Hawkins v. Wilton

• Citation: 144 Cal.App.4th 936,51 Cal.Rptr.3d 1
• Decision Date: 11 October 2006
• Docket Number: No. C049462.,C049462.
• Parties: Michael William HAWKINS, Plaintiff and Appellant, v. Mark WILTON et al., Defendants and Respondents.
• Court: California Court of Appeals

51 Cal.Rptr.3d 1

144 Cal.App.4th 936

Michael William HAWKINS, Plaintiff and Appellant, v. Mark WILTON et al., Defendants and Respondents.

No. C049462.

Court of Appeal, Third District.

October 11, 2006.

Jay-Allen Eisen, Sacramento, Kenneth N. Meleyco, Stockton, for Plaintiff and Appellant.

La Follette, Johnson, De Haas, Fesler, Silberberg & Ames, Barry Vogel and John R. Haluck, Sacramento, for Defendants and Respondents.

MORRISON, J.

David Anthony Rodriguez shot Michael William Hawkins outside an apartment complex. We affirmed Rodriguez's convictions for attempted murder and related charges. (People v. Rodriquez (Dec. 21, 2005, C045870) [nonpub. opn.], 2005 WL 3489892.)

In this case Hawkins sued the owners and managers of the apartment complex (collectively Wilton), alleging that Wilton was negligent in hiring Rodriguez as an apartment manager and security guard and in allowing him to remain as a tenant after notice of his dangerous propensities, specifically, that Wilton knew Rodriguez had been convicted of manslaughter, and that he carried guns, used methamphetamine and threatened tenants while working for Wilton. The trial court granted Wilton's motion for summary judgment and Hawkins timely appealed.

Hawkins first argues Wilton did not meet his burden to show a lack of triable issues. We agree. Wilton's motion did not even purport to show that Hawkins could not prove his respondeat superior theory of recovery, that is that Rodriguez shot him while working for Wilton, and Hawkins appropriately raised this failing in the trial court. Because Wilton did not alternatively seek summary adjudication, we decline to address issues about those legal theories on which Wilton might possibly have prevailed. We reverse.

STANDARD AND SCOPE OF REVIEW

We review summary judgment appeals by applying the same three-step analysis applied by the trial court: First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact. We review these matters de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-855, 860, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335, 100 Cal. Rptr.2d 352, 8 P.3d 1089 (Guz).)

As for defense motions, "we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of a trial[.]" (Guz, supra, 24 Cal.4th at p. 334, 100 Cal. Rptr.2d 352,8 P.3d 1089.) Wilton bore the burden "to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, italics added.)

"Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff." (Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533, 24 Cal.Rptr.2d 304; see Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 89 Cal.Rptr.2d 540 [plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden]; Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-746, 41 Cal. Rptr.2d 719 (Villa); Cal. Judges Benchbook: Civil Proceedings Before Trial (CJER 1995) Summary Judgment and Summary Adjudication Motions, §§ 13.43-13.45, pp. 681-683; id, (2005 update) 13:45, p. 548 [defendant must "present evidence and not simply point out through argument " the facts to support summary judgment].)

As will be seen, we need not proceed beyond the second step of analysis because Wilton failed to carry his burden.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Pleadings

The first amended complaint alleged that on May 5, 2003, "and prior to that time" both Hawkins and Rodriguez were tenants of the complex and on that date Rodriguez shot Hawkins. Wilton knew that Rodriguez had been convicted of voluntary manslaughter and served a prison term therefor. Wilton had been warned by other tenants that Rodriguez "was dangerous and was using illegal drugs (methamphetamines), `tweeking on crank' (meaning over using said drug and being out of control), and carrying numerous different loaded firearms around the Kentfield Apartments complex." Wilton had been warned that Rodriguez "had pulled a gun several times on another tenant and that the tenants were frightened for themselves and their children for their own personal safety." Nonetheless, Wilton employed Rodriguez "as manager and night security guard."

