Adams Stirling PLC


Marderosian, Runyon, Cercone & Lehman, Michael G. Marderosian and Susan J. Purvis, for Plaintiffs and Appellants.

Horvitz & Levy, Jon B. Eisenberg, Karen M. Bray; Cooper & Hoppe and Joseph D. Cooper, for Defendants and Appellants.


*1 This is an appeal from a new trial order and a judgment notwithstanding the verdict (JNOV), both of which were adverse to plaintiffs and appellants Everett Wentworth and Mark Manoogian (plaintiffs). In addition to the original appeal, defendants filed a protective cross-appeal from the original verdict. Finally, plaintiffs appealed from an order denying their motion to set aside the JNOV and new trial orders and from an order denying their motion to tax costs. We consolidated the appeals. We affirm the judgment, rendering moot the order for new trial and defendants' protective cross-appeal. We affirm also the order denying reconsideration and the order denying the motion to tax costs.


Plaintiffs were both owner-occupants of homes within Sierra North Village, a 100-unit patio-home condominium development in Fresno (the development). During the early hours of September 7, 2000, plaintiffs were the victims of burglaries; Wentworth was viciously assaulted.

Defendant Sierra North Village Homeowners Association (the association), as the name implies, is the governing body of the condominium development, with powers arising under articles of incorporation and covenants, conditions, and restrictions (CC&Rs) typical of such developments. The association employed defendant Robert L. Jensen & Associates (Jensen) to manage the development.

The association contracted for security services for the development. This contract provided for patrol services throughout the year, augmented by a full-time overnight security guard during the summer months. The latter service had ended around the beginning of September 2000. The development had experienced a few burglaries over the years, but none of these involved assaults, nor had there been other criminal acts of violence. The president of the association's board of directors, a resident of the development, actively monitored the neighborhood, reporting speeders, suspected drug use, and other suspicious activity to the security company or the police.

William Spivey, about 27 years old at the relevant time, had lived with his mother and brother at Sierra North Village since 1992. They rented a home from 1992 until 1998, when the owner sold the unit. At that time, they relocated to another rented unit within the development. The family was well regarded, and the association president highly recommended them to their new landlord. Spivey himself, a large young man over six feet tall and weighing over 300 pounds, was well known in the development. He often helped neighbors with home-repair projects and looked after neighborhood children at the development's swimming pool. He had never been in trouble at the development.

Around January of 2000, under circumstances that were not fully developed in the record of the present case, Spivey was arrested at the home of a person who, Spivey claimed, owed him money. Spivey claimed he went to the home, some five miles from Sierra North Village, to collect the money. He kicked open the door. Neighbors saw him enter and called the police. Spivey was arrested and pled guilty to one count of attempted residential burglary. He was placed on probation, one condition of which was that he serve six months in jail. Toward the end of his jail time, he was admitted to the jail's house-arrest program, which required that he wear an electronic monitor on his ankle.

*2 During the two months Spivey was under house arrest, he spent many of his waking hours in the open garage of his home at Sierra North Village, visible to and chatting with passers-by. He wore shorts and made no attempt to conceal his ankle monitor. The association president and other neighbors knew Spivey was on house arrest; he made no secret of the felony charge of which he had been convicted and he and his mother recounted the circumstances of the crime in the terms set forth above.

Spivey's house arrest ended in July of 2000, although he continued on probation. His probation officer reported that Spivey was subject to random drug testing and had submitted a sample that tested positive for marijuana.

The night of September 6, 2000, Spivey (according to his testimony and statement to his probation officer) consumed 18 beers, some whiskey, some liqueur, some marijuana, and some methamphetamine. He testified that the next thing he remembered was standing at the door of a neighbor asking for help. Police testified they found him hiding in a dumpster after a short chase from Sierra North Village.

Although Spivey claimed not to remember doing so, sometime around 3 a.m. on September 7, he broke out a window in the home of plaintiff Wentworth, entered the home, beat Wentworth in the head with a microwave oven, stomped and kicked him, and stole Wentworth's prescription medications. Spivey then entered the home of plaintiff Manoogian through an open sliding door, only to flee when confronted by Manoogian, who was armed with a rifle. Wentworth was very severely injured and Manoogian was slightly injured when he stumbled in the dark.

Spivey pled guilty to various charges and was sentenced to 12 years in prison.

Plaintiffs sued Spivey, his mother, their landlord, the association, and Jensen for personal injuries. After plaintiffs dismissed the other defendants, the case went to trial against the association and Jensen. The jury awarded Wentworth $1,171,220 and Manoogian $3,000. The jury found the association 30 percent responsible and Jensen 60 percent responsible for the injuries.

On defendants' motions, the trial court ordered a new trial on all issues and granted judgment notwithstanding the verdict. Although phrased in terms appropriate to the standards for granting each type of motion, the court's conclusion in each order (as relevant to this appeal) was that plaintiffs had failed to establish the elements of duty and causation necessary to prevail against these defendants. Judgment was entered and plaintiffs filed a timely notice of appeal. Defendants filed a protective cross-appeal contending the jury verdict was not supported by substantial evidence. As noted, there were additional postjudgment appeals.


