MEMORANDUM
TO: L.R.
FROM: Brian Rice
DATE:
RE: Howard Hou
Research Request – Premises Liability and Statute of Frauds
Client Number: 4738-007
QUESTION PRESENTED
- Under California Civil Code Section 1714, which assigns liability for willful acts and negligence, did Mr. Hou owe a duty to Ms. Brown to protect her from injuries caused by the foreseeable criminal acts of a third party, when Mr. Hou invited Ms. Brown onto his property?
- Under California Civil Code Section 1624(a), which requires certain contracts to be in writing in order to be enforceable, does Mr. Hou’s email dated May 12, 2015, satisfy the “in writing” requirement, when the email contained Mr. Hou’s agreement to convey the property to Ms. Brown for the sum of $850,000.00?
BRIEF ANSWER
- Probably yes. Cal. Civ. Code § 1714(a) places a duty on the property owner. A negligent breach of that duty would cause Mr. Hou to be responsible for resultant injuries sustained by Ms. Brown. The scope of Mr. Hou’s duty will be determined by what is foreseeable. To determine forseeability, courts can apply the prior incidents rule, but might look at the totality of the circumstances because it yields a much more comprehensive assessment of what is foreseeable. Mr. Hou’s knowledge of prior criminal acts on the property increases the degree of what is foreseeable and increases the burden placed on him to protect others from harm. Because of this, it is very likely a court will find that Mr. Hou owed a duty to Ms. Brown to protect her from injuries caused by the foreseeable criminal acts of a third party, when Mr. Hou invited Ms. Brown onto his
- Probably yes. The email contains a memorandum of the terms of the agreement required in § 1624. It is electronically subscribed (signed) by the party against whom it is to be enforced (Mr. Hou) and had not been objected to by Ms. Brown. The failure of Ms. Brown to object to the terms infers her assent to those terms. Because of this, the "in-writing" requirement has been satisfied.
STATEMENT OF FACTS
Mr. Hou owned real property located at 100 N. Barranca Avenue, West Covina, California. In September 2013, Mr. Hou’s tenants abandoned the property and left it in a non-rentable condition. Mr. Hou could not afford the cost of repairing the property. Thus, the property remained unrented for a period of almost two years.
Throughout that period, Mr. Hou inspected the property once per week. During three inspections, Mr. Hou discovered unauthorized people occupying the property. The squatters illegally entered the home by breaking the locks. On each occasion Mr. Hou asked the squatters to leave. They did so without incident.
In January 2015, Police told Mr. Hou that someone used gasoline to set fire to a small shed on the property. In response, Mr. Hou installed a chain link fence around the property to keep trespassers out.
On or about May 2, 2015, Mr. Hou listed the home for sale on www.pleasebuyitnow.com for $950,000.00. On or about May 2, 2015, Ms. Brown called Mr. Hou to inquire about the property. During the conversation, Mr. Hou gave Ms. Brown permission to enter the property. He also gave her the property’s physical address, and told her to drive by to inspect the property.
On or about May 6, 2015, Ms. Brown entered upon the property to inspect it. During the inspection, Ms. Brown was attacked by a woman who was occupying the property. As result of the attack, Ms. Brown suffered extensive injuries to her head, face, neck and throat.
On or about May 12, 2015, Ms. Brown called Mr. Hou. She told Mr. Hou about the attack and made an $850,000.00 offer to purchase the property. Mr. Hou told Ms. Brown about the three times he discovered unauthorized people occupying the property. He then verbally accepted Ms. Browns offer. Later that day he sent Ms. Brown an email confirming the sales agreement.
On or about May 13, 2015, Mr. Hou sold the property to another buyer for $950,000.00. Mr. Hou never contacted Ms. Brown again.
DISCUSSION
- Under California Civil Code Section 1714, which assigns liability for willful acts and negligence, did Mr. Hou owe a duty to Ms. Brown to protect her from injuries caused by the foreseeable criminal acts of a third party, when Mr. Hou invited Ms. Brown onto his property?
