Do Neighbors Owe a Duty of Reasonable Care to Each Other in California?

In the recent California appellate decision of Sproul v. Vallee, Plaintiffs Casey Sproul and Andrew Sproul and their two minor children sued their neighbor, defendant Leslie Vallee, after Leslie’s husband physically assaulted Casey, and then took his own life.

The trial court sustained defendant’s demurrer without leave to amend, concluding the complaint did not show Leslie had a duty to control her husband’s behavior.

Although the appellate court agreed with this ruling, it concluded plaintiffs should have had the opportunity to amend their complaint to state a cause of action for negligent misrepresentation, and accordingly it reversed the judgment.

Plaintiffs filed a complaint against Leslie both as an individual and as personal representative of the estate of her husband, Laurent Vallee (Larry), on April 4, 2023. Leslie answered the complaint.

After plaintiffs then learned there was no probate action for Larry, the parties stipulated that plaintiffs could file a first amended complaint naming, in addition to Leslie individually, the Estate of Laurent Vallee, and the trial court granted leave for its filing.

The operative first amended complaint details a neighborhood dispute that began the day Leslie and Larry moved into a home in Moraga next door to plaintiffs in June 2017.

That night, Leslie came to plaintiffs’ house and told them that their air-conditioning unit was too loud and Larry was angry.

The next month, Casey and Andrew were awakened around midnight by the sound of yelling and cursing coming from the Vallees’ home. Leslie knocked on their front door and again told them that Larry was angry about the noise coming from their air-conditioning unit. She told them,

“ ‘Oh he [Larry] is mad, and trust me you don’t want to make him more mad.’ ”

Casey and Andrew viewed this statement as a threat and reported the incident to the Moraga Police Department the next day.

Over the next year, Leslie continued to confront Casey and deliver Larry’s complaints in a threatening manner.

In September 2020, Casey removed two trees from the Sprouls’ property, which created dust and dirt.

Leslie and Larry came over, screaming profanities at Casey and yelling that she did not take care of her home. Larry shoved Casey in anger, and Leslie did not do anything. Casey reported the incident to the police.

Leslie continued to confront Casey and deliver Larry’s complaints in a threatening manner.

Casey again contacted the police in March 2021 to document the Vallees’ threatening behavior.

Fearing it would escalate matters if they sought a restraining order, Casey and Andrew asked Leslie whether there were guns at the Vallee residence and whether Larry was dangerous. Leslie told them there were no firearms and “diminished Larry’s conduct.”

Larry also menaced other neighbors. In 2018 or 2019, a neighbor called the police when Larry fired a pellet gun at him, but Leslie told the police there were no firearms in the residence. Larry also discharged a rifle in the neighborhood, shot a BB gun at adolescents, engaged in a fist fight when a neighbor’s dog walked past the Vallees’ home, shot rodents and left them in neighbors’ yards, vandalized neighbors’ property, threatened, yelled and threw things at neighbors, used a megaphone and bullhorn to harass neighbors, and made racial slurs. Leslie did nothing to “address her husband’s rage, help him receive appropriate medication, or work with neighbors to reduce the risk of injury or death from Larry’s behavior.”

The final incident alleged in the first amended complaint, and the incident giving rise to plaintiffs’ claims, took place on the morning of February 12, 2022. Leslie went for a walk, leaving Larry at home alone.

Casey was at home with her two sons, aged nine and 11, and she was in her side yard breaking down empty cardboard boxes for the recycling bin. Larry approached the gate, speaking in an angry tone, unlocked the gate, and approached Casey with a metal baseball bat in his hand. He grabbed her face, shoved her to the ground, hit her in the head and body with his fists, repeatedly struck her head with the metal bat, and ripped a handful of hair from her scalp. He stopped attacking her when Casey’s nine-year-old son ran to her aid and yelled at Larry to stop hurting her. Larry quietly returned to his house.

Multiple people called 911, including Casey’s 11-year-old son, who saw his mother bleeding from her head. Police officers came to the scene, but Larry had barricaded himself inside the house.

