Girardi v.
Assn.
Filed 2/24/12 Girardi v. San Rafael Homeowners Assn. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THOMAS
V. GIRARDI, et al.,
Plaintiffs and Appellants,
v.
SAN RAFAEL HOMEOWNERS ASSOCIATION, et al.,
Defendants and Respondents.
B231197
(Los Angeles County
Super. Ct. No. GC042147)
APPEAL from a judgment of the Superior
Court for Los
Angeles County, Jan A. Pluim, Judge.
Affirmed.
Girardi and Keese, Thomas V. Girardi,
Neyleen S. Beljajev and Robert Finnerty for Plaintiffs and Appellants.
Manning & Kass, Ellrod, Ramirez,
Trester, Anthony J. Ellrod and Kevin H. Louth for Defendants and Respondents.
Plaintiffs
Thomas V. Girardi and Erika Girardi (collectively, the Girardis) appeal from a
defendants Alta San Rafael Association (erroneously sued and served as San
Rafael Homeowners Association), and Board of Directors of Alta San Rafael
Association (erroneously sued and served as Board of Directors of San Rafael
Homeowners Association) (collectively, the Association). The Girardis sued the Association for
negligence after their home was burglarized twice. They alleged that the Association, which
manages and maintains a common interest development in the Alta San Rafael
neighborhood of Pasadena in which the Girardis own a house, owed the
development’s homeowners a duty to keep the premises reasonably safe, and
breached that duty by failing to hire a security guard, have monitored gates,
and maintain street lights. The trial
court granted the Association’s motion for summary judgment on the grounds
that, as a matter of law, the Association owed no duty to protect homeowners’
property from theft, and even if there were such a duty, there was no causation
in this case. We affirm the judgment on
the ground that the Girardis failed to show a triable issue regarding
causation.
BACKGROUND
The Girardis own and live in a home in
the Alta San Rafael common interest development (the development). The houses in the development are located
along a three to four mile hilly roadway.
There are several streetlights along the roadway, but most of them were
not operational at the time of the events here.
There are gates at the access points to the roadway. There were neither guards nor cameras at the
gates at the times relevant to this lawsuit.
The gates, which are manual, are always open. Although the Board of Directors of the
Association approved funding to repair, upgrade, and possibly motorize the
gates in early 2007, the Board subsequently was informed by representatives
from the City of Pasadena that construction of motorized gates would violate
its zoning codes, and that it was unlikely that the City would grant a
variance. The Board was also informed
that several members of the Association, a neighboring homeowners’ association,
and the Pasadena police and fire departments opposed the construction of
motorized gates.
The Girardis’ 15,000 square-foot house
sits on five acres of property within the development. The property is surrounded by a fence. The fence is approximately 10 feet high in
the front, with 15 foot high gates, and is approximately four feet high in the
back, with three six foot tall locked access gates. The exterior lighting on the Girardis’
property, which is mostly in the garden area, is programmed to operate from
dusk to dawn. There is an alarm system
in the house, although the Girardis do not activate it themselves; their
housekeepers (who work from 7:00 a.m. to 3:00 p.m. during the week and from
9:00 a.m. to 12:00 p.m. on Saturdays) activate the alarm only when the Girardis
are away.
On December 28, 2007, Erica Girardi
left the house at around 6:00 p.m. to meet Thomas for dinner. When they returned to the house at around
9:00 p.m., they discovered that someone had broken in and stolen several pieces
of jewelry, including a pair of earrings valued at $1 million.
entry to the house by breaking a pane of glass in a door leading from the rear
patio into the living room.
Shortly after the burglary, Erika
Girardi attended an informal meeting with most of the neighborhood to discuss
the burglary. She brought with her Ernie
Garcia, who owned a private security company and gave a talk about possible
security upgrades to make the neighborhood safer. No improvements were made in the year
following that meeting.
On November 28, 2008, the Girardis,
who were away in Aspen, Colorado, were notified that their home had again been
burglarized. The burglary had occurred
sometime between the evening of November 26, when the Girardis left for Aspen,
and noon on November 28, when one of the housekeepers arrived for work (neither
of the housekeepers worked on November 27, which was Thanksgiving Day). The point of entry appeared to be the same as
the first burglary. The thief or thieves
took various items from some of the bedrooms and/or closets, but left several
of those items behind at the point of entry.