Premises Liability
To prevail in a cause of action for negligence, the plaintiff must show that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. The legal duty is the basis of any action in negligence. Without a legal duty, there cannot be a breach. Thus, an injury sustained by a plaintiff, where a breach of duty has not occurred, cannot be attributed to negligence. While the failure to perform the legal duty equates to negligence, the creation, or manifestation of such a duty is a product of what is foreseeable. Foreseeable events which (if they occurred) subject a person to unreasonable danger or harm are events which manifest a legal duty on the actor to protect other persons from the harm. The existence of a legal duty is a triable issue of fact. Because of this, Mr. Hou is faced with the question of whether his prior knowledge of criminal behavior on the property manifested a legal duty to protect Ms. Brown from exposure to foreseeable criminal behavior when she entered upon his property. Mr. Hou does not believe he is liable to Ms. Brown and thus, seeks an assessment of any possible liability in Ms. Brown’s claim against him for premises liability. The prior knowledge of criminal behavior on the property does suggest Mr. Hou may have owed a legal duty to Ms. Brown.
The rule stating a requirement of a “legal duty” in a California action in negligence is evidenced in Ann M., when it states:
“[A]n action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pac. Plaza Shopping Ctr., 863 P.2d 207 (Cal.1993), overruled in part by Reid v. Google, Inc., 235 P.3d 988 (Cal. 2010)). Considering the legal duty requirement in Ms. Brown’s negligence action, it is then necessary to look for binding authority which establishes a legal duty on Mr. Hou. To accomplish this, we look to California Civil Code 1714(a), where it places a legal duty on every person, as it states:
Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.
Cal. Civ. Code § 1714 (Deering 2005 & Supp. 2015).
- Duty and Scope of Legal Duty
In this case, a third party, who was on the property without permission, assaulted Ms. Brown. Taylor tells us “it is well settled that an owner of land has a duty ‘to take affirmative action to control the wrongful acts of third persons which threaten invitees where the [owner] has reasonable cause to anticipate such acts and the probability of injury resulting there from.’” (Taylor v. Centennial Bowl, Inc. 65 Cal.2d 114 (1966)). Based on Mr. Hou’s facts and what was stated in Taylor, a reasonable person would ask, if Mr. Hou had a reasonable cause to anticipate that Ms. Brown might encounter persons engaged in criminal activity when he invited her to inspect the property? In answering this question the doctrine of forseeability must be examined.
- Forseeability
In Isaacs, the court held that use of the similar incidents rule to determine what is foreseeable is helpful, but not a definitive method of establishing what is foreseeable. (Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112 (1985)). Isaacs also stated that the rule is too rigid and a much more comprehensive approach in determining forseeability would be to consider the “totality of the circumstances." id. In examining the totality of the circumstances applicable to this case, the court would recognize a distinction in what was foreseeable before and after Mr. Hou’s knowledge of criminal activity on the property. The property was vacant and was described to Ms. Brown as being in a really good and quiet area. Considering this fact, a reasonable person may not foresee the occurrence of criminal activity on the property. However, after learning of transients periodically breaking the locks to illegally occupy the property, coupled with an incident of arson, a reasonable person would likely foresee a high probability of subsequent criminal activity occurring on the property. Even with Mr. Hou’s installation of a perimeter fence around the property, the fact that transients broke the lock on the home to gain entry suggests a fence would not deter them from entering the property if they once again chose to. In view of the totality of the circumstances, the inference drawn is that as long as the property remained vacant, criminal activity there was foreseeable.
- Knowledge of Danger
Mr. Hou was unaware that a crazy, diaper wearing woman was occupying the property when he invited Ms. Brown to inspect it. However, according to Swanberg, Mr. Hou had a duty to inspect the property for concealed dangers. (Swanberg v. O’Mectin 157 Cal.App.3d 325, 330 (1984)). Swanberg states:
[A] landowner’s lack of knowledge of the dangerous condition is not a defense. He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.id.
