>Chandler>
v. Vallejo>
Maine>
I Partners





















Filed 12/31/12 Chandler v. Vallejo Maine I Partners CA1/4

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION FOUR




>

JAYDEN LEWIS CHANDLER, a Minor, etc. Plaintiff and Appellant, v. VALLEJO MAINE I PARTNERS, LLP et al., Defendants and Respondents.

A133272 (San Francisco County Super. Ct. No. CGC-09-486137)

Shortly before midnight on June 19, 2008, Charles Chandler
II was murdered in the common area of the Marina Vista Apartments (Marina
Vista) in Vallejo. Chandler was not a
tenant at Marina Vista, but was on his way to visit an aunt who lived
there. Chandler’s
four-year-old son, Jayden Lewis Chandler,href="#_ftn1" name="_ftnref1" title="">[1]
brought this wrongful death action, by
and through his guardian ad litem David Lewis, against Marina Vista’s owners
and operators, its management and security services providers, and against the
Solano County Affordable Housing Foundation (defendants). href="#_ftn2"
name="_ftnref2" title="">[2] The trial court granted summary judgment in
favor of defendants, finding plaintiff had failed to present any admissible
evidence raising a triable issue of
material fact as to either duty or causation.
Plaintiff contends the trial court committed reversible error by denying
plaintiff’s request for a continuance, finding defendants had met their burden,
and concluding plaintiff failed to present admissible evidence raising a
triable issue of fact as to duty and causation.
We affirm.

I. BACKGROUND

A. The Property

1. Gates
and Locks

Marina Vista is a 20-building,
236-unit apartment complex located on a 10-acre site in downtown Vallejo.href="#_ftn3" name="_ftnref3" title="">[3] Defendants knew of frequent recurring
criminal activity on the premises of the complex. A wrought iron fence surrounds the perimeter
of the complex. There are 21 pedestrian
gates, as well as additional automobile gates that allow access to Marina
Vista. The fence and gates were
installed for the protection of Marina Vista tenants. Marina Vista’s property manager testified
that prior to Chandler’s murder, the gates were supposed to be locked. However, the locks were “constantly broken.” As a result, the property manager had vendors
coming out to the property to repair the locks “[e]very other day.”

2. Guards,
Curfew, and Trespasser Policy

Marina Vista utilized professional,
armed security guards to patrol the complex.
In June 2008, security guards patrolled the premises Sunday from
5:00 p.m. to 11:00 p.m., from 3 p.m. to 11:00 p.m. Monday through
Thursday, 3:00 p.m. to 1:00 a.m. Friday, and from 5:00 p.m. Saturday to
1:00 a.m. Sunday. After 11:00 p.m. during the week and midnight on the weekend, three
random vehicle patrols took place during the night.

Part of the responsibilities of the
security guards included questioning people in the common areas to verify
whether they were entitled to be in the complex. If the individual questioned was neither a
tenant nor a guest, security asked the person to leave. In order to further restrict the number of
people in the common areas, Marina Vista instituted a 10:00 p.m. curfew, which the security guards were responsible for
enforcing. If a tenant or guest was
observed in the common areas after curfew and that person was not in the
process of just arriving at or leaving the property, security would ask the
person to return to his or her apartment or to leave the property. The security guards wrote activity reports
each day, noting at regular intervals the activity or lack thereof occurring at
the premises.

By all accounts, the security guards
were very effective in protecting Marina Vista tenants and their guests. The property manager testified that the
guards were good at deterring crime and removing trespassers. Prior to Chandler’s murder,
the property manager thought to herself that increased security guard coverage
would be beneficial. The property
manager initially testified that she could not remember if she ever acted on
this belief. Later, the property manager
indicated that she mentioned the issue of extended guard coverage to her
supervisor, but the property manager could not recall if her supervisor ever
got back to her. The property manager
explained that she did not know whether funds had been available to her to
increase the guard coverage. Rather, she
stayed within the parameters of the then-existing security contract.

3. Lighting


The property manager testified the
lighting at Marina Vista was an additional security feature to aid in deterring
crime at Marina Vista. In fact, the year
before Chandler’s death, the exterior lighting of the buildings was upgraded to 400
watts.

