Filed 9/24/14 Hunter v. Nansco Management CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


MUJAHBARRUKA HUNTER,                                                  B248749

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. LC094938)
         v.

NANSCO MANAGEMENT, INC., et al.,

         Defendants and Respondents.




         APPEAL from judgment of the Superior Court of Los Angeles County,
Huey P. Cotton, Judge. Affirmed.


         Campbell & Farahani, Frances M. Campbell and Nima Farahani for Plaintiff and
Appellant.


         Neil Dymott, Frank, McFall & Trexler, James A. McFall, Jarod A. Cauzza;
Fidone & Motooka and Gary P. Fidone for Defendants and Respondents.
                                            _____________________
                                     INTRODUCTION
        Plaintiff Mujahbarruka Hunter (Hunter) appeals the trial court’s granting of
summary judgment in favor of Defendants Nansco Management, Inc. (Nansco), and
A. Douglas Rickard and Jeannie C. Rickard (the Rickards). Hunter sued Defendants for
premises liability and negligence, alleging that the injuries he sustained from third-party
criminal activity were attributable to Defendants’ failure to repair locks on the security
gates to Hunter’s apartment building. The trial court granted summary judgment because
Hunter failed to show that there was a triable issue of material fact regarding duty. We
affirm because Hunter failed to meet his burden to produce some evidence that
Defendants had a reason to foresee criminal conduct, which was essential to establishing
duty.
                    FACTS AND PROCEDURAL BACKGROUND
        Hunter is legally blind, and during the timeframe at issue in this case, he lived
with his mother at an apartment complex on Nordhoff Street in North Hills, California.
The Rickards own that apartment complex and Nansco manages it. On May 23, 2011,
four robbers entered the complex through broken security gates. One of the robbers
knocked on Hunter’s apartment door and Hunter opened the door believing that it was the
apartment manager’s wife. The robbers then pushed their way into the apartment, and
robbed and beat Hunter. Three of the four perpetrators had previously been guests in
Hunter’s apartment, but Hunter had disassociated from them in April 2011 when he
learned that they had stolen from him. Had Hunter known that those three individuals
were at his door, he would not have opened it. Notably, Hunter had repeatedly
telephoned the apartment manager complaining that the locks on the security gates were
broken during the six to eight months preceding the robbery.
        On September 21, 2011, Hunter filed suit against Defendants, alleging causes of
action for premises liability and general negligence. Defendants filed a motion for




                                              2
summary judgment, contending they did not breach any duty owed to Hunter.1 They
argued liability cannot be imposed because they lacked reasonable cause to anticipate the
misconduct of third persons, and there can be no breach of duty when the injury results
from a sudden criminal act which Defendants had no reasonable opportunity to anticipate
or prevent. The Rickards and a manager employed by Nansco filed declarations in
support of the motion for summary judgment, stating that they had no notice that the
premises were unsafe or that Hunter would be injured.
       In opposition, Hunter argued that Defendants owed a duty of care to maintain the
locks at the apartment building. He asserted that the evidence satisfied the slight degree
of foreseeability required to impose a duty to repair locks, as contrasted with the requisite
high degree of foreseeability necessary to require a landlord to take more burdensome
security measures like posting security guards. In his brief opposing the motion for
summary judgment, Hunter’s evidentiary basis for proving forseeability consisted of
crime statistics (which were excluded by the court) and a statement made to the police by
Rosa Castro, who lived in the same building as Hunter and worked for the landlord as a
“keyholder.” Ms. Castro had told the police that she saw two men climbing over the rear
fence a day before the incident. In his separate statement, Hunter cited several additional
pieces of evidence to support foreseeability. Namely, Hunter asserted that his own
testimony regarding his numerous calls2 to management about the broken security gate
locks, a fellow tenant experiencing an attempted break-in, and the presence of

1
       We note defendants did not move for summary judgment on the ground of lack of
causation. Defendants first introduced the issue of causation in their reply papers, arguing
Hunter had failed to show a causal connection between the allegedly broken gate and his
injuries. The trial court did not address causation below and neither do we on appeal
based on due process considerations, as Hunter lacked notice and the opportunity below
to respond to Defendants’ causation arguments. (See Gomez v. Acquistapace (1996)
50 Cal.App.4th 740, 744.)
2
       Based on lack of foundation and hearsay, the trial court sustained defendants’
objection to the statement in Hunter’s declaration that his mother also complained to
management of broken locks. The trial court also excluded Hunter’s proffered evidence
regarding crime in the vicinity. Hunter does not appeal these evidentiary rulings.


