Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YC056256, Ramona G. See, Judge.
Denise E. Wright and Carol S. Boyk for Plaintiffs and Appellants.
Gibbs, Giden, Locher, Turner & Senet, James I. Montgomery, Jr., for Plaintiffs and Appellants.
KLEIN, P. J.
Monique Flores and Jordan Benavente appeal the judgment entered in favor of Windsor Rentals, LLC, Stratford Rentals, LLC, Lawndale Apartments, LLC, Orchid Lane Investors, LLC, and Main Street Management, LLC, collectively the defendants, following an order granting summary judgment.
The defendants own and manage the apartment complex in which Flores and her daughter, Benavente, resided at the time they were the victims of a lying-in-wait style robbery. As relevant to this appeal, Flores and Benavente alleged the defendants had a duty to warn of criminal activity on the premises based on a prior incident of criminal conduct which occurred four days before Flores and Benavente were victimized. Investigation of the prior incident indicated one particular tenant had been targeted by an ex-girlfriend. The trial court granted summary judgment in favor of the defendants, finding the prior incident was not sufficiently similar to the random act of violence committed against Flores and Benavente to give rise to a duty to warn.
We agree there was insufficient evidence a tenant of the complex might be targeted by a random act of violence. Consequently, we conclude the defendants had no duty to warn of such conduct. We therefore affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The apartment complex.
The apartment complex, located in Lawndale, California, is gated and has six-foot walls on the north, south and east sides. On the west side, it has a locked entry door with an intercom system. The tenants’ garage is enclosed and has an automatic gate operated by a remote control. There are two pedestrian gates, one next to the vehicle gate and another in the rear of the garage.
Before the incidents described below, the prior criminal activity on the premises consisted of two auto break-ins in the garage, one in 2003 and the other in 2005.
2. The first Toombs incident.
On July 1, 2006, Ivory Toombs, a tenant of the complex, arrived home with a friend and was confronted by a male with a knife. Toombs and her friend ran from the apartment. Toombs’ friend told a sheriff’s deputy the male said he was there because Toombs’ ex-girlfriend wanted Toombs dead. Investigation by the Sheriff’s Department revealed no forced entry.
Toombs told the resident manager of the complex that she believed her ex-girlfriend had a key to the apartment and may have been involved in the assault. Based on the information provided by Toombs and the investigating deputy sheriff, the resident manager concluded this was an isolated incident in which Toombs specifically had been targeted rather than a random act of violence. The resident manager changed the lock on Toombs’ door that evening but did not notify other tenants of the incident.
3. The Flores incident.
On the evening of July 5, 2006, Flores and Benavente, Flores’s 11-year-old daughter, returned to their apartment. When they entered, they were confronted by two males and a female armed with knives and a handgun. Benavente was tied to a chair. Flores was taken upstairs where she was forced to undress and threatened with rape. Flores convinced the assailants she could obtain money from her employer. The males took Flores to another location while the female assailant remained at the apartment with Benavente. When Flores and the males returned, the intruders took property, then left.
The Sheriff’s Department found no sign of forced entry and concluded the assailants entered the apartment through a kitchen window, the bottom of which was eight feet, four inches above a walkway.
4. The second Toombs incident; the defendants warn of criminal activity.
On July 7, 2006, the resident manager called the Sheriff’s Department after seeing two males and a female enter the apartment complex and go directly to Toombs’ apartment. The three individuals, Daniel Ramsey, George Johnson and Christine Cook, were determined to be the perpetrators of the Flores incident. Ramsey also was identified as the assailant in the first Toombs incident. Ramsey, Cook and Johnson subsequently were convicted of criminal offenses and sentenced to state prison.
On Sunday, July 9, 2006, the defendants warned the tenants of possible criminal activity on the premises.
5. The complaint.
The complaint filed by Flores and Benavente alleged the crimes committed against them were foreseeable because the defendants had notice that on July 2, 2006, “the occupant of Apartment No. 39 in the same building was the victim of a burglary and refused to continue occupying her apartment.” The complaint alleged the defendants failed to warn of dangerous activity on the premises.