B. >Chandler>’s Murder

On the evening of Thursday, June 19, 2008, Chandler went to Marina Vista to spend the night at his aunt’s apartment and
to smoke some marijuana there. As he
entered the complex through one of the many gated entrances, Chandler called his
aunt to tell her he was close to her building.
Chandler, however, never made it to his aunt’s building. While walking there, Chandler was shot and
killed in a common area.

On the evening of the murder,
security guards had been on duty from 3:00 p.m. to 11:00 p.m. Officers from the Vallejo Police Department
had been dispatched to Marina Vista twice that day for unrelated matters. In the afternoon, police officers were on
site looking for a criminal suspect in one of the buildings. Later that evening, police officers returned
in response to a report of a fight involving 50 people.href="#_ftn4" name="_ftnref4" title="">[4]

Chandler’s aunt testified that the
lights at Marina Vista were working on the night of the murder. In fact, she was able to see her nephew’s
body at the scene from 20 feet away.

The property manager testified that
she did not know if the gates were operational and locked on the night of
Chandler’s murder.

Prior to Chandler’s murder,
defendants were unaware of any other shooting death at Marina Vista.

C. Criminal
Investigation

Jonathan Walker was a known trespasser at Marina Vista. The guards were authorized to remove him from
the premises by any means necessary.
Prior to Chandler’s murder, Walker had verbally threatened various
Marina Vista tenants with bodily harm.
The property manager testified that she could not recall Walker ever
threatening any tenants with weapons.
She also could not recall how long before Chandler’s murder that the
verbal threats had occurred.

Two months after Chandler’s murder,
Walker and P.A. were arrested in connection with a robbery occurring at Marina
Vista. On August 21, 2008, while at the
county jail, P.A. told police that he had information about Chandler’s
murder. P.A. said that Walker killed
Chandler “as a result of a fight that happened some time ago at [another]
apartment complex in Vallejo.”
Initially, P.A. said that he had not witnessed the murder, but only
heard about it from Walker, who had confessed to killing Chandler several days
after the murder. When police confronted
P.A. with a statement from his girlfriend in which she said that P.A. told her
that he had witnessed the murder, P.A. eventually admitted that he in fact had
witnessed the murder.

After several attempts to obtain the
police report from the Vallejo Police Department, plaintiff’s counsel
eventually acquired the report from the city attorney’s office in May
2010. The report was subsequently turned
over to the defendants’ counsel “with an informal agreement that the parties
would not use the police report for any purpose which might unnecessarily
prejudice the investigation and/or prosecution of the criminal suspects” in
Chandler’s murder. Following the release
of the police report, plaintiff’s counsel communicated with the Vallejo Police
Department to determine the status of the criminal investigation and discovered
that it was “a cold case because of the dire financial straits” of the police
department.

D. Ensuing Civil Action

By second amended complaint, dated
June 3, 2010, plaintiff alleged that defendants, knowing that dangerous persons
frequented Marina Vista and that “massive amounts of criminal activity”
occurred there, nonetheless failed to maintain the premises in a safe
condition, provide adequate security, and warn others of the unsafe
conditions. Plaintiff did not, however,
identify in discovery the specific acts defendants should have taken to prevent
the murder. On November 22, 2010,
defendants moved for summary judgment on the basis that they did not owe
Chandler a duty to protect him from third-party criminal acts, and that
plaintiff was unable to establish any substantial causal link between
defendants’ omission and Chandler’s death.
On December 29, 2010, plaintiff sought a six-month continuance on the
ground that the Vallejo Police Department had recently reopened the previously
inactive murder investigation regarding Chandler’s death. The court granted the motion and the hearing
for defendants’ summary judgment motion was renoticed for June 15, 2011.

On May 27, 2011, plaintiff requested
a four-month continuance of the summary judgment hearing on the ground that the
ongoing criminal investigation prevented him from pursuing certain evidence in
opposition to summary judgment, such as taking the depositions of key
witnesses, including primary suspect Walker, as well the various law enforcement
personnel involved in the criminal investigation. That request was denied.