Standard of Review

In order to recover damages in a negligence case, “the plaintiff must show that the defendant owed [plaintiff] a legal duty of care, the defendant breached that duty, and the breach was a proximate or legal cause of [plaintiff's] injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772, 107 Cal.Rptr.2d 617, 23 P.3d 1143, italics omitted.) The issue of duty is a legal question and, on appeal, we review it de novo. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.) The issue of causation is a factual question, and on review of a judgment granted notwithstanding the verdict we determine whether there was substantial evidence supporting the verdict. (Sprigg v. Garcin (1980) 105 Cal.App.3d 869, 873, 164 Cal.Rptr. 677.) FN1

FN1. Plaintiffs initially contend the trial court was without jurisdiction to enter the orders for new trial and JNOV. The argument is based on the premise that the time for such orders under Code of Civil Procedure section 629, 659, and 660 began with the mailing of file-stamped copies of the judgment to the parties. That action did not start the court's 60-day period for entering these orders because the clerk's certificate of mailing did not state that mailing occurred pursuant to court order or pursuant to Code of Civil Procedure section 664.5, subdivision (b). (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 64, 61 Cal.Rptr.2d 166, 931 P.2d 344.) The trial court's period for action began with defendants' mailing of notice of entry of judgment (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1277, 135 Cal.Rptr.2d 654, 70 P.3d 1067) and the orders were timely entered.

Premises Liability vs. General Negligence

*3 Although the parties analyze the issues in light of Supreme Court premises liability precedent, the case is not truly one arising under theories of premises liability. (See M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 525, 1 Cal.Rptr.3d 673 (conc. opn. of Harris, J.).) Plaintiffs do not contend there was a dangerous condition on the property such as inadequate lighting (see Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 502, 229 Cal.Rptr. 456, 723 P.2d 573), a broken security gate (cf. Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 772, 107 Cal.Rptr.2d 617, 23 P.3d 1143), or other dangerous physical condition or activity (Anaya v. Turk (1984) 151 Cal.App.3d 1092, 1105, 199 Cal.Rptr. 187) that contributed to their injuries.

Instead, plaintiffs contend the mere presence of Spivey on the premises gave rise to a duty to control Spivey or to warn others of his presence. As cogently discussed by the court in Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 721-727, 90 Cal.Rptr.2d 549, the only sense in which this situation could be viewed as a premises liability case is if Spivey were, as a matter of law, the equivalent of a wild beast or dangerous animal. (Plaintiffs' preferred metaphor in their reply brief is that he is a rattlesnake.)

As fully explained in Eric J. v. Betty M. (see 76 Cal.App.4th at pp. 725-726, 90 Cal.Rptr.2d 549), Spivey's mere presence on the premises did not constitute a “dangerous condition” that could give rise to premises liability. (Id. at p. 726, 90 Cal.Rptr.2d 549.) When felons are admitted to probation and parole, the legal system has made a determination that they can live in society without unreasonable danger to others, even if any particular probationer may, at some time, commit another crime. Tort law does not require landlords to be more prescient than the criminal justice authorities in determining that a probationer, simply because of his status, will reoffend. FN2

FN2. We are, in addition, troubled by the unlimited scope of the duty plaintiffs would impose on homeowners associations. If the duty to warn extended to all felony probationers who might, in some way, harm their neighbors, it would seem to cover at least those convicted of driving while intoxicated, financial crimes (from writing checks with insufficient funds to selling unregistered securities), and theft crimes, in addition to any crimes of violence. In the case of sex offenders, where the Legislature has established a mechanism for public disclosure of the whereabouts of repeat offenders, there is no duty to warn about the proximity of specific individuals merely because of their prior offenses. (Civ.Code, § 2079.10a, subd. (b).)

Although the present facts cannot support a premises liability theory, under general negligence law one may be liable for nonfeasance-such as failure to warn-when a “special relationship” exists between the parties. (M.W. v. Panama Buena Vista Union School Dist., supra, 110 Cal.App.4th at p. 517, 1 Cal.Rptr.3d 673.) Here, the special relationship arose from the contractual undertakings of the association (in the CC&Rs) and Jensen (in the management contract) to “promote the ... safety ... of the residents.” Such an undertaking, as the jury was instructed in this case, would require the association and Jensen “to exercise ordinary care in the management of the premises in order to avoid exposing persons to an unreasonable risk of harm. This duty exists even when the unreasonable risk of harm is caused by the criminal conduct of a third person which, in the exercise of reasonable care, is or should be foreseeable....”


