OLAR v. SCHROIT

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

Susan OLAR, Plaintiff and Appellant, v. Shirley SCHROIT et al., Defendants and Respondents.

Civ. 69721.

Decided: May 15, 1984

Gronemeier & Myers and Howard A. Schnee, Van Nuys, for plaintiff and appellant. Hartman, Hosp, Richard & Schlegel and Stanford E. Reichert, Pasadena, for defendant and respondent Shirley Shroit. Spray, Gould & Bowers and Kenneth M. Wanner, Los Angeles, for defendant and respondent Beverly Palms Homeowners' Ass'n, Inc.

Susan Olar (hereafter Olar or plaintiff) appeals from a judgment of dismissal entered after a demurrer to her third amended complaint was sustained without leave to amend.

STATEMENT OF THE FACTS

From Olar's two-count complaint alleging fraud and negligence resulting in a sexual assault upon her, we are able to discern the following operative facts.1  On or about August 25, 1981, Olar entered into a written agreement to lease a Beverly Hills condominium from Shirley Schroit (hereafter Schroit), its owner.   As alleged, prior to entering into the lease, Schroit, acting for herself and as an agent for the Beverly Palms Homeowners' Association, Inc. (hereafter Homeowners' Association), made various false and fraudulent representations concerning the security of the condominium as well as the complex.

Specifically, Schroit is said to have represented that the complex and the condominium were:  “ ‘(a) fully secure, safe, and constantly patrolled by security personnel’;  (b) ‘watched and guarded by patrolmen hired by a security service, twenty-four hours a day, seven days a week’;  (c) ‘of the modern, full-security type designed to provide “maximum” tenant and resident security’;  (d) ‘well and fully lit, with the parking areas protected by a ‘modern, key-entry only’ security gate.' ”

In addition to the above information, Olar alleges that the Homeowners' Association impliedly warranted and affirmatively held out the condominium and the surrounding complex to be “safe, secure, and of the modern, full security type,” knowing that it was none of these.   By way of example, it is alleged that the Homeowners' Association caused or permitted the placement of signs around the confines of the complex, stating that same was patrolled by a security service 24 hours a day, even though David Ward, the president of the Homeowners' Association, suspected that the security service was not doing its job and knew that the security service did not have access to the complex's parking lot.   It is also alleged that the Homeowners' Association placed a “key-entry only” security-type gate around the parking area of the complex, without notifying potential tenants that the security gate was defective and remained open an “inordinate” amount of time, thereby allowing unauthorized persons to gain entry into the parking area.

It is further alleged that the Homeowners' Association had knowledge that a rash of vandalism and at least one burglary had occurred at the complex, and knew or should have known that the complex was located in a high crime area where assaults, robberies and rapes are common.2  Finally, despite the above knowledge, and suspecting that the security gate's failure to close was at fault, the Homeowners' Association did nothing to discount its express or implied representation about the “maximum security” provided at the complex.

Olar, who as a single female model, and an aspiring actress, was very much concerned about her personal safety, told Schroit that she was executing the lease based upon Schroit's and the Homeowners' Association's representations regarding the security.

Some six months after entering into the lease with Schroit, on or about February 17, 1982, at 10:30 p.m., Olar was abducted at gunpoint by two unknown males from the complex's parking facility.   Allegedly, Olar's assailants gained access to the parking area by way of the defective security gate.   Olar sustained injuries when she was robbed, pistol-whipped and raped.

STATEMENT OF THE CASE

On or about May 4, 1982, Olar sought redress for her injuries by filing a complaint against Schroit and the Homeowners' Association, among others.3  Said complaint contained counts for breach of express warranty, breach of implied warranty, fraud and negligence.   Opposition to the complaint in the form of a joint demurrer and motion to strike resulted in a court-approved stipulation whereby Olar was granted time in which to amend her complaint.

