AMBRIZ v. KELEGIAN
Filed
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
STATE OF
CELIA AMBRIZ, Plaintiff and Appellant, v. MARK KELEGIAN et al., Defendants and Respondents. | D046453 (Super. |
STORY CONTINUED FROM PART I………..
B. The trial court improperly granted summary judgment in favor of the respondents
We review an appeal from the grant of a motion for summary judgment de novo, independently examining the record to determine whether triable issues of material fact exist and " considering all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66; see also Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) In conducting this independent review " we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing the defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Id. at p. 768.)
" In order to prevail in an action based upon a defendant's alleged negligence, a plaintiff must demonstrate 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 his or her injuries. [Citation.] 'We have recently observed that . . . amendments to Code of Civil Procedure section 437c . . . place the initial burden on the defendant moving for summary judgment and shift it to the plaintiff upon a showing that the plaintiff cannot establish one or more elements of the action.' [Citation.]" (Morris v. De La Torre (2005) 36 Cal.4th 260, 264-265.)
1. Standards for establishing legal malpractice
The trial court granted summary judgment in favor of the respondents on Ambriz's legal malpractice and related claims. The elements of a legal malpractice cause of action are " (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence. [Citation.]" (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) In a legal malpractice claim, the method for proving the element of causation has been likened to a " trial within a trial" or a " case within a case." (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1240, fn. 4 (Viner); see also Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 834 [comparing standards of proof in accounting malpractice with those in legal malpractice].) " The case-within-a-case or trial-within-a-trial approach applied in legal malpractice cases [is] an objective approach to decide what should have been the result in the underlying proceeding or matter. [Citation.]" (Church v. Jamison (2006) 143 Cal.App.4th 1568, 1585.)
2. Causation in the legal malpractice case
In moving for summary judgment in the trial court, the respondents maintained that Ambriz could not establish the element of causation in her legal malpractice case. Specifically, respondents claimed that Ambriz could not show that their alleged breach caused the resulting injury, i.e., the dismissal of the underlying premises liability case on summary judgment. According to the respondents, Ambriz would have been unable to prove the elements of duty and/or causation in the underlying premises liability action, and thus could not establish that any presumed breach of the standard of care by her attorneys in litigating the premises liability case was what caused her to lose the premises liability case on summary judgment.
" '[C]ausation . . . is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion. [Citation.]' [Citation.] 'The question about what would have happened had [the lawyer] acted otherwise is one of fact unless reasonable minds could not differ as to the legal effect of the evidence presented. [Citation.]' [Citation.]" (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864; see also Dawson v. Toledano (2003) 109 Cal.App.4th 387, 396 [instances in which breach of duty and proximate cause can be resolved as matters of law are rare].)
Using the " case within a case" method, the trial court concluded as a matter of law that Ambriz would have lost the underlying premises liability action even if her attorneys had provided adequate representation, because she could not have survived summary judgment on the causation element. Specifically, the court concluded that " there is no triable issue of fact whether it was more probable than not that additional security precautions would have prevented the subject attack."
3. The underlying premises liability action: A " case within a case"
An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached that duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.).) In this case, the respondents assert that Ambriz could not have established in the premises liability action that the management of Casa Escondida owed her a duty to take additional security measures, or that any breach of a presumed duty was the proximate cause of her injuries. Ambriz asserts that she offered sufficient evidence to raise triable issues of fact regarding the duty and the causation elements of her premises liability cause of action. We conclude that Ambriz presented sufficient evidence to create a triable issue of fact as to the issues of duty and causation in her premises liability case against Casa Escondida, and thus, that the trial court erred in determining as a matter of law that Ambriz could not have survived summary judgment in that action.
a. Ambriz could have established that Casa Escondida management
owed her a duty[1]
Respondents contend that Ambriz could not have established that Casa Escondida owed her a duty to better secure the property from intruders, and thus, that she would have lost on summary judgment for this reason, regardless of her attorneys' actions. We disagree.