The complaint also alleged the defendants breached their duty to maintain the premises as advertised and to secure the premises in that they “(a) failed to maintain bars on the ground floor windows,...; (b) failed to maintain... the security gates of the premises; and (c) failed to maintain... surveillance cameras in the underground parking area.” In their opening brief, Flores and Benavente reiterated their claims the defendants had a duty to have bars on the windows and to maintain the premises. However, at oral argument, counsel for Flores and Benavente conceded the only duty they now maintain the defendants owed was to warn/give notice of criminal activity on the premises. We have accepted this concession.
6. The trial court grants the defendants’ motion for summary judgment.
The defendants filed a motion for summary judgment in which they asserted the crimes against Flores and Benavente were not foreseeable. The trial court granted the motion, finding the defendants owed no duty to protect Flores and Benavente from the home invasion, there was no evidence the defendants acted negligently in securing the entrances to the complex, and neither the auto break-ins nor the first Toombs incident was sufficiently similar to the offenses committed against Flores and Benavente to warrant a warning to lock doors and windows.
CONTENTIONS
Flores and Benavente contend the grant of summary judgment must be reversed because the defendants’ duty to protect them from foreseeable criminal conduct by third parties included a duty to give timely notice of crimes committed on the premises and the defendants breached this duty by failing to give notice of the first Toombs incident.
DISCUSSION
1. General principles.
a. Summary judgment.
Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. Defendants can meet their burden by demonstrating that “[a] cause of action has no merit,” which they can do by showing that “[o]ne or more of the elements of the cause of action cannot be separately established....” (Code Civ. Proc., § 437c, subd. (o)(1).) Once defendants meet this burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
On appeal “[w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
b. Landlord’s duty to protect tenants from third party criminal acts.
“[A]s a general matter, there is no duty to act to protect others from the conduct of third parties.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) However, a landlord generally owes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord’s control against foreseeable criminal acts of third parties. (Ibid.; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.); Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279-280.) The existence and scope of a property owner’s duty to protect against third party crime is a question of law. (Delgado, at pp. 237-238; Ann M., at pp. 674, 678-679.)
As stated in Castaneda v. Olsher (2007) 41 Cal.4th 1205, determination of the existence of a duty requires consideration of several factors: “ ‘ “[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” ’ (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113.)” (Id. at p. 1213.)
Castaneda continued: “ ‘ “[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.” [Citation.]’ ” (Ann M., supra, 6 Cal.4th at pp. 678-679.)
Castaneda found Vasquez v. Residential Investments, Inc., supra, 118 Cal.App.4th at page 280 correctly stated the analytical process as follows: “First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. This frames the issue for the court’s determination by defining the scope of the duty under consideration. Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case. Third, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.’ [Citation.] Again, other Rowland [v. Christian, supra, 69 Cal.2d 108] factors may come into play in a given case, but the balance of burdens and foreseeability is generally primary to the analysis. [Citation.]” (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1214, quoting Vasquez v. Residential Investments, Inc., supra, 118 Cal.App.4th at p. 285, fns. omitted.)
We now apply these principles to this case.
2. The first Toombs incident did not give rise to a duty to warn of criminal activity on the premises.
The first step of the Castaneda analysis identifies the specific security measures the plaintiff contends the defendants should have taken. Flores and Benavente assert the only measure they seek is notice of the first Toombs incident.
The second step requires consideration of how financially and socially onerous the proposed measures would be. The measures “could range from minimally burdensome to significantly burdensome under the facts of the case.” (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1214.) Flores and Benavente claim notice of the first Toombs incident would have been simple and minimally burdensome. Further, the fact the defendants gave warning on July 9, 2006, establishes an effective warning could have been given after the first Toombs incident.
Regarding the third element, foreseeability, we identify the nature of the third party conduct and the plaintiffs’ claim the harm could have been prevented had the landlord taken the proposed measures, and assess how foreseeable it was that this conduct would occur. Here, the third party conduct consisted of a lying-in-wait style home invasion robbery and kidnapping. Flores and Benavente claim these crimes could have been impeded by a warning which would have prompted them to take steps to protect themselves such as staying away from the apartment until the intruder had been apprehended or until bars were installed on the windows or a better lock on the door, or by insisting the resident manager accompany them to their apartment to ensure no one was in the apartment.
The trial court found the first Toombs incident, which the trial court referred to as the “July 1, 2006 attempted homicide,” was not sufficiently similar to the offenses committed against Flores and Benavente to warrant a warning to lock doors and windows. We agree with the trial court’s conclusion.