In opposing summary judgment,
plaintiff argued that it was “highly foreseeable” that Walker—a known
trespasser who had engaged in drug dealing and made threats of violence against
Marina Vista tenants—would have attacked someone after 11:00 p.m., “when no
physical security presence remained at the complex.” Plaintiff asserted that defendants’ failure
to enforce the security measures that were “already on the books” was a substantial
factor in Chandler’s murder. Plaintiff
presented no expert testimony to support his position that the murder could
have been prevented if there had been better security at Marina Vista.

On June 15, 2011, the trial court
issued a tentative ruling granting defendants’ motion for summary judgment on
the ground that plaintiff had failed to present admissible evidence as to the
specifics of Chandler’s murder and, thus, failed to raise a triable issue of
fact as to duty or causation. The order
confirming this decision was filed on July 14, 2011. The instant appeal followed.

II. DISCUSSION

A. Standard of Review

We review the trial court’s grant of
summary judgment de novo. (Johnson v.
City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68.) In reviewing summary judgment motions, we
consider all the material evidence properly set forth in the moving papers,
except matters to which objections have been made and sustained by the trial
court. (Code Civ. Proc., § 437c, subds.
(b), (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.) We consider all inferences
reasonably deduced from the evidence unless such inferences are contradicted by
other inferences or evidence. (Code Civ.
Proc., § 437c, subd. (c); Aguilar at p. 856.) We do not consider conclusory statements or
inferences “ ‘. . . derived from speculation, conjecture, imagination, or
guesswork.’ ” (Waschek v. Department of Motor Vehicles (1997) 59
Cal.App.4th 640, 647.)

It is the defendant’s burden on a href="http://www.fearnotlaw.com/">motion for summary judgment to show by
supporting evidence that one or more element of the plaintiff’s cause of action
cannot be established as a matter of law.
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at
pp. 853, 855.) The burden then
shifts to the plaintiff to show by specific, admissible evidence that a triable
issue of material fact exists. (Code
Civ. Proc., § 437c, subd. (o)(2);
Aguilar at pp. 849, 850-851.) If
the plaintiff fails to meet this burden, the motion should be granted. (Aguilar at pp. 855, 857.)

B. Request for
Continuance

Plaintiff argues that the trial
court erred as a matter of law by denying his second request for a
continuance. Code of Civil Procedure
section 437c, subdivision (h) provides, in relevant part: “If it appears from the affidavits submitted
in opposition to a motion for summary judgment . . . that facts essential to
justify opposition may exist but cannot, for reasons stated, then be presented,
the court shall deny the motion, or order a continuance to permit affidavits to
be obtained or discovery to be had or may make any other order as may be just.”

“When a party makes a good faith
showing by affidavit demonstrating that a continuance is necessary to obtain
essential facts to oppose a motion for summary judgment, the trial court must
grant the continuance request.
[Citation.] ‘Continuance of a
summary judgment hearing is not mandatory, however, when no affidavit is
submitted or when the submitted affidavit fails to make the necessary showing
under [Code of Civil Procedure] section 437c, subdivision (h). [Citations.]
Thus, in the absence of an affidavit that requires a continuance under
section 437c, subdivision (h), we review the trial court’s denial of
appellant’s request for a continuance for abuse of discretion.’ ” (Park v.
First American Title Co. (2011) 201 Cal.App.4th 1418, 1428.)

As we recently explained in >Johnson v. Alameda County Medical Center (2012)
205 Cal.App.4th 521, “[a]n opposing party’s declaration in support of a motion
to continue the summary judgment hearing should show the following: (1) ‘Facts establishing a
likelihood that controverting evidence may exist and why the
information sought is essential to opposing the motion’; (2) ‘The specific
reasons why such evidence cannot be
presented at the present time’; (3) ‘An estimate of the time necessary
to obtain such evidence’; and (4) ‘The specific steps or procedures the
opposing party intends to utilize to obtain such evidence.’ (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group
2012) ¶ 10:207.15, p. 10-83 (rev. 1, 2011.)” (Id. at
pp. 531-532.)

