AMBRIZ v. KELEGIAN
Filed
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
CELIA AMBRIZ, Plaintiff and Appellant, v. MARK KELEGIAN et al., Defendants and Respondents. | D046453 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Reversed.
Law Offices of Leon J. Saad & Associates, Leon J. Saad; Carla DeDominicis; Singleton & Associates and Terry Singleton for Plaintiff and Appellant.
Sheppard Mullin Richter & Hampton, Robert Gerber and Karin Dougan Vogel for Defendants and Respondents.
I.
INTRODUCTION
Plaintiff Celia Ambriz appeals from a judgment of the trial court entered after the court ruled in favor of defendants Mark Kelegian, Thomas Morgan, and Kelegian, Reed & White, LLP on their motion for summary judgment. Ambriz hired Kelegian to represent her in a premises liability action she filed against the owners and managers of Ambriz's apartment complex, after she was raped by an intruder in the laundry room of the complex. The trial court in Ambriz's premises liability case granted the defendants' summary judgment motion. Ambriz then filed a legal malpractice action against Kelegian and the other respondents, alleging that they failed to conduct a sufficient investigation, failed to propound necessary discovery, and failed to prosecute Ambriz's claims. The respondents brought a motion for summary judgment, contending that even if they did breach a duty of care owed to Ambriz, she could not demonstrate prejudice because she would not have been able to establish landowner duty or causation in the underlying premises liability action. The trial court granted the respondents' motion for summary judgment and entered judgment in their favor.
On appeal, Ambriz asserts that the trial court erred in improperly excluding a substantial portion of her evidence, and in applying " incorrect legal principles" to the case. We conclude that the trial court erred in granting the respondents' motion for summary judgment because the court incorrectly determined that Ambriz could not, as a matter of law, establish causation in the premises liability case.
II.
FACTUAL AND PROCEDURAL BACKGROUND[1]
A. Factual background
1. The rape at Casa Escondida
On
Casa Escondida comprises 330 rental units. The apartment complex received a variance from the City of Escondido, allowing it to exceed typical density limits for a property of its size. As a condition of being granted the variance, Casa Escondida is required to rent to senior citizens or disabled individuals. Casa Escondida's tenant population consists of lower income, elderly individuals, many of whom are female.[2]
Ambriz had been told that Casa Escondida was a " secured community," and she had seen it marketed as a " controlled access" community, in that the complex claimed that it maintained a locked entry gate and that the doors to the buildings were secured. However, the entry gate was often chained open. An on-site security guard had reported to Casa Escondida management that male intruders were gaining access to the building interiors. At the time of Ambriz's rape, three of the four entrances to Ambriz's building did not close and lock properly because the mechanisms on the entrance doors were broken. Residents had complained, but the doors were not repaired.
The rapist was a transient who had been seen around the complex on a number of occasions over a period of more than eight months prior to the rape. He was often found sleeping on benches within the Casa Escondida complex. The transient regularly asked the residents, including Ambriz, for money. In December 2001, he became more aggressive and began to frighten Ambriz and other tenants. That month, Ambriz complained to the management that the doors to the buildings would not lock and that this transient was scaring her. Ambriz was told that management would " take care of it."
A police detective who investigated Ambriz's rape testified that the lack of evidence of a forced entry indicated that it was more likely than not that the rapist had entered the building through an open door.
2. Ambriz's underlying civil action
After the assault, Ambriz began seeing a rape counselor. The counselor recommended that Ambriz discuss her case with Attorney Kelegian. Ambriz met with Kelegian, who told her that he would personally handle her case and that he was the best lawyer she could get to help her. According to Ambriz, Kelegian did not inform her that another attorney would be working on her case. Ambriz saw Kelegian on only one other occasion, when he attended her deposition.
Ambriz received a letter from Attorney Kelegian's office instructing her to appear for trial. Ambriz went to court and waited for three hours, but Kelegian never arrived. Ambriz later learned that by this time, the court had already granted the defendants' summary judgment motion in the premises liability case, and the case had been dismissed.
B. Procedural background
Ambriz filed suit against the respondents alleging that their representation in the underlying premises liability action fell below the applicable standard of care. Ambriz filed the operative complaint, a second amended complaint, on
Ambriz moved ex parte to strike the motion for summary judgment on the ground that it had not been served 75 days prior to the hearing date. The trial court denied Ambriz's motion and kept the original hearing date for the motion.
In support of her opposition to the respondents' motion for summary judgment, Ambriz lodged 28 evidentiary exhibits and a number of declarations with the court. The respondents objected to nearly all of the evidence Ambriz offered.
After full briefing by the parties, on
On March 22, the court issued a second order in which it amended portions of its tentative order and confirmed the remainder. The trial court revisited and changed some of its previous evidentiary rulings. However, the court reaffirmed the grant of summary judgment in favor of the respondents. The respondents filed and served a " Notice of Entry of Order Granting Summary Judgment and of Judgment" on March 25. On April 25, the respondents filed and served a judgment and a memorandum of costs. Four days later, the respondents filed a second notice of entry of judgment.
