Kinnsch v. The Huntington Apartments

Filed 9/13/06 Kinnsch v. The Huntington Apartments CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge. Affirmed.

Law Offices of Timothy J. Donahue and Timothy J. Donahue for Plaintiff and Appellant.

Lawson, Macrae, Gress & Edrington, Charles Kittrell, Law Offices of Priscilla Slocum and Priscilla Slocum for Defendant and Respondent.

Brian Kinnsch appeals from a summary judgment entered in favor of his landlord, The Huntington Apartments (Huntington), in his personal injury action. He contends a triable issue arises from admissions made by Westco Security Services (Westco), the company Huntington had hired to provide security at the apartment complex. Kinnsch's briefing of the issue was somewhat problematic given his failure to follow many of the basic rules of appellate procedure. Though the deficiencies were glaring, we exercised our discretion to not apply the waiver rule and address the issues raised in the appeal. It is clear Kinnsch's contentions lack merit, and we affirm the judgment. Huntington's motion to dismiss based on rule violations was well reasoned, but is denied.

I

Kinnsch, a tenant at Huntington, was injured by a physical assault in the community clubhouse he used to watch television. It all began with a verbal dispute between Kinnsch and the guest of another tenant, over which television program to watch. The quarrel intensified after the guest, named Sean, grabbed Kinnsch's arm and made several abusive statements. Kinnsch alleges he was injured when Sean shoved the left side of his body into a window frame. Kinnsch fell to the floor and tried to call the police, but could not get a signal on his cellular telephone.

After Sean and the other tenant left the clubhouse, Kinnsch walked outside, but could not see any security personnel. Kinnsch then went to his apartment and fell asleep. He later called the apartment manager, Faith Rogers, to report the incident.

Eight months later, Kinnsch filed a lawsuit against Huntington, the tenant who brought Sean to the clubhouse, and Huntington's hired security company Westco. He alleged Huntington and Westco were liable for premises liability and negligence.

Huntington denied all the allegations in its answer, specifically asserting any injury was not caused by the acts or omissions of its agents or employees. It also filed a protective cross-complaint for indemnity, apportionment, and declaratory relief against ROES 1 through 30. However, Westco by this time was out of business and failed to appear or answer the complaint. Not surprisingly, Westco also did not respond to Kinnsch's later discovery efforts.

In December 2004, the court granted Kinnsch's motion to deem admitted all the statements contained in his request for admissions. The statements admitted the following facts: (1) Westco's negligence caused Kinnsch's injury; (2) Westco was employed by Huntington and was acting in the course and scope of its employment when Kinnsch was injured; and (3) Westco was â€