Even when there is a special relationship between the parties, “a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207.) The scope of the duty “is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.” (Id. at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.) In circumstances where the burden of preventing future harm is great, greater foreseeability is required; where the burden is relatively low, a lesser degree of foreseeability may be required. (Id. at pp. 678-679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

*4 In some circumstances, the absence of security and the special vulnerability of those present on the defendant's property make third-party crime highly foreseeable. (M.W. v. Panama Buena Vista Union School Dist., supra, 110 Cal.App.4th at p. 521, 1 Cal.Rptr.3d 673 [presence of unsupervised special education students rendered crime against them “virtually inevitable”].) Sometimes, harm from a known third party lurking on the premises is reasonably foreseeable. (See Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1238, 32 Cal.Rptr.2d 136.) An assault by a school bully may be foreseeable if the school authorities do not intervene with the bully or protect potential victims. (See M.W. v. Panama Buena Vista Union School Dist., supra, at p. 525, 1 Cal.Rptr.3d 673 (conc. opn. of Harris, J.).)

In the present case, by contrast, there was nothing about Spivey's presence on the premises that made the present crimes foreseeable. The circumstances of his isolated prior crime did not make the present crimes foreseeable. In the prior case, as far as the present record shows, Spivey entered the front door of the home of a person with whom he had a monetary dispute, apparently to collect what he claimed the victim owed. In the present case, as far as the present record shows, Spivey entered the homes of complete strangers, with the more generic motive to steal. He had neither threatened anyone at the development nor had he ever created any other kind of problem. The mere fact that both the past and present crimes fall under the Penal Code category of “residential burglary” is an insufficient basis to render the present crimes foreseeable for tort purposes.

Plaintiffs point to testimony concerning prior burglaries at the development as somehow enhancing the foreseeability of Spivey's crimes there. There was, however, no evidence either that Spivey had anything to do with earlier burglaries at the development or that the previous burglaries had been more frequent than in surrounding neighborhoods or other parts of town. (See Eric J. v. Betty M., supra, 76 Cal.App.4th at p. 721, 90 Cal.Rptr.2d 549 [collecting cases involving unusually high crime history].) Accordingly, the evidence of these other burglaries does not add to the foreseeability of Spivey's crimes.

We conclude, as a matter of law, that Spivey's crimes were not reasonably foreseeable and defendants had no duty to prevent those crimes or warn against their possibility.


Even if it were conceded defendants owed a duty to plaintiffs, there is a further, fundamental problem with the evidence presented at trial: The breach of the duty that plaintiffs seek to impose on defendants was not shown to be a substantial factor in causing plaintiffs' damages. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 778, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) Plaintiffs contend that if defendants had only warned Spivey that he would get in trouble if he committed crimes at the development, or if they had asked the security company to warn Spivey they were keeping a close eye on him, or if they had warned the neighborhood about Spivey's criminal conviction, it would have prevented the present crimes. This, however, is mere speculation, not “direct or circumstantial evidence [that shows] the assailant took advantage of the defendant's lapse ... in the course of committing his attack....” (Id. at p. 779, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) FN3

FN3. Spivey's vague testimony that he would have been “concerned” and would have “considered” such warnings does not constitute substantial evidence of causation. Rather, such testimony is itself mere speculation.

*5 Simply put, Spivey was under the more serious strictures of probation and the potential strictures of additional criminal convictions when he committed the present crime. Yet he risked violation of probation and a lengthy prison sentence for new convictions when he committed these crimes. There was no evidence or reasonable inference from the evidence that informal warnings from management would have been more effective in dissuading Spivey from criminality.

Nor was there any evidence that plaintiffs or other residents would have taken self-protective measures had they been warned about Spivey. Wentworth's windows were already closed, and Spivey simply broke one out. Manoogian's sliding door was open, but he had already barricaded his patio gate to keep out intruders; Spivey simply broke through the barricade. Manoogian testified he might have kept his gun closer at hand if he had been warned about Spivey, but in reality his gun was handy enough that he successfully chased Spivey from the home when they first confronted one another.

In the absence of evidence that defendants' action or inaction was a substantial factor in causing plaintiffs' injury, plaintiffs were not entitled to prevail in this action.

Plaintiffs filed a postjudgment motion to set aside the JNOV and new trial orders. The court denied the motion on the basis that the motion was untimely. While plaintiffs renew on appeal their argument that the JNOV and new trial orders were untimely (see fn. 1, above), they do not separately argue that their motions were timely. Accordingly, we deem this contention waived.

Plaintiffs also contend the trial court erred in denying their motion to tax costs for defendants' surety bond filed in the trial court while the JNOV and new trial motions were pending. (The trial court found as a matter of fact that plaintiffs refused to refrain from executing on the original judgment while the motions were pending; plaintiffs do not challenge this finding on appeal.)

Plaintiffs contend, without citation of authority, that this court has “broad discretion” to deny costs. Not so. The trial court's order denying the taxing of costs is reviewed for abuse of discretion. (Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260, 1292, 270 Cal.Rptr. 907.) Plaintiffs have not attempted to establish such an abuse of discretion, and the record shows the trial court acted well within its discretion in denying the request to tax the cost of the security bond.


The judgment notwithstanding the verdict is affirmed. The order granting a new trial is moot. The protective cross-appeal is dismissed as moot. The order denying the motion to set aside the JNOV and new trial orders is affirmed. The order denying the motion to tax the cost of the surety bond is affirmed. Defendants are awarded their costs on appeal.


Adams Stirling PLC