Here, the declaration of plaintiff’s
counsel explains that “[b]ased on the open and active status of the Chandler
homicide investigation and the related fact that . . . Walker is now
being actively sought by multiple law enforcement agencies as a suspect in
three separate murders, [p]laintiff would like to continue the trial and
related dates for another four [] months to allow the investigation to be
completed and to avoid potentially interfering with the investigation, as well
as to avoid prejudice in [p]laintiff’s . . . opposition to
[d]efendant[s’] pending motion for summary judgment for which [p]laintiff would
like to use testimony from [P.A. and his girlfriend], as well
as . . . Walker, if possible.”
Elsewhere in the declaration, however, plaintiff’s counsel states that
“[i]t is unknown how long the investigation of the Chandler [homicide] will
take to complete since the whereabouts of . . .Walker[] are currently
unknown.” Counsel added that “it is not
anticipated the investigation can be completed until . . .
Walker is apprehended.” Counsel further
explained that it “has long been anticipated by [p]laintiff’s counsel that
depositions of [P.A. and his girlfriend] would be taken . . . and
used in opposition to any defense motion for summary judgment, as well as the
officers of the Vallejo Police Department who were involved in investigating
the murder and preparing the police report.”

Counsel’s declaration fell short in
several respects and was insufficient to support a continuance. “Code of Civil Procedure section 437c,
subdivision (h) requires more than a simple recital that ‘facts essential to
justify opposition may exist.’ ” (Lerma v. County of Orange (2004)
120 Cal.App.4th 709, 715.) “The
statute cannot be employed as a device to get an automatic continuance by every
unprepared party who simply files a declaration stating that unspecified
essential facts may exist. The party
seeking the continuance must justify the need, by detailing both the particular
essential facts that may exist and the specific reasons why they cannot then be
presented.” (Id. at pp.
715–716.) Plaintiff here failed to
detail the facts he expected to discover and to provide an estimate of the time
necessary to obtain such evidence.
Indeed, counsel’s declaration demonstrates that discovery likely would
be forestalled for an indeterminable time, as the investigation was contingent
upon the apprehension of Walker, whose whereabouts were then unknown. Taken to its logical conclusion, the request
for a continuance was a request for a permanent stay. Plaintiff therefore was not entitled to a
mandatory continuance under Code of Civil Procedure section 437c, subdivision
(h).

The trial court was, nevertheless,
free to grant a continuance under its broad discretionary power. (Lerma v. County of Orange, supra, 120
Cal.App.4th at p. 716.) In deciding
whether to continue a summary judgment to permit additional discovery courts will
consider: (1) how long the case has been
pending; (2) how long the requesting party had to oppose the motion; (3)
whether the continuance motion could have been made earlier; (4) the proximity
to trial; (5) any prior continuances for the same reason; and (6) the
question whether the evidence sought is truly essential to the motion. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2012) ¶ 10:208.1, p. 10-85.)

Here, the case had been pending
since March 2009. Since May 2010—more
than a year before the filing of the summary judgment motion—plaintiff had been
in possession of the police report, naming the suspect and eyewitnesses. Moreover, by all accounts, the investigation
was inactive until the end of December 2010.
Other than his informal agreement not to impede the criminal
investigation, plaintiff offers no explanation for failing to conduct discovery
during this period. It is unclear how
discovery would have interfered with a dormant criminal investigation.href="#_ftn5" name="_ftnref5" title="">[5]

Last, but certainly not least, the
trial court had previously granted a six-month continuance of the summary
judgment motion based on the same reason.
Yet, during this period nothing had changed. Plaintiff simply failed to conduct any
meaningful discovery during the more than two years that elapsed between the
initiation of suit and the close of discovery.
Given this lack of diligence in conducting discovery, the court
reasonably denied plaintiff’s request for a continuance to conduct further
discovery that was contingent upon a criminal investigation that arguably had
no end in sight.

C. Defendants’ Liability
for Criminal Acts on Property

“A defendant may owe an affirmative
duty to protect another from the conduct of third parties if he or she has a
‘special relationship’ with the other person.
[Citations.] Courts have found
such a special relationship in cases involving the relationship between
business proprietors such as shopping centers, restaurants, and bars, and their
tenants, patrons, or invitees . . . .
[W]e [have] recognized as ‘well established’ the proposition that a
proprietor’s ‘general duty of maintenance, which is owed to tenants and
patrons, . . . include[s] the duty to take reasonable steps to
secure common areas against foreseeable criminal acts of third parties that are
likely to occur in the absence of such precautionary measures.’ [Citations.]”
(Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235-236,
italics omitted.) In a case where the
“plaintiff, injured on [the defendant’s] premises by the criminal assault of
unknown assailants, seeks to recover damages . . . on the theory
that [the defendant] breached [its] duty of care . . ., the plaintiff must show
that the defendant owed [him] a legal duty of care, the defendant breached that
duty, and the breach was a proximate or legal cause of [his] injury. [Citations.]”
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772,
italics omitted (Saelzler).)

