Here is an excerpt from the facts recitation in a successful appeal from SJ:
At the time of Ambriz’s rape, three of the four entrances to Ambriz’s building did not close and lock properly because the mechanisms on the entrance doors were broken. Residents had complained, but the doors were not repaired. The rapist was a transient who had been seen around the complex on a number of occasions over a period of more than eight months prior to the rape. He was often found sleeping on benches within the Casa Escondida complex. The transient regularly asked the residents, including Ambriz, for money. In December 2001, he became more aggressive and began to frighten Ambriz and other tenants. That month, Ambriz complained to the management that the doors to the buildings would not lock and that this transient was scaring her. Ambriz was told that management would “take care of it.” A police detective who investigated Ambriz’s rape testified that the lack of evidence of a forced entry indicated that it was more likely than not that the rapist had entered the building through an open door. …
Mythago notes:
I’ve had some very trying days in Law & Motion, but nothing as breathtakingly WTF?! as Celia Ambriz. Among the many forehead-slapping errors committed, the trial court had agreed with respondent that certain depositions were inadmissible–even though the respondent used the very same depositions as exhibits to its motion for summary judgment.
Mythago was being circumspect. Here’s what the appellate court said:
There are a number of reasons why the court should have overruled the respondents’ other objections to this evidence. First, the objections based on Ambriz’s attorney’s failure to attest to personal knowledge of the deposition excerpts, lay a foundation, or authenticate the excerpts are without merit. The respondents presented excerpts from the same deposition in support of their motion for summary judgment. (Cf. Evid. Code, § 1414 [“A writing may be authenticated by evidence that: [ ¶] (a) The party against whom it is offered has at any time admitted its authenticity; or [ ¶] (b) The writing has been acted upon as authentic by the party against whom it is offered”].) The respondents admitted the authenticity of the transcript of Detective Pitcher’s deposition by seeking to use portions of that deposition in support of their motion for summary judgment. Raising an objection as to lack of authentication of an excerpt from the same deposition defendants themselves relied upon in their motion is disingenuous, unless defendants can establish that the excerpt Ambriz offered was not part of the deposition transcript. Respondents made no such allegation. Further, Ambriz’s attorney attested under penalty of perjury, that the copies of the documents lodged constituted “true and correct copies of what they purport to be.” This was sufficient to overcome the respondents’ generic objections to this evidence. Additionally, Ambriz’s attorney could have easily cured these perceived problems if given the opportunity to do so. At oral argument, Ambriz’s attorney offered to do just that, but the court denied her request. The court’s responses to Ambriz’s counsel during oral argument on the tentative evidentiary rulings indicate that the court was growing impatient with counsel’s attempt to address all of the respondents’ objections and did not want to spend more time on the evidentiary issues. …
At least now Ambriz will get a trial on the merits of her claim.