One of the items that remained missing was a Cartier watch.
The following month, on Christmas Eve
2008, the Girardis’ personal trainer left a gift outside the front gate. The Girardis saw the gift as they were
leaving at one point, but did not pick it up.
When they returned later, the gift was gone. They did not tell the personal trainer about
the theft and do not know what the gift was.
In January 2009, the Girardis filed
the complaint in the instant action, alleging a single cause of action for
negligence based upon the Association’s failure to hire a security guard,
install a security gate and cameras, and replace broken street lights.
Association’s negligence they were damaged in the amount of $1.2 million due to
the burglaries.
title="">[3]
The Association moved for summary
judgment on two grounds: (1) as a matter
of law, the Association owed the Girardis no duty to protect their property
from criminal acts of a third party (citing our decision in
(1988) 205 Cal.App.3d 1146 (Royal
Neckwear)); and (2) the Girardis had no evidence as to the identity of the
thief or thieves or whether the thief or thieves were authorized to enter the
development, and therefore they could not establish that the Association’s
failure to provide security guards, motorized gates, security cameras, or
street lighting was a cause of their property losses (citing
Cal.4th 763 (Saelzler)). The Girardis opposed the motion, arguing that
Royal Neckwear did not apply because
it involved commercial rather than residential property, and that the
Association did not establish that the Girardis had no evidence to show
causation; they asserted they could produce witnesses and/or expert testimony
to show that none of their employees caused the burglaries, and they provided
the declaration of a security expert who opined that the burglaries were the
result of the Association’s failure to implement adequate security measures.
The trial court granted the motion,
finding, under Royal Neckwear, that
the Association did not owe the Girardis a duty to protect their property from
theft, and that even if the Association did owe such a duty, the Girardis could
not establish causation. Before the
court entered judgment, the Girardis filed a motion for reconsideration. They argued that the Association undertook a
duty to protect their property through the Covenants, Conditions, and
Restrictions for the development (the CC&Rs), which they had been unable to
obtain before the summary judgment motion.
Before the motion for reconsideration was heard, however, the trial
court entered judgment.
At the hearing on the reconsideration motion, the court
indicated that it was unaware of the motion when it entered judgment, and that
had it known of the motion it probably would not have entered judgment when it
did. The court concluded, however, that
entry of judgment removed its jurisdiction.
The court noted that in any event the motion would have been denied
because the CC&Rs were a public record that could have been obtained by the
Girardis before the summary judgment motion was heard. Following the denial of their motion for
reconsideration, the Girardis timely filed a notice of appeal from the judgment.
DISCUSSION
The Girardis contend on appeal that
(1) the trial court erred in relying on Royal
Neckwear, supra, 205 Cal.App.3d
1146 when it found the Association did not owe a duty to protect the Girardis’
personal property, because that case involved a commercial landlord-tenant
relationship rather than a relationship between a homeowner and a homeowners
association; (2) the trial court erred in finding the Girardis could not prove
causation, because the Girardis raised a triable issue regarding causation
through the declaration of their expert witness on security issues; and (3) the
trial court improperly entered judgment while the Girardis’ motion for
reconsideration was pending.
We need not address the first issue
because, as discussed below, we find the Girardis failed to raise a triable
issue regarding causation. Before we
address that issue and the motion for reconsideration, we note that the
appellants’ appendix filed with the appellants’ opening brief failed to include
most of the documents necessary to review the summary judgment. For example, the appendix did not include the
Association’s separate statement of material facts, the Girardis’ responsive
separate statement, or the Association’s response. Most importantly, the appendix did not include
any of the evidence -- other than the declaration of its security expert --
filed in support of or opposition to the Association’s summary judgment
motion. Because of this, the Girardis
failed to cite to evidence in support of their factual assertions in their
opening brief, instead citing to the briefs filed in the trial court. In short, the record filed with the opening
brief and the opening brief itself violated the Rules of Court. (Cal. Rules of Court, rule 8.124(b)(1)(B) [an
appellant’s appendix must contain all items “necessary for proper consideration
of the issues, including, for an appellant’s appendix, any item that the
appellant should reasonably assume the respondent will rely on”]; Cal. Rules of
Court, rule 8.204(a) [an appellant’s brief must provide a summary of the
significant facts and support any reference to a matter in the record by a
citation to the volume and page number where that matter appears].)