A standoff ensued, during which Leslie returned home and told police that there were guns in the house. Finally, Larry took his own life by shooting himself with an AR-15 rifle. Thirteen firearms were found in the home, most of them in the bedroom Leslie and Larry shared, and all registered in the names of Leslie or her sons.

On these facts, plaintiffs asserted a cause of action against Leslie for negligence, alleging she breached a duty to prevent foreseeable harm by delivering Larry’s threats and complaints; failing to warn neighbors about his anger and violent propensities; purchasing firearms and allowing Larry access to them; failing to require him to seek mental health treatment; telling Casey and Andrew he did not have violent propensities or access to firearms; telling law enforcement on multiple occasions that no firearms were present in the home; and failing to take action when she saw his behavior escalating toward neighbors, particularly Casey.

Plaintiffs also alleged causes of action against Leslie for intentional and negligent infliction of emotional distress and loss of consortium.

Against Larry’s estate, they alleged causes of action for negligence, negligence per se, assault and battery, intentional and negligent infliction of emotional distress, and loss of consortium.

The liability of Larry’s estate was not at issue in this appeal.

Leslie demurred to the first amended complaint. Treating the demurrer as a motion for judgment on the pleadings because it was filed after the date a responsive pleading was due, the trial court granted it.

The court concluded the facts alleged did not indicate that Leslie had a special relationship with either Casey or Larry that would give rise to a duty to protect Casey from Larry. It also ruled Leslie’s alleged conduct did not support a claim for intentional infliction of emotional distress. Concluding plaintiffs had not shown a reasonable possibility of amendment, the court denied leave to amend. The court entered judgment dismissing the action as to Leslie only.

Plaintiffs filed a motion for a new trial, asserting, among other things, that the first amended complaint adequately alleged a cause of action for negligent misrepresentation and that the trial court used the wrong standard in denying leave to amend. The trial court denied the motion, noting as it did so that plaintiffs had never before asserted that they sought to assert a cause of action for negligent misrepresentation. The timely appeal ensued. 

The trial court concluded the complaint did not state a cause of action against Leslie for negligence because she did not have a special relationship with either Larry or Casey that gave rise to a duty to protect Casey from the harm Larry caused. 

Plaintiffs contend the first amended complaint alleges the “underpinnings” of such a relationship between Larry and Leslie that could be clarified further by amendment.

The appellate court disagreed, because the allegations of the complaint do not show Leslie’s relationship with Larry entailed an ability to control his behavior and because, even assuming their relationship was “special”, in the circumstances alleged policy considerations preclude assigning to Leslie the duty plaintiffs seek to establish.

In Brown v. USA Taekwondo, California’s Supreme Court considered “how courts should decide whether a defendant has a legal duty to take action to protect the plaintiff from injuries caused by a third party.” 

Defendants in Brown were two organizations that allegedly failed to protect young athletes from sexual abuse by a coach.

In analyzing whether these organizations owed a legal duty to an abused athlete, the Court prescribed a two-step analysis: “First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect.

Second, if so, the court must consult the factors described in Rowland v. Christian to determine whether relevant policy considerations counsel limiting that duty.

The court’s analysis began with general principles: The elements of a cause of action for negligence are that the defendant had a duty to use due care, the defendant breached that duty, and the breach caused the resulting injury.

The existence of a legal duty of care is a threshold matter, and whether it exists is a question of law for the court to resolve.

In general, a person is responsible only when the defendant has created a risk of harm, including when the defendant is responsible for making the plaintiff’s position worse.

And, in general, one who has not created the risk of harm is not liable for failing to take affirmative action to protect another from that risk.

There are exceptions to this rule, however, under which a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of harm is not of the defendant’s own making.

The exception at issue here applies if the defendant is in what the law calls a “special relationship” with either the victim or the person who created the harm.

Under this exception, a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct so as to prevent the harm.

In the absence of either an act by the defendant that increases the risk of injury or a special relationship creating an affirmative duty to protect the plaintiff from harm, the defendant owes no legal duty to the defendant.

Analytically, the first question faced is whether, on the facts that are alleged or that plaintiffs seek to include in a second amended complaint, Leslie had a special relationship with Larry, entailing an ability to control his conduct and giving rise to a duty to protect others from him.

