Barber v. Chang

• Decision Date: 13 June 2007
• Docket Number: No. G036448.,G036448.
• Citation: 151 Cal.App.4th 1456,60 Cal.Rptr.3d 760
• Court: California Court of Appeals Court of Appeals
• Parties: Leroy BARBER, Plaintiff and Appellant, v. William Wu-Ye CHANG, Defendant and Respondent.

60 Cal.Rptr.3d 760

151 Cal.App.4th 1456

Leroy BARBER, Plaintiff and Appellant, v. William Wu-Ye CHANG, Defendant and Respondent.

No. G036448.

Court of Appeal, Fourth District, Division 3.

June 13, 2007.

Emling Forensis and Michael J. Emling, Long Beach, for Plaintiff and Appellant.

Law Offices of Richard J. Wianecki, Paul W. Rosenfield and Dana C. Clark, for Defendant and Respondent.

OPINION

ARONSON, J.

Leroy Barber appeals from the trial court's entry of summary judgment on his negligence claim against William Wu-Ye Chang, the owner of a small apartment complex where a tenant shot Barber. Barber contends Chang had a duty to adopt measures to reduce the risk of harm posed by a potentially violent tenant, and claims triable issues of fact exist on whether Chang responded reasonably to written notice the tenant had recently brandished a shotgun at another visitor and tenant. We conclude Chang failed to carry his initial burden on summary judgment to show he owed no duty to undertake minimally burdensome measures to alleviate the risk posed by a violent tenant. Accordingly, we reverse the judgment.

I FACTUAL AND PROCEDURAL BACKGROUND

Barber and his longtime companion, Chanda King, moved into one of the four units in Chang's apartment complex in 1995. The couple had two young children, and Chanda's 6-year-old son, Christopher, also lived with them. That same year, Carol Gray and her son, Daniel, moved into another unit in the complex. Daniel was about 12 years old at the time. Chanda's mother, Jean King, moved into her own unit in Chang's complex in 1996. Jean described Daniel Gray as "an odd kid." Over the years Daniel periodically argued with other tenants concerning such things as pet droppings left on the common lawn. He often took pictures of people visiting the apartments or of tenants engaging in activities that annoyed him.

Barber and Chanda moved out in May 2002. They later claimed Daniel's harassment had escalated into a physical confrontation between Barber and Daniel over whose dogs had defecated on the lawn. Barber called the Anaheim police concerning the incident, but he did not report the matter to Chang. According to Chang, Barber and Chanda were behind in their rent when they moved out, and they left the apartment "in very bad shape." Daniel offered to clean the apartment and perform other handyman services for Chang in exchange for credit towards rent. When Chang agreed, Daniel and his girlfriend moved into the apartment.

Chanda returned to the complex often because her son Christopher generally resided there with Jean, so he could stay enrolled at the local high school. According to Chang, between "May of 2002 and March of 2004, Leroy Barber had only been back to the apartments on a few occasions. At no time during those few visits did Daniel Gray ever confront Leroy Barber."

By April 2004, Daniel had reached adulthood and still lived in Chang's complex. On April 4, 2004, Chanda dropped Christopher off at her mother's and, as she prepared to leave in her van, Daniel circled the vehicle, snapping photographs. He remained silent at first, but bumped Chanda two or three times as she made her way to the driver's seat. He then exclaimed "`Leave me alone,'" "`Bring Leroy over here and I'll take care of him,'" "`Bring Leroy here. Bring him here' and `Don't bother me.'" Jean witnessed the incident and saw Daniel run up to his apartment as Chanda settled into the van. Daniel emerged from his apartment with a shotgun, ran toward Chanda's van, and aimed the gun at her vehicle as she departed down the alley. Daniel said nothing and did not pull the trigger, but simply turned and trained the shotgun on Jean as he climbed the stairs back to his apartment.

Terrified, Jean retreated to her unit. The next day, she sent a certified letter to Chang's son, Wei Chang, who managed the fourplex. The letter stated: "Last night I had an incident with Daniel that has me scared to death. At about 8[:]15 PM Chanda came over to bring Chris home, [and] when she got out of the van Daniel came to his window and started yelling at us `leave my family alone[.]' Chanda came into the house and stayed about 30 minutes[;] when she left she was putting the puppy in the van, [and Daniel] came running down the stairs and ran around the van 3 or 4 times screaming `leave my family alone[.]' Chanda asked him what was the matter [but] he just screamed[;] then she got into the van to leave, [and] he ran upstairs and came right back down with a shotgun, ran out to the back of the garages and pointed the gun at the van as it went around the corner. He then came back towards the front pointing the gun at me and again yelling `Leave my family alone[.]'"