Olar amended her complaint on August 5, 1982, and again on October 18, 1982.   Said second amended complaint now prayed for damages resulting from fraud allegedly committed by Schroit and negligence allegedly committed by all named defendants.4

Demurrers filed by the Condominium Administration Company and the Homeowners' Association were heard on December 29, 1982.   At that time, the court sustained the demurrer of the Condominium Administration Company without leave to amend.   Demurrer of the Homeowners' Association was sustained with leave to amend.

On February 8, 1983, Olar filed her third amended complaint.   The complaint now contained allegations of fraud against both Schroit and the Homeowners' Association and allegations of negligence against all defendants.   Again demurrers were filed by defendants Schroit and the Homeowners' Association, claiming insufficient pleading of facts to constitute causes of action for fraud or negligence.   More particularly, Schroit contended that as to the count for fraud, there were no allegations that she was aware of previous criminal assaults or that she knew of conditions making a future assault likely.   In response to the negligence claim against her, Schroit contended that because there was no foreseeability of Olar's being attacked, she owed no duty of care to protect her tenant.

The Homeowners' Association also argued, as did its codefendant Schroit, that it was under no affirmative duty to disclose facts regarding security to leaseholders, and that without same there could be no recovery under a theory of fraud or negligence.

On April 8, 1983, demurrers were argued before the court and submitted.

On April 11, 1983, the court sustained demurrers of both defendants without leave to amend and dismissed the complaint as to all parties.5  In its ruling, the court indicated that “[a]ll cases cited by landlord of repeated acts of personal violence, of which there were none here.   Second, all cited cases arose from injury inflicted on third parties, and plaintiff on premisses [sic] interior (lobby, apartment unit).   Here, assault occurred outside in parking lot.” 6

On May 12, 1983, Olar filed her notice of appeal.

DISCUSSION

 Plaintiff's first cause of action purports to state a claim for fraud and deceit.   In successfully pleading such a theory, her complaint must specifically set forth all of the following elements:  (1) misrepresentation;  (2) defendants' knowledge that the misrepresentation was false;  (3) defendants' intent to deceive or induce reliance;  and (4) justifiable reliance by the plaintiff, which resulted in (5) her actual injury.  (See Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109, 128 Cal.Rptr. 901;  Hales v. Ojai Valley Inn & Country Club (1977) 73 Cal.App.3d 25, 30, 140 Cal.Rptr. 555;  and 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 573, pp. 2210–2211.)

 We find that each of the requisite elements for fraud and deceit has been satisfactorily pleaded.   The first three elements, misrepresentation, knowledge of the falsity, and intent to deceive, are satisfied by the allegations that both defendants affirmatively misrepresented to plaintiff Olar, as a prospective tenant, the existence of “maximum” security at the complex in the form of certain deceptively obvious measures, which were either defective or nonexistent, and that these facts were known by both defendants.

In more detail, it is alleged that defendant Shroit, acting in behalf of herself and as a member/agent of the Homeowners' Association, affirmatively manifested to plaintiff Olar, various ongoing efforts to provide maximum security.   These efforts were said to include twenty-four hour, seven day a week, security patrols of the complex and a parking area enclosed by a locking gate.   In actuality, and as known by both defendants at the time of said representations, security guards were hired only for a few security checks in the evening hours and were not performing their function properly.   More so, it is alleged that the guards did not have the key to the parking facility and were also unable or incapable of surveilling most of the parking area.   In addition, the complaint states that the locking security gate did not work properly and thereby allowed unauthorized access to the facility.

In somewhat straightforward terms, the complaint satisfies the remaining requisites of justifiable reliance and actual damage by alleging that defendants' misrepresentations were reasonably relied upon, thereby inducing plaintiff to enter into the lease.   In so doing, plaintiff moved into the condominium and later suffered injuries, which were reasonably foreseeable and would not have occurred, or perhaps could have been avoided, were it not for the defendants' intentional misrepresentations.   As we shall explain, a problem with respect to the foreseeability of the plaintiff's assault, which plaintiff might have easily remedied, but did not, is not fatal.

