Ambriz v. Kelegian

• Decision Date: 24 January 2007
• Docket Number: No. D046453.,D046453.
• Citation: 146 Cal.App.4th 1519,53 Cal.Rptr.3d 700
• Court: California Court of Appeals Court of Appeals
• Parties: Celia AMBRIZ, Plaintiff and Appellant, v. Mark KELEGIAN et al., Defendants and Respondents.

53 Cal.Rptr.3d 700

146 Cal.App.4th 1519

Celia AMBRIZ, Plaintiff and Appellant, v. Mark KELEGIAN et al., Defendants and Respondents.

No. D046453.

Court of Appeal, Fourth District, Division 1.

January 24, 2007.

Law Offices of Leon J. Saad & Associates, Leon J. Saad; Carla DeDominicis; Singleton & Associates and Terry Singleton, San Diego, for Plaintiff and Appellant.

Sheppard Mullin Richter & Hampton, Robert Gerber and Karin Dougan Vogel, San Diego, for Defendants and Respondents.

AARON, J.

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 January 26, 2002, Ambriz was assaulted and raped by an intruder at Casa Escondida, the apartment complex in Escondido, California where Ambriz lived.

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 ether 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 November 29, 2004. After answering the complaint on December 30, 2004, the respondents filed a motion for' summary judgment, or in the alternative, summary adjudication.

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 March 18, 2005, the trial court issued a tentative ruling on the respondents' objections to Ambriz's evidence and issued a tentative order granting the motion for summary judgment. On that same day, the court heard arguments from the parties, and took the matter under submission so that it could review its evidentiary rulings prior to issuing a final order.

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 Es'condido 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...