Filed 7/5/16 Tyson v. Western Residential CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


MAUREEN AMBER TYSON,                                                  B263967

         Plaintiff and Respondent,                                    (Los Angeles County
                                                                      Super. Ct. No. BC498660)
         v.

WESTERN RESIDENTIAL, INC.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. Mark
Mooney, Judge. Affirmed.


         Haight Brown & Bonesteel, Bruce Cleeland and Vangi M. Johnson for Defendant
and Appellant.

         Law Office of Ray Newman and Ray Newman; Susan M. Mogilka for Plaintiff
and Respondent.


                                       __________________________
       After her apartment was burglarized, plaintiff Maureen Tyson brought suit against,
among others: (1) Western Residential, Inc., the company responsible for managing the
building (management company); and (2) Ruben Cardona-Torres, the maintenance
worker employed by management company, whom she believed to be the burglar. By
special verdict, the jury concluded Cardona-Torres had not converted Tyson’s property,
but management company was liable in negligence for Tyson’s losses. Management
company sought judgment notwithstanding the verdict (JNOV) on the theory that it could
not be held liable if its employee, Cardona-Torres, was not. The trial court denied the
motion for JNOV, on the basis that evidence supported the jury’s implied finding that
some other management company employee had committed the burglary. Management
company appeals, but challenges the denial of JNOV only as a matter of law; it did not
designate the reporter’s transcript of the trial as part of the appellate record and does not
seek review of the trial court’s conclusion that substantial evidence supported the jury’s
implied finding that the burglary was committed by one of management company’s
employees (albeit not Cardona-Torres). As the trial court did not commit legal error, and
management company does not seek appellate review of the sufficiency of the evidence,
we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Because of the limited nature of the appellate record, our review of the facts is
necessarily cursory. Tyson lived on the 21st floor of a high-rise apartment building
managed by management company. The building had been advertised as a secure
building with controlled access. In August 2012, Tyson’s apartment was burglarized
while she was away in Europe.
       On September 9, 2013, Tyson brought suit against management company and
Cardona-Torres. According to her complaint, Cardona-Torres had admitted to a parking
valet at the building that he and a friend had committed the Tyson burglary. (The
admission was allegedly made in the course of Cardona-Torres’s attempt to solicit the
valet to help him commit further break-ins by alerting him to times other tenants’ cars
were away.)

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       The complaint alleged Cardona-Torres had entered Tyson’s apartment with a key
he had obtained in one of two ways. First, as part of a prior service request, Cardona-
Torres had made two extra copies of Tyson’s key. Tyson speculated that Cardona-Torres
may have made a third copy of the key and kept it for himself. Second, Tyson alleged
management company’s security regarding its copies of all tenants’ keys was negligently
lax, enabling anyone on the maintenance staff to obtain access to any unit at any time.
       Tyson further alleged that management company was negligent in its handling of
information that she was out of town. Tyson had e-mailed the building concierge this
information, but was unaware that valets and maintenance staff also had access to the
concierge’s e-mail account, and therefore could have learned the otherwise private
information that she was in Europe.
       Tyson alleged a single cause of action for conversion against Cardona-Torres. As
against management company, she alleged negligence in, among other things,
management company’s failure to take reasonable care to prevent the burglary.1
       After a trial, the jury found, by special verdict, that management company was
negligent, and its negligence was a substantial factor in causing harm to Tyson. Tyson
was found to be comparatively negligent. Tyson’s total damages, without reduction for
her comparative fault, was $370,554. The jury then answered “no” to the question, “Did
[Cardona-Torres] intentionally and substantially interfere with [Tyson’s] property by
taking possession of the jewelry, handbags, electronics, and clothing?”
       In light of the verdict, management company moved for JNOV, on the theory that
the special verdict was inconsistent. Management company argued that, since the jury
concluded Cardona-Torres had not committed the burglary, the jury impliedly concluded
that an unrelated third party committed the burglary, and landlords generally owe no duty
to their tenants to safeguard their property from criminal activity of third parties, even if

1
        Tyson also alleged fraud and negligent misrepresentation in connection with
management company’s representations regarding the safety features existing in the
building. The jury found management company made a false representation of an
important fact, but also that management company reasonably believed its representation
to be true.
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reasonably foreseeable. (Royal Neckwear Co. v. Century City, Inc. (1988)
205 Cal.App.3d 1146, 1151 (Royal Neckwear).)
       In opposition, plaintiff argued that there was evidence that the burglary was an
inside job, “perpetrated by an employee who had access to the key to plaintiff’s unit and
to the parking structure of the building.”
       In reply, management company argued that because plaintiff had failed to identify
the burglar, she had failed to establish that the burglar had been a management company
employee.2 At argument on the motion, management company expounded this argument,
arguing that in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 (Saelzler), the
California Supreme Court held that a tenant cannot hold its landlord responsible for
inadequate security when the tenant has not identified the criminals. Tyson responded
that she was not required to establish the specific identity of the burglar as long as she
established that it was more likely than not that the burglar had been a management
company employee. The trial court agreed, identifying evidence of a “duplicate pass key,
evidence about knowledge that Miss Tyson was going to be gone, evidence of prior
burglaries.” Tyson identified additional evidence that the burglary was committed by a
management company employee including “photographs . . . of two individuals carrying
items from her apartment . . . and taking [them] through a garage entrance. The only way
you can get to that garage is to be at least a staff member . . . .”
       The trial court denied the motion for JNOV. Management company appealed only
from the denial of its postjudgment motion for JNOV; it did not appeal the underlying
judgment.
                                        DISCUSSION

       “On appeal from the denial of a JNOV motion, an appellate court must review the
record de novo and make an independent determination whether there is any substantial
2
        The reply also stated, “The jury found that Mr. Torres was not responsible for the
loss. The jury further found no evidence regarding the supervision, or lack of
supervision, of any other employee of the building defendants as being the cause of
plaintiff’s loss.” The special verdict form does not reflect that the jury was asked this
second question, or made any such finding.
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evidence to support the jury’s findings. [Citations.] This review is limited to
determining whether there is any substantial evidence to support the jury’s verdict.
[Citation.] The court must accept as true the evidence supporting the verdict, disregard
conflicting evidence, and indulge every legitimate inference to support the verdict.
[Citation.] If sufficient evidence supports the verdict, a reviewing court must uphold the
court’s denial of the JNOV motion. [Citation.] If the appellant raises purely legal
questions, we conduct a de novo review. [Citations.]” (Hirst v. City of Oceanside (2015)
236 Cal.App.4th 774, 782.) Here, management company raises only legal issues; our
review is therefore de novo.
       Royal Neckwear establishes that a commercial landlord does not owe its tenants a
duty to safeguard the tenants’ property from reasonably foreseeable criminal activity by
third parties. (Royal Neckwear, supra, 205 Cal.App.3d at p. 1151.) Management
company argues that Royal Neckwear applies equally to residential landlords; we need
not resolve the issue because even assuming Royal Neckwear applies, it does not help the
management company. Royal Neckwear, however, acknowledged that the situation it
considered was distinguishable from cases addressing liability for thefts “when those
thefts were committed by one of the landlord’s agents.” (Id. at p. 1152, fn. 3; see Maron
v. Swig (1952) 115 Cal.App.2d 87, 91 [reversing a nonsuit for the landlord when its agent
had committed the thefts].)
       Tyson argues that the criminal activity in this case was not committed by an
unrelated third party, but by an unidentified management company employee. If Tyson is
correct, Royal Neckwear does not apply. Management company takes the position that
Saelzler prevents the “landlord’s agents” exception from applying unless the tenant
actually establishes the identity of the employee who was the thief – because causation
cannot be established in the absence of identity. As we shall explain, this is a mis-
reading of Saelzler.
       Saelzler involved a package delivery person who was physically assaulted by
unknown assailants when attempting to deliver a package to a resident in a 29-building,
multi-acre building complex. She sued the building owners, arguing that their failure to

