Respondents contend that they had no duty to increase lighting at the Project because they could not have foreseen the type of crime which occurred here, as previous incidents were limited to car thefts, purse snatchings, assaults and burglaries.   This argument is unpersuasive, as “[f]oreseeability does not require prior identical or even similar events.”   (Kwaitkowski v. Superior Trading Co., supra, 123 Cal.App.3d 324, 329, 176 Cal.Rptr. 494.)   These factors also distinguish the present case from Riley.

 Citing the 7735 Hollywood Boulevard Venture case, respondents assert that appellant's claim is too speculative since she could not prove that her injury was proximately caused by respondents' failure to install additional lighting, and in any event no one knows how much additional lighting would have been “adequate.”   This argument is likewise unpersuasive in view of the fact that respondents agreed that additional lighting was needed and they had already taken steps toward having the lighting installed.   The main issue raised by appellant is that respondents did not proceed with the investigation in a timely manner, despite constant prodding by appellant.   This is an issue which must be resolved by a trier of fact.

The fundamental issue here is whether respondents, the condominium homeowners' Association and its individual directors, occupy the same position as a landlord in the traditional landlord/tenant relationship.

 Respondents contend that it would be unfair to impose upon them a duty to provide “expensive security measures” when they are not landlords in the traditional sense but members of a homeowners' association which has limited funds and cannot significantly increase its budget without the approval of a majority of the Association members.   However, respondents are, for all practical purposes, the Project's “landlords.”

First of all, respondents are the only ones in a position to maintain and secure the common areas of the Project.   Nothing drives this point home more than respondents' uncharacteristically swift response when appellant deviated from the strict architectual guidelines of the Project's CC & R's.   Appellant appropriately cites White v. Cox, 17 Cal.App.3d 824, 95 Cal.Rptr. 259, in which the plaintiff, a condominium owner, tripped and fell over a water sprinkler which he claimed was negligently maintained by the homeowner's association, the organization responsible for operating and maintaining the common areas of his condominium complex.   The court held that a condominium association may be sued for negligence by a member of the association, since the association was responsible for the common areas and it was a management body over which the individual owner had no effective control.

More importantly, this issue was in our opinion resolved contrary to respondents' point of view in O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427.   In addressing the issue of whether the Association was a “business establishment” within the meaning of the Unruh Civil Rights Act (Civ.Code, § 51), the court made the following observation:  “Contrary to the association's attempt to characterize itself as but an organization that ‘mows lawns' for owners, the association in reality has a far broader and more businesslike purpose.   The association, through a board of directors, is charged with employing a professional property management firm, with obtaining insurance for the benefit of all owners and with maintaining and repairing all common areas and facilities of the 629-unit project.   It is also charged with establishing and collecting assessments from all owners to pay for its undertakings and with adopting and enforcing rules and regulations for the common good.   In brief, the association performs all the customary business functions which in the traditional landlord-tenant relationship rest on the landlord's shoulders.”  (33 Cal.3d at p. 796, 191 Cal.Rptr. 320, 662 P.2d 427;  emphasis added.)

 Thus, we come to the conclusion that appellant's First Amended Complaint does state facts sufficient to constitute a cause of action for damages due to respondents' negligence.   The first cause of action alleges that respondents had a duty to appellant to take reasonable measures to protect her from the foreseeable risk of crime.  “The existence of the most important factor, foreseeability, was alleged.   Respondents allegedly knew of the past assaults and of conditions making future attacks likely.   By not acting affirmatively to protect appellant, they increased the likelihood that she would also be a victim.   This failure to act, either by warning appellant or by providing adequate security, allegedly created a risk of injury to appellant.”  (O'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d 798, 804, 142 Cal.Rptr. 487.)   Appellant alleges further that respondents' failure to act in a timely manner was a breach of that duty and that the breach was the proximate cause of her injuries.   Since the complaint sets forth facts which could support these allegations, respondents' demurrer to the first cause of action was improperly sustained.

We find less merit in appellant's second and third causes of action for breach of contract and breach of fiduciary duty, both of which are severely flawed and are really negligence causes of action with a different label.   The second and third causes of action are based upon a duty arising out of the Project's CC & R's and Bylaws, which provide in part that the board of directors shall manage the Project in a manner “which it deems to be in the best interest of the Project and all of the owners.”   Appellant contends that these documents are contracts by which all the owners are mutually bound (since they do not have a choice about whether or not to belong to the Association).   She further claims that this “contract,” at a minimum, obligated the directors to “take steps to investigate alternatives of improving the adequacy of the exterior lighting in the common areas, and at least presenting the various alternative plans and costs for such exterior lighting to the members for a vote.”   The Complaint alleges that respondents negligently and carelessly failed to carry out this responsibility, “which not only constitutes negligence, but as well a breach of the aforesaid contract, and concomittantly [sic], a breach of the fiduciary duty to the condominium owners, such as appellant.”