This pleading explicitly captioned four legal theories. First, Wilton was liable as Rodriguez's employer (respondeat superior). Second, Wilton was negligent in hiring and retaining Rodriguez. Third, Wilton was negligent in not protecting tenants from foreseeable criminality. Fourth, Wilton had been negligent as a landlord in allowing a dangerous tenant to remain in possession.

Wilton denied these allegations and raised a number of affirmative defenses.

B. The Motion for Summary Judgment

Wilton's motion raised one legal theory: "[B]ecause the shooting occurred outside the premises of the apartment complex between two individuals freely and voluntarily associating with each other, as a matter of public policy and as a matter of law, defendants had no duty to protect plaintiff."

Wilton tendered six alleged undisputed facts, as follows.

(1) The shooting occurred "in the city street and on the sidewalk outside the premises" of the complex.

(2) Rodriguez and Hawkins "were `pretty good acquaintances' and `pretty friendly' who worked together for several weeks and spoke and smoked cigarettes" together almost daily.

(3) Hawkins had warned Wilton's managers "a week or two before" that Rodriguez acted "`weird,'" carried guns, and was "`going to end up killing somebody or something.'"

(4) Hawkins continued to socialize with Rodriguez.

(5) Hawkins freely let Rodriguez into his apartment and willingly went with Rodriguez to the street.

(6) Hawkins and his fiance "who were much closer to [Rodriguez] than defendants, had no warning or factual information that would cause them to reasonably anticipate" that Rodriguez would hurt Hawkins.

C. The Opposition

Hawkins pointed out in his written opposition and at the hearing that Wilton's facts and theory did not negate all theories of liability. Hawkins disputed some facts and their import and tendered other facts.

Trial Court Ruling

The trial court sustained Wilton's objections to some evidence and overruled some of Hawkins's objections. As for respondeat superior, negligent hiring and retaining a dangerous tenant, the trial court ruled Hawkins's tendered evidence was inadmissible on various grounds. Based on purported gaps in Hawkins's opposition, the trial court found Rodriguez was not an employee or tenant "at the time of the shooting" and although "perhaps triable" whether the shooting took place on Wilton's property (as opposition evidence showed—and as Wilton now concedes on appeal), "Rodriguez's criminal conduct was not reasonably foreseeable under the circumstances here; and, imposing a duty and liability on Defendants for not having prevented Rodriguez from coming onto the property to visit his family or evicted the mother of his children and his children would be in violation of public policy."

Wilton's motion did not tender facts as to whether Rodriguez was a tenant or an employee or exercised apparent authority over the premises even if he was no longer employed, and no mention was made about his possible reasons for being on the property (e.g., to visit family). Nor did the motion address the knowledge Wilton allegedly had about Rodriguez's conviction, drug use, display of firearms at the complex and so forth, as alleged by Hawkins.

DISCUSSION

The motion for summary judgment should have been denied because it did not refute tenable pleaded theories. As existing caselaw explains, because summary judgment deprives a party of his or her right to a jury trial, the erroneous granting of a motion for summary judgment will ordinarily be reversible error and will be found harmless only where the trial court's error was technical. Here the trial court disregarded the statutory framework of summary judgment and improperly shifted the burden to Hawkins; the error was neither minor nor technical.

I. Error

We review a summary judgment appeal in the footsteps of the trial court. Before even looking at Hawkins' evidence, we consider whether Wilton established a prima facie case for relief. He did not.

The facts tendered by Wilton do not address, far less negate, the theory that Rodriguez was Wilton's employee and was allowed to carry firearms although he was known by Wilton to be a convicted felon (convicted of a serious and violent felony, viz., voluntary manslaughter) and known to be an out-of-control methamphetamine user who had threatened tenants. An employer who allowed such conduct by a manager or security guard would not be insulated from respondeat superior liability simply because the tenant chose to socialize with the employee, or simply because the shooting took place on the sidewalk outside the apartment complex. Nor did Wilton's evidence or legal argument negate the theory that Wilton negligently retained Rodriguez as a tenant, despite the alleged obvious danger.

We briefly outline the substantive law...