Vasquez v. Residential Investments, Inc.

• Decision Date: 04 May 2004
• Docket Number: No. D042575.,D042575.
• Court: California Court of Appeals Court of Appeals
• Parties: Abigail VASQUEZ, a Minor, etc., et al., Plaintiffs and Appellants, v. RESIDENTIAL INVESTMENTS, INC., et al., Defendants and Respondents.

12 Cal.Rptr.3d 846

118 Cal.App.4th 269

Abigail VASQUEZ, a Minor, etc., et al., Plaintiffs and Appellants, v. RESIDENTIAL INVESTMENTS, INC., et al., Defendants and Respondents.

No. D042575.

Court of Appeal, Fourth District, Division 1.

May 4, 2004.

Rehearing Denied May 27, 2004.

Review Denied August 11, 2004.

Anton C. Gerschler, San Diego, and Dena M. Acosta, Leucadia, for Plaintiffs and Appellants.

Bonnie R. Moss & Associates, Gena P. Marca, Riverside; Barry, Bartholomew & Associates and Kathryn Albarian, Santa Monica, for Defendants and Respondents.

McDONALD, J.

In August 2000 a jealous boyfriend broke into the apartment of his estranged girlfriend and murdered her. In this wrongful death action, plaintiffs allege the defendants, owners the apartment building,¹ were negligent by not replacing a missing pane of glass in the apartment's front door used by the murderer to obtain entry, and that negligence substantially contributed to the decedent's death by expediting the murderer's entry into the apartment. The trial court entered summary judgment for Owners, and we reverse.

I FACTUAL BACKGROUND²

A. Condition of the Premises

Abigail Ramirez (decedent) and her infant daughter lived with decedent's parents in an apartment (Apartment 6) in a building owned by Owners. The front door to Apartment 6 is a wood door with diamond and triangular shaped glass panes in the top half. When the family moved in, one of the glass panes was missing and a piece of cardboard covered the opening. Shortly after moving in, decedent's mother (Elsa) complained to the apartment manager and requested the missing pane be replaced because it was "pretty cold." Decedent's parents made several subsequent requests that the glass pane be replaced because they felt the absence of the pane created a security risk. However, the missing pane was never replaced.³ Eventually, decedent's brother replaced the cardboard with a piece of plywood; he used finishing nails to tack the plywood to the door.

B. The August 2000 Murder

Jesus Vasquez (Jesus), decedent's boyfriend and the father of her infant child, had visited Apartment 6 on numerous occasions. Jesus and decedent had lived together at his parents' apartment, but a few days before the murder decedent had moved into Apartment 6 with her parents following an argument with Jesus.

On August 6, 2000, Jesus heard that decedent was having an affair with her former boyfriend. Between 8:00 and 9:00 a.m. that morning, Jesus (armed with a knife) drove to Apartment 6 to confront decedent. He pounded on the door to Apartment 6 twice, and became angry "because they weren't letting [him] in." When no one responded to his demands, Jesus removed the plywood panel that replaced the glass pane in the door, reached through the opening, opened the door from the inside and entered the apartment. Jesus testified that when Elsa and decedent refused to let him in, he recognized the missing pane provided him an easy opportunity to gain entrance because it was relatively easy to push out the wood panel (requiring only a "hard knock" to push it aside) without risking potential injury to his hand had he punched through a glass pane. Jesus testified he would not have tried to break in through a glass pane because of the risks and difficulties but instead would have waited outside until decedent emerged.

When Jesus entered Apartment 6, Elsa and decedent (along with decedent's infant daughter) were inside. Although Elsa tried to position herself between Jesus and decedent, Jesus pushed Elsa down and incapacitated her. He then confronted decedent, fatally stabbing her, cut the telephone line and escaped. Jesus was later convicted of murder.

C. Extant Dangers

No one was aware that Jesus was potentially violent. However, the neighborhood surrounding the apartment building had experienced the commission of some crimes, including violent crimes, and there were reports of an alleged rape in the apartment building, although the apartment manager viewed the reports of rape to be questionable. Decedent's family had experienced an incident in which two men, apparently in a case of mistaken identity, had attempted to enter Apartment 6 but then fled when decedent's father warned them not to enter. The apartment building itself was secured by fencing, including a fence topped by razor accordion wire on three sides.

II PROCEDURAL BACKGROUND

The complaint for wrongful death against Owners contained a single cause of action based on premises liability. It alleged Owners, as lessors of Apartment 6, were negligent by not replacing the missing windowpane, and that negligence was a direct and proximate cause of the attack on and death of decedent.

Owners moved for summary judgment, contending the existence of a duty of care is a matter of law resolvable on summary judgment. Owners argued that under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.) and Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 91 Cal.Rptr.2d 35, 989 P.2d 121 (Sharon P.), disapproved on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, footnote 19, 107 Cal.Rptr.2d 841, 24 P.3d 493, a property owner has no duty to make his property crime-proof or take precautions against third party criminal conduct the owner had no reason to anticipate, and Owners had no reason to anticipate Jesus's violent behavior. Owners also asserted the failure to replace the windowpane did not create a dangerous condition because it created no unreasonable or substantial risk of injury, and Jesus's criminal conduct was a superseding intervening cause of the injury. Plaintiffs opposed the motion, arguing a landlord's duty to repair a door arises from numerous statutory and common law obligations, and therefore the only issue was whether the landlord's failure to replace the windowpane was a substantial factor in causing the injury. Plaintiffs argued that causation is ordinarily a question of fact and the evidence raised triable issues of fact as to the causal nexus between the missing glass pane and the resulting attack, and therefore summary judgment was inappropriate.

The court tentatively ruled in favor of Owners, concluding they had no notice of Jesus's violent tendencies or of criminal activity around the apartment building, and therefore owed no duty to replace the windowpane. The court also ruled (apparently on the issue of causation) it was unlikely Jesus would have been stopped even if the glass pane had been replaced. The court granted plaintiffs' request to obtain and submit testimony from Jesus. Plaintiffs submitted Jesus's deposition testimony to support their argument that an issue of fact existed on whether Jesus would have remained outside Apartment 6 if the missing pane had not provided him easy access.⁴ THE COURT CONFIRMEd its ruling in owners' favor, hoLding the subject incident was not sufficiently foreseeable to give rise to a duty on Owners to prevent Jesus from entering Apartment 6. After plaintiffs' motion for reconsideration was denied, the court entered judgment in favor of Owners, and plaintiffs timely appealed.

III LEGAL STANDARDS

A Standard of Review

"The summary judgment procedure aims to discover whether there is evidence requiring the fact-weighing procedures of trial. [Citation.] `[T]he trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.' [Citation.] The trial judge determines whether triable issues of fact exist by reviewing the affidavits and evidence before him or her and the reasonable inferences which may be drawn from those facts." (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131, 40 Cal.Rptr.2d 249.) To prevail on a motion for summary judgment, a defendant must show one or more elements of the plaintiff's cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o).) The evidence of the moving party is strictly construed and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion are to be resolved in favor of the party opposing the motion. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189, 43 Cal.Rptr.2d 392.)

Consequently, summary judgment should be granted only when a moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) Because a motion for summary judgment raises only questions of law, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582, 35 Cal.Rptr.2d 876; Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 723, 36 Cal.Rptr.2d 665.) In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1121-1122, 63 Cal.Rptr.2d 359.)

B. Negligence Principles

The elements of a cause of action for negligence are: the "defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292-293, 253 Cal.Rptr. 97, 763 P.2d 948.) "[E]very [negligence] case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. (Adams v....