 It is without question that in order for the type of fraud complained of to be viable, the injury occasioned by the plaintiff must be that which was reasonably contemplated by the tortfeasor when making fraudulent statements.  (O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 805, 142 Cal.Rptr. 487.)   Further, “[a] fortuitous event will not give rise to liability merely because the injured party's reliance placed that party in a vulnerable position.”  (Id.)  Thus, there must be some nexus or proximate relationship between the intent of the tortfeasor and the actual injury suffered by his or her victim.

Defendant Schroit seizes upon this line of reasoning and argues that the complaint fails to specifically allege her knowledge of conditions making her prospective tenant's “․ future abduction assault, or battery likely.”   More directly, she charges that although the complaint contains allegations of known occurrences of vandalism and car burglaries, and that the gate in the parking area was defective, “[t]hese allegations show only that [she, defendant Schroit,] might know of a danger to property in the parking area, not a danger to the person in that area.”

In her discussion of this same issue, regarding negligence, defendant Schroit also argues:  “There are no allegations that the [plaintiff's] attack was foreseeable to [defendant Schroit].   Foreseeability is the essential element in finding the duty of a landlord to protect the tenant.   Thus, [defendant Schroit] as a landlord had no duty to protect [plaintiff] or keep her secure.” 7

At the outset, it bears noting that in plaintiff's second cause of action for negligence, she alleges:  “․ The Complex was located in a high crime area where assaults and robberies and rapes are common․”  Unfortunately, were said allegation incorporated or reavered in the instant fraud count and supplemented by a more definitive statement of times and places,8 defendants' argument would be totally devoid of merit.   Yet, notwithstanding the relative ease of amending her complaint, and in light of her previous two attempts, we are reticent, at this point, to speculate in plaintiff's behalf.   Thus we proceed as though same did not exist.

First, by insisting that a distinction be drawn between crimes affecting personalty and crimes involving violence against the person, and secondly, that notice of one does not place one on notice of the other, defendant Schroit ostensibly argues the existence of a “one bite” rule for landlords, as a matter of law.   Under the current state of the law in this and other jurisdictions, we find such reasoning to be flawed.

In Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 329, 176 Cal.Rptr. 494, a case bearing numerous similarities to the matter before us, the court stated unequivocally:  “Foreseeability does not require prior identical or even similar events.”   Along these lines, the court observed:  “The weight of authority in other jurisdictions, ․ indicates that under analogous circumstances, a landlord is liable even for the first crime of a particular type.”

The above rule was the product of a revealing survey undertaken by the Kwaitkowski court of cases concerned with foreseeability of injury to a tenant due to the independent criminal acts of a third party.   Both the Kwaitkowski court, and the cases it cited, subscribed to the established fundament that where a landlord had reason to anticipate an unreasonable and avoidable risk of serious harm to his tenant, the former could face liability under a theory of negligence for the latter's injuries.9

It is unclear at exactly what point a landlord is deemed to have had cause to be aware of, and act upon, the potentiality of violent crimes committed by third parties against persons in his building.   Obviously, said determination depends largely upon the given factual setting in each case.   In our case, however, even though we cannot presume as true that the defendants had prior notice of assaults, rapes and robberies in the general area, additional allegations make anticipation of violent crimes in and around the complex quite reasonable, if not almost inescapable.

Conceding that the occurrence of one crime does not necessarily portend the threat of other different and unrelated crimes, knowledge by defendants that “a rash of vandalism” and “at least one burglary” had occurred at the complex, establishes, at the very minimum, that access to the complex was offered the criminal element.   Equally important, we are told that the defective parking gate was suspected as being responsible for those occurrences and that the gate, among other security measures, was not functioning properly at the time plaintiff met with her misfortune.   Thus, the element of time which transpired between the attacks would seemingly not be crucial in terms of defendants' notice.   Proceeding one step further, the cases suggest that once having been apprised of the occurrence of one crime, defendants might be deemed to have foreseen a similar occurrence of same.   In that regard, it is well within the realm of reason to foresee a situation in which catching or witnessing a vandal or a burglar in the act, could lead to violence against that witness/resident.   Moreover, we find it both probable and predictable that repeated crimes against property, should they be found to have gone unabated, might in and of themselves, foment other serious crimes in which more than just property is placed in jeopardy.