Ambriz filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court erred in excluding certain evidence Ambriz submitted in
opposition to respondents' summary judgment motion
Before addressing whether the trial court properly granted summary judgment, we first resolve Ambriz's contention that the trial court should not have excluded many of the declarations and other exhibits Ambriz submitted in support of her opposition to the motion for summary judgment. As we discuss, the trial court erroneously sustained a number of the respondents' objections to certain evidence Ambriz presented.
On appeal, Ambriz challenges the trial court's exclusion of all or part of 20 exhibits and five declarations. Although it appears that the trial court should not have excluded a number of these exhibits and declarations, for purposes of this appeal we limit our discussion to the evidence that was excluded but should have been considered, and that was sufficient to establish triable issues of fact as to the issue of causation in Ambriz's legal malpractice action.
1. Portions of the deposition of Detective Dianna Lynn Pitcher
Ambriz submitted a single page from the transcript of the deposition of Escondido Police Detective Dianna Lynn Pitcher in support of her opposition to the respondents' motion for summary judgment. The excerpt included Pitcher's statement that police had found no evidence of forced entry during their investigation of the rape, and that the department had concluded that it was more likely than not that the rapist entered Ambriz's building through an open door.
The respondents made general objections to Ambriz's lodgment of the excerpt from the Pitcher deposition on the grounds that Ambriz failed to include a reporter's certificate demonstrating the authenticity of the deposition testimony, and that Ambriz's attorney failed to state that she had personal knowledge of the deposition excerpt, failed to lay a foundation for the deposition excerpt, failed to authenticate the deposition excerpts and failed to present any basis for contending that the excerpt was " what [it] purport[s] to be." The respondents also asserted that because Ambriz's attorney failed to declare that the deposition excerpt was true and correct and that she had personal knowledge of the deposition, the excerpt was inadmissible.
The respondents made more specific objections to the testimony included in the excerpt, claiming that the testimony constituted improper opinion, lacked foundation, called for speculation, and was irrelevant.
The trial court originally sustained all of the respondents' objections to the excerpt from Pitcher's deposition " except as to the relevancy objection." After oral argument, the trial court overruled the objection that the excerpts were inadmissible due to the failure to include a reporter's certificate.
There are a number of reasons why the court should have overruled the respondents' other objections to this evidence. First, the objections based on Ambriz's attorney's failure to attest to personal knowledge of the deposition excerpts, lay a foundation, or authenticate the excerpts are without merit. The respondents presented excerpts from the same deposition in support of their motion for summary judgment. (Cf. Evid. Code, § 1414 [" A writing may be authenticated by evidence that: [¶] (a) The party against whom it is offered has at any time admitted its authenticity; or [¶] (b) The writing has been acted upon as authentic by the party against whom it is offered" ].) The respondents admitted the authenticity of the transcript of Detective Pitcher's deposition by seeking to use portions of that deposition in support of their motion for summary judgment. Raising an objection as to lack of authentication of an excerpt from the same deposition defendants themselves relied upon in their motion is disingenuous, unless defendants can establish that the excerpt Ambriz offered was not part of the deposition transcript. Respondents made no such allegation.[3] Further, Ambriz's attorney attested, under penalty of perjury, that the copies of the documents lodged constituted " true and correct copies of what they purport to be." This was sufficient to overcome the respondents' generic objections to this evidence.
Additionally, Ambriz's attorney could have easily cured these perceived problems if given the opportunity to do so. At oral argument, Ambriz's attorney offered to do just that, but the court denied her request. The court's responses to Ambriz's counsel during oral argument on the tentative evidentiary rulings indicate that the court was growing impatient with counsel's attempt to address all of the respondents' objections and did not want to spend more time on the evidentiary issues.[4] The court should have allowed Ambriz's counsel to attempt to remedy the perceived failings before ruling against Ambriz on a dispositive motion.
As to the respondents' objections on the grounds of improper opinion, lack of foundation and speculation, at least some portion of the proffered deposition testimony did not constitute improper opinion, did not lack foundation, and did not call for speculation. Detective Pitcher stated, " we found . . . no evidence of a forced entry." This information does not constitute Detective Pitcher's opinion, nor is it speculation. Rather, it is a fact about which Pitcher, as a detective investigating the case, had personal knowledge. Further, the respondents provided a foundation for Detective Pitcher's statements as to the findings of the police department in their own evidence in support of the summary judgment motion. The respondents and the court were clearly aware that Detective Pitcher had both personal knowledge and background information sufficient to make such a statement. The court should not have excluded this evidence.
2. Portions of the deposition of David Henry Mykytuik, a Casa Escondida
security guard
Ambriz submitted a number of pages from the transcript of the deposition of David Henry Mykytuik, who was employed as an on-site security guard for Casa Escondida at the time of Ambriz's rape. The deposition excerpts included Mykytuik's observations as to a number of matters, including the age and other characteristics of the residents, the defective doors and locks, security matters at Casa Escondida, complaints he had received from residents, and complaints he had made to management.