The question whether a duty exists is to be resolved by the court, not a jury. (Ann M., supra, 6 Cal.4th at p. 674.) Courts have determined that an actor has no legal duty to avoid harm that is not foreseeable. (
" Out of the generic obligations owed by landowners to maintain property in a reasonably safe condition, the law of negligence in the landlord-tenant context has evolved to impose a duty of reasonable care on the owner of an apartment building to protect its tenants from foreseeable third party criminal assaults. (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279-280 (Vasquez).) With respect to a landowner's duty to provide invitees with protection from third party crime, " the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.] ' " [I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required." [Citation.]' [Citation.] . . . [D]uty in such circumstances is determined by a balancing of 'foreseeability' of the criminal acts against the 'burdensomeness, vagueness, and efficacy' of the proposed security measures. [Citation.]" (Ann M., supra, 6 Cal.4th at pp. 678-679; see also Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1190 (Sharon P.), disapproved of by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 [applying balancing test to assertion that security guards should have been provided].)[2]
" In circumstances in which the burden of preventing future harm caused by third party criminal conduct is great or onerous (as when a plaintiff, such as in Ann M., asserts the defendant had a legal duty to provide guards or undertake equally onerous measures, or as when a plaintiff, such as in Sharon P. or Wiener, asserts the defendant had a legal duty to provide bright lighting, activate and monitor security cameras, provide periodic 'walk-throughs' by existing personnel, or provide stronger fencing), heightened foreseeability--shown by prior similar criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location--will be required. By contrast, in cases in which harm can be prevented by simple means or by imposing merely minimal burdens, only 'regular' reasonable foreseeability as opposed to heightened foreseeability is required." (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243, fn. 24 (Delgado).)
Ambriz asserted in her opposition to the summary judgment motion that Casa Escondida management should have taken a number of measures that could have prevented the harm she suffered as a result of third party criminal conduct. Among the various measures Ambriz raised was a duty to properly maintain the locks on the doors and gates intended to limit access to the Casa Escondida buildings. In the trial court, Ambriz presented evidence that a number of access points were either purposefully left open, allowing the general public unfettered access to Casa Escondida grounds, or that they did not function properly, such that the doors to the buildings failed to close completely and/or lock after use.
Requiring a landlord to maintain doors and locks in good working order places a minimal burden on the landlord, particularly considering the fact that the landlord originally installed the locks and gates, presumably to maintain controlled and limited access to the property. Because requiring a landlord to use, maintain and/or repair already existing doors and locks imposes only a minimal burden on the landlord, the degree of foreseeability required in this case need not be as great as that required in Sharon P. or Ann M. We conclude that Ambriz needed to show only " 'regular' reasonable foreseeability" to establish the existence of such minimal duties. (Delgado, supra, 36 Cal.4th at p. 243, fn. 24.) The record establishes that Ambriz could easily have met this burden.
There was evidence that a number of vagrants had been congregating just outside the Casa Escondida complex and that they were making their way in onto the complex grounds on a regular basis. Some were seen showering in the poolside showers. Ambriz saw them sleeping on benches at various locations on the property.
There was also evidence that male intruders had gained unauthorized access into the Casa Escondida buildings. The transient who attacked Ambriz had been seen inside her building on more than 19 occasions prior to the rape. He had become more aggressive in his panhandling of the residents at Casa Escondida in the weeks leading up to the attack. Ambriz and a couple of her neighbors had complained to the management that this transient " scared" them, and that the doors were not locking. The residents asked whether something could be done " about the doors and the man" and were assured by Casa Escondida management that they would " take care of it."
Under these circumstances, the management of Casa Escondida could foresee that a resident in Casa Escondida's vulnerable population might fall victim to an assault by an unauthorized intruder. Casa Escondida had previously installed locks in order to maintain the complex as a " controlled access" residential facility,[3] evidencing a concern on the part of Casa Escondida management regarding the residents' safety, and they were on notice that their security had been repeatedly breached. In view of the repeated security breaches and the known presence of unauthorized male intruders, a violent attack by an intruder was sufficiently foreseeable that Casa Escondida management had a minimal duty to properly maintain the locks on the doors and gates to the complex and its buildings.