 In the second cause of action for breach of contract, appellant contends, among other things, that respondents were contractually obligated by the CC & R's to refrain from ordering her to remove the additional lighting which she had installed.   In fact, just the opposite is true.   Respondents were obligated by the Association's bylaws to enforce the provisions of the CC & R's.   These provisions included the following:

“11.1 (c) Subject to the restriction contained in this Section 11, each OWNER may paint, decorate furnish and model his UNIT as he may see fit, provided, of course, that this right refers only to interior surfaces and to the air space within his UNIT, and specifically does not include the exterior surface of doors or other portions of the COMMON AREAS.  [Emphasis added.]

“11.2 (b) Nothing shall be altered or constructed in or removed from the COMMON AREAS or the ASSOCIATION PROPERTY, except upon the written consent of the BOARD.”

Thus, respondents' “contractual obligation” (to use appellant's phrase) was to do precisely what they did;  instruct appellant to remove the additional lighting which constituted an alteration to the building's common areas.

 In support of her argument that the third cause of action for breach of fiduciary duty states facts sufficient to constitute a cause of action, appellant relies on the case of Raven's Cove Townhomes, Inc. v. Knuppe Development Co., 114 Cal.App.3d 783, 171 Cal.Rptr. 334, which held that the directors of a condominium association have a fiduciary relationship to the homeowner/members and must perform their duties with good faith, reasonable diligence and due care.   However, appellant did not allege that respondents failed to act in good faith, nor are there facts in the record which would support such an inference.   Further, the facts of Raven's Cove bear no similarity to the present case.  Raven's Cove involved a failure by the original directors of the homeowners' association, consisting of the project developer and his employees, to properly determine operating costs and fund a maintenance reserve account.   The plaintiff homeowners later learned that there were serious defects in the project's landscaping, drainage and irrigation systems, and in the siding used on the units.   It was estimated that repair of the landscaping alone would cost $200,000 to $214,000.   The court found that the developer/directors had not only breached their fiduciary duty to the future owners of the units by failing to fund a reserve account which would have helped pay for the needed repairs, but that they had a serious conflict of interest.   The court noted that “a developer and his agents and employees who also serve as directors of an association ․ may not make decisions for the Association that benefit their own interests at the expense of the association and its members.  [Citations.]”  (114 Cal.App.3d at p. 799, 171 Cal.Rptr. 334.)

 There is nothing in the record before us which would support an allegation that respondents did not act in good faith, or had a conflict of interest.   In fact, appellant does not claim that respondents acted in bad faith, her only complaint is that they acted too slowly.   Appellant has not, and could not, state facts which would support a cause of action for breach of fiduciary duty.

The judgment as to the first cause of action is reversed;  the judgment is otherwise affirmed.

FOOTNOTES

1.   In the recent case of O'Connor v. Village Green Owners Association, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427, the Supreme Court held invalid a restriction in Village Green's CC & R's limiting residency to persons over 18 years of age.

2.   These included the following:  “LIGHTS!   LIGHTS!  LIGHTS!   You are doing a disservice to your neighbors as well as yourself if you keep your front and back doors in darkness.   Many who live upstairs are able to gaze out on the Green at night and see perfectly the presence or absence of a prowler where there is a lighted doorway.   But where porches are shrouded in darkness, NOTHING is visible.   AS A CIVIC DUTY—WON'T YOU KEEP THOSE LIGHTS ON?”

3.   The newsletter contained the following:  “With reference to other lighting, Fran Troy of Ct 4, whose home was entered, feels certain (and asked that this be mentioned) that the break-in would not have occurred if there had been adequate lighting at the end of her Court.   This has since been corrected.   We hope other areas which need improvement will soon be taken care of.  (Ct 2 should have special mention here).”   Appellant, of course, disputes the claim that the lighting problem in her court was corrected.

4.   There was a light which illuminated plaintiff's doorway but the light was operated by a timer which caused the lights to turn off at approximately 1 or 1:30 a.m.   The incident in question occurred at approximately 4 a.m.

 HASTINGS, Associate Justice.

FEINERMAN, P.J., and STEPHENS, J., concur.

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