 In addition to the foregoing reasons why the defendants in the instant case could have foreseen plaintiff's victimization, it would appear that the very maintenance of security measures by defendants suggests their own belief, and thus implied notice, that the building occupants then provided a good target for various types of crime, including violent ones.   In that vein, we would find it hard to accept that defendants maintained security measures solely for the protection of property and not people, or that such efforts were employed merely as enticements for condo rentals or sales.   In any event, in view of poorly maintained security measures, knowing of prior crimes by defendants made other crimes of a greater nature foreseeable.

At this juncture, it bears mentioning that other courts have shared the view that a determination of a violent crime as being foreseeable is not absolutely dependent upon notice of prior crimes of a similar nature.   At least three of the cases cited by Kwaitkowski and one other case, determined serious criminal behavior to be foreseeable by a landlord, seemingly without regard to any actual and/or explicit notation.   At least three of the cases cited in Kwaitkowski and one other case determined serious criminal behavior to be foreseeable by a landlord, seemingly without regard to any actual and/or explicit notation of prior serious crimes and merely because of a high rate of crime in the respective neighborhoods.  (See Trentacost v. Brussel (1980) 82 N.J. 214, 412 A.2d 436;  Johnston v. Harris (1972) 387 Mich. 569, 198 N.W.2d 409;  Sampson v. Saginaw Professional Building, Inc. (1975) 393 Mich. 393, 224 N.W.2d 843;  Skaria v. State (1981) 110 Misc.2d 711, 442 N.Y.S.2d 838.)   For the most part, these courts founded their respective decisions on the belief that in their given scenarios (premises located in “high crime” areas), it was reasonably foreseeable that inadequate lighting and/or unlocked doors created conditions especially conducive to crime.

As an unenumerated and subordinate argument, defendants suggest that plaintiff's theory of recovery would for all practical purposes require the defendants to be insurers of the plaintiff's safety.   In turn, it is argued that neither defendant voluntarily assumed such a duty.

 It is a primal fundament of tort law that absent some special relationship or circumstance, a private party has no affirmative duty to protect another from a criminal attack by a third party, even though said attack is foreseeable.  (See Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 541, 134 Cal.Rptr. 29 and authorities cited therein.)   Modernly, in California, one such special relationship or circumstance has been recognized to exist in the context of real property leasing arrangements.10  (See O'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d at pp. 802–803, 142 Cal.Rptr. 487.)   Under this view, it would appear that the landlord assumes an affirmative obligation to employ reasonable measures to protect his tenants under the circumstances.11

 In the instant case, the landlord's alleged representation goes far beyond any “implied undertaking” to provide adequate security as encompassed in a general warranty of habitability (as found in Trentacost v. Brussel, supra, 82 N.J. 214, 412 A.2d 436).   From a different vantage, we find it more like a presumed reciprocal duty of not enhancing or magnifying the likelihood of a tenant's exposure to crime (as suggested in Johnston v. Harris, supra, 387 Mich. 569, 198 N.W.2d 409).   Here, the alleged employment by defendants of various security measures and their blatant advertisement of same, coupled with their alleged apprisement that plaintiff would and did rely thereupon, constituted, at the very least, a voluntary undertaking compounding their ordinary duty.   Defendants were thus obligated to exercise a heightened degree of due care in the performance of their advertised undertaking.  (See 4 Witkin, Summary of California Law (8th ed.) Torts, § 557, pp. 2823–2824);  Janofsky v. Garland (1941) 42 Cal.App.2d 655, 656, 109 P.2d 750.) 12

 That duty of due care equally obligates a defendant not to unreasonably increase a plaintiff's risk of harm.  (See Rest.2d Torts, § 323, p. 135.)   Consequently, it might be argued that knowing the complex had but a superficially existent security program, defendants intentionally or negligently furnished both the opportunity and the temptation for criminal activities, not the least of which included crimes against the person.   Therefore, subject to proof, defendants could incur liability.  (See Rest.2d Torts §§ 448, 449, pp. 480, 482.)