The hallmark of forseeability is “prior ‘similar’ incidents [citations], not prior identical incidents.” (Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 339, first italics added.) The evidence in this case indicated there had been two auto break-ins and one prior incident of crime against a tenant, namely, the first Toombs incident. Clearly, the auto break-ins are not similar to the offenses committed against Flores and Benavente and thus do not render those offenses foreseeable. Although the first Toombs incident certainly was more similar to the attack on Flores and Benavente than were the auto break-ins, we nonetheless conclude the first Toombs incident did not trigger a duty on the part of the defendants to warn of possible criminal activity on the premises.x
Investigation of the first Toombs incident by the Sheriff’s Department and the resident manager indicated Toombs had been targeted by an ex-girlfriend. Toombs’ friend indicated the intruder stated he was there to kill Toombs. Further, there was no sign of forced entry and Toombs believed her ex-girlfriend had a key to the apartment. Based on this evidence, the defendants reasonably could conclude the first Toombs incident was an instance of domestic violence in which Toomb’s ex-girlfriend had solicited an attack on Toombs. Nothing about this incident rendered it foreseeable that four days later three assailants would break into the apartment occupied by Flores and Benavente by entering a window more than eight feet off the ground in order to commit robbery, false imprisonment and kidnapping. Indeed, notwithstanding Ramsey’s involvement in both the first Toombs incident and the crimes committed against Flores and Benavente, the latter offenses appear to have been random and unprecedented. Flores and Benavente were not specifically targeted as Toombs had been. (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 959 [daytime burglary of one condominium unit does not render foreseeable an assault and rape in another unit especially where the offenses were committed by a stalker who targeted the victim].)
Flores and Benavente contend the trial court abused its discretion by relying on the defendants’ asserted belief Ramsey targeted Toombs and that he therefore presented no danger to other tenants. They argue the defendants had no means of determining Ramsey’s intent. Thus, they had a duty to exercise reasonable care toward their tenants by warning them of the dangerous intrusion into Toombs’ apartment.
We do not agree with this assertion. Rather, in assessing the foreseeability of the intrusion into Flores’s apartment, the trial court properly could consider evidence that indicated the first Toombs incident was not a random attack. This fact was relevant in determining the forseeability of other criminal activity on the premises and the propriety of the defendants’ decision not to notify the other tenants about the incident.
Flores compares her case to Vasquez v. Residential Investments, Inc., supra, 118 Cal.App.4th 269. In Vasquez, a tenant was murdered by a jealous boyfriend who entered the apartment through an unrepaired broken windowpane in the front door. The landlord had notice of the broken pane and had purchased the materials necessary to repair the window but had not arranged for the repair. Although the attack was not anticipated, the burden of restoring the integrity of the front door was minimal and it would have impeded the attack. Vasquez reversed a grant of summary judgment in favor of the defendants finding the landlord failed to secure the property. However, Flores and Benavente have conceded they do not assert the defendants had a duty to secure the premises and rely solely on the duty to warn. Because we conclude the facts in this case did not give rise to a duty to warn of criminal activity on the premises, Vasquez does not assist Flores and Benavente.
Flores and Benavente cite Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1095, 1100, fn. 7, for the proposition that where the measure sought is not burdensome, the degree of forseeability is correspondingly lower. In Tan, the plaintiffs asked for the extension of existing fences, a relatively minimal security measure and one already taken by defendants in another portion of the property. However, in Tan there had been three prior violent crimes in the common areas, there was evidence of at least 10 incidents that should have been viewed as warning signs and there were approximately 80 thefts from garages or cars. Tan concluded, as a matter of law, this history of crime at the location rendered the assault on plaintiff foreseeable and imposed a duty of care on defendants. (Id. at p. 1101.) Here, the only prior residential assault appeared to have specifically targeted Toombs. Thus, the circumstances are much different than those presented in Tan.
In sum, Flores and Benavente failed to demonstrate a duty to warn of criminal activity on the premises. Based thereon, the trial court properly granted summary judgment in favor of the defendants.
DISPOSITION
The judgment is affirmed. The defendants shall recover their costs on appeal.
We concur: CROSKEY, J., ALDRICH, J.