                                              3
“undesirables” coming in and out of the apartment complex established a triable issue of
material fact regarding foreseeability as it pertained to duty.
       The trial court granted summary judgment in favor of Defendants, ruling that
Defendants owed no duty of care to protect Hunter from the criminal conduct of third
parties. The court explained that Hunter “[lacks] any evidence of any specific prior
incidents or threat of impending violence—a necessary precursor to any claim of duty
depending on a finding of foreseeability. Reports of prior robberies ‘in the
neighborhood’ insufficiently establishes a nexus with the subject ‘home invasion’
robbery committed in the Hunter apartment unit . . . . [¶] [Hunter] also lacks any
evidence of [D]efendants’ notice of any imminent threat of violence, thereby establishing
a special duty of care to assist plaintiff from potential third party inflicted harm.
[Citations.]”
                                       DISCUSSION
       Hunter asserts that the trial court erred in finding that there was no duty to repair
the locks on the security gates. “On appeal after a motion for summary judgment has
been granted, we review the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections have been made and
sustained. [Citation.] Under California’s traditional rules, we determine with respect to
each cause of action whether the defendant seeking summary judgment has conclusively
negated a necessary element of the plaintiff’s case, or has demonstrated that under no
hypothesis is there a material issue of fact that requires the process of trial, such that the
defendant is entitled to judgment as a matter of law.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.) We construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that party.
(Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.)
       Here, Defendants moved for summary judgment on the element of duty of care.
Whether a legal duty of care runs from the defendant to the plaintiff is a fundamental
element of any cause of action for negligence or premises liability. (Campbell v. Ford
Motor Co. (2012) 206 Cal.App.4th 15, 26; John B. v. Superior Court (2006) 38 Cal.4th


                                               4
1177, 1189 [“To prevail in an action for negligence, the plaintiff must demonstrate that
the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that
the breach proximately caused the plaintiff's injuries.”].) “The existence and scope of a
duty are questions of law for the court’s determination, and foreseeability is a critical
factor in the analysis. When foreseeability is analyzed to determine the existence or scope
of a duty, foreseeability is also a question of law.” (Ericson v. Federal Express Corp.
(2008) 162 Cal.App.4th 1291, 1300 (Ericson).)
       To support their contention that Hunter could not prove duty, Defendants
produced declarations from the Rickards and Nansco manager Karla Cisneros. The
declarations stated that at no time prior to the incident did they have reason to believe the
premises were unsafe or that Hunter might be injured as a result of any incident such as
occurred here, the property is secured by a front entry gate which is locked unless
tampered with, there is also a rear entry gate to the parking area affording additional
security to tenants, and there was no indication as to how the assailants accessed the
property. We conclude that this evidence was sufficient to show that the harm at issue
was not foreseeable to Defendants. Defendants thus effectively shifted the burden of
production to Hunter to show that there was evidence that the home invasion, assault, and
robbery were foreseeable such that Defendants had a duty to protect Plaintiff from those
offenses by repairing the security door locks.
       First, Hunter argues that because the landlord has a statutory duty to provide locks
on the security gates, he did not need to prove forseeability of the harm in order to show
that Defendants had a duty to maintain the locks. Under Civil Code section 1941.3, a
landlord has a duty to provide locks on the outer security doors. His failure to do so
results in liability under habitability statutes. (See L.A. Mun. Code, § 153.02
[A habitability violation under the Rent Stabilization Ordinance is “a reduction or
elimination of the following services if contracted for by the tenant, or if provided to the
tenant at the time the tenant moves into his or her rental unit: elevators, security gates,
and air conditioners.”], italics added.) Civil Code section 1941.3, subdivision (d) states
that it “shall not broaden, limit, or otherwise affect the duty of care owed by a landlord