“ ‘[A] high degree of foreseeability is
required in order to find that the scope of a landlord’s duty of care includes
the hiring of security guards.’ ” (Delgado
v. Trax Bar & Grill, supra, 36 Cal.4th at p. 238, italics
omitted.) Here, defendants provided
security guards on the premises, but plaintiff argues the security levels and
methods of deployment were inadequate, and this failure allowed Chandler’s
murder to take place. “When an injury
occurs despite a defendant’s efforts to provide security or supervision, it is
relatively easy to claim that, ipso facto, the security or supervision provided
was ineffective. Without more, such
claims fail. For analysis purposes,
courts assume duty and breach and focus upon causation.” (Thompson v. Sacramento City Unified
School Dist. (2003) 107 Cal.App.4th 1352, 1370.)
Similarly, for our analysis of this issue on appeal, we assume duty and
breach, and look directly to the issue of causation.

In order “to demonstrate actual or
legal causation, the plaintiff must show that the defendant’s act or omission
was a ‘substantial factor’ in bringing about the injury.” (Saelzler, supra, 25 Cal.4th at p.
774, citing Nola M. v. University of Southern California (1993) 16
Cal.App.4th 421, 427 (Nola M.).) “[T]he plaintiff must do more than simply
criticize, through the speculative testimony of supposed security ‘experts,’
the extent and worth of the defendant’s security measures, and instead must
show the injury was actually caused by the failure to provide greater
measures.” (Saelzler at p. 774,
citing Nola M. at p. 435.)
“ ‘A mere possibility of such causation is not enough; and when the
matter remains one of pure speculation or conjecture, or the probabilities are
at best evenly balanced, it becomes the duty of the court to direct a verdict
for the defendant.’ [Citation .]” (Saelzler at pp. 775-776, italics
omitted.) Liability cannot be
established by a showing of “ ‘abstract negligence,’ ” for instance
by a showing of the defendant’s failure to provide security that conformed to
the plaintiff’s expert’s notion of adequacy, without any causal nexus between
that failure and the resulting injuries.
(Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 515-516.)

In Saelzler, supra, 25
Cal.4th 723, the plaintiff, an employee of Federal Express, went to an
apartment complex owned by the defendants to deliver a package. She saw two men loitering outside a security
gate that had been propped open, and another man already on the premises. As she returned from the apartment to which
she had attempted to deliver the package, the three men confronted her, beat
her, and tried to rape her. Afterward,
the three men fled and were never apprehended.
(Id. at p. 769.) The
plaintiff sued the defendants, alleging that they knew dangerous people
frequented their premises, but failed to maintain their premises in a safe
condition, failed to provide adequate security, and failed to warn others of
the unsafe condition. (Ibid.) The defendants moved for summary judgment,
contending the plaintiff could not establish a substantial causal link between
her injury and their omissions. (Ibid.) In opposition, the plaintiff noted that
police officers had advised defendants and their security firm that they should
hire daytime security patrols. (Id.
at pp. 770-771.) She also filed a
declaration from a security expert, who opined that the attack would not have
occurred if there had been daytime security and a greater effort to keep the
gates repaired and closed. (Id.
at p. 771.)

The court assumed for purposes of
discussion that the defendants had a duty to provide a reasonable degree of
security on the premises and that they breached that duty by failing to keep
the gates locked and functioning and to provide additional daytime
security. However, the court agreed with
defendants that the evidence failed to show that either breach contributed to
the plaintiff’s injuries. (Saelzler,
supra, 25 Cal.4th at p. 775.)
Because the identity of the assailants was unknown, they might have been
tenants who were authorized to be on the premises. (Id. at p. 776.) Thus, despite the “speculative opinion of
plaintiff’s expert,” the plaintiff could not show that defendant’s breaches
were a substantial factor in causing her injuries. (Ibid.) The court noted that crimes can occur despite
the maintenance of the highest level of security, and quoted its earlier
pronouncement that “ ‘proof of causation cannot be based on . . . an expert’s
opinion based on inferences, speculation and conjecture.’ ” (Id. at p. 777, quoting Leslie G.,
supra, 43 Cal.App.4th at p. 488.)
The court concluded the plaintiff could not show that roving guards
would have encountered her assailants or prevented the attack. (Saelzler, supra, at p. 777.)

In reaching this conclusion, the
court distinguished Rosh v. Cave Imaging Systems, Inc. (1994) 26
Cal.App.4th 1225 (Rosh). (Saelzler,
supra, 25 Cal.4th at p. 776.) The plaintiff in Rosh was shot by a
disgruntled former employee, Hua, and sued the employer’s security firm. The evidence showed the security firm had
repeatedly ignored the plaintiff’s instructions to bar Hua from the
premises. In those circumstances, noted
the court in Saelzler, the Rosh court properly found the
defendant’s negligence to be a substantial factor in causing the plaintiff’s
injuries. (Saelzler at p. 776,
citing Rosh, supra, 26 Cal.App.4th at p. 1236.) In Saelzler, on the other hand, the
defendants did not have advance notice that a particular assailant was on the
premises. (Saelzler, supra,
25 Cal.4th at p. 776.)

Plaintiff relies on >Ambriz v. Kelegian (2007) 146
Cal.App.4th 1519, 1524, in an attempt to distinguish Saelzler, supra, 25 Cal.4th 763.
In Ambriz, the assailant was a
transient who had been seen around the complex being aggressive and frightening
the tenants. (Ambriz, supra, 146 Cal.App.4th at p. 1524.) Ambriz
specifically distinguished its facts from those in Saelzler on the basis that it was clear the third-party criminal
was not a tenant of the complex or otherwise authorized to enter or be on the
premises, and that it was “more likely than not . . . [the] attacker used the
same method of entry on the day of the [attack] that he and others had been
using over an extended period of time . . ., entry through the malfunctioning
doors . . . .” (Ambriz, supra, at p. 1538.)

Ambriz
v. Kelegian, supra, 146 Cal.App.4th 1519 has a significant feature lacking
in the instant case: a reasonable
inference from the evidence linking the third party’s opportunity to commit the
criminal act to the lapse in security, thereby providing a basis upon which a
jury could conclude that the defendants’ negligence was a substantial cause of
Chandler’s death. Here, there was no
evidence whatsoever that the killer would have been prevented by a different
gate mechanism, additional lighting, or by additional roving guards.href="#_ftn6" name="_ftnref6" title="">[6] Even assuming for the sake of argument that
Walker was the alleged killer, there is nothing in the record to suggest that
defendants were aware of his presence on the day of the murder, and they failed
to prevent his access or otherwise remove him from the property. As stated in Saelzler, supra, 25 Cal.4th at page 779, “in a given case, direct
or circumstantial evidence may show the assailant took advantage of the
defendant’s lapse (such as a failure to keep a security gate in repair) in the
course of committing his attack, and that the omission was a substantial factor
in causing the injury. Eyewitnesses,
security cameras, even fingerprints or recent signs of break-in or unauthorized
entry, may show what likely transpired at the scene. In the present case no such evidence was presented
. . . .”

Saelzler,
supra, 25 Cal.4th 763 had a significant feature absent here, expert
testimony on causation, yet the court still found an absence of causation. In the instant case, plaintiff merely
speculates that defendants “should have properly utilized their already
existing security measures, including maintaining their gates, enforcing their
trespassing and curfew policies, ensuring there was adequate lighting, and
spending the money on security which [defendants] had already allocated for that
purpose.” However, there was no direct
or circumstantial evidence that the killer entered through a broken gate, or
even that a broken gate was the only way he could have entered or left Marina
Vista. Additionally, there was no
evidence whatsoever regarding the time the killer entered the property. In other words, the killer could have entered
Marina Vista at a time when the guards were in full force. Even viewing plaintiff’s evidence in the best
possible light, the evidence merely shows the speculative possibility that
additional guards and/or functioning security gates, along with better lighting
and enforcement of the curfew and trespassing policy, might have prevented the murder.

