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Tan v. Arnel Management Co.

January 29, 2009

YU FANG TAN ET AL., PLAINTIFFS AND APPELLANTS,
v.
ARNEL MANAGEMENT COMPANY ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Dan T. Oki, Judge. Reversed. (Los Angeles County Super. Ct. No. KC043469).

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

INTRODUCTION

Plaintiff Yu Fang Tan was shot in an attempted carjacking in the ungated portion of the common area of his apartment complex. He, along with this wife Chun Kuei Chang and son (together, plaintiffs), sued the management company and property owners, defendants Arnel Management Company, Pheasant Ridge Investment Company, and Colima Real Estate Company, for failure to take steps to properly secure their premises against foreseeable criminal acts of third parties. After an Evidence Code section 402 hearing held in limine, the trial court ruled that three prior violent crimes against others on the premises' common areas were not sufficiently similar crimes to the one perpetrated on plaintiff to impose a duty on defendants to protect tenants of the apartment complex. The court entered judgment for defendants, and plaintiffs appeal.

In the published portion of this opinion, we hold that plaintiffs' evidence of three prior violent attacks by strangers in the common areas of the apartment complex were sufficiently similar to the attack on plaintiff to provide substantial evidence of the necessary degree of foreseeability to give rise to a duty on defendants to provide the relatively minimal security measures that plaintiffs seek. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Arnel Management Company manages the Pheasant Ridge Apartments. Pheasant Ridge is a 620-unit, multi-building apartment complex, with over 1,000 residents, situated on 20.59 acres in Rowland Heights, California. Entrance to the complex is gained from Colima Road. The entrance road bisects the property. The beginning of the entrance road has a grassy median and is bordered on both sides by tennis courts. A little farther up the road lie two open parking lots. One is a visitor lot, located on one side of the entrance road, and the other is the parking lot for the leasing office, located on the other side of the road. Just before the two parking lots, in the middle of the entrance road, sits a "guard shack." Continuing past the two parking lots to the back of the property, the entrance road fans out into a circle by which vehicles can turn left or right through two security gates. The apartments are located beyond the security gates. The gates are remote-control operated. Most of the property's parking spaces lie behind these gates by the apartments.

Plaintiffs moved into Pheasant Ridge in July 2002 and received one assigned parking space. Tenants could pay an additional fee for a garage, but plaintiffs chose not to rent one. At the time they leased the apartment, plaintiffs learned that if they had a second car, they could park it in unassigned parking spaces located throughout the complex, or in one of the two lots for visitors and the leasing office, as long as the car was removed from the leasing office lot before 7:00 a.m.

At around 11:30 p.m. on December 28, 2002, plaintiff arrived home. He drove around the property looking for an open parking space because his wife had parked the family's other car in their assigned space. Unable to locate an available space, plaintiff parked in the leasing office parking lot outside the gated area.

As plaintiff was parking his car, an unidentified man approached him and asked for help. When plaintiff opened his window, the man pointed a gun at plaintiff and told him to get out of the car because the man wanted it. Plaintiff responded, "Okay. Let me park my car first." But, the car rolled a little, at which point, the assailant shot plaintiff in the neck. The incident rendered plaintiff a quadriplegic.

In their ensuing complaint against defendants, plaintiffs alleged three causes of action: negligence, loss of consortium, and fraud. The trial court granted summary adjudication of the fraud cause of action, but denied summary adjudication of plaintiffs' negligence and loss of consortium causes of actions.

Before trial, the court granted defendants' motion for an Evidence Code section 402 hearing to ascertain plaintiffs' evidence of prior similar criminal activity. Defendants wanted to investigate whether the prior incidents raised by plaintiffs were sufficiently similar to make the assault on plaintiff foreseeable and hence to impose a duty of care on defendants under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 (Ann M.).

At the hearing, plaintiffs' expert, UCLA Sociology Professor Jack Katz, looked at police reports, complaints to the police, property management reports, and records of Pheasant Ridge's security service, PacWest Security Services.*fn2 After excluding from his analysis those prior incidents involving attacks by acquaintances, Professor Katz found 10 incidents he viewed as being "particularly significant warning signs," of which three involved "prior violent incidents." All of the incidents involved a sudden attack without warning, late at night, by a stranger on someone who was on the ungated portion of the premises.

The first example of a violent incident occurred just under two years before plaintiffs' attack and involved an assault with a deadly weapon. A guard, who was patrolling on his bicycle around 1:30 a.m., saw someone standing by the maintenance garage. The guard approached the subject and asked him what he was doing. The subject replied he was waiting for a friend. When the guard asked for identification, the subject retrieved an unknown object from his pocket and swung it at the guard. The guard raised his arm in self-protection and received an 1.5 inch slash on his forearm.

