2011-00111743-CU-PO

Marcus Thompson vs. Emily Chen

Nature of Proceeding: Motion for Summary Judgment (The Natoma Company)

Filed By: Delanoy, Talia L.

Defendant The Natoma Company et als’ Motion for Summary Judgment is denied.

Defendants’ Request for Judicial Notice is granted.

Evidentiary objections: Deposition of Eric Broussard: Sustained.
Deposition of Ronnie Brown: Overruled. Goes to weight, not admissibility.
Deposition of Qualisha Church: Overruled.
Deposition of Jose Martinez: Sustained.
Declaration of Robert Miller: Sustained as to Item 15, 16, and 20. Otherwise
overruled.

The moving party bears the burden of persuasion that there is no triable issue of
material fact and that she is entitled to judgment as a matter of law. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850. A party moving for summary judgment
meets this burden by presenting evidence demonstrating that one or more elements
of the plaintiff’s cause of action cannot be established or that there is a complete
defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th
826, 849-850, 853-854.) Once the defendant makes this showing, the burden shifts to
the plaintiff to show that a triable issue of material fact exists with regard to that cause
of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar , at p. 850.)

Plaintiff Veronica Mobley, the only remaining plaintiff in these consolidated actions,
alleges causes of action for negligence and premises liability arising out of the
shooting death of her son, Eleea Langley III. Plaintiff alleges that moving defendants, the property manager of the Villa Capri Apartments had inadequate security on the
premises at the time of the shooting, including security guards, security fences,
security gates, or video surveillance cameras. Plaintiff alleges that defendant
conducted inadequate tenant screening, failed to have an on-site manager, and failed
to create or enforce a code of conduct for tenants and guests.

On January 14, 2010, the killers, Dominique Amos and Ronnie Brown III, came to the
Villa Capri Apartments with their sister/cousin tenant, Qualisha Church, her boyfriend
Eric Broussard, and her friend Ariel Brown. Church had just previously been evicted
for her role in a violent fight a few days earlier. Qualisha Church and her boyfriend
Eric Broussard were returning to the complex to gather some belongings,
accompanied by the shooters, Brown and Amos, and friend Ariel Brown. The
apartment manager, who did not live at the complex, was not present at the time they
went to obtain their belongings and was not present to escort them from the premises.
After the belongings were retrieved and Church and the four others walked back to
their car, Amos and Brown returned to the complex with their guns and began
shooting at a group of tenants who had been previously taunting them. There were no
security measures in place at the apartment complex.

Defendant moves for summary judgment on the ground that plaintiff will not be able to
show causation. In other words, defendant argues that no amount of security would
have prevented the shooting of plaintiff’s decedent. Defendant does not move on the
ground that they had no duty to plaintiff or provided adequate security.

Defendants’ points and authorities discuss other cases finding no causation, where the
plaintiffs could not prove that the defect in the property or lack of security was causally
connected to the plaintiff’s injuries. (See Noble v Los Angeles Dodgers, Inc. (1985)
168 Cal.App.3d 912, 916; Leslie G. v Perry & Associates (1996) 43 Cal.App.4th 42;
Saelzler v Advanced Group 400 (2001) 25 Cal.4th 763, 773-774). “In California, the
causation element of negligence is satisfied when the plaintiff establishes (1) that the
defendant’s breach of duty (his negligent act or omission) was a substantial factor in
bringing about the plaintiff’s harm and (2) that there is no rule of law relieving the
defendant of liability. Leslie G., supra, at 481. If a plaintiff seeks to prove causation by
circumstantial evidence, plaintiff cannot recover merely by showing that the inferences
she draws from those circumstances are consistent with her theory, but she must
show that the inferences favorable to her are more reasonable or probable than those
against her. (Id) Plaintiff must present evidence that it was more probable than not
that, but for the landlord’s breach (failure to provide security), the injuries would not
have occurred. In the cases relied on by defendant, the plaintiff could not prove that
increased security would have prevented the criminal activity.

In support of the motion, defendants present facts from which the inference can be
drawn is that the shooting occurred suddenly and without warning and was seemingly
random, and therefore not preventable by any measure of security. The moving
papers do not set forth any details about the context of the shooting or indicate any
causal connection between the shooting and the violent altercation that had occurred
between the parties involved a few days earlier, which led to Church’s eviction. The
moving papers contain no facts about whether the tenants standing outside the
complex at the time Church came to retrieve her belongings were taunting Church at
the time, prompting the killers to return with violent intentions.

