Property manager liable for injuries in hiring unlicensed contractor
The property manager of a building located in a common interest development (CID) was instructed by the homeowners’ association (HOA) to install rain gutters. The property manager hired an unlicensed and uninsured contractor who in turn hired a worker to install the rain gutters. The worker was injured on the job and filed a claim for workers’ compensation. The Workers’ Compensation Appeals Board (WCAB) found the property manager was liable for the injuries of the worker since he hired an unlicensed and uninsured contractor. The property manager claimed he was not liable for the worker’s injuries since he was acting as the agent of the property owners through the HOA and was thus imputed the same exemptions from liability as the owners under the labor code. The WCAB claimed the property manager was liable for the worker’s injuries since the property manager failed to hire a contractor who was properly licensed and insured. A California appeals court held the property manager, acting as the agent of an HOA, was liable for the worker’s injuries as an employer since the HOA was not a residential owner or an exempt employer, and the property manager hired an unlicensed and uninsured contractor.
Also at issue in this case:
Condo owner’s liability protection for injured worker not imputed to HOA
A homeowners’ association (HOA) for a common interest development (CID) instructed its property manager to install rain gutters. The property manager hired an unlicensed and uninsured contractor who in turn hired a worker to install the rain gutters. The worker was injured on the job and filed a claim for workers’ compensation. The Workers’ Compensation Appeals Board (WCAB) found the HOA was liable for the injuries of the worker since the HOA was the principal and thus liable for the property manager’s actions. The HOA claimed it was not liable for the worker’s injuries since it has the same protection from liability as residential property owners and is an exempt employer under the labor law. The WCAB claimed the HOA was an employer under the law and was liable for the worker’s injuries since an HOA is legally separate from the owners of the residential property and does not have the residential owner’s liability exemption protection. A California appeals court held the HOA was liable for the worker’s injuries since the HOA was a separate entity from the property owners and thus did not have the same liability protection afforded to a residential property owner.
Also at issue in this case:
Uninsured contractor liable for workers’ compensation
An uninsured and unlicensed contractor was hired to install rain gutters for a building located in a common interest development (CID) by the property manager on instructions from the homeowners’ association (HOA). The unlicensed and uninsured contractor in turn hired a worker to install the rain gutters. The worker was injured on the job and filed a claim for workers’ compensation. The property manager claimed the contractor, as an employer, was also jointly liable for the worker’s injuries since he hired the worker and was paying him in order to install the rain gutters. The contractor claimed he was not a liable employer since he was not a licensed contractor and therefore was not liable for workers’ compensation benefits. A California appeals court held the unlicensed contractor was also an employer liable for the worker’s injuries since the contractor hired the worker to perform work as contracted by the property manager on behalf of the HOA.[Heiman v. Workers’ Compensation Appeals Board (2007) 149 CA4th 724]
Editor’s note — This case is a reminder for brokers and others who manage CID projects to be covered by a workers’ compensation policy and to only hire licensed persons who can show proof of their workers’ compensation coverage to perform work for the association.
Relocation sites need only be potentially suitable
To curb the negative secondary effects adult entertainment businesses were found to have on neighboring residential areas, a county proposed a zoning ordinance limiting operation of adult entertainment businesses to industrial zones in the county. The proposed ordinance also mandated any existing adult entertainment businesses within residential or commercial areas of the county to relocate to industrial sites. The county named several relocation sites within industrial zones that were accessible to the public and had the proper infrastructure for commercial use in which a permit for an adult entertainment business could be issued, even though the sites were not specifically zoned for commercial use. The county adopted the ordinance, and an affected adult entertainment business sought an injunction against the county, claiming the county did not satisfy the requirement of providing acceptable relocation sites since the sites identified by the county were not presently zoned for generic commercial use. The county claimed it did not fail in its duty to identify potential relocation sites for the issuance of a permit since the law only required the county to identify sites available to the business that had the potential to be used commercially, not sites that were already zoned for commercial use. A California appeals court held the county had fulfilled its duty of identifying suitable relocation sites in which a permit could be issued for an adult entertainment business since an acceptable relocation site need not be actually zoned for generic commercial business, merely suitable for potential commercial use. [Tollis Inc. v. County of San Diego (October 10, 2007) __CA4th____]
No landlord duty to refuse to rent to or evict gang-affiliated tenants without “extraordinarily foreseeability” of violence
Within a mobilehome park late at night, a dispute erupted between rival gangs. The guest of a gang-affiliated tenant emerged from the gang member’s unit and confronted a carload of rival gang members who had just pulled up on a driveway in front of the gang member’s unit. The night lighting on the premises was sufficient for a guest of another tenant to identify the gang-affiliated tenant’s guest and determine he had a gun in his hand. A shot was discharged, hitting a tenant who was on the front porch of his unit and uninvolved in the altercation.
