43 Cal.App.4th 472, B091339, Leslie G. v. Perry & Associates

CourtCalifornia Court of Appeals
Writing for the Court[10] The opinion of the court was delivered by: Vogel
Citation50 Cal.Rptr.2d 785,43 Cal.App.4th 472
Date11 March 1996
Docket NumberB091339
PartiesLeslie G. v. Perry & Associates

Page 472

43 Cal.App.4th 472

50 Cal.Rptr.2d 785

LESLIE G., Plaintiff and Appellant,

v.

PERRY & ASSOCIATES et al., Defendants and Respondents.

B091339

California Court of Appeal, Second District, First Division

March 11, 1996

Page 473

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Page 474

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Page 475

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COUNSEL

Lewis, Goldberg & Ball, Michael L. Goldberg, Fletcher & Roit and Natasha Roit for Plaintiff and Appellant.

Veatch, Carlson, Grogan & Nelson, Thomas M. Phillips, Greines, Martin, Stein & Richland, Irving H. Greines and Barbara W. Ravitz for Defendants and Respondents.

OPINION

VOGEL (Miriam A.), J.—

Leslie G. was raped in the garage of her supposedly "secure" apartment building. She sued the building's owners (but not the rapist, who was never caught and who, most likely, would in any event be judgment-proof), contending the owners were negligent because they failed to repair a broken security gate and that their negligence caused her rape. The trial court granted the owners' motion for summary judgment and Leslie appeals, contending the landlords owed a duty to her and that their negligence was the cause of her rape. The landlords insist that, on the facts of this case, no duty was owed but contend that, even assuming duty and breach, their negligence was not the cause of Leslie's rape. Because we agree with the landlords on the causation issue, we assume without deciding that a duty was owed and hold that, as a matter of law, an expert's uncorroborated speculation is insufficient to establish causation.

Facts

Leslie arrived home at about 2 a.m. on June 15, 1990, used her security access card to enter the apartment building's underground garage, drove down a ramp and pulled into her parking space. As she got out of her car,

Page 477

Leslie was attacked by an unknown assailant who grabbed her by the throat, beat her into submission, brutally raped her, and then fled, never to be caught.

Leslie sued Mirion Bowers, Geraldine Bowers and Perry & Associates (collectively Bowers), the owners of her apartment building, alleging negligence and "premises liability" arising from a failure to repair a broken security gate. Bowers answered, conducted discovery, and then moved for summary judgment, contending that he owed no duty to Leslie to prevent a rape because there had been no prior similar incidents on the premises, that his negligence was not the cause of the rape and that, in any event, Leslie was not entitled to recover punitive damages as prayed in her complaint. By the time the motion was fully briefed by both sides, this is what the evidence did (and did not) establish:

Leslie and her roommate, Eryn B., rented their apartment in late 1988 because they wanted a "security building" with controlled access and they were assured by the building's managers (and saw for themselves) that this particular building had several security features, including underground parking secured by an automatic gate which required an access card for entry (the standard sort of iron gate that rises up from the ground to permit a car to enter, then closes after the car has entered). From the time Leslie and Eryn moved in until the time Leslie was raped, there were no prior rapes or violent crimes in the garage, but there were over a dozen auto burglaries reported to the police during that period and there were some (but apparently not many) violent crimes in the surrounding area. 1 While Bowers may not have been aware of every reported crime, he was aware of at least some of them, as were the building's managers and maintenance staff.

In late 1989 and early 1990, Bowers received calls from six or more tenants complaining that the security gate was not functioning properly, and Eryn complained several times to the manager. It seems that sometime in January or February, a car ran into the gate and, from that time on, the gate

Page 478

"wouldn't shut fully," leaving a three-foot space between the ground and the bottom of the gate. Sometimes the gate would simply stick "in the open position." Although it is undisputed that the gate was serviced, there remains a dispute about the effectiveness of that "service" and the parties do not agree about the condition of the gate on the night Leslie was raped. According to Leslie, the gate did not close all the way that day. According to the police officer who responded to the scene after the rape, the gate was open when the officer arrived (but she could not say one way or the other whether it was broken). According to Bowers, the gate was working when he visited his building the day after the rape. Two weeks later, however, the repair service returned because the gate was not working.

Leslie's security expert, Chris E. McGoey, 2 testified at his deposition that the apartment is in a "high crime area," a district ranked sixth out of 59 in North Hollywood, that the building "was designed to be a security building in that there were wrought iron security gates installed in the garage in or about 1987," that the building had in the past been "marketed as [a] 'security complex' to attract tenants to the building as opposed to some other building that didn't have those security amenities," that the "security gates were a critical part of the operation of the apartment complex" and that, therefore, "the gate should have been maintained on a regular basis by someone ... trained and skilled in repairing the gates ...." Based on the police report, Eryn's deposition testimony, Leslie's statements, and telephone message slips reflecting calls about the gate, he continued:

"I think the nature of the parking structure ... being underground or below the building, being remote and isolated, provided a potentially hazardous environment for people that would have to drive in underground, essentially, and park there at night, unless the security gates were properly functioning. [¶] The facts of this case seem to indicate that the security gate to the lower garage was defective on the evening [of Leslie's rape] in that it would not fully close and allowed the [rapist] to gain access to the parking structure and lie in wait for [Leslie] to pull into her parking space. [For a month or two before the rape,] there was no one on site on a daily basis in a management capacity to inspect, test, receive tenant complaints [or] respond to any defects that might have existed in the security gates.