Jean's letter continued: "I have done nothing to him[;] as a matter of fact I have gone out of my way to stay away from him. I realize that he has bad feelings about Leroy, but to take that out on my ... daughter and my grandson is inexcusable. He has constantly harassed Chris, to the point he is afraid to even be out when Daniel is around. [¶] I did not call the police, because I don't want any more trouble but truthfully I am afraid for my life. [¶] ... [*] I hope that you can do something about this [¶] problem so that I will again feel safe in my home. [¶] Please call me so that we can discuss this matter. [¶] ... [¶] The [s]ecurity guard here [at her workplace] has advised me that I should have called the police, as it is a felony to aim a gun at anyone. But as I said before I really don't want any more trouble, [¶] Please help me with this matter."

Chang telephoned Jean when he received the letter. He advised her he could not "take action as a landlord" unless she filed a police report or obtained a restraining order against Daniel. He also suggested she speak with Daniel's mother about the incident.

About three weeks later, on April 28, 2004, Barber visited the complex to retrieve a tool from Jean's garage. Neither Chanda nor her mother had told him about the April 4th incident with Daniel. As Barber rummaged about for the tool, he heard footsteps in the alley. Turning, he spotted Daniel. According to Barber, Daniel's eyes were "very bulgy and big," and Daniel stared at him "with no words exchanged whatsoever." Then Barber "heard Daniel up in his apartment, which was up above the garages." After "a bunch of booming and banging, ... like he was throwing chairs around," Daniel reappeared, "flying around the corner [with a] 12-gauge pump in his hand."

Barber did not know Daniel had called 911. According to Barber, he later learned Daniel "had told Anaheim PD that he was armed with a shotgun ... and that he was going to come down and interrogate me and shoot me, which is exactly what he did." Daniel accused Barber of stalking his family, felled Barber with a shotgun blast to the leg, kicked out one of Barber's teeth, stomped his wounded leg, and then placed the gun in Barber's "rectal area." Barber jumped, and Daniel pulled the trigger, inflicting another wound to Barber's leg. The police arrived and, after a standoff in which Daniel held the shotgun to Barber's temple, Daniel finally surrendered the gun and the police subdued him.

Barber filed a complaint alleging a cause of action for negligence. The complaint generally alleged Chang owed Barber "a duty of reasonable care" and "a duty to take reasonable action to protect plaintiff from harm." The complaint also alleged Chang breached his duty of care by "failing to take reasonable steps to provide security for Plaintiff from known threats and conditions present at the rented premises."

At his deposition in this matter, Wei Chang described his telephone conversation with Jean after he received her letter: "What I said was you have to call the police, you have to file a police report. And you need to file a restraining order because these are things that I, as a landlord or manager, cannot act upon until I have documentation that's a little more forceful than what one tenant says of another." According to Chang, he treated Jean's letter as "a serious matter," acknowledging, "I think that this is a threat, if it is true." Chang later stated in his deposition that he "believed" Jean's account of the April 4th incident. But in the declaration he subsequently filed in his summary judgment motion, he repeatedly referred to Daniel's history as a "good tenant" and to Jean "reporting an incident that was supposed to have occurred April 4, 2004, wherein Daniel [G]ray brandished a shotgun." (Italics added.) Chang stressed in his declaration he "had never received any complaints about Daniel Gray having to do with any kind of violence whatsoever."

Chang moved for summary judgment solely on the ground he owed Barber no duty of care. Chang's separate statement focused only on whether he had a duty to hire security guards to prevent Daniel from harming visitors to the complex. Chang claimed "there was no reasonable security measure that should have been in place" and "[i]t is unreasonable for a landlord to be expected to hire a security guard to protect a non-resident who may have a confrontation with a tenant when the non-resident decides to visit the premises at an unknown date and time...." Chang supported these claims with a declaration from his expert witness, who concluded "[t]his incident was not foreseeable based on previous crimes that have occurred on the premises. There is no history of prior similar incidents, shootings or crimes of violence at this location."

In his opposition, Barber contended triable issues of fact precluded summary judgment and repeated the claim in his complaint that Chang "so negligently managed the premises that plaintiff was exposed to unreasonable risk of harm." In support, Barber presented a declaration from his expert, who opined Chang should have reported Daniel's felonious assault on King and Chanda to the police and hired security guards to protect tenants and invitees. The trial court...