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L&B;Real Estate v. Superior Court of Los Angeles11/23/1998
CERTIFIED FOR PUBLICATION
(Super. Ct. No. SC039125)
ORIGINAL PROCEEDING; petition for writ of mandate. Bob T. Hight, Judge. Writ denied.
Petitioners seek a writ of mandate directing the superior court to set aside its order denying their summary judgment motion. The question presented is whether testimony from a criminal trial may be used to support a motion for summary judgment filed in a civil case when the testimony is subject to an objection lodged pursuant to Evidence Code section 1292. We conclude it may not, and that this petition must, therefore, be denied.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff in this wrongful death action is real party Barbara Schwab, the mother of decedent Anitra Jolie Watson who was killed in an apartment owned by petitioners L&B;Real Estate and William Little (hereafter "L&B;). Watson was either participating in an attempted robbery at the time she was killed, or was on the premises for some other purpose.
The complaint alleges that L&B;rented an apartment to an individual who identified himself as "Sam Davis," and that drugs were being sold from the apartment. L&B;allegedly knew about this criminal enterprise, and that the "potentially violent criminals" who were on the premises posed a danger to any person who came onto the premises. L&B; however, took no action to abate the danger. Real party further alleges that her daughter (Watson) was invited to go to the property by two male acquaintances; that she did not know the property was occupied by criminal conspirators who were using the property for an unlawful criminal activity; and that she did not go to the property to engage in criminal activity.
L&B;moved for summary judgment contending that the wrongful death action is barred by Civil Code section 847 which provides that a real estate owner is not liable to any person for any death that occurs upon the property during the course of a robbery. In other words, L&B;claimed it owed no duty to Watson because she was on the apartment premises to commit a robbery.
In support of its motion, L&B;offered transcript testimony from the criminal prosecution of Deon L. Holt, one of the individuals L&B;alleges conspired with Watson to commit the attempted robbery. Also submitted was the deposition transcript of the lead investigating officer. These documents set forth Holt's version of what transpired on the night Watson was killed. Holt testified that he and Watson and a third party (hereafter referred to as "Phillips") conspired to rob Gladden, a local drug dealer. The plan was for Watson to make a purchase and then return to her car parked nearby. She would then feign car trouble, return to the drug dealer's apartment and gain entry by asking to use the telephone, ostensibly to seek help with her car. Watson would then allow Phillips and Holt to enter, and they would proceed to relieve the drug dealer of his drug supply and any cash that might be present. Watson, armed with a handgun, did gain entry. Once inside, the plan went awry. Holt, outside the apartment with Phillips, heard Watson cry out for help and then heard two gunshots. Holt stayed in the alley for approximately 15 minutes, waiting for Watson to appear. When she did not appear, he walked home, a journey of approximately 15 miles, and later, being uncertain of her fate, attempted to contact Watson by paging her. Watson's body was discovered the following day.
In addition to the foregoing evidence, L&B;presented real party's deposition testimony wherein she testified that she has no knowledge of what actually transpired at the time her daughter was shot to deat
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