Defendants argue that two relatively recent cases support their position and militate against the finding of an affirmative duty.   We disagree.   In 7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal.App.3d 901, 172 Cal.Rptr. 528, a plaintiff/tenant sought damages from her landlord for injuries she received as a result of a violent crime (rape).   Plaintiff argued that the landlord's liability was premised upon two factors:  (1) his knowledge of violent crimes in the general area which were said to have occurred within the preceding six months, and (2) a negligent failure to replace a burned out light which had been illuminating the plaintiff's apartment.   Aside from certain notice and causation problems, among others, the court inferentially indicated that absent an affirmative duty, i.e., an undertaking to provide some semblance of security, no legal duty existed for the landlord to take precautionary measures for security.13

Riley v. Marcus (1981) 125 Cal.App.3d 103, 177 Cal.Rptr. 827 also involved the rape of a tenant by an intruder, wherein the victim sought damages from her landlord for inadequate security measures.14  In affirming a summary judgment in behalf of the landlord, we expressly distinguished same from cases involving prior notice to the landlord of violent crimes and where a reason existed for the landlord to believe affirmative steps were required to protect his tenants, because of a preexisting misrepresentation that the premises were safe.  (See O'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d 798, 142 Cal.Rptr. 487;  Kwaitkowski v. Superior Trading Co., supra, 123 Cal.App.3d 324, 176 Cal.Rptr. 494.)  “[T]here 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.”  (Riley v. Marcus, supra, 125 Cal.App.3d at p. 109, 177 Cal.Rptr. 827;  emphasis added.) 15

It is manifest from the above discussion that unlike the defendants in Hollywood or Riley, the defendants herein undertook upon themselves the responsibility for providing special security measures.   These security measures alone might be found to constitute an implicit awareness by defendants, that a security risk was then existent or that their failure to maintain their security measures might multiply the risk initially sought to be avoided.   In any event, the problems regarding foreseeability and causation are better redressed as a challenge of proof rather than a challenge of pleading.

Taking a different tack, defendant Homeowners' Association challenges plaintiff's claim for fraud with the argument that the complaint fails to establish any basis for holding it duty bound to disclose its alleged knowledge of prior crimes or defective or nonexistent security measures (i.e., a fiduciary or other special relationship).   Secondarily, said defendant also challenges the allegation that defendant Shroit acted as its agent.   We find both arguments to be without merit.

In this situation, defendant Homeowners' Association might reasonably be labeled a de facto landlord, in turn creating a fiduciary relationship between this defendant and the individual condominium owners.

As alleged in the complaint, Homeowners' Association assists and represents the various owners of the individual condominiums in renting their units.   It serves to regulate the condominium owners' use of their property, and provides security and safety for those who own, rent, lease, or visit the condominiums.   Consequently, it is manifest that the Homeowners' Association is the final arbiter of regulating areas common to all condominiums including hallways, open spaces and parking facilities.

In the landmark case of Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970) 439 F.2d 477, the court emphatically held that in a multiple dwelling building, the duty of “․ taking protective measures guarding the entire premises and the areas peculiarly under the landlord's control against the perpetration of criminal acts [rests] upon the landlord, the party to the lease contract who has the effective capacity to perform these necessary acts.”   (Id., at p. 482.)   The court additionally observed that:  “As between tenant and landlord, the landlord is the only one in the position to take the necessary acts of protection required.   He is not an insurer, but he is obligated to minimize the risk to his tenants.   Not only as between landlord and tenant is the landlord best equipped to guard against the predictable risk of intruders, but even as between landlord and the police power of the government, the landlord is in the best position to take the necessary protective measures.   Municipal police cannot patrol the entryways and hallways, the garages and the basements of private multiple unit apartment dwellings.   They are neither equipped, manned, nor empowered to do so.   In the area of the predictable risk which materialized in this case, only the landlord could have taken measures which might have prevented the injuries suffered by appellant.”  (Id., at p. 484.)