The landlord’s resident property manager believed the gang-affiliated tenant was a gang member when he took occupancy of the unit. While a gang dispute recently occurred on adjacent vacant property, the gang-affiliated tenant was not known to be involved or to have possessed a gun or to have physically threatened other tenants. However, one tenant felt intimidated by the gang-affiliated tenant’s use of his dog to harass her.
The tenant injured by the gunshot sought to recover for his injuries claiming the landlord owed him and other tenants a duty to screen prospective tenants for gang affiliation, refuse to rent to them if they are, and to evict any tenant who becomes known to the landlord to be gang-affiliated, and if not evicted, install additional night lighting and employ trained security guards to protect existing tenants from injury due to gang activity on the property. The landlord denied he owned any tenant a duty to screen out prospective tenants or evict existing tenants for gang affiliation since, without prior conduct on the property endangering the tenants, to do so would be unlawful discrimination and against fair housing policies and the California Mobilehome Residency Law (MRL).
The California Supreme Court issued three rulings directing the conduct of landlords confronted with gang-affiliated tenant situations.
1. Duties when renting to gang members
The landlord owes no duty to his tenants to screen prospective tenants for gang affiliation since the landlord’s basis for refusing to rent would be the landlord’s own opinion. Mandatory screening for gang affiliation would impose upon the landlord an extraordinary burden of liability for his judgments on who is and who is not a gang member. Such a screening violates fair housing law and the MRL since under the MRL, suspicion of gang membership is not an acceptable basis for denying housing to a prospective tenant.
2. Duty to evict gang member tenants
The landlord had no duty to evict the gang-affiliated tenant based on a gang dispute on the adjacent property not involving the gang-affiliated tenant since those events did not make gun violence by the gang-affiliated tenant or any guest of his extraordinarily foreseeable. Under the MRL, a landlord must give a cause for eviction. Without the extraordinarily foreseeable probability of violence from the gang-affiliated tenant, the landlord does not have sufficient reason to evict, and thus no duty to do so.
3. Duty to hire security guards and maintain brighter lighting
The landlord had no duty to hire security guards or maintain brighter lights since no proof existed that either of these measures would deter a gang dispute or the ensuing injury to the innocent tenant. In order to force the landlord to take on the extraordinary burden of hiring security guards, it had to be shown that there was an extraordinarily foreseeable probability of violence from the gang-affiliated tenant, and that the extra security would have deterred gang members from congregating and thus would have prevented the gunshot. In this case, a guest of the gang-affiliated tenant fired the gun. Security guards would not have been able to deter the gang-affiliated tenant from having a guest or, most likely, had any effect on the resulting gunplay.
The argument that lighting caused the resulting gunplay was similarly dismissed since the lighting was bright enough for the innocent tenant’s guest to both identify the gang-affiliated tenant’s guest and determine that he was holding a gun. It is unlikely that light any brighter would have deterred the gang members from confronting each other, thus the landlord did not have a duty to install brighter lighting. [Castaneda v. Olsher (2007) 41 C4th 1205]
Editor’s note — Like the golden rule designed to give you direction, the foreseeability tests for dealing with gang members who seek housing or are existing tenants are principle-based guidelines, general in scope, giving a landlord flexibility in applying them to the screening and eviction of gang members. These forseeability tests are general in nature, as opposed to a detailed and specific rules-based procedure designed to micromanage a landlord’s conduct in the step-by-step eviction process. It is the spirit of the principle the landlord is asked to live by. The landlord is allowed room, within his judgment, to determine the reasonable likelihood that the conduct of the person applying to rent who is known or believed by the landlord to be affiliated with a gang will cause violence to occur on the property. While Castaneda is not a case in which violence is extraordinarily foreseeable, given an instance of extraordinarily foreseeable violence resulting from renting to such a prospective tenant, the landlord will be within his rights to deny housing or evict a tenant.
However, this court gives the landlord cover from tenant litigation should he rent to a gang-affiliated family without actual knowledge of the member’s violent past and be sued by a tenant who is caught up in the first outbreak of violence brought about by the gang-affiliated tenant.