The second example occurred about a year before plaintiff's attack and before the existing gates at the back of the entrance road were installed. The assailants carjacked a car in Santa Monica with what the victim perceived to be a gun. Finding Pheasant Ridge "a good place to rob somebody" because there was no gate to impede their escape, as they told police later, the assailants came onto the property and robbed a tenant at his parking spot. The assailants committed the robbery by blocking the tenant's car, smashing him on the head, and demanding his valuables. They took the tenant's cell phone and other property.

The third violent incident occurred at 3:55 a.m., nine months before the attack on plaintiff. The incident was "also a violent attack, apparently, by strangers in late nighttime in a parking lot," and may have actually been in the leasing office lot. The assailant suddenly and viciously attacked the tenant in the face causing profuse bleeding.

Although the victim did not mention a weapon, the police classified the attack under Penal Code section 245, an assault with a deadly weapon or force likely to produce great bodily injury.

Professor Katz explained that these three prior incidents all involved "strangers coming in late night, suddenly becoming violent against people they don't know in ungated parking areas." Professor Katz opined that these three incidents "show that the probability is foreseeable here that people on this property will be attacked at some point by a stranger in open parking areas late at night."

Plaintiffs also presented nearly 80 examples of thefts from garages or cars or thefts of cars occurring on the Pheasant Ridge property. The trial court excluded the evidence of these thefts because they did not involve robberies or violent attacks on people.

The trial court asked plaintiffs to "articulate your theory of what additional security measures the defendants were under a duty to have in place in order to prevent the harm" to plaintiff. Accordingly, plaintiffs' counsel stated that the first thing plaintiffs wanted was for defendants to install gates on the entrance roadway before the leasing office and visitor parking lots, rather than at the back of the entrance road. The gates plaintiffs contemplated were "more substantial" than swing-arms; something more akin to the gates defendants had already installed. Counsel explained, "anything that could effectively deter escape is going to help reduce . . . the probability of a carjacking occurring." In particular, counsel declared that plaintiffs were not asking that defendant undertake a measure that would require ongoing surveillance or monitoring, or necessitate the expenditure of significant funds.

Professor Katz cited research showing that when gates were installed in crime areas, the rate of violent crime went down. The research showed that "offenders who violently attack strangers are in the first instance concerned with their escapes. And, when you put gates in, you -- while they can circumvent the gate to get in, they could climb a fence or get around it, they can't anticipate an easy escape. . . . [T]hey will shy from a crime target that has a gate in favor of one that's ungated. It will shift their focus of attention." Also, gates deter strangers who must explain their presence on the property.

Professor Katz testified that Pheasant Ridge should have ensured that the two objectives (of giving the impression that (1) escape would be impeded and that (2) one's presence on the property would have to be explained) were achieved by having a gate. Professor Katz explained that the effect of gates before the visitor and leasing parking lots would be to block access to all parking spaces and to make escape problematic. He did not eschew a swing-arm that rises and falls as cars enter because criminals could "anticipate on escape that [they] might have to break it and call attention." But, Professor Katz testified, the preferable gate would be "something that is continuous barrier such that if you are on the other side of it, you either have a reason to be there or you don't." Professor Katz also discussed fencing, either four or six feet, depending on the sight lines of the property. However, he explained, because the vast majority of the property is already surrounded by fencing, only a "very small area" of the property would require an extension of the existing barrier, with the result that the extension would be "very minor." Professor Katz specifically stated he was not recommending that defendants hire security guards or monitor the property.

At the close of the hearing, the trial court ruled that plaintiffs "failed to demonstrate that enclosing the entire complex, moving the gates, and installing some system or a guard that would let invited guests enter the complex at night, as they propose, would be any less burdensome than providing full-time security guards at night." Therefore, the court observed, in order to impose a duty on defendants, plaintiffs would have to "demonstrate a high degree of foreseeability of the crime committed against [plaintiffs] based upon prior similar incidents of violent crime at Pheasant Ridge."

The three incidents that Professor Katz characterized as "prior violent incidents," the court ruled, "neither singularly nor collectively, make the armed attempted carjacking and attempted murder of Mr. Tan by gunfire foreseeable." The court stated, "Notably, plaintiffs presented no evidence of a prior attempted carjacking, or an attempted murder, or a completed carjacking or murder, or of anyone being shot, or shot at, or reports of gunfire, at Pheasant Ridge." Therefore, the court held, defendants had no duty to take plaintiffs' proposed additional measures to enhance the security in their common areas, including the leasing ...


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