In opposition, plaintiff presents facts from which a trier of fact could infer that the
presence of a either a security guard, surveillance cameras, the apartment manager to
escort an evicted tenant off the premises, or a combination thereof may have
prevented the shooting. Plaintiff presents evidence that the apartment complex was in
a high crime area where gangs were present and violent crime involving guns occurred
often. (UMF 1 evidence in opposition) Moreover, plaintiff presents direct evidence of
causation: One of the convicted shooters, Brown, states that he would not commit a
criminal act if a security guard were present. (Brown Depo page 22-23) Plaintiff’s
expert in property management, Robert Miller, opines that a property manager is
required to supervise employees, hire, instruct and maintain satisfactory personnel to
staff the buildings, and have an on site manager if there are 16 units or more, who is
required to report to the property manager or owner any potential dangers to tenants.
The property manager allegedly requested that the owner provide security and the
owner refused the request. Miller opines that it was below the standard of care for
Natomas to remain as property manager after Chen, the owner, refused to provide any
security despite the high degree of violent crime at the complex.(Declaration of Miller)

Miller states that based on the level of crime reported at the complex, and the fact that
tenant Church was being evicted for violent crime against other tenants, the property
manager should have been present to escort the tenant from the property. (Miller
Declaration)

It is well settled that an owner of land has a duty “to take affirmative action to control
the wrongful acts of third persons which threaten invitees where the [owner] has
reasonable cause to anticipate such acts and the probability of injury resulting
therefrom.” ( Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.) This duty is
premised on the special relationship between the landowner and the invitee (see
Rest.2d Torts, §§ 314A, 315) and the general duty to exercise reasonable care in the
management of one’s property (see Civ. Code, § 1714, subd. (a); Peterson v. San
Francisco Community College Dist. (1984) 36 Cal.3d 799, 806-807.)

A trier of fact could infer based on the evidence submitted by plaintiff that the
inferences favorable to her are more reasonable or probable than those against her.
(Id) Plaintiff has presented evidence that it was more probable than not that, but for
the landlord’s breach (failure to provide security, and/or escort from the premises), the
injuries would not have occurred.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.

Item 2 2011-00111743-CU-PO

Marcus Thompson vs. Emily Chen

Nature of Proceeding: Motion for Summary Judgment (Emily Chen)

Filed By: Wiesner, Fred G.

Defendant Emily Chen et al’s Motion for Summary Judgment is denied. Deposition of Eric Broussard: Sustained.
Deposition of Ronnie Brown: Overruled. Goes to weight, not admissibility.
Deposition of Qualisha Church: Overruled.
Deposition of Jose Martinez: Sustained.
Declaration of Robert Miller: Sustained as to Item 15, 16, and 20. Otherwise
overruled.

The moving party bears the burden of persuasion that there is no triable issue of
material fact and that she is entitled to judgment as a matter of law. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850. A party moving for summary judgment
meets this burden by presenting evidence demonstrating that one or more elements
of the plaintiff’s cause of action cannot be established or that there is a complete
defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th
826, 849-850, 853-854.) Once the defendant makes this showing, the burden shifts to
the plaintiff to show that a triable issue of material fact exists with regard to that cause
of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar , at p. 850.)

Plaintiff Veronica Mobley, the only remaining plaintiff in these consolidated actions,
alleges causes of action for negligence and premises liability arising out of the
shooting death of her son, Eleea Langley III. Plaintiff alleges that moving defendants,
the owners of the Villa Capri Apartments had inadequate security on the premises at
the time of the shooting, including security guards, security fences, security gates, or
video surveillance cameras. Plaintiff alleges that defendants conducted inadequate
tenant screening, failed to have an on-site manager, and failed to create or enforce a
code of conduct for tenants and guests.

On January 14, 2010, the killers, Dominique Amos and Ronnie Brown III, came to the
Villa Capri Apartments with their sister/cousin tenant, Qualisha Church, her boyfriend
Eric Broussard, and her friend Ariel Brown. Church had just previously been evicted
for her role in a violent fight a few days earlier. Qualisha Church and her boyfriend
Eric Broussard were returning to the complex to gather some belongings,
accompanied by the shooters, Brown and Amos, and friend Ariel Brown. The
apartment manager, who did not live at the complex, was not present at the time they
went to obtain their belongings and was not present to escort them from the premises.
After the belongings were retrieved and Church and the four others walked back to
their car, Amos and Brown returned to the complex with their guns and began
shooting at a group of tenants who had been previously taunting them. There were no
security measures in place at the apartment complex.