Such a special relationship includes that between parent and child, master and servant, the possessor of land and a licensee, and one who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled.

But where the natural relationship between the parties creates no inference of an ability to control, the actual custodial ability must affirmatively appear.

In other words, the absence of an ability to control is fatal to a claim of legal responsibility.

The appellate court recognized it seems anomalous to say the relationship between two spouses is not “special,” but in the context it was considering, “special relationship” is a term of art.

That is, to say that a “special relationship” exists is to say nothing other than the factors favoring imposition of a duty of care in particular circumstances outweigh the countervailing factors (one of which is that the harm was caused by a third person).

The existence of a “special relationship” does not create the duty. “Special relationship,” rather, is simply a label expressing the conclusion that the facts, considered in light of the pertinent legal considerations, support the existence of a duty of care.

The appellate court agreed with the trial court that the allegations of the first amended complaint did not indicate that Leslie had the ability to control Larry. Their relation as husband and wife did not establish such an ability, and nothing in the complaint suggested Leslie had any control over Larry’s angry and occasionally violent outbursts.

Plaintiffs argued the allegations show Leslie did have the ability to control Larry: she delivered his threats to their neighbors rather than letting him take out his aggression on them, and she told plaintiffs that they “don’t want to make him more mad.”

The appellate court was not persuaded that these allegations show Leslie could have prevented Larry from behaving violently—in fact, a more natural inference is that she was warning plaintiffs that his anger was uncontrollable.

Even assuming, however, that the relationship between Larry and Leslie was “special” for present purposes, plaintiffs have not alleged facts that establish Leslie had a duty to protect or warn plaintiffs.

The next step in the analysis requires the court to address whether, if there is a special relationship between spouses, considerations of policy nonetheless counsel against imposing a duty of care on one spouse to protect third parties from the other spouse.

Factors the Supreme Court directs courts to consider in addressing this policy issue “include: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ”

For two reasons, these factors counsel against finding a duty here.

First, there are no allegations of a known threat directed specifically at Casey.

Although the complaint alleges facts from which one could reasonably infer that Leslie knew Larry to have an uncontrollable temper and violent tendencies, there are no allegations that Leslie knew Larry planned to harm Casey physically or that it was foreseeable his violence directed specifically toward her would escalate.

Indeed, plaintiffs built their case around the idea that Larry indiscriminately “menaced the whole neighborhood.”

Thus, Rowland factors addressing the foreseeability of harm and the strength of the connection between the defendant’s conduct and the plaintiffs’ injuries lean against finding a du

Second, California’s “strong public policy favoring marriage” counsels against intruding on the marital relationship with an obligation owed to third parties.

Under California law, a spouse may refuse to disclose or may prevent the other spouse from disclosing confidential communications between them during their marriage.

Although this privilege must yield if a marital communication was made to facilitate a crime or fraud (Evid. Code, § 981), the allegations do not support a conclusion that any of Larry’s communications to Leslie were made to assist him in committing a crime.

California also recognizes a spousal testimony privilege, which would have entitled Leslie to refuse to testify against Larry in a court of law.

Surely, if the law recognizes that testifying against one’s spouse “would seriously disturb or disrupt the marital relationship” to society’s detriment, it must also recognize the disruptive impact of imposing a duty to warn one’s neighbors of a spouse’s violent tendencies.

In sum, the appellate court conclude  the trial court properly determined that the operative complaint did not establish Leslie owed a duty to warn or protect plaintiffs from her husband, and that it therefore failed to state a cause of action against Leslie for negligence.

The first amended complaint included a cause of action against Leslie for negligence, but it did not expressly allege a claim for negligent misrepresentation.

Nevertheless, plaintiffs contended the first amended complaint sufficiently alleges facts that would support such a cause of action and that the demurrer was therefore improperly sustained.  

The normal elements of a cause of action for negligent misrepresentation are “ ‘(1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’  

Liability for negligent misrepresentation is ordinarily imposed only on those who supply information in the course of a business or profession. (

An exception exists, however, when a negligent misrepresentation involves a risk of physical harm.

