Thursday, January 25, 2007
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C.A. Revives Rape Victim’s Legal Malpractice Claim
Panel Says Plaintiff Might Have Won Underlying Suit on Premises Liability
By a MetNews Staff Writer
A tenant who lost her suit against the owners and managers of the apartment complex at which she was raped has a viable malpractice claim against the lawyers who represented her in the matter, the Fourth District Court of Appeal ruled yesterday.
San Diego Superior Court Judge Jacqueline M. Stern erred in granting summary judgment against legal malpractice plaintiff Celia Ambriz on the basis that she would not have prevailed in the underlying action, Div. One concluded.
Ambriz filed a malpractice action in November 2004 against Newport Beach attorneys Mark Kelegian and Thomas Morgan and the firm of Kelegian, Reed & White, after her premises liability action against the owners and managers of the Casa Escondida apartment complex in Escondido was dismissed on summary judgment.
She had sued Casa Escondida after being assaulted and raped January 2002 by a transient who had entered the 330-unit complex without permission. The complex, she claimed, owed her a duty to better secure the premises from intruders.
Though she had been told the premises was a “secured community,” the entry gate was often left open and various entrances to the building did not close and lock properly, despite residents’ complaints that it be fixed, Ambriz alleged.
She also claimed the rapist had allegedly been seen around the complex on numerous occasions over a period of eight months prior to the rape, and that management did nothing about his presence after she notified them he was scaring her.
According to the police, the rapist more likely than not entered the building through an open door because there was no evidence of a forced entry.
In the malpractice suit that followed the dismissal of her suit against Casa Escondida, Ambriz alleged her lawyers’ representation in the underlying case fell below the applicable standard of care.
After initially meeting with Kelegian, she saw him only on one other occasion, her deposition, she claimed. When she showed up to court for trial as instructed in a letter from Kelegian, the lawyer never arrived and left her to wait for three hours before she finally learned her case had been dismissed.
The lawyers moved for summary judgment, claiming that Ambriz could not have established Casa Escondida owed her a duty to better secure the premises from intruders in any event, and thus they could not be liable for malpractice.
Stern agreed, finding Ambriz did not proffer sufficient evidence to create a triable issue as to whether the complex’s failure to properly maintain its doors and locks was a substantial fact in causing her injury.
But Justice Aaron, writing for the court, said:
“In view of the repeated security breaches and the known presence of unauthorized male intruders, a violent attack by an intruder was sufficiently foreseeable that Casa Escondida had a minimal duty to properly maintain the locks on the doors and gates to the complex and its buildings.”
The case is Ambriz v. Kelegian, D046453.
Copyright 2007, Metropolitan News Company