Defendant moves for summary judgment on the ground that plaintiff will not be able to
show causation. In other words, defendant argues that no amount of security would
have prevented the shooting of plaintiff’s decedent. Defendant does not move on the
ground that they had no duty to plaintiff or provided adequate security.

Defendants’ points and authorities discuss other cases finding no causation, where the
plaintiffs could not prove that the defect in the property or lack of security was causally
connected to the plaintiff’s injuries. (See Noble v Los Angeles Dodgers, Inc. (1985)
168 Cal.App.3d 912, 916; Leslie G. v Perry & Associates (1996) 43 Cal.App.4th 42;
Saelzler v Advanced Group 400 (2001) 25 Cal.4th 763, 773-774). “In California, the
causation element of negligence is satisfied when the plaintiff establishes (1) that the
defendant’s breach of duty (his negligent act or omission) was a substantial factor in
bringing about the plaintiff’s harm and (2) that there is no rule of law relieving the
defendant of liability. Leslie G., supra, at 481. If a plaintiff seeks to prove causation by
circumstantial evidence, plaintiff cannot recover merely by showing that the inferences
she draws from those circumstances are consistent with her theory, but she must
show that the inferences favorable to her are more reasonable or probable than those
against her. (Id) Plaintiff must present evidence that it was more probable than not
that, but for the landlord’s breach (failure to provide security), the injuries would not
have occurred. In the cases relied on by defendant, the plaintiff could not prove that
increased security would have prevented the criminal activity.

In support of the motion, defendants present facts from which the inference can be
drawn is that the shooting occurred suddenly and without warning and was seemingly
random, and therefore not preventable by any measure of security. The moving
papers do not set forth any details about the context of the shooting or indicate any
causal connection between the shooting and the violent altercation that had occurred
between the parties involved a few days earlier, which led to Church’s eviction. The
moving papers contain no facts about whether the tenants standing outside the
complex at the time Church came to retrieve her belongings were taunting Church at
the time, prompting the killers to return with violent intentions.

In opposition, plaintiff presents facts from which a trier of fact could infer that the
presence of a either a security guard, surveillance cameras, the apartment manager to
escort an evicted tenant off the premises, or a combination thereof may have
prevented the shooting. Plaintiff presents evidence that the apartment complex was in
a high crime area where gangs were present and violent crime involving guns occurred
often. (UMF 1 evidence in opposition) Moreover, plaintiff presents evidence of
causation: One of the convicted shooters, Brown, states that he would not commit a
criminal act if a security guard were present. (Brown Depo page 22-23) Plaintiff’s
expert in property management, Robert Miller, opines that a property manager is
required to supervise employees, hire, instruct and maintain satisfactory personnel to
staff the buildings, and have an on site manager if there are 16 units or more, who is
required to report to the property manager or owner any potential dangers to tenants.
The property manager allegedly requested that the owner provide security and the
owner refused the request. Plaintiff presented evidence that Chen, the owner, knew of
the violent crimes and had been told by the property manager of the dangerous
condition yet did nothing to increase the security. Miller opines that it was below the
standard of care for Natomas to remain as property manager after Chen, the owner,
refused to provide any security despite the high degree of violent crime at the complex.
(Declaration of Miller)

Miller states that based on the level of crime reported at the complex, and the fact that
tenant Church was being evicted for violent crime against other tenants, the property
manager should have been present to escort the tenant from the property. (Miller
Declaration)

It is well settled that an owner of land has a duty “to take affirmative action to control
the wrongful acts of third persons which threaten invitees where the [owner] has
reasonable cause to anticipate such acts and the probability of injury resulting
therefrom.” ( Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.) This duty is
premised on the special relationship between the landowner and the invitee (see
Rest.2d Torts, §§ 314A, 315) and the general duty to exercise reasonable care in the
management of one’s property (see Civ. Code, § 1714, subd. (a); Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806-807.)

A trier of fact could infer based on the evidence submitted by plaintiff that the
inferences favorable to her are more reasonable or probable than those against her.
(Id) Plaintiff has presented evidence that it was more probable than not that, but for
the landlord’s breach (failure to provide security, and/or escort from the premises), the
injuries would not have occurred.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.