 In the case at bar, we see no distinction between the landlord of a multiple dwelling building and the Homeowners' Association.   From the complaint, it is painfully evident that the defendant Homeowners' Association was the only party in control of the security of the parking facilities and areas providing access thereto.  (See O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 796, 191 Cal.Rptr. 320, 662 P.2d 427;  White v. Cox (1971) 17 Cal.App.3d 824, 828–831, 95 Cal.Rptr. 259.)   Accordingly, said defendant is rightfully responsible for taking reasonable measures to safeguard its “tenants” in that area against foreseeable risks.   Inclusive of said duty would include a warning to said parties and their invitees of known or anticipated dangers lurking in said areas.   Ergo, failure to disclose such very crucial information could give rise to a valid claim of fraud.  (See 4 Witkin, Summary of California Law (8th ed. 1974) Torts, § 459, pp. 2724–2725;  Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289, 306, 98 Cal.Rptr. 547.) 16

 In defendant Homeowners' Association's challenge to plaintiff's allegation of agency, it contends, inter alia, insufficiency of factual predicate.   Although its point might be well taken were this a different stage in the proceedings, we are reminded that an allegation of agency is considered an averment of ultimate fact and thus sufficient to withstand demurrer.  (See Skopp v. Weaver (1976) 16 Cal.3d 432, 437, 128 Cal.Rptr. 19, 546 P.2d 307.)

 Defendants' joint assault upon plaintiff's second cause of action for negligence is, for the most part, a rehashing of the previous arguments tendered concerning foreseeability and duty.   Rather than belabor the point, the defendants' duty of care can be impliedly found from:  (1) their affirmative conduct in expressly and voluntarily agreeing to provide plaintiff Olar with maximum security measures at the complex, and (2) the landlord-tenant relationship and the foreseeability of injury created by their misrepresentations and negligence.   Thus, having alleged facts establishing a duty owed which was also breached, thereby resulting in damages to plaintiff, the second cause of action for negligence appears to be sufficiently pleaded.   (See Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513–514, 150 Cal.Rptr. 1, 585 P.2d 851.)

Although not necessarily the most artfully constructed pleading, plaintiff Olar's complaint nevertheless states facts sufficient to notify both defendants and the court of causes of action for fraud and deceit and for negligence.   Accordingly, the sustaining of defendants' demurrers without leave to amend was improper.

The judgment of the trial court is reversed.   Appellant to recover costs.

FOOTNOTES

1.   In assessing the validity of a demurrer, we proceed on the assumption that allegations of material fact properly pleaded in plaintiff's complaint are true.  (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330.)

2.   Plaintiff's only mention of the high crime area (rape, robbery, etc.) is in her second cause of action for negligence.   Additionally, the second count peripherally sheds light on the terse description of prior crimes in the first count, with the allegation that the contract between the Homeowners' Association and the security service was entered into “․ after several car burglaries, acts of vandalism, and at least one premises burglary ․”  (Emphasis added.)   Also, it is later alleged that “[t]he Association and A.P.I. [the security service] failed to notify the Plaintiff that there had been recet [sic] and numerous incidents of car burglary and vandalism in the parking area of the complex.”

3.   Plaintiff also named David Ward, president of the Homeowners' Association, and the Beverly Park Apartments, as defendants.

4.   The second amended complaint now included the Condominium Administration Company, Inc. and American Protection Industries, Inc. as additional defendants.

5.   American Protection Industries, Inc., the security service employed by the Homeowners' Association and named as a codefendant in Olar's third amended complaint, did not challenge the complaint with codefendants Schroit and the Homeowners' Association.   It filed its answer on May 5, 1983, and is not a party to this appeal.

6.   We are told that the trial court was misinformed or under a false impression in referring to the parking lot as being outside, whereas it is actually subterranean and thus beneath the building.

