Nativi v. Deutsche Bank National Trust Co., 223 Cal. App. 4th 261 (2014)

Citation: Nativi v. Deutsche Bank National Trust Co., 223 Cal. App. 4th 261 (2014)
Parent Document: Nativi v. Deutsche Bank National Trust Co., 223 Cal. App. 4th 261 (2014)
Jurisdiction: California (state)
Effective Date: 2014-01-23
Original Source: https://www.courtlistener.com/opinion/2650742/nativi-v-deutsche-bank-national... ↗

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In addition, landlords have a limited duty to tenants, "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.]" (Castaneda v. Olsher
(2007) 41 Cal.4th 1205, 1213.) Appellants did not plead any such tort theory.
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Another comment to that Restatement provision states: "Possession of the leased
property by a third person, or other conduct thereon by a third person, without the
consent of the tenant, will be attributable to the landlord, so that the tenant can invoke the
rule of [section 6.1 of the Restatement Second of Property], only if the landlord is a
contributing factor to the unauthorized possession or conduct by the third person."
(Rest.2d Prop., Landlord and Tenant, § 6.1, com. c, p. 225, italics added.) Another
comment thereto provides: "The landlord is not in default under the rule of this section
unless he fails to eliminate the interference promptly after a request to do so. Prompt
elimination means immediately if the interference is the conduct of the landlord himself,
and as soon as possible if the conduct which must be stopped is that of a third person that
is attributable to the landlord." (Rest.2d Prop., Landlord and Tenant, § 6.1, com. e, p.
227.)
Keeping these principles in mind, we now sequentially examine appellants' claims,
beginning with the cash for keys offers. With respect to this theory, appellants argue that
the cash for keys offers provided "a strong financial incentive to rid the Stoneylake
property of the Nativis and their possessions." They cite Weirum v. RKO General, Inc.
(1975) 15 Cal.3d 40, 43, which concerned a wrongful death tort action based on the death
of a driver who was forced off the highway by a negligent radio listener who was
pursuing a disc jockey's automobile to the next stop to collect a cash prize being offered
on the radio. (Id. at pp. 43-45.) The primary question before the Supreme Court was
"whether defendant [radio station] owed a duty to decedent arising out of its broadcast of
the giveaway contest." (Id. at pp. 45-46.) Insofar as appellants' opposition suggests a tort
duty arose out of the "cash for keys" offers, it raises issues outside the pleadings. "It is
well settled that documentary evidence filed in opposition to a defendant's motion for
summary judgment may not create issues outside the pleadings, nor is it a substitute for

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