"It's my opinion that an on-site manager is required in a property of this size .... I think had someone been on the premises acting in that capacity,

Page 479

they would have become aware of the defective condition of the gate and had an opportunity to make the repair.... [¶] I think when representations are made to tenants regarding the safety of a building and the security amenities of a building, they need to be maintained. Absence of a manager and absence of inspection, maintenance and follow-up during that time period I believe is a breach of that responsibility. I think based on my experience with rape cases in the rental housing industry, it's my opinion that the assailant was waiting in the garage prior to [Leslie] arriving and ... presented himself to her once he realized she was alone and there were no other witnesses in the garage.

"... Typically the assailant will have cased the location in advance, will know where the escape routes are and will wait for the opportunity and wait for the victim to come to him or provide the opportunity for him to attack the victim. [¶] The fact that the assailant attacked [Leslie] in the parking structure in her vehicle indicates to me he knew that either from prior experience or prior time at this location that he would be undisturbed during that period of time, that there was a very small chance of being observed by anyone, and that he would have an excellent ability to escape, if necessary. I believe he selected this location because of the conditions that he found, one being an open gate providing him access. Too, the isolated, remote nature of the structure, the opportunities to hide, potentially a light being out, and escape routes out of the building. I think they all contributed to his selection of this particular building and the attack on [Leslie]." (Italics added.)

Of course, McGoey conceded, as he had to, that he did not know how the rapist gained entry into the garage or whether he was admitted by a tenant. 3

Based on this evidence, the trial court granted Bowers' motion for summary judgment, finding that, in the absence of any prior similar incident, it was unforeseeable that a rape would occur. As the trial court put it, "[a]lthough [Leslie] presented evidence of thirteen prior crimes that occurred in the ... apartment building within the two years prior to her rape, these incidents involved vandalism, theft and drug-related activities, not rape or other violent or assaultive acts.... Thus, [Leslie's] evidence failed to

Page 480

show any prior similar incident and is not sufficient to raise a triable issue of material fact." Leslie appeals from the judgment thereafter entered.

Discussion

I.

To recover on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Rest.2d Torts, §§ 281, 283, pp. 4, 12; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426 [20 Cal.Rptr.2d 97]; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, pp. 60-61.) In Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 [25 Cal.Rptr.2d 137], our Supreme Court addressed the issue of duty, refined the "totality of the circumstances" rule articulated in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 [211 Cal.Rptr. 356], and adopted the following test for determining the scope of a landowner's duty to secure public areas against foreseeable criminal acts of third parties that are likely to...

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182 practice notes
  • 442 F.Supp.2d 914 (E.D.Cal. 2006), 1 99-cv-5461, Clarendon Nat. Ins. Co. v. Insurance Co. of the West
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    • July 7, 2006
    ...with that opposed to it, the evidence has more convincing force and greater probability of truth, Leslie G. v. Perry & Associates, 43 Cal.App.4th 472, 482-83, 50 Cal.Rptr.2d 785 III. Intentional or Negligent Concealment or Misrepresentation A. California Statutory Law Under California s......
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    ...harm and (2) that there is no rule of law relieving the defendant of liability, " citing Leslie G. v. Perry & Associates, 43 Cal.App.4th 472, 481, 50 Cal.Rptr.2d 785 (1996); Rosh v. Cave Imaging Systems, Inc., 26 Cal.App.4th 1225, 1235, 32 Cal.Rptr.2d 136 (1994); Nola M. v. Univers......
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    • California Court of Appeals
    • November 5, 2007
    ...on a theory of negligence, Plaintiffs must prove duty, breach, causation, and damages. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 489 [50 Cal.Rptr.2d 785].) Although he does not specifically tell us so, Chuong's summary judgment is based on the theory that Plaintiffs ca......
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    • November 10, 2009
    ...probable causal connection between an act and a present injury. ’ [Citation.]" ( Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487, 50 Cal.Rptr.2d 785, fn. For the above reasons, we agree with Ralphs and find that " Anderson's opinion on causation was not factual ......
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182 cases
  • 442 F.Supp.2d 914 (E.D.Cal. 2006), 1 99-cv-5461, Clarendon Nat. Ins. Co. v. Insurance Co. of the West
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Eastern District of California
    • July 7, 2006
    ...with that opposed to it, the evidence has more convincing force and greater probability of truth, Leslie G. v. Perry & Associates, 43 Cal.App.4th 472, 482-83, 50 Cal.Rptr.2d 785 III. Intentional or Negligent Concealment or Misrepresentation A. California Statutory Law Under California s......
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    ...on a theory of negligence, Plaintiffs must prove duty, breach, causation, and damages. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 489 [50 Cal.Rptr.2d 785].) Although he does not specifically tell us so, Chuong's summary judgment is based on the theory that Plaintiffs ca......
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