                                              5
pursuant to existing law,” like the standards for negligence at issue in this case. Thus, a
plaintiff has the obligation of going further than just showing the absence of functioning
locks in a negligence case by providing evidence that a duty to maintain the locks exists
under the factors analyzed at common law. Plaintiff’s negligence per se argument thus
fails on this basis.
       Second, Hunter asserts that even if Civil Code section 1941.3 is insufficient to
prove duty, he has provided sufficient evidence to prove foreseeability of the harm.
Foreseeability of harm3 to the plaintiff and the extent of the burden to the defendant are
the most crucial considerations in performing a duty analysis. (Castaneda v. Olsher
(2007) 41 Cal.4th 1205, 1213 (Castaneda).) “An act must be sufficiently likely before it
may be foreseeable in the legal sense. That does not mean simply imaginable or
conceivable. Given enough imagination, everything is foreseeable. [O]n a clear judicial
day, you can foresee forever. [Citation.] If the law imposed a duty to protect against
every conceivable harm, nothing could function.” (Jefferson v. Qwik Korner Market, Inc.
(1994) 28 Cal.App.4th 990, 996.) It is well established that “a duty to take steps to
prevent the wrongful acts of a third party ‘will be imposed only where such conduct can
be reasonably anticipated.’ [Citation.]” (Id. at p. 993.)




3
        “Some factors that courts consider in determining the existence and scope of a
duty in a particular case are: ‘[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.’ (Rowland v. Christian [(1968)] 69 Cal.2d [108,] 113.)” (Ann M. v. Pacific
Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5, superseded by statute with
respect to the standard adopted for summary judgment as reflected in Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767-768, and disapproved of on other
grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 522-523.)


                                              6
       This means that a landlord only “has a duty to protect against types of crimes of
which he has notice and which are likely to recur if the common areas are not secure. . . .
[Citations.]” (O’Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 802-803,
italics added; see also Peterson v. San Francisco Community College Dist. (1984)
36 Cal.3d 799, 807.) The Supreme Court has explained that “the requisite degree of
foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of
violent crime on the landowner’s premises.” (Ann M., supra, 6 Cal.4th at p. 679.)
As the Supreme Court explained in Castaneda, supra, 41 Cal.4th at p. 1213, we look to
the circumstances of the case to see if the landlord was on notice of facts making the
harm at issue foreseeable. In assessing whether the facts show foreseeability of third
party crimes, “our precedents have focused on whether there were prior similar incidents
from which the property owner could have predicted the third party crime would likely
occur, though we have recognized the possibility that ‘other indications of a reasonably
foreseeable risk of violent criminal assaults’ could play the same role.” (Id. at p. 1221.)
       In this case, Hunter did not produce any evidence that Defendants were on notice
that a crime of this nature could occur. In his appellate brief, Hunter asserts that: “[h]ere,
the keyholder saw two people breaking into the Building the day before the home
invasion robbery, probably doing a ‘dry run.’ [Citation.] Moreover, Mr. Hunter
informed management about the broken locks prior to the robbery. That is enough to
establish foreseeability.” On appeal, Hunter does not argue that any other evidence
supports foreseeability.
       With regard to the keyholder’s statement to the police, she did not state that two
people broke into the building. Rather, the police report indicates that she saw two men
jump over the rear fence. The fact that two men jumped over the fence and did nothing
more, fails to show a threat of home invasion, assault, or robbery. It also fails to place
Defendants on notice of the need to the repair locks in order to prevent against intruders
because the men did not need to enter through the gates to access the premises. This
incident fails to satisfy the burden of production necessary to show foreseeability of
criminal conduct as set forth in case law. (See Ambriz v. Kelegian (2007)