We could affirm the judgment based
upon the Girardis’ failure to adequately raise any reviewable issue. (See, e.g., Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116 [“As
with an appeal from any judgment, it is the appellant’s responsibility to
affirmatively demonstrate error and, therefore, to point out the triable issues
the appellant claims are present by citation to the record and any supporting
authority. In other words, review is
limited to issues which have been adequately raised and briefed”].) Nevertheless, because all of the necessary
items for review ultimately were provided -- through the respondents’ appendix,
which provided the evidence and separate statements filed by respondents, and
the appellants’ reply appendix, which provided the Girardis’ evidence -- we
will address the merits of the summary judgment and denial of the Girardis’
motion for reconsideration.
A. Grant
of Summary Judgment
As noted, in granting the
Association’s motion for summary judgment, the trial court found that under
Girardis to protect their personal property from theft, and that even if there
was a duty, there was no causation here.
Although the Girardis challenge both findings, we address only the
latter, because the summary judgment may be affirmed on either ground.
1.
Summary judgment “shall be granted if
all the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.” (Code Civ. Proc., § 437c,
subd. (c).) A defendant moving for
summary judgment has the burden of showing that “one or more elements of the
cause of action . . . cannot be established, or that there is a complete
defense to that cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(2).)
If the defendant does so, the burden then shifts to the plaintiff to
show by admissible evidence that a triable issue of material fact exists. (Ibid.) “Following a grant of summary judgment, we
review the record de novo for the existence of triable issues.” (Wall
Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171,
1176.)
2.
The Girardis contend the trial court
erred in finding they could not establish causation because causation is a
question of fact for the jury to decide, and they had raised a triable issue
through the declaration of their security expert, Ernie Garcia.
raised a triable issue regarding causation.
To prevail in a case in which the
plaintiff seeks to recover damages under a negligence theory, “the plaintiff
must show that the defendant owed her a legal duty of care, the defendant
breached that duty, and the breach was a
proximate or legal cause of her injury.”
(Saelzler,
the Supreme Court addressed the issue of causation in a case in which the
plaintiff sued the owner of an apartment complex after she was attacked by
unknown assailants at the complex. The
trial court in that case granted summary judgment to the defendants based on
the plaintiff’s failure to demonstrate that the defendants’ negligent failure
to provide adequate security measures was an actual, legal cause of her
injuries. (Id. at p. 766.) The
plaintiff had submitted a declaration from a security expert, who opined that
the attack on the plaintiff would not have occurred had the defendants provided
certain security measures, but she offered no evidence showing the identity of
the assailants, whether they had trespassed on the defendants’ property, or
whether they were tenants and thus were permitted to pass through the security
gates surrounding the complex. (
plaintiff could not prove the identity or background of her assailants and thus
could not show that they were unauthorized to enter the complex, her expert’s
speculative opinion was insufficient to show that the defendant’s failure to
provide increased security at the entrance gates and/or functioning locked
gates was a substantial factor in causing her injuries. (Id.
at p. 776.)
In reaching this conclusion, the
Supreme Court cited with approval several other cases in which appellate courts
held that a security expert’s opinion that the landowner failed to provide
adequate security was insufficient to establish that that failure caused the
plaintiff’s injuries. One of those cases
was Nola M. v. University of Southern
California (1993) 16 Cal.App.4th 421.
The Supreme Court agreed with the appellate court’s conclusion that “the
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.” (
The Supreme Court also agreed with the
appellate court’s analysis in Leslie G.