Swanberg is explicit in stating Mr. Hou cannot use lack of knowledge of the occupation by transients as a defense.id. Swanberg additionally burdened Mr. Hou with the duty to inspect the property prior to Ms. Brown’s arrival to insure the property was in a reasonably safe condition.id. In addition, Lucas supports a duty to warn when it says: “A property owner generally has a duty to keep its premises in a reasonably safe condition and to warn those coming onto the property of latent or concealed perils.”(Lucas v. George T.R. Murai Farms, Inc. 15 Cal.App.4th 1578, 1590 (1993)). Thus, it seems very likely that Mr. Hou owed a duty to Ms. Brown to protect her from injuries caused by the foreseeable criminal acts of a third party, when Mr. Hou invited Ms. Brown onto his property
- Under California Civil Code Section 1624(a), which requires certain contracts to be in writing in order to be enforceable, does Mr. Hou’s email dated May 12, 2015, satisfy the “in writing” requirement, when the email contained Mr. Hou’s agreement to convey the property to Ms. Brown for the sum of $850,000.00?
Breach of Contract
In California, in order for the real property contract between Mr. Hou and Ms. Brown to be “valid,” the contract must first contain an offer, an acceptance of the offer and consideration. The email sent by Mr. Hou, which confirmed an agreement stated: “I will transfer title to you (Ms. Brown) in exchange for $850,000.00 cash.” The statement reflects the acceptance of the offer made by Ms. Brown. The email also describes the consideration as being the real property and $850,000.00 respectively. For the contract to be “enforceable” there must be mutual assent, or in other words, a meeting of the minds on the purpose and terms of the agreement. In addition, the contract must be subscribed by the party against whom it is to be enforced. Statements of both parties during their respective interviews and the email confirmation gives evidence that mutual assent to contract existed between the two. It was only after the agreement was reached that Mr. Hou received a competing offer for $950,000.00 and did not want to complete the sale to Ms. Brown. Mr. Hou is seeking an assessment of whether the email stands as a sufficient writing under California Civil Code 1624(a). Based on the facts of this case, it seems the email may satisfy the § 1624(a) criteria.
The rule governing their agreement is California Civil Code §1624(a), also known as the Statute of Frauds. The rule requires all real property sales contracts to be in writing. This requirement is specified in §1624(a) when it states:
The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: … (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.
(Cal. Civ. Code § 1624 (Deering 2005 & Supp. 2015)).
Applying §1624 to this case, the email is a written memorandum of the terms of the contract. id. Even though the email does not explicitly state, “I accept your offer of …,” both the offer and acceptance is reasonably inferred in the writing. The intent of the email is clear. Even though the writing may lack some of the legal “niceties,” courts are trending toward declaring the contract to be enforceable, when it is clear the parties intended on entering into an agreement. (See, for instance, Okun v. Morton, 203 Cal. App. 3d 805 (1988)). In addition, the instructions on the method of completing the transaction was specified when Mr. Hou wrote about transferring title to the property in exchange for $850,000.00. The consideration (the property and $850,000.00) and the terms (payment of $850,000.00 yields title to the property) are specified. Lastly, Lamie tells us “the scope of what can constitute an adequate writing and an adequate signature on that writing to satisfy the Statute of Frauds has become quite broad.” (Lamie v. Mattel, Inc., 394 F.3d 1355, 1362 (2005)). Lamie continues to cite an analogous circumstance where in a breach of contract action, an email which reiterated the terms of the agreement between the parties was found by a federal Court of Appeals to satisfy the California Statute of Frauds.id. Thus, it seems likely that Mr. Hou’s email satisfies the writing requirement of the Statute of Frauds.
CONCLUSION
- Considering the totality of the circumstances. A manifestation of foreseeable criminal activity emerged. As a result, a court is very likely to find that Mr. Hou owed a duty to Ms. Brown to protect her from foreseeable criminal activity while she was on the property.
- In applying Mr. Hou’s facts with the written memorandum requirement of § 1624, it seems likely that the email confirmation sent to Ms. Brown satisfies the in writing requirement of the statute.