The respondents objected to the proffered portions of the Mykytuik deposition on the same grounds as the Pitcher deposition. They also made specific objections to particular portions of the Mykytuik deposition.
For the same reasons that the court should not have sustained the general objections to Ambriz's offer of excerpts of the Pitcher deposition, the court should not have sustained the general objections to the excerpts of the Mykytuik deposition. Not only did the respondents offer portions of the Mykytuik deposition in support of their motion for summary judgment, but they relied on the Mykytuik deposition extensively in their separate statement of undisputed material facts. There is simply no basis for respondents' general challenges to the introduction of other portions of the same deposition. The court abused its discretion in failing to consider the portions of the Mykytuik deposition that Ambriz offered.
The respondents separately objected to Mykytuik's statements that the residents at Casa Escondida were elderly and disabled, and predominately female, on the grounds of lack of foundation, speculation, improper opinion, and relevance. The court sustained only the relevance objection. However, evidence establishing that the residents of Casa Escondida are particularly vulnerable as a group because of their age and health is relevant to whether an attack on one of those residents was reasonably foreseeable. The evidence was relevant and should not have been excluded on this ground.
3. City of Escondido Ordinance No. 83-70 and the Declaration of
Restrictions imposed on the Casa Escondida property
Ambriz offered a copy of Escondido City Ordinance No. 83-70, showing that senior housing projects in Escondido are required to provide " [i]nternal and/or perimeter security measures . . . as necessary to meet the special security needs of senior residents." She also offered a copy of the declaration of restrictions imposed on the Casa Escondida development and recorded by the City of Escondido, which shows that Casa Escondida was required to rent to persons aged 62 or older, and to set aside no less than 25 percent of its rental units for low or moderate income seniors.
The respondents objected to both documents on the grounds that Ambriz's attorney failed to state that she had personal knowledge of the documents, and failed to lay any foundation or provide a basis for her statement that the documents are " what they purport to be." Acknowledging that " someone from the City of Escondido apparently attempted to authenticate" these documents, respondents nevertheless challenged the documents on the basis of Ambriz's attorney's perceived failure to provide sufficient authentication and foundation.
The court sustained the respondents' authentication objections to both documents. This was an abuse of discretion. Ambriz included on both documents a certification by Robert Zoronado, deputy clerk of the City of Escondido, attesting to the authenticity of the documents. There was thus a presumption that the documents were what they purported to be. (See Evid. Code, § 1530 [a purported copy of a writing in the custody of a public entity is prima facie evidence of existence and content of writing if it purports to be published by the authority of the public entity in which the writing is kept], § 1531 [when a copy of a writing is attested or certified, the attestation or certificate must state in substance that the copy is a correct copy of the original or of a specified part thereof], § 1532 [official record of a writing is prima facie evidence of the existence and content of the original recorded writing if the record is a record of an office of a public entity and a statute authorized the writing to be recorded in that office].) The respondents offered nothing to overcome the presumption that these copies of official records were true and correct copies, as certified by a city official.[5] There was thus no basis for excluding this evidence. The court should have considered it in determining the respondents' motion for summary judgment.
TO BE CONTINUED AS PART II………..
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[1] Because this appeal is from the grant of summary judgment in favor of the respondents, we review the evidence in the light most favorable to Ambriz. (Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1438.)
[2] The trial court sustained on relevance grounds the respondents' objection to this portion of the deposition testimony of David Mykytuik, who worked as a security guard at Casa Escondida prior to and after Ambriz's rape. Although the trial court generally has wide discretion in making evidentiary determinations, our review of the record establishes that the court erroneously excluded a significant amount of evidence Ambriz offered that was relevant to this case and properly before the court. We address these issues further in part
[3] " Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, §1400.) Ambriz's attorney included a copy of the first page of the deposition transcript. There was no reason for the court to be concerned that the transcript was not what Ambriz's attorney claimed it to be, i.e., a portion of the transcript of Pitcher's deposition.
[4] After Ambriz's attorney finished discussing the respondents' 16th objection to Ambriz's documentary evidence (out of 21 sets of objections to this evidence), the court said, " We have been going for about 50 minutes. If you could please wrap up your portion of the argument." After telling Ambriz's attorney that she should have asked the court to take judicial notice of the notice of summary judgment in the underlying premises liability case, and Ambriz's attorney asked the court to take judicial notice of the documents in the underlying case, the court responded, " Not now. It's too late. You have to ask for it in your paperwork. You know that." A few minutes later, the court said, " All right. Are you finished?" When Ambriz's attorney responded that she was not finished, the court replied, " All right. It's been an hour. I'm asking you to finish up, please."
[5] The respondents also challenged the fact that no seal of the City of Escondido was affixed to the certification, despite a statement by the city clerk that such a seal was affixed. The court did not rule on this issue because it sustained the respondents' other objections to the evidence. However, the Evidence Code does not require a seal in order for the presumptions of authenticity to stand. Further, Ambriz's attorney stated that the seal had simply not reproduced well because it was an embossing. She offered to show the court the embossed seal as further proof. It is clear that this evidence was properly authenticated, despite the absence of an embossed seal.