Further, as noted above, Casa Escondida was granted a density variance on the condition that the complex be maintained as a low-to-moderate income senior housing project. As part of its agreement to rent primarily to poor, elderly and/or disabled tenants, Casa Escondida was required to meet certain safety standards set forth by the Escondido City Council, which included that " [i]nternal and/or perimeter security measures . . . be provided as necessary to meet the special needs of senior residents." Casa Escondida thus knew that it was required to take certain security measures to protect its residents, and that its residents were in need of special protection. The recognition by Escondido City Council that senior citizens are a particularly vulnerable group and Casa Escondida's implicit acknowledgement of this, constitutes additional evidence that the harm Ambriz suffered was reasonably foreseeable.
b. Ambriz established a triable issue of fact regarding causation
To demonstrate causation, a " plaintiff must show that the defendant's act or omission was a 'substantial factor' in bringing about the injury." (Saelzler, supra, 25 Cal.4th at p. 774.) " [The] actor's negligent conduct is not a substantial factor in bringing about harm . . . if the harm would have been sustained even if the actor had not been negligent." (Viner, supra, 30 Cal.4th at p. 1240, italics omitted.)
Ambriz offered circumstantial evidence as to how the rapist gained entry to the building. " [I]n a given case, direct or circumstantial evidence may show the assailant took advantage of the defendant's lapse (such as a failure to keep a security gate in repair) in the course of committing his attack, and that the omission was a substantial factor in causing the injury." (Saelzler, supra, 25 Cal.4th at p. 779 (italics added).) Where a plaintiff seeks to prove an essential element of her case by circumstantial evidence, " she must show that the inferences favorable to her are more reasonable or probable than those against her. [Citations.]" (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 (Leslie G.), italics omitted.)
The inferences from the circumstantial evidence in this case that are favorable to Ambriz are more reasonable than those against her. There was evidence that a number of entry doors to the buildings were not closing properly and were not locking. A security guard at the complex testified that during the time he worked at Casa Escondida, three of the four building entrances would not close and lock in the manner they were supposed to. Tenants had complained to the security guard that the doors would not close and lock behind them. The security guard was concerned about the fact that the entry doors were not in working order, believing that created an unsafe condition. He complained about the malfunctioning doors to management. Despite all of these complaints, the doors were not repaired prior to Ambriz's rape.
There was also evidence of numerous instances in which the rapist and other male " intruders" gained access to the inside of Ambriz's building prior to the rape. In addition, a police detective testified that there was no evidence of forced entry into the building at the time of the rape. A reasonable inference from this evidence is that it was more likely than not that the rapist gained entry through a door that failed to properly shut and/or lock.
The respondents suggest that the assailant might have entered Ambriz's building in any number of ways, including by being offered entry to the complex by a tenant, entering through a door that had been propped open by another resident, entering through a ground floor patio sliding glass door or unlocked window, or entering through a second floor balcony door or window. However, considering the lack of evidence supporting any of these other methods of entry, it is more likely that the assailant entered through a door that failed to lock than by any of these alternative methods.[4] Although it is true that a plaintiff " cannot survive summary judgment simply because it is possible that [an assailant] might have entered through the broken [door]" (Leslie G., supra, 43 Cal.App.4th at p. 483, italics omitted), here there is evidence, not merely speculation, that it was more probable than not that the rapist gained entry through an improperly maintained door rather than by any of the alternative methods respondents suggest.
The circumstances of this case are distinguishable from the circumstances in other cases in which courts have decided the issue of causation in favor of defendants. In Leslie G., supra, 43 Cal.App.4th at 488, the plaintiff theorized that the landlord's failure to repair a broken security gate was the legal cause of an assault and rape. However, in that case, there was no evidence that the assailant had entered through the broken gate, or that the gate was the only means of entry into the garage of the apartment building, where the assault took place. The plaintiff had no other evidence to show that it was more probable than not that the assailant had gained entry through the broken gate. The court concluded that summary judgment was appropriate because it was pure speculation to assume that the broken gate was a substantial factor in causing the injury. (Ibid.)