7.   Although only defendant Schroit makes this argument with regard to this cause of action, a similar if not identical and more elaborate argument is made by both defendants, regarding foreseeability and notice in the context of plaintiff's second cause of action for negligence.   For obvious reasons, we incorporate both defendants' respective arguments herein.

8.   (See 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 903–904, 172 Cal.Rptr. 528.)

9.   Defendant Shroit attempts to diminish the importance of these cases in light of their consideration of the concept of foreseeability in the context of a negligence analysis as opposed to an analysis of fraud.   Although it is true that this topic is generally more associated with a negligence discussion, we perceive no meritable distinction between the analysis employed in either context and thus dismiss said claim as wholly unavailing.

10.   A minority of courts do not accept the concept that the landlord/tenant relationship is so special that it justifies the imposition of a higher duty.  (See Trice v. Chicago Housing Authority, 14 Ill.App.3d 97, 302 N.E.2d 207 (1973);  Smith v. Chicago Housing Authority, 36 Ill.App.3d 967, 344 N.E.2d 536 (1976).

11.   This does not mean, as defendants impliedly suggest, that in effect every landlord must insure his tenant's safety.   Nor does this necessarily connote that it would be reasonable or practical to require every landlord, including those charging low rents, to take precautionary measures other than that which might reasonably be expected by the tenant (i.e., low rent—minimum security;  high rent—maximum security).   Obviously, however, a landlord's given responsibility would also depend upon the countervailing existence of foreseeable crime.

12.   In Janfosky v. Garland, supra, 42 Cal.App.2d at page 657, 109 P.2d 750, the court aptly noted:  “Although no duty rested upon defendant to make the repairs referred to in the complaint, yet, having volunteered to do so defendant was brought within the general rule that a volunteer may not do what he undertakes to do in a negligent manner ․ the rule is established in California that a landlord is liable in damages if he fails to exercise reasonable care in making repairs whether they be made by agreement or voluntarily.”

13.   Reflecting upon the situation posed in O'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d 798, 142 Cal.Rptr. 487 (in which it was alleged that at the time plaintiff entered into the lease, the landlords misrepresented the building to be safe with various security measures in effect), the Hollywood court stated:  “Here we deal with no such affirmative conduct by the property owner.   Nor is this a case of the property owner placing plaintiff in a particular situation of peril unique from that of any other person in the community who may become a victim of crime.”  (7735 Hollywood Blvd Venture v. Superior Court, supra, 116 Cal.App.3d at p. 905, 172 Cal.Rptr. 528.)

14.   Those inadequate measures allegedly included a light which was prematurely extinguished in the early morning hours, leaving the property dark, and door locks which, in the opinion of one expert, “․ provided virtually no protection against forced entry ․”  (Riley v. Marcus, supra, 125 Cal.App.3d at p. 106, 177 Cal.Rptr. 827.)

15.   In Riley, we indicated that a landlord should not be penalized for his attempts to provide more than adequate security measures than warranted by the circumstances confronting him.   With the foregoing in mind, we stated:“Absent a duty to take reasonable precautions to prevent the reoccurrence of criminal acts which are known to be likely to reoccur, a landlord incurs no liability by attempting, albeit unsuccessfully or inadequately, to make his premises less vulnerable to criminal intrusions.”  (Riley v. Marcus, supra 125 Cal.App.3d at pp. 109–110, 177 Cal.Rptr. 827.)In the instant case, we make no attempt to deviate from the above position and would reiterate that here, unlike the situation we confronted in Riley, the defendants' alleged conduct was anything but innocent.   Moreover, defendants' conduct, as alleged, consisted of acts not just unsuccessful and inadequate, but also careless, to the point of inviting danger.   Defendants allegedly possessed knowledge of prior criminal acts and in light of their alleged misrepresentations as to the security they offered, created the breeding ground for their liability.

16.   As an aside, it is conceivable that defendant Homeowners' Association could have been a party to the lease, at least in some attenuated form, whereas it may have had the final say in approving plaintiff as a prospective tenant.

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur.