Filed 12/3/15 Santiago v. Chavez CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX

PEDRO LOPEZ SANTIAGO et al.,                                                   2d Civil No. B259427
                                                                             (Super. Ct. No. 1390566)
     Plaintiffs and Appellants,                                               (Santa Barbara County)

v.

ISIDRO CHAVEZ et al.,

     Defendants and Respondents.



                   Pedro Lopez, Jr., (Lopez) was stabbed to death on property owned by
Isidro and Maria Chavez (respondents). Lopez's parents, Pedro Lopez Santiago and
Guadalupe Ramirez (appellants), sued respondents for negligence, premises
liability, and wrongful death. The trial court granted summary judgment in favor of
respondents, and appellants appeal from that judgment. We affirm.
                                               BACKGROUND
                   Respondents own a four-unit apartment building in Santa Maria (the
property). Each unit is occupied by tenants who pay rent to respondents.
                   On March 5, 2010, M.P. and H.A. lived in unit "D" with their mother.
At about 10:00 p.m. that night, Lopez was stabbed to death in the carport of unit D
by Christian Chavez,1 a member of the West Park Gang. The operative complaint

         1 Although Chavez and respondents share a last name, they are not related.
alleged that M.P. and H.A. were members of the same gang, invited Chavez over
that night "for one of their frequently occurring parties," and "stood next to Chavez"
while he committed the crime. M.P. had also allegedly been stabbed in a prior
incident and involved in another prior stabbing, while Lopez was not affiliated with
any gang and "had been jogging by the building while he stopped to visit a tenant at
the property when he was violently stabbed to death . . . ."
              The complaint also alleged that other tenants had previously
complained to respondents about "loud drunken parties several nights per week in
the carport and driveway area [of unit D], gang member activity, police raids, drug
use on the premises, sex in public and acts of violence." Respondents purportedly
"did nothing to prevent this illegal and dangerous activity from continuing" by, for
example, evicting M.P. or H.A., ordering them "to stop engaging in violent and
illegal conduct," "post[ing] signage restricting the behavior" or "put up any lighting
to deter, and did not call the police to stop the illegal conduct." Respondents also
allegedly knew about two prior police "raid[s]" on the he property "just weeks prior
to the Lopez murder as well as several other crimes at [unit D] including drug
arrests, sexual assault, drunk in public, theft, and resisting arrest." Appellants
sought to hold respondents liable for the damages they suffered as a result of
Lopez's death on the grounds that (1)"further criminal and/or dangerous activities"
on the property were foreseeable to respondents such that they owed a duty to
prevent such activities; and (2) Lopez's death was caused by the breach of that duty.
              In moving for summary judgment, respondents each declared under
oath that prior to the stabbing incident they had no knowledge of any criminal
activity on the property, including illegal drug usage in the common areas or "loud
drunken parties" or "any prior acts of physical violence on th[e] property."
Respondents also said they had no prior knowledge of Chavez or Lopez or of any
disturbance or disagreement between them and/or the occupants of unit D.
              In opposing summary judgment, appellants submitted a declaration
from private investigator Hector Garcia along with a report summarizing interviews

                                           2
Garcia conducted with other tenants at the property over two-and-a-half years after
the stabbing incident. According to the report, each interviewee referred to loud
parties and drinking at unit D prior to the stabbing, and a few said they had
complained (or had been told that other tenants had complained) to respondents
about the noise. Every interviewee, however, also said there had been no prior acts
of violence on the property, and that subsequent to the stabbing respondents had
prohibited the residents of unit D from having any more parties there.
              Appellants also submitted a declaration from one of appellants'
attorneys with a copy of a deposition subpoena served on the Santa Maria Police
Department attached as an exhibit. Counsel then offered, based on her "personal[]
review[]" of the records produced in response to the subpoena, that within the 30
days preceding the stabbing incident "there were law enforcement responses to 5
burglaries, 2 acts of vandalism, 2 arrests for parole violations, 2 arrests for sex
crimes, 3 acts of battery, and 1 arrest for domestic violence within a one block
radius of the property."
              Finally, appellants requested judicial notice of two supplemental
police reports regarding the stabbing pursuant to Evidence Code2 section 452,
subdivision (h). Along with the reports, appellants included copies of a search
warrant issued for unit D during the investigation of the incident and the supporting
affidavit.
              Respondents filed written objections to all of appellants' proffered
evidence on hearsay grounds and opposed the request for judicial notice of the
police reports and their attachments on the ground that the documents were not
judicially noticeable and were offered for inadmissible hearsay contained therein.
At the outset of the hearing on the summary judgment motion, the court stated,
"Well, it's the unusual case where we can grant summary judgment, but this is
looking to me like one that may be appropriate for it because I'm not seeing any

       2 All further undesignated statutory references are to the Evidence Code.


                                            3
evidence of knowledge of similar violent crimes in the area." The court added, "[i]t
is just hard to see what knowledge would have been communicated to the owners of
the building and what action they could have taken that would have prevented the
ultimate tragedy here."
               After arguing her position, appellants' attorney asked for a
continuance of the hearing to "give us the opportunity to cure whatever the concerns
or the defects are in the interest of justice since it's a triable issue of fact and such an
important issue . . . ." Counsel anticipated that further discovery could demonstrate
that respondents "didn't replace broken lights or install lighting or signage" in order
to deter the commission of criminal acts on their property. Respondents opposed
the request as contrary to the rules of summary judgment and characterized it as "a
delaying tactic." The court responded, "I don't know as I should," yet granted a
two-month continuance. Respondents' counsel asked for a ruling on their
evidentiary objections and the court replied, "It was before receiving the objections
already my view that the court doesn't take judicial notice of the truth of the content
of police reports, and that we need more than hearsay evidence to find a triable
issue here."
               At the continued hearing, appellants' attorney acknowledged that no
additional evidence had been offered in opposition to the summary judgment
motion. After further argument, the court ruled that "even if we were to consider
the hearsay - which I don't think we should," it was insufficient to defeat summary
judgment as a matter of law.3 Judgment was accordingly entered in favor of
respondents.




        3 According to the police reports that appellants urged the court to consider,
witnesses stated that Lopez–a semi-professional boxer–was actually at the property
visiting M.P., had an ongoing dispute with Chavez, and initiated the altercation that
led to his death by punching Chavez in the face and breaking his nose.

                                             4
                                     DISCUSSION
              Appellants contend the court erred in granting summary judgment.
We conclude otherwise.
              A motion for 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).) "'We review the trial court's decision de novo, considering all
the evidence set forth in the moving and opposing papers except that to which
objections were made and sustained.' [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party. [Citation.]" (Yanowitz v. L'Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
              A defendant moving for summary judgment bears the initial burden
showing that the plaintiff's action lacks merit. The defendant can meet this burden
by presenting evidence that the plaintiff cannot establish one or more elements of
his or her claims such that the defendant is entitled to judgment as a matter of law.
(Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) Once that burden is met,
the burden shifts to the plaintiff to present evidence establishing that a triable issue
exists on one or more material facts. (Id. at pp. 889-890.)
              Appellants do not dispute that respondents met their initial burden
such that the burden shifted to appellants to present evidence sufficient to create a
material issue of fact. They also acknowledge that respondents filed written
objections to all of appellants' evidence on hearsay grounds. They claim, however,
that the trial court was nevertheless required to consider that evidence–and that this
court must treat the objections as overruled–because respondents failed to "press for
a ruling" on their objections and the court never responded with a formal ruling.
(See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 533-534.) But respondents did ask
for a ruling, and the court ruled on more than one occasion that appellants' evidence
was inadmissible hearsay.

                                            5
              Moreover, we agree with that ruling. "'Hearsay evidence' is evidence
of a statement that was made other than by a witness while testifying at the hearing
and that is offered to prove the truth of the matter stated." (§ 1200.) The witness
statements in Garcia's report and the information offered in the declaration
submitted by appellants' attorney are all classic inadmissible hearsay. Contrary to
appellants' claim, none of the evidence fell under the business records exception to
the hearsay rule (§ 1271).4 Counsel's declaration–which purported to recount acts
she had read about in police documents that were not offered as evidence–meets
none of the requirements for admissibility under section 1271. Garcia's report is
similarly inadmissible because, among other things, the witnesses who spoke to him
about what they had seen or done had no official duty to do so. (See People v.
Hernandez (1997) 55 Cal.App.4th 225, 240 [business records exception does not
apply to reports based on observations of victims or witnesses with no official duty
to observe and report those observations].) The court properly declined to either
judicially notice or otherwise consider the police reports and related documents,
which were offered solely for the inadmissible hearsay statements contained
therein. (See Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190,
1205 [when police records contain hearsay or multiple hearsay statements, an
exception for each level of hearsay must be shown for the evidence to be
admissible]; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 389
["Public employee business records . . . are admissible in civil actions only to the
extent that they report the employee's firsthand knowledge"].) Appellants' claim


       4 Section 1271 provides: "Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered to
prove the act, condition, or event if: [¶] (a) The writing was made in the regular
course of a business; [¶] (b) The writing was made at or near the time of the act,
condition, or event; [¶] (c) The custodian or other qualified witness testifies to its
identity and the mode of its preparation; and [¶] (d) The sources of information and
method and time of preparation were such as to indicate its trustworthiness."


                                           6
that their proffered evidence was not offered for the truth of the matters asserted
therein–but rather "merely to recognize that there are triable issues of fact"
precluding summary judgment"–simply "misses the mark." "The documents, if
relevant, were direct evidence prior [incidents] had occurred at the [property] and
were therefore being offered for the truth of the matter asserted." (Alvarez, at p.
1206.)
              Because the court did not err in excluding all of appellants' proffered
evidence, it properly entered summary judgment in favor of respondents. In light of
this conclusion, we need not address the court's alternative finding that the
evidence, even if admissible, was insufficient to create a disputed issue of material
fact.
              The judgment is affirmed. Costs to respondents.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                           7
                                   Jed Beebe, Judge
                       Superior Court County of Santa Barbara
                         ______________________________



             Law Offices of Peter R. Nasmyth, Jr., Peter R. Nasmyth, Jr., and Catherine
Rose Lombardo for Plaintiffs and Appellants.
             Law Office of Priscilla Slocum, Priscilla Slocum, Stub, Boeddinghaus &
Velasco, David Noel Tedesco for Defendants and Respondents.