The Supreme Court approved Leslie G. and applied its reasoning and the reasoning in similar decisions, in Saelzler, supra, 25 Cal.4th 763. In Saelzler, the plaintiff, a Federal Express employee who was assaulted while attempting to deliver a package at the defendants' apartment complex, alleged that better security measures
would have prevented the assault. Citing Leslie G., the Supreme Court emphasized that proof of causation cannot be based upon speculation and conjecture, and that evidence establishing a mere possibility of causation is insufficient to survive summary judgment. (Id. at pp. 775-776.) Rather, in order to establish causation, a plaintiff must demonstrate some substantial link or nexus between the alleged omission and the plaintiff's injury. (Id. at p. 778.) In the absence of other proof of causation, an expert's opinion that better security measures would have prevented the assault is nothing more than speculation and conjecture, and is thus insufficient to withstand summary judgment. (Id. at p. 777.)
The plaintiff in Saelzler admitted that she did not know the identity or background of her attackers. (Saelzler, supra, 25 Cal.4th at p. 776.) It was thus possible that the attackers were tenants of the apartment complex who were authorized to enter the locked security gates and to be on the premises. (Ibid.) The court concluded, " That being so, and despite the speculative opinion of plaintiff's expert, [the plaintiff] cannot show that defendants' failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries. [Citations.] Put another way, she is unable to prove it was 'more probable than not' that additional security precautions would have prevented the attack. [Citations.]" (Ibid.)
In this case, Ambriz and Casa Escondida management did know the identity of Ambriz's attacker, and Ambriz had seen this same individual inside her building at Casa Escondida on more than 10 occasions prior to the attack. The assailant was a transient who did not live at Casa Escondida. We can infer that his entry was thus unauthorized. Based on the evidence Ambriz offered, we can also infer that the malfunctioning doors had allowed a number of people to gain unauthorized entry into the complex. The Saelzler court noted that this type of evidence is useful for inferring how an attacker likely gained access: " Eyewitnesses, security cameras, even fingerprints or recent signs of break-ins or unauthorized entry may show what likely transpired at the scene," adding, " In the present case, no such evidence was presented but the circumstances in other cases may well be different." (Saelzler, supra, 25 Cal.4th at p. 779; see also Vasquez, supra, 118 Cal.App.4th at pp. 288-289.)
In view of the evidence of repeated unauthorized entries to the premises by male intruders and the police detectives' determination that there was no evidence of forced entry at the time Ambriz was attacked, it is reasonable to conclude that it is more likely than not that Ambriz's attacker used the same method of entry on the day of the rape that he and others had been using over an extended period of time to gain entry to Casa Escondida, i.e., entry through the malfunctioning doors at Casa Escondida.
Ambriz has raised a triable issue of fact as to whether Casa Escondida's failure to properly maintain its doors and locks was a substantial factor in causing her injury. The trial court thus erred in determining as a matter of law that Ambriz would not have been able to establish the element of causation in the underlying premises liability action and in granting summary judgment in favor of respondents in the legal malpractice action on that basis.
IV.
DISPOSITION
The judgment of the trial court is reversed. Costs are awarded to appellant.
CERTIFIED FOR PUBLICATION
AARON, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line Lawyers.
[1] Although the trial court based its ruling on the conclusion that Ambriz could not, as a matter of law, have succeeded in the underlying premises liability case on the element of causation, both Ambriz and the respondents address on appeal whether Ambriz could have succeeded in establishing the existence of a duty owed to her by Casa Escondida. We consider and address the question of duty because respondents contend that even if we disagree with the trial court's conclusions regarding causation in the underlying premises liability case, we should affirm the trial court's grant of summary judgment on the basis that Ambriz could not have established that Casa Escondida owed her a duty to take additional security measures.
[2] Although the question whether a duty exists is generally expressed in terms of a broad proposition regarding the expectations placed upon one class of persons vis-Ã -vis another class of persons, the law of premises liability based upon third party criminal acts has evolved differently. In this area, both the plaintiff and the court must specifically define the parameters of the duty alleged to exist and to have been breached.
[3] Ambriz declared that she had been told that the property was a " secured community." She also had seen advertisements indicating that Casa Escondida " had 'controlled access.'"
[4] The security guard testified that the residents were " very safety conscious," yet no one reported a trespasser on the premises. There were no indications that a door " had been broken into." He further testified that around the time of the rape, no residents had reported broken windows, unauthorized entry by someone into an apartment through an open or unlocked door or window, items missing from an apartment, or that anyone unauthorized had been in an apartment in the night.