v. Perry & Associates (1996) 43 Cal.App.4th 472, in which the plaintiff,
who was raped in the parking garage of her apartment complex and sued her
landlord for failing to repair a security gate, argued that her expert’s
opinion testimony that the nonfunctioning gate allowed the assailant to enter
and assault the plaintiff was sufficient to raise a triable issue regarding
causation. (Saelzler, supra, 25
Cal.4th at pp. 774-775.) As the Supreme
Court explained: “The court [in
negligence action against her landlord for injuries resulting from the criminal
assault of a third person must be supported by evidence establishing that it
was more probable than not that, but
for the landlord’s negligence, the assault would not have occurred. Where, as here, there is evidence that the
assault could have occurred even in the absence of the landlord’s negligence,
proof of causation cannot be based on mere speculation, conjecture and
inferences drawn from other inferences to reach a conclusion unsupported by any
real evidence, or on an expert’s opinion based on inferences, speculation and
conjecture. [¶] In this case, where there is no factual basis
for the expert’s opinion or for [the plaintiff’s] general assertion of
causation, the conclusion is unavoidable that summary judgment was properly granted.’” (Saelzler,
supra, 25 Cal.4th at pp. 775, quoting
Leslie G., supra, 43 Cal.App.4th at
p. 488.)
In the present case, the Girardis’
security expert offered no factual basis for his conclusion that the
Association’s failure to repair street lights, motorize and secure the gates at
the access points of the development, hire security guards, or install
surveillance cameras caused and/or contributed to the burglaries of the
Girardis’ house. In fact, the evidence
before the trial court significantly undermined Garcia’s speculative
opinion. For example, as in
they cannot prove the identity of the burglars, and thus they cannot show that
the burglars were not authorized to enter the development, either as
homeowners, employees of homeowners, or delivery personnel. Since the purpose of motorizing and securing
the gates is to prevent only unauthorized
people from entering the development, it would be mere speculation to conclude
that the absence of those security measures contributed to the Girardis’
loss. (See Saelzler, supra, 25
Cal.4th at p. 776.) Similarly, the
Girardis admitted they do not know the time at which the second burglary took
place, and thus they cannot show that it did not occur during daylight hours. Moreover, the Girardis themselves presented
evidence that nearby homes were burglarized during daylight hours. In light of this evidence, they cannot show
that but for the Association’s failure to repair the street lights, the
burglaries would not have occurred.
Finally, the Girardis also presented evidence that their home was
burglarized twice more after the complaint was filed, after cameras were installed at the gates. Given these subsequent burglaries, they
cannot show that the absence of cameras contributed to the earlier burglaries.
In short, the Girardis failed to
present evidence sufficient to raise a triable issue regarding whether the
Association’s alleged failure to provide adequate security was an actual, legal
cause of their loss. Therefore, the
trial court did not err in granting summary judgment in favor of the
Association.
B. Denial
of Motion for Reconsideration
The Girardis contend that the trial
court’s entry of judgment while their motion for reconsideration was pending
was improper, resulting in a miscarriage of justice. Even if the trial court’s premature entry of
judgment was improper (see APRI Ins. Co.
v. Superior Court (1999) 76 Cal.App.4th 176, 182 [noting that trial court
should not have signed dismissal order while motion for reconsideration was
pending, but holding that once the judgment was entered, the trial court had no
jurisdiction to reconsider its ruling]), there was no miscarriage of justice
here.
First, as noted by the trial court at
the hearing on the motion for reconsideration, the purportedly “new” facts upon
which the reconsideration motion was based were public records available to the
Girardis at the time of summary judgment, and the Girardis failed to provide a
satisfactory explanation for their failure to present the evidence before
summary judgment was granted. Therefore,
the Girardis’ motion failed to satisfy the requirements for a motion for
reconsideration. (Code Civ. Proc.,
§ 1008; New York Times Co. v.
Superior Court (2005) 135 Cal.App.4th 206, 211.)
Second, the Girardis’ motion addressed
only the issue of the Association’s duty.
Therefore, even if the motion had satisfied the requirements of Code of
Civil Procedure section 1008 and been considered before the trial court entered
judgment, the result would be the same, because the Girardis failed to raise a
triable issue regarding causation. Thus,
the motion could not have prevented entry of a summary judgment in favor of the
Association.
DISPOSITION
The judgment is
affirmed. Respondents shall recover
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
there was a safe in the house, the earrings were taken from a glass jar that
was on the bathroom counter.
original complaint named as defendants only the San Rafael Homeowners
Association. The Girardis subsequently
amended their complaint to add as defendants the Board of Directors of the San
Rafael Homeowners Association, Alta San Rafael Association, and the Board of
Directors of Alta San Rafael Association.