In such a case, the California Supreme Court has set forth the elements slightly differently, relying on the Restatement Second of Torts, section 311: “ ‘One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information,’ ” where the other person, or someone else the speaker should expect to be put in peril, is harmed.

No special relationship is required for liability under this theory.

Plaintiffs contended the factual basis for these elements is set forth in the first amended complaint. They asserted that Leslie made actionable misrepresentations when she “diminished Larry’s conduct” in response to their inquiry about whether he was dangerous, when she told Casey and Andrew he did not have violent propensities, and when she said there were no firearms in the home. 

Leslie could not reasonably have believed these statements to be true, they assert, because she knew Larry had shot BB guns at children, got into a fistfight, and had police respond to his home, and because the home contained 13 guns, some of them registered to Leslie.

And, they argued, their reliance on her statements is supported by the allegation that they spoke with Leslie “[i]nstead of seeking a restraining order for fear it would escalate things.”

In their reply brief, they also suggested they can amend the complaint to allege that, in reliance on Leslie’s representations, they did not take other protective measures, such as getting security cameras or moving away.

But even if these elements were met, in the appellate court’s view the complaint did not adequately allege that plaintiffs reasonably relied on Leslie’s statements.

Plaintiffs allege that shortly after moving in, Leslie came to their door, told them Larry was angry about the noise their air conditioner was making, and told them, “ ‘[T]rust me you don’t want to make him more mad.’ ”

Plaintiffs saw this as a threat and reported it to the police.

In 2020, Larry’s behavior became violent, when he came to plaintiffs’ property, screamed profanities at them, and shoved Casey, leading Casey to make another police report.

Leslie continued to deliver Larry’s complaints in a threatening manner, and in the year following the 2020 incident Casey again contacted the police to document the Vallees’ threatening behavior.

Plaintiffs had personal knowledge of this pattern of behavior, which bears on the reasonableness of any reliance, but more importantly, they do not allege that they actually believed Leslie’s “diminish[ment]” of Larry’s conduct or accepted as true her assurances that Larry did not have violent tendencies and there were no guns in their home.

The allegations of the second amended complaint established that Casey and Andrew knew something of Larry’s volatile temper and his propensity for violence, not least because Leslie had warned them not to make Larry “more mad” and Larry had shoved Leslie angrily during a confrontation.

Plaintiffs were concerned enough about Larry’s threatening behavior that they made at least three police reports. And alongside these allegations, plaintiffs did not allege that they reasonably relied on Leslie’s dismissal of Larry’s violence and her statement that there were no firearms in the home.

In short, because plaintiffs did not plead reasonable reliance, the first amended complaint did not allege a cause of action against Leslie for negligent misrepresentation.

However, as to the proposed cause of action for negligent misrepresentation, the complaint alleged that Larry fired guns in the neighborhood and displayed irrational aggressiveness toward other neighbors, but it did not foreclose the possibility that plaintiffs knew nothing of these incidents. Nor did it foreclose the possibility that plaintiffs’ concerns were assuaged by Leslie’s reassurances and that, had she not misled them, they would have taken precautions that would have protected them from Larry’s violence.

Although plaintiffs may have an uphill battle, the complaint did not show on its face that it is incapable of amendment to allege more clearly what misrepresentations Leslie made, how plaintiffs relied on them to their detriment, and why their reliance was reasonable.

In the circumstances, it was an abuse of discretion to deny leave to amend to state a cause of action for negligent misrepresentation.

LESSONS:

1.         Although the conduct by Larry was extreme, prudent sellers of real property need to consider if such conduct should be disclosed when such neighbors may create such issues for new buyers.

2.         The existence of a legal duty of care is a threshold matter, and whether it exists is a question of law for the court to resolve.

3.         In general, a person is responsible only when the defendant has created a risk of harm, including when the defendant is responsible for making the plaintiff’s position worse.

4.         And, in general, one who has not created the risk of harm is not liable for failing to take affirmative action to protect another from that risk.

5.         Under this exception, a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct so as to prevent the harm.

6.         Under California law, a spouse may refuse to disclose or may prevent the other spouse from disclosing confidential communications between them during their marriage.