This is not a case in which the
defendants had advance warning of this particular threat. As noted above, the court in Rosh
concluded that a security firm’s repeated failures to keep a disgruntled former
employee off the premises, despite requests that it do so, could be a
substantial factor in facilitating the attack by the former employee. (Rosh, supra, 26 Cal.App.4th at p.
1236.) Likewise, in Madhani v. Cooper
(2003) 106 Cal.App.4th 412, 413, 417-418, the court concluded there was a
triable issue of fact as to whether a landlord’s breach of duty was a legal
cause of injuries the plaintiff sustained when another tenant attacked
her. There, as in Rosh, however,
the landlord had advance notice of the particular threat, since the plaintiff
had previously reported the assailant’s hostile and threatening behavior
numerous times to the property manager.
(Madhani at p. 414.)
There was no notice in this case that rises to the level of that shown
in Rosh and Madhani. Even
assuming arguendo that Walker, a known trespasser, allegedly killed Chandler,
there was no indication Walker had specifically threatened Chandler at Marina
Vista prior to the murder. Moreover,
prior to Chandler’s death, defendants were unaware of any fatal shootings at
Marina Vista. Marina Vista indisputably
is located in a high crime area and, as evidenced by the plethora of incident
reports, plagued by assaults and other violent crime. However, defendants’ evidence showed that
they took steps to control the situation, hiring armed security guards to
patrol the premises at night, and making frequent and regular attempts to
repair broken locks and nonfunctioning gates.
The record indicates that, in June 2008, these guards were on daily duty
on Sunday from 5:00 p.m. to 11:00 p.m., from 3
p.m. to 11:00 p.m. Monday through Thursday, 3:00 p.m. to 1:00 a.m. Friday, and
from 5:00 p.m. Saturday to 1:00 a.m. Sunday. After 11:00 p.m. during the week and midnight
on the weekend, three random vehicle patrols took place during the night. In the year before Chandler’s death,
defendants upgraded the lighting at Marina Vista. Defendants
imposed a nighttime curfew, which the security guards enforced. Defendants’ security logs indicated their
security guards regularly broke up fights, forced aggressive tenants or
trespassers to leave the area, and removed tenants or others from the area who
were involved in criminal or gang activity.

“No one can reasonably contend that
even a significant increase in police personnel will prevent all crime or any
particular crime.” (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912,
918.) As one court has stated: “ ‘It is an easy matter to know whether
a stairway is defective and what repairs will put it in order . . .[,] but how
can one know what measures will protect against the thug, the narcotic addict,
the degenerate, the psychopath and the psychotic?’ ( Goldberg v. Housing Auth. of Newark
(1962) 38 N.J. 578 [186 A.2d 291 at p. 297].)”
(7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905.)

The case before us is a classic
example of a plaintiff relying on ipso facto conclusions. Plaintiff’s speculation of proper security
measures not previously described in discovery cannot be used here. As Nola
M., supra, 16 Cal.App.4th 421, recognized, “where an open
area . . . could be fully protected, if at all, only by a Berlin
Wall, we do not believe a landowner is the cause of a physical assault it could
not reasonably have prevented.
[Citation.] [¶]
Otherwise, where do we draw the line?
How many guards are enough?
Ten? Twenty? Two hundred?
How much light is sufficient? Are
klieg lights necessary? . . .
Does it matter if the [complex] looks like a prison? Should everyone entering the [complex] be
searched for weapons? Does every shop,
every store, every manufacturing plant, have to be patrolled by private guards
hired by the owner? Does a landowner
have to effectively close his property and prevent its use altogether? [Citation.]
To characterize a landowner’s failure to deter the wanton, mindless acts
of violence of a third person as the ‘cause’ of the victim’s injuries is (on
these facts) to make the landowner the insurer of the absolute safety of
everyone who enters the premises.” (>Id. at pp. 436-437, fn. omitted.)

In short, plaintiff cannot prove
that defendants’ omissions were a substantial factor in causing Chandler’s
death, and he cannot prove causation as a matter
of law. Accordingly, the trial court
properly granted summary judgment for defendants.

III. DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs.















_________________________

Baskin,
J.*





We concur:





_________________________

Reardon, Acting P.J.





_________________________

Rivera, J.













* Judge of the Contra Costa
Superior Court assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.