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keep security gates closed and provide additional security guards was responsible for her
assault. (Saelzler, supra, 25 Cal.4th at pp. 769, 771.) The building owners obtained
summary judgment on the basis of causation, and the Supreme Court agreed. To prevail,
a “plaintiff must establish, by nonspeculative evidence, some actual causal link between
the plaintiff’s injury and the defendant’s failure to provide adequate security measures.”
(Id. at p. 774.) The plaintiff must have evidence that it was more probable than not that,
but for the landlord’s negligence, the assault would not have occurred. (Id. at p. 775.)
The delivery person failed to meet this burden. As the court explained, “Plaintiff admits
she cannot prove the identity or background of her assailants. They might have been
unauthorized trespassers, but they also could have been tenants of defendants’ apartment
complex, who were authorized and empowered to enter the locked security gates and
remain on the premises. The primary reason for having functioning security gates and
guards stationed at every entrance would be to exclude unauthorized persons and
trespassers from entering. But plaintiff has not shown that her assailants were indeed
unauthorized to enter. Given the substantial number of incidents and disturbances
involving defendants’ own tenants, and defendants’ manager’s statement that a juvenile
gang was ‘headquartered’ in one of the buildings, the assault on plaintiff could well have
been made by tenants having authority to enter and remain on the premises. That being
so, and despite the speculative opinion of plaintiff’s expert, she cannot show that
defendants’ failure to provide increased daytime security at each entrance gate or
functioning locked gates was a substantial factor in causing her injuries.” (Id. at p. 776.)
       The Court cautioned that it was not holding that the criminal must give testimony
as to what would have prevented the crime in order for there to be liability. (Saelzler,
supra, 25 Cal.4th at p. 779.) “[I]n 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.” (Ibid.) In short, circumstantial evidence establishing the means of the criminal

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activity may be sufficient evidence of causation, even in the absence of the identity of the
criminal.
       In the case before us, the trial court concluded there was such circumstantial
evidence. Management company does not challenge this finding. It cannot do so; it did
not provide a reporter’s transcript to enable us to determine the sufficiency of the
evidence. (Telles v. Title Ins. & Trust Co.(1969) 3 Cal.App.3d 179, 187-188.) In any
event, from the limited record before us, it appears that there was substantial evidence the
burglar accessed Tyson’s apartment with a key, not by forced entry. Management
company had such a key, which it did not keep secure. Nobody else with a key (such as
Tyson’s dog walker) could have been admitted without signing a logbook, and none of
them signed it. The reasonable inference is that a management company employee
committed the burglary. That the thieves left the building via a garage not accessible to
outside third parties reinforces the conclusion.
       To the extent management company argues that Cardona-Torres was the only one
of its employees placed before the jury, we acknowledge that Cardona-Torres was the
only one identified in the special verdict form, but disagree that he was the only one
before the jury. Without the trial record, it is impossible to determine if the case was
presented to the jury on the basis that it could find management company liable as long as
one of its employees committed the burglary and its negligent practices enabled it to
happen. We therefore assume that this theory was before the jury, and the jury adopted
it.3


3       At oral argument, management company argued that the theory that Cardona-
Torres had committed the burglary was the only theory alleged in the complaint, and that
the trial was therefore necessarily limited to that theory. We disagree. First, the
pleadings may well have been amended to conform to proof at trial. (Faigin v. Signature
Group Holdings, Inc. (2012) 211 Cal.App.4th 726, 736.) We do not know because there
was no reporter’s transcript. Second, the verdict form presented to the jury allowed a
finding of management company negligence without Cardona-Torres’s liability. There is
nothing in the record indicating management company objected to the verdict form,
leading to the inference the case was litigated, at least in part, on the theory that a
management company employee other than Cardona-Torres was the burglar. Third, in
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                                     DISPOSITION
      The order denying JNOV is affirmed. Tyson is to recover her costs on appeal.




                                                RUBIN, J.
WE CONCUR:




             BIGELOW, P. J.




             FLIER, J.




denying the motion for JNOV, the trial court identified evidence admitted at trial which
supports the conclusion that the burglary was an inside job, even if it was not committed
by Cardona-Torres.
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