                                              7
146 Cal.App.4th 1519, 1535 [“In view of the repeated security breaches and the known
presence of unauthorized male intruders, a violent attack by an intruder was sufficiently
foreseeable”]; Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 286-
287 [The Court found foreseeability of breaking and entering where there was evidence
of a prior incident involving aborted entry by an intruder into the same apartment, and
reports of assaultive crimes in other apartments in building.].)
       Furthermore, Hunter’s testimony that he reported broken locks to management
also fails to establish foreseeability of home invasion, assault, or robbery occurring
within the complex. Hunter’s reports regarding broken locks are relevant to evaluating
whether the locks were functioning and whether Defendants had notice of the broken
locks. Yet, that testimony fails to show a likelihood of criminal activity that Defendants
had a duty to guard against. As pointed out in the dissent, security gates with locks
controlling access to common areas are required by statute and thus ubiquitous in
California. The existence of a broken lock and reports of it to management therefore do
not address foreseeability.
       As mentioned above, Hunter does not argue on appeal that any other evidence
establishes foreseeability. Because we review the motion for summary judgment de
novo, we also address the evidence set forth in Hunter’s separate statement. There,
Hunter relies on his deposition testimony, which states that there were always
“undesirables” coming into the building, and that somebody had tried to break into the
apartment of his neighbor, Tia Fox, via her balcony. Hunter testified that Fox had made a
complaint and was waiting for someone to follow through. Notably, there is no
information whatsoever regarding to whom this complaint was made.
       It is unclear who the “undesirables” were and there is no indication that they
engaged in any criminal conduct. Nor is there evidence that anyone informed Defendants
of these people being in the building. In Ericson, supra, 162 Cal.App.4th at p. 1305, the
Court of Appeal concluded that the risk of third-party assault in a parking lot was not
foreseeable and thus the property owner had no duty to undertake even minimally
burdensome measures to prevent assault where the evidence showed only that non-


                                             8
violent transients frequently trespassed in the parking lot and two prior non-violent thefts
may have occurred on the premises. Similarly here, the existence of people in the
building who are undesirable to Hunter does not prove a likelihood of assault or robbery,
where there is no evidence that these people have acted violently or in a threatening
manner.
       To the extent that Hunter relies on his own testimony regarding an attempted
break-in at Tia Fox’s apartment, there is no evidence to indicate that Ms. Fox or anyone
else notified Defendants about it. To whom Ms. Fox reported the incident is unknown.
The police? The landlord? Such equivocal evidence is insufficient to raise a question of
fact. (Ahrens v. Superior Court (1988) 197 Cal.App.3d 1134, 1152 [stating that equivocal
evidence “does not constitute ‘ “ ‘sufficient proof of the matters alleged to raise an
issuable question of fact’ ” . . . . [Citation.]’ [Citation.]”]. ) (Yuzon v. Collins (2004)
116 Cal.App.4th 149, 163 [a landlord is not liable for tenant’s dog bite incident where
evidence that landlord knew the dog was dangerous was based on speculation,
imagination, guesswork, or mere possibilities].) As a court, we cannot fill in this
evidentiary gap for Hunter. “Filling in these gaps requires us to speculate about the basis
for the [defendant]’s knowledge asserted by appellants. Such speculation is
impermissible, however, and is grounds for granting summary judgment.” (Doe v.
Salesian Society (2008) 159 Cal.App.4th 474, 481.)
       The small burden to the landowner of ensuring a lock is in working order, as slight
as it may be, does not supplant Hunter’s burden to produce some evidence that
Defendants had a reason to foresee criminal conduct. Hunter has failed to do so here.
We therefore affirm.




                                               9
                                    DISPOSITION
      Judgment affirmed. Defendants Nansco Management, Inc., A. Douglas Rickard,
and Jeannie C. Rickard are awarded their costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, J.

I concur:




                    ALDRICH, J.




                                           10
       KLEIN, P. J., Dissenting.
       I respectfully dissent. I would reverse the judgment on the ground defendants
owed a duty as a matter of law to maintain the locks on the security gates in working
order. Whether defendants breached said duty presents a triable issue of material fact
which precludes this case from being resolved on summary judgment.
       1. Standard of appellate review.
       “[This court] independently review[s] an order granting summary judgment.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We determine whether
the court’s ruling was correct, not its reasons or rationale. (Salazar v. Southern Cal. Gas
Co. (1997) 54 Cal.App.4th 1370, 1376.) ‘In practical effect, we assume the role of a trial
court and apply the same rules and standards which govern a trial court’s determination
of a motion for summary judgment.’ (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.)”
(Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 504-505.)
In performing our de novo review, we must view the evidence in a light favorable to
Hunter, as the losing party below. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th
763, 768 (Saelzler).)
       2. As a matter of law, landlord has duty to take reasonable steps to secure
common areas against foreseeable criminal acts of third parties.
              a. General principles.
       The “existence of a duty is a question of law for the court. [Citations.]”
(Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).)1
Likewise, “[f]oreseeability, when analyzed to determine the existence or scope of a duty,

1
        “Some factors that courts consider in determining the existence and scope of a
duty in a particular case are: ‘[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.’ (Rowland v. Christian [(1968)] 69 Cal.2d [108,] 113.)” (Ann M., supra,
6 Cal.4th at p. 675, fn. 5.)
is a question of law to be decided by the court.” (Ann M., supra, 6 Cal.4th at p. 678;
accord, Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 (Sharon P.).) The
discrete issue presented herein is whether third party criminal activity was sufficiently
foreseeable to support a requirement that defendants maintain the locks on the security
gates at the subject apartment building. (See Sharon P., supra, at p. 1188.)
       By now, it is “well established that California law requires landowners to maintain
land in their possession and control in a reasonably safe condition. (Civ. Code, § 1714;
Rowland v. Christian (1968) 69 Cal.2d 108.) In the case of a landlord, this general duty
of maintenance, which is owed to tenants and patrons, has been held to include the duty
to take reasonable steps to secure common areas against foreseeable criminal acts of
third parties that are likely to occur in the absence of such precautionary measures.
[Citations.]” (Ann M., supra, 6 Cal.4th at p. 674, italics added; accord, Sharon P., supra,
21 Cal.4th at p. 1189.)
       Unfortunately, “random, violent crime is endemic in today’s society. It is
difficult, if not impossible, to envision any locale open to the public where the occurrence
of violent crime seems improbable.” (Ann M., supra, 6 Cal.4th at p. 678.) Thus, the
scope of the landlord’s duty “is determined in part by balancing the foreseeability of the
harm against the burden of the duty to be imposed. [Citation.] ‘ “[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.]’ [Citation.] . . . [D]uty in such circumstances
is determined by a balancing of ‘foreseeability’ of the criminal acts against the
‘burdensomeness, vagueness, and efficacy’ of the proposed security measures.
[Citation.]” (Id. at pp. 678-679.)




                                             2
       While it is settled that a landlord owes a duty of care to its tenants to take
reasonable steps to secure the common areas under its control, the specific issue in
Ann M. was whether a shopping center owner owed a duty to provide security guards in
the common areas. (Ann M., supra, 6 Cal.4th at p. 674.) In determining the owner’s duty
did not extend to hiring security guards, the Supreme Court weighed the expense of a
security patrol against the foreseeability of violent crime at that location and reasoned,
“The monetary costs of security guards is not insignificant. Moreover, the obligation to
provide patrols adequate to deter criminal conduct is not well defined. . . . Finally, the
social costs of imposing a duty on landowners to hire private police forces are also not
insignificant. [Citation.] For these reasons, we conclude that a high degree of
foreseeability is required in order to find that the scope of a landlord’s duty of care
includes the hiring of security guards. We further conclude that the requisite degree of
foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of
violent crime on the landowner's premises.” (Ann M., supra, 6 Cal.4th at p. 679,
italics added, fn. omitted.)
              b. In the instant case, as a matter of law, defendants owed a duty to
maintain the locks on the security gates in working order.
       This lawsuit does not seek to charge the landowner with the obligation to provide
security guards, a security measure which demands a high degree of foreseeability.
(Ann M., supra, 6 Cal.4th at p. 679.) Nor are we concerned with other relatively costly
security measures such as improved lighting or camera surveillance. (Sharon P., supra,
21 Cal.4th at p. 1189.) Instead, this case involves an inexpensive security measure,
namely, maintaining the locks on security gates in working condition, which imposes
only a slight burden on the property owner. Where “ ‘ “the harm can be prevented by
simple means, a lesser degree of foreseeability may be required.” ’ ” (Ann M., supra,
6 Cal.4th at pp. 678-679.)




                                              3
       The mere fact the subject property had security gates to control ingress and egress
does not assist Hunter in showing that criminal activity was foreseeable. Security gates
controlling access to common areas are required by statute (Civ. Code, § 1941.3,
subd. (a)(3)) and therefore are ubiquitous.2 Accordingly, the presence of security gates
does not tend to show that criminal activity was foreseeable at the subject property.
       Although Hunter sought to present crime database evidence below, the trial court
sustained defense objections thereto, and Hunter has not attacked the trial court’s
evidentiary rulings on appeal.
       However, other evidence by Hunter which came in without objection below, and
which was cited in the opposing separate statement, consists of the following:
       (1)    Hunter’s deposition testimony, stating there were always “undesirables”
coming in to the building.
       (2) Hunter’s deposition testimony further provided: Somebody had tried to break
into the apartment of his neighbor, Tia Fox, via her balcony. Fox had made a complaint
and was waiting for someone to follow through.
       (3) Rosa Castro lived in the same building as Hunter and worked for the landlord
as a “keyholder” who gave keys to tenants. A police report stated that Castro told a
detective that a day before the incident, she saw two men climbing over the rear fence.
The police report states “possibly the suspects were making a dry run.”
       There is no “ ‘mechanical’ ” prior similar incidents rule. (Ann M., supra, 6 Cal.4th
at p. 677.) In view of all the circumstances shown above, and given the slight burden to
the landowner of ensuring a lock is in working order, third party criminal activity was
sufficiently foreseeable to charge defendants with the duty to ensure they had functioning
locks on the security gates in the common areas.


2
       Violation of Civil Code section 1941.3 does “not broaden, limit or otherwise affect
the duty of care owed by a landlord pursuant to existing law, including any duty that may
exist pursuant to Section 1714.” (Civ. Code, § 1941.3, subd. (d).) Similarly, a landlord’s
omission with respect to security gates failure only gives rise to a habitability violation.
(L.A. Muni. Code, § 153.02.) Thus, these provisions do not give rise to tort liability.

                                             4
       3. Whether defendants breached the duty to maintain the common area locks in
working order presents a triable issue of material fact.
       The deposition testimony of one of the assailants, Robert Burns, stated the security
gates at the building “were usually either open or broken.” Further, Hunter testified at
deposition that he specifically recalled the gate was incapable of being locked on the day
before the home invasion incident.
       The evidence further showed that for months prior to the incident, Hunter
repeatedly telephoned the property manager to complain the locks on the security gates
were broken.
       The above is sufficient to raise a triable issue of material fact as to whether
defendants breached their duty of care by failing to maintain the locks on the security
gates in working order.
       4. Causation.
       Defendants contend the record lacks any evidence their alleged failure to repair the
locks was the legal cause of Hunter’s injuries. The argument is meritless.
Defendants did not move for summary judgment on the ground of lack of causation.
Therefore, in resisting summary judgment, Hunter was not required to present any
evidence with respect to causation.
       In sum, because defendants owed a duty, as a matter of law, to ensure the common
area locks were functional, and a triable issue exists as to whether defendants breached
said duty, I would reverse the grant of summary judgment.




       